Additionally, Rosario had been in a psychiatric hospital for 33 days before being committed to St. Charles, which is at least evidence of psychological instability. While the evidence is certainly not conclusive, a reasonable jury could determine that there was a strong likelihood that Rosario would attempt suicide. That is a fact-specific determination, one that the factfinder is better suited than this Court to make.
Because there are thus questions of fact as to whether Rosario had a serious medical need for the prescribed Ritalin and for mental health counseling and as to whether there was a strong likelihood that Rosario would attempt suicide, defendants' call for summary judgment on those grounds must be rejected. It is necessary, then, to turn to the "deliberate indifference" portion of the analysis.
Estelle and Farmer do not allow for recovery in situations such as this one unless the defendants displayed deliberate indifference to Rosario's serious medical needs or suicidal tendencies ( Popham v. City of Talladega, 908 F.2d 1561, 1563-64 (11th Cir. 1990) (per curiam)). As Farmer, 114 S. Ct. at 1978-80 pointed out, the Eighth Amendment standard is roughly equivalent to the notion of "recklessness" in the criminal law context. Deliberate indifference is thus a mental state beyond mere negligence, requiring a showing of conscious disregard of a known risk or condition. It contains both a subjective inquiry (id. at 1979) (did the official know
of the risk or condition?) and an objective inquiry (id. at 1982-83) (did the official take reasonable steps in response?). So for Bufano, Little or Brooks to be held liable, he or she must have known of Rosario's serious medical needs or strong suicidal tendencies (or both) and must have acted in conscious disregard of that need or risk by failing to take reasonable steps in response.
Defendants urge that neither Bufano nor Little knew that there was a strong likelihood that Rosario would attempt suicide. As for Brooks, they contend that he cannot be held liable because he was not "personally involved" with Rosario's case. This opinion will consider each defendant's arguments in turn.
Bufano insists that she did not know that there was a strong likelihood that Rosario would attempt suicide. She points to the fact that none of the hospital personnel she interviewed indicated that Bufano posed a suicide risk, and she also contends that neither the handwritten discharge summary nor the Zafiris letter says anything about Rosario being a suicide risk. Finally she also asserts that because Viero had not signed a release for her to obtain Rosario's medical records at Hartgrove, she was precluded from accessing any information that might have revealed that Rosario was a suicide risk.
But all of that impermissibly ignores the fact (and it is a fact for purposes of the present motion) that Viero specifically warned Bufano that Rosario needed to be watched closely because of his previous threats of suicide (Viero Aff. P8-9). Bufano's only purported counter to that is that Viero neither said such things to her nor tried to give Bufano Rosario's Ritalin prescription. But elementary summary judgment principles reject the notion that this sort of "you did/I did not" exchange can be resolved at the summary judgment stage. Bufano tells one story and Viero tells another, and the decision about who is telling the truth is for the factfinder after hearing all the evidence, not for this Court on a paper record.
For Rule 56 purposes it must be accepted that Viero put Bufano on notice that Rosario was a substantial suicide risk.
As for Viero's prospect of a lesser recovery (see n. 18), Bufano is not entitled to summary judgment because a jury could reasonably conclude that Bufano knew that Rosario had serious medical needs. She was well aware that Rosario had spent 33 days in Hartgrove, and she knew from the handwritten discharge summary and from Zafiris' letter that Rosario was supposed to continue taking Ritalin and to receive mental health counseling after being discharged. And it will be recalled that Viero tried to give Rosario's Ritalin prescription to Bufano, something that a jury could view as buttressed by Bufano's own admission that she knew Rosario was supposed to continue taking Ritalin upon discharge (Bufano Dep. 45-47).
That then leads to the objective question of whether Bufano took reasonable steps in response to Rosario's medical needs and suicidal tendencies. All she did was to forward the packet of information to Department. Bufano claims that alone was enough--that she did all she needed to do and therefore should not be held responsible for anything that later happened to Rosario. But is that the only rational answer to the question of what a reasonable person would have done in the circumstances? Bufano did nothing whatever to call attention to the facts (that must now be treated as having been known to her) that Rosario presented a suicide risk or had special needs for medication and counseling. She did not, for example, draft a cover letter to go with the package or make any contact--written or oral--with anyone at Department. Because a reasonable jury could find that Bufano was aware of Rosario's serious medical needs and suicide risk but that she did not take any such reasonable steps in response, Bufano is not entitled to summary judgment.
