United States District Court, E.D. Louisiana
MARGARET GOETZEE NAGLE, ET AL.
SHERIFF MARLIN GUSMAN, ET AL
Decided: November 17, 2014.
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For Margaret Goetzee Nagle, John Eric Goetzee, Plaintiffs: Mary E. Howell, LEAD ATTORNEY, Mary E. Howell, Attorney at Law, New Orleans, LA; Alexandra L Lampert, Barry C. Scheck, Danielle Ophelia Hamilton, Emma Freudenberger, Farhang Heydari, Nick J. Brustin, Neufeld Scheck & Brustin, LLP, New York, NY.
For Marlin N. Gusman, Sheriff, Samuel Gore, Dr., Charles Higgins, Dr. also known as Mike Higgins, Jose Ham, Dr., Mary Anne Benitez, Darryl Jackson, Nurse Wallace, LPN, S. Pembo, S. Batiste, David Schaible, E. Bargky, C Johnson, FNP, Carlos Louque, Warden, Nicole Harris, Sgt., Everett Marshall, Sgt., Michael Williams, Deputy, Shelia Crader, Deputy, Dr. Dileo, Defendants: Freeman Rudolph Matthews, LEAD ATTORNEY, Blake J. Arcuri, Timothy R. Richardson, Usry, Weeks & Matthews, New Orleans, LA; Inemesit U. O'Boyle, James McClendon Williams, Gauthier, Houghtaling & Williams, Metairie, LA.
For William Thompson Deputy, Defendant: Freeman Rudolph Matthews, LEAD ATTORNEY, Usry, Weeks & Matthews, New Orleans, LA; Inemesit U. O'Boyle, James McClendon Williams, Gauthier, Houghtaling & Williams, Metairie, LA.
ORDER AND REASONS
SARAH S. VANCE, UNITED STATES DISTRICT JUDGE.
On July 23, 2012, Margaret Goetzee Nagle and John Eric Goetzee (plaintiffs) filed this section 1983 civil rights suit and state law wrongful death and negligence suit against numerous employees of the Orleans Parish Sheriff's Office, including Sheriff Marlin Gusman and Deputy William Thompson. Plaintiffs are the siblings and next of kin of William Wesley Goetzee (Mr. Goetzee). Mr. Goetzee was a commander in the United States Coast Guard Reserve and a civilian employee of the Coast Guard who committed suicide on August 7, 2011 while being held as a pretrial detainee on the tenth floor of the House of Detention at Orleans Parish Prison (OPP) on charges related to a suicide attempt five days earlier. On the day of Mr. Goetzee's death, Thompson, the guard who had been assigned to maintain direct observation of Mr. Goetzee, repeatedly left
his post. It was during one of these absences that Mr. Goetzee committed suicide.
All defendants except for Thompson answered plaintiffs' complaint. On January 4, 2013, plaintiffs moved for an entry of default against Thompson. The