The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
Pending before the Court in the above-entitled matter are the Defendants' motions for summary judgment (Dkt. Nos. 107 and 109). Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.
This case involves two different incidents with the Plaintiff Kevin Mays ("Mays") and law enforcement personnel. The first incident occurred on December 23, 2006, when City of Lewiston police officers responded to a dispatch call from Angel Harrell who indicated Mays was going to kill himself and that he may be in possession of a firearm. Officer Rigney responded to the dispatch call and interviewed Ms. Harrell. Officer Rigney was assisted by Officer Stobie, Sgt. Blair and two Nez Perce County Sheriff's Deputies Rodriquez and Hildebrand. The officers placed Mays' children in the temporary custody of his girlfriend, Ms. Harrell, and intended to locate Mays to conduct a welfare check on him.
One of the Mays' children received a cell phone call from Mays or Officer Stobie called Mays at the cell phone number provided by the child. Regardless, Officer Stobie talked with Mays who was riding in a cab driven by a friend of Mays. Mays claims he denied on the phone that he was suicidal or had a gun. Officer Stobie does not recall asking Mays prior to the search if he had a firearm. Officer Stobie instructed the cab driver to pull over and let Mays out of the cab at a parking lot by the Lunchbox Deli. The other law enforcement officers and deputies converged on this location. Mays was told over the cell phone by Officer Stobie that upon leaving the cab he should raise his arms to show he was not armed to the officers on the scene. Mays complied. Mays is a large man over six feet tall and weighed over 200 pounds at the time of this incident.
The rest of the stop and the use of force in restraining Mays appears to be contested. The officers claim Mays was approached by Sgt. Blair and instructed to lie down on the ground in a prone position. The officers on the scene indicate Mays initially did not comply, but then did so. Sgt. Blair remembers guiding Mays to the ground and onto his stomach in the prone position.
Mays claims Sgt. Blair ran towards him with his taser drawn. Sgt. Blair agrees he had his taser drawn , but says he holstered his taser when he saw the two sheriff's deputies arrive on the scene as backup. Deputy Hilderbrand admits in his affidavit he had his taser drawn and was instructing Mays to get on the ground and was the cover officer for Sgt. Blair.
Mays was searched by Sgt. Blair and no gun was found. Mays did tell Sgt. Blair he had a pocket knife which was removed from his person by the officer. Deputy Rodriguez states in his affidavit that he saw a scuffle between Mays and Sgt. Blair while Mays was on the ground in the prone position. Upon seeing the scuffle, Deputy Rodriguez attempted to help Sgt. Blair handcuff Plaintiff. Rodriguez admits he used standard procedure of placing his knee in Mays' back and began pulling on his arm. Rodriguez remembers seeing a taser near his right knee and then Mays suddenly became compliant and was handcuffed. The officers represent they were observing Sgt. Blair search Mays and after Mays appeared to be resisting the officer by not removing his arms from under his body to be handcuffed, the cover officers swarmed Mays and grabbed different parts of his body. That is when Deputy Hilderbrand used a taser in drive stun mode on Mays' back. Sgt. Blair agrees Mays was tased by one of the Sheriff's deputies and that he could not recall a verbal warning about the use of the taser before it was used by the deputy.
Sgt. Blair assumed Mays had a firearm based on the information provided earlier. Sgt. Blair admits he did not find a firearm on Mays. It is unclear to the Court whether the other responding law enforcement officers knew no firearm was found on Mays or whether they still considered him potentially armed when the officers say they swarmed Mays.
Mays claims he was complying with the officers instructions when all of a sudden he was tackled from behind, handcuffed and then searched. Mays claims he was hit with something, but he does not know what it was but that he knows his injuries on his face were from more than just hitting the asphalt. Mays also claims he was beat and kicked by the officers.
The responding officers maintain Mays hit the right side of his head on the ground when the officers swarmed and that no flashlight or beating of Plaintiff occurred. Defendants do not dispute that different officers were holding down Plaintiff and one had his knee in Mays back to restrain him and that Mays was tased in his back by Deputy Hilderbrand who thought Mays might be struggling to get a weapon, so he deployed is taser. Deputy Hilderbrand was a graduate of POST training and received taser training as part of his training to be a law enforcement officer. Deputy Hilderbrand was re-certified on use of a taser on February 7, 2005.
After Mays was restrained and handcuffed he was asked about being suicidal and having a firearm. He denied both allegations. The officers noted a small cut near Mays' right eye. Mays was taken by ambulance to the hospital for medical treatment. Mays was not arrested by any law enforcement officer. Mays was charged by citation with resisting arrest and obstruction of justice. He was not arrested on the charges and was found not guilty of such charges.