In most respects Little's position parallels Bufano's: Her central assertions are that she did not know that Rosario posed a serious risk of suicide, and even if she did she took reasonable responsive steps. At the core of her argument is the contention that Rosario's two affirmative responses on the suicide screening questionnaire were just not enough to tip her off that Rosario posed a strong suicide risk.
Suffice it to say that a reasonable jury could come out the other way on that issue, as well as on the question whether Little knew that Rosario had serious medical needs. Recall that Rosario gave an affirmative answer to "Have you ever thought about hurting yourself?" Moreover, Rosario told Little that he was taking a "sm. white pill for nerves." Little's writing on the suicide screening form that Rosario last took the pill "@ Hosp." shows that she knew Rosario had been in the hospital (see also Viero Dep. 45). Finally and importantly, Viero must now be believed as to her phone conversation with Little during which she told Little of her "worries about [Rosario], his depression, his needs for medication for hyperactivity" and Rosario's "previous ideas of committing suicide" (Viero Aff. P11). Taken together, those ingredients could support a reasonable inference that Little knew about both Rosario's propensity for suicide and his serious medical needs.
That leads, then, to the objective question: Did Little take reasonable steps in light of that reasonably-inferred knowledge of Rosario's potential for suicide and his medical needs? Like Bufano, Little urges that she did all that was required of her when she checked the boxes on the bottom of the suicide screening questionnaire to indicate that Rosario should be referred to a mental health professional and to the crisis team leader.
Was that enough? That too is a question that a reasonable jury could answer in the negative. Little cannot recall if she asked any follow-up questions during the suicide screening (Little Dep. 30-31, 36-37). She does not disclaim her failure to ask, for example, "Which hospital?" or "Why were you in the hospital?" when Rosario told her he had last taken a small white pill for nerves at the hospital two days earlier.
Any deeper questioning in that respect would presumably have disclosed the incorrectness of Rosario's negative answer to the question "Have you ever been in a psychiatric hospital?" Similarly, Little apparently did not follow up on the inconsistency between Rosario's admission that he had taken medication for "nerves" and his contention that he was not feeling "sad, unhappy, upset, irritable, anxious." Those two responses are facially inconsistent, yet there is no indication that Little probed more deeply. Any information that she might have gleaned from further questioning and then recorded on the suicide screening questionnaire could well have affected an ultimate decision to put Rosario into the observation unit instead of into the general population.
Little also admits that she did not look at the packet of information prepared by Bufano, even though she "supposes" the packet was available to her (Little Dep. 39). Her reason for not looking at the materials was that she "was not the admitting counselor" (id.). Little also does not remember whether she orally relayed any information about Rosario to Gibson when she gave him the form, or whether she took any affirmative steps to see that Rosario either saw a mental health professional or received his medication (Little Dep. 30). Any or all of those things would seem to have been reasonable to do under the circumstances, but Little did not do any of them.
To summarize, a reasonable jury could also find that Little knew of Rosario's medical needs and suicide risks but did not act reasonably in response. Thus she too is not entitled to summary judgment.
Section 1983 does not impose vicarious liability on supervisors for constitutional torts committed by employees under their watch ( Monell v. Department of Social Serv., 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978)). Hence Brooks cannot be liable for the deprivation of Rosario's Eighth Amendment rights unless he personally knew of Rosario's serious medical needs or of the strong likelihood that Rosario would attempt suicide and unless he was nevertheless deliberately indifferent to those matters.
Viero admits that Brooks, effectively the chief administrative officer at St. Charles, was not personally involved in the care or supervision of Rosario (V. 12(N) P32). But Viero says (and it must now be accepted) that she had a phone conversation with Brooks that put Brooks on notice of Rosario's serious medical needs. During that conversation Viero told Brooks that Ritalin had been prescribed for Rosario at Hartgrove for a "nerve problem," that personnel at St. Charles refused to take Rosario's Ritalin prescription when Viero tried to bring it to St. Charles within a week after Rosario arrived there, and that she was worried about Rosario (Viero Aff. P15). Brooks then responded, "We'll take care of everything, don't worry about it" (id.). Brooks denies any such conversation (Brooks Aff. P2), and he also offers records from St. Charles that allegedly show that Viero did not visit Rosario until February 16, 1993 (D. Ex. 16).