The hospital medical records (Dkt. No. 115-17) indicate Mays received stitches for the cut 2.5 cm in length near his right eye, a CT scan of his head and an x-ray of his jaw. There was no evidence of intercranial injury or fracture of the jaw. The medical records also indicate that Plaintiff informed the medical staff that he was hit on the head and face with a flashlight. The treating medical personnel noted on the medical records the Plaintiff smelled of alcohol and admitted to drinking. Plaintiff informed the doctor he had been diagnosed with a "brain aneurysm" at Tri-State Memorial Hospital some time ago, but the CT scan obtained from Tri-State Memorial Hospital did not show evidence of an aneurysm, but only an area of encephalomalacia (softening of brain tissue) in the left frontal lobe. It is undisputed that Mays suffered two black eyes and other bruising after the incident with law enforcement officers. Mays claims his teeth were also damaged due to the incident.
Mays testified he did not know any of the law enforcement officers prior to the incident on December 23, 2006. Mays alleges the law enforcement officer acted with malice or criminal intent to harm him. None of the responding law enforcement officers claim any prior knowledge of Mays.
Plaintiff claims his eyesight and cognitive abilities were impacted by the alleged excessive force used by law enforcement officers. Defendants' experts claim Plaintiff injured his right side of his face where he received stitches, not the left side and any damage caused to the left side was due to an accident on April 30, 2006 (for which he sought medical treatment on May 2, 2006) when Mays fell off a porch hitting the left side of his head on a truck bumper. That fall caused a sub-dural hematoma and caused Mays vision problems, including but not limited to hair-like lines in his vision, double vision and blurry vision. Defendants experts claim Mays' vision is normal and that other damage to his vision or cognitive abilities is not due to the events on December 23, 2006.
Specifically, Defendant's experts opine that vitreous floaters were caused by a trauma to the left side of Mays' face and that no brain or head injuries occurred as a result of the incident on December 23, 2006. Plaintiff's expert, Dr. Corgiat, does not opine that any closed head injuries were the result of the incident on December 23, 2006.
It is unclear from the record whether the alleged damage to Mays' teeth was caused by this incident or a prior accident. It is undisputed that Mays suffers from some cognitive injuries. It appears disputed whether there is medical evidence to support that the excessive force incident in 2006 is a cause for the cognitive injury sustained by Mays. The medical evidence seems to support that while prior events may have impacted Mays, it was the events of November 2008 that led to the cognitive deficiencies that Mays currently suffers from.
The second incident occurred while Mays was a pre-trial detainee at the Nez Perce County Jail ("Jail") on November 7 -16, 2008. It is undisputed that Mays was lawfully detained at the Jail on charges of stalking, a felony, and a violation of a civil protection order, a misdemeanor. A timeline of the supervision and medical care Mays received while in the custody at the Jail is set forth below and does not appear to be disputed by Plaintiff:
1. On Friday, November 7, 2008, Detention Deputy Matthew White booked Mays into the jail and asked him medical history questions. Plaintiff did not indicate he had a problem with drug dependency or alcoholism. Plaintiff's statement of facts indicates that Mays suffered from chronic alcoholism and this fact was known to jail personnel since Mays had been jailed on previous occasions.
2. Mays appeared before a magistrate judge on November 10, 2008 and the matter was set for preliminary hearing on November 19, 2008.
3. On Friday, November 14, 2008, Mays woke up at 3:30 a.m. complaining he had been bitten by a snake and that he had a dead snake in his towel. Plaintiff was shown by Deputy Matthew White there was no snake and he was moved to the day room to sleep until wake up at 5:30 a.m.
4. On Friday afternoon at approximately 1:55 p.m., Deputies Rome and Gunther did cell checks and Mays complained there were bugs in his cell (which he had done three time since 1:00 p.m.). His cell was checked and not bugs were found. Mays made no other complaints on Friday November 14, 2008.
5. On Saturday, November 15, 2008, at around 1:30 a.m. Mays complained there were cats in his cell that were biting him. Mays requested to go to the hospital to get medical care for the cat bites. Deputy Jody Brown, along with two other deputies, examined Mays and found no indication of injury of any kind. Deputy Brown did observe Mays shaking and combined with the hallucinations, thought he might be detoxing so noted in the jail log he should continued to be monitored.
6. At 3:00 a.m., Mays became destructive and was throwing books at a jail observation camera and was observed hitting his arm against the table with some force. Deputy Brown along with other jailers responded to the destructive behavior. Plaintiff pushed a hallway gate with such force it bent the gate. Mays complained of a conspiracy by the jailers to harm him and that bugs were crawling on his body. Plaintiff was placed in a secure single person cell in order to closely monitor his behavior. Mays calmed down and at 3:22 a.m. Deputy Brown noted in the jail log that Mays was no longer complaining. Deputy Brown also noticed Mays' arm which appeared bruised and swollen from when Mays had been hitting the table.
7. At 8:00 a.m., after the change in the shift of the jailers, Mays started throwing water out of the observation port of his cell. Deputy Jacob Gunter made contact with Mays and Mays complained of snakes and crabs in his cell and that he thought the jailers were gassing him. Plaintiff was observed standing on his bed to mess with the overhead light and said he was going to kill himself. Deputy Gunter immediately placed Mays on suicide watch. Mays continued ranting. A Suicide Watch Journal was maintained from 7:51 a.m. on November 15, 2008 until 8:20 p.m. on November 16, 2008. Every time a jailer walks by the cell, the jailer is to write the date, time, initials and description of inmate's status in the cell.
8. No further reports of Mays trying to hurt himself were reported in the jail logs, Mays took both lunch and dinner, talked with jailers and stood by the door to his cell.
9. At 10:00 p.m., Deputy Brown returned to work and was concerned about Mays' bruised hand and forearm from the previous day. Deputy Brown contacted the Lewiston Ambulance to have medics examine Mays. Plaintiff was examined by a paramedic and an advanced EMT who determined Plaintiff was very irrational, but had full range of motion with no pain. The medics did not make any findings about whether or not Mays was detoxing from any substance. Rather, the medics primary impression was Mays had a behavioral or psychiatric disorder. The medics did not recommend Plaintiff be transported to the hospital for any treatment.
10. Deputy Brown's supervisor was not available, so she consulted with the patrol officers who had responded to the jail Sgt. Kevin Wilson and Deputy Joe Rodriguez. Sgt. Wilson determined Mays should go to the hospital.
11. On Sunday, November 16, 2008 at around 12:15a.m., Mays was transported to St. Joseph Regional Medical Center. Rodriguez informed the hospital staff regarding Plaintiff's alcohol intake which he had observed during the incident in June 2006.
12. Dr. Jay Hunter examined Mays and determined that while Mays was experiencing some hallucinations, he was oriented as to person, place, time and situation. After the physical examination, x-rays were taken which showed his wrist was not fractured, a CBC (complete blood count) and a CMP (comprehensive metabolic panel) were ordered and Mays was given 100mg of thiamine IM and discharged back to the jail with instructions to return for a follow up on Monday, November 17, 2008. Dr. Hunter concluded Mays was probably suffering from alcoholic hallucinosis, but that he did not see overt signs of withdrawal, Mays was not toxic and vital signs were normal.
13. Mays returned to the jail at approximately 1:45 a.m. The jail logs indicate Mays was to return to the hospital on Monday for more lab tests. Mays showered and was returned to cell South One without incident by Deputy Julie Frost.
14. At 2:45 a.m., Deputy Brown observed Mays acting "incoherent.' It was also noted on the watch journal that Mays was still hallucinating and talking to imaginary people. Deputy Brown's shift ended at 8:00 a.m. and Deputy Brown had no further contact with Mays.
15. Deputy Gunter and Deputy Smith worked from 7:30 a.m. to 5:30 p.m on Sunday, November 16th. Deputy Martin and Trainee Deputy Romer worked the swing shift starting at 1:00 p.m. and going until 11:00 p.m. on Sunday. All of these deputies reviewed the jail log entries that had been made since they were last on shift and were aware Mays had been taken to the Emergency Room and was to return for follow up on Monday, but no further medical instructions were communicated to jail personnel..
16. Early Sunday afternoon, Deputy Gunter heard banging coming from Mays' cell. Deputy Gunter checked on Mays and noticed he had a small cut above his eye that had scabbed over so no treatment was necessary.
17. At around 1:40 p.m. Deputy Martin heard yelling and she and Trainee Deputy Romer responded to Mays' cell where they observed Mays hit his head on the wall of his cell and then continually push against the wall. When asked to stop, Mays smiled and keep doing the same actions. Deputies Smith, Gunter and Richardson arrived to assist. Plaintiff continued to yell and hit his head on the wall. There was urine on the floor and Mays claimed someone had urinated on his photos in his cell. The deputies determined that in order to prevent Mays from harming himself, he would be placed in the restraint chair. A mandatory watch was placed on Mays every 10-15 minutes until he is removed from the restraint chair by Deputy Gunter.
18. At 2:12 Deputy Gunter, noticed a cut above Mays' left eye. Mays would not give the deputy information about the cut, but the deputy determined the cut was non-life ...