Unlike the earlier discussion as to the other two defendants, Viero has provided no evidence (even with the most favorable inferences) that Brooks knew that there was a strong likelihood that Rosario would attempt suicide. Viero told Brooks only that she was worried about Rosario and that he was taking Ritalin for a "nerve problem," statements that cannot reasonably lead to an inference that Brooks knew Rosario was a suicide risk at all. Viero's argument that Brooks' conversation with Viero should have prompted Brooks to look at Rosario's file, which in turn would have shown Brooks that Rosario was a suicide risk, gives new meaning to the term "attenuated." At any rate, liability in prison suicide cases cannot be imposed unless there was knowledge of the risk, and clearly Brooks did not even arguably have any actual knowledge that Rosario posed a strong risk of suicide.
On the other hand, a reasonable jury could surely find that Brooks knew that Rosario had serious medical needs, specifically the need to receive the Ritalin that had been prescribed to him. That is a reasonable inference from Viero's account of her telephone conference with Brooks.
Brooks' response that he did not have a conversation with Viero, and his offer of proof that Viero did not try to visit Rosario at St. Charles until mid-February (the latter to controvert her claim that she tried to bring Rosario his pills in January), do not change the outcome. This is a classic example of contested facts: Viero tells one story and Brooks tells another. Such issues of fact must be decided by the factfinder, not by this Court on a motion for summary judgment.
Brooks' entire submission has been built around the contention that he had no knowledge of Rosario's medical problems--he offers no evidence that he did anything in response to the knowledge that could be ascribed to him. Thus Brooks does not claim that he personally looked into whether Rosario had ever received medication, or that he ordered one of his subordinates to do so, or even that he looked at Rosario's file.
By definition Brooks could not have been deliberately indifferent to a strong likelihood that Rosario would attempt suicide, for as already stated Viero has presented no evidence that Brooks knew that Rosario was a suicide risk. But on the other possible basis for a lesser recovery under Section 1983, a reasonable jury could find that Brooks knew of Rosario's need to receive the Ritalin that was prescribed to him but did nothing to look into the problem that Viero had pointed out to him. Thus Brooks' motion for summary judgment must also be denied, at least as to the lesser portion of Viero's claim.
In addition to urging that they are entitled to summary judgment on the facts, defendants also renew their argument that they are sheltered from liability by qualified immunity. Given the lack of effort put forth by defendants in that respect--they have simply repeated virtually word for word
the argument previously rejected by this Court (Opinion at 1394-95)--this opinion will not take much time in shooting it down again.
In thus renewing their qualified immunity argument, defendants miss the very point that caused them to lose the first time around. Let's try again. At the time of occurrence of the events that form the basis of Viero's claim (between January 1993 and March 1993), the cases discussed in the Section 1983 Prima Facie Case section of this opinion had clearly established that the Eighth Amendment prohibits prison officials from being deliberately indifferent to a prisoner's serious medical needs, including a strong risk of suicide. Defendants do not really dispute that, asserting instead (D. R. Mem. 16):
The record shows that at the time of the defendants' conduct there were no previously closely analogous cases putting them on notice that each's particular conduct violated John Rosario, Jr.'s clearly established statutory or constitutional rights.
This argument is futile, however, because once defendants concede that the law is "clearly established" and that the plaintiff must prove deliberate indifference, the issue becomes fact-intensive and any concept of qualified immunity falls out of the equation.
In its most basic form, qualified immunity means that state actors will not be held liable if their actions were objectively reasonable ( Anderson v. Creighton, 483 U.S. 635, 639, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987)). As already stated, the then-settled state of the law told defendants that they could not be deliberately indifferent to Rosario's medical needs and suicidal tendencies if they had knowledge of those facts--they had to take reasonable steps in response. How, then, was if possible for defendants to be objectively "reasonable" if they did not take the required reasonable steps in response to an inmate's serious medical needs or risk of suicide?
If a plaintiff has the potential to convince a rational factfinder through the available evidence that a defendant knew of an inmate's serious medical needs or strong suicidal tendencies and did not take reasonable steps in response, that defendant is entitled neither to summary judgment nor to qualified immunity. If however the plaintiff cannot show deliberate indifference in those terms, then defendant wins on the facts and does not need qualified immunity.
In other words, qualified immunity is a non-factor in Section 1983 cases where plaintiffs must prove deliberate indifference. As aptly summarized in Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir. 1992):
A finding of deliberate indifference necessarily precludes a finding of qualified immunity; prison officials who deliberately ignore the serious medical needs of the inmates cannot claim that it was not apparent to a reasonable person that such actions violated the law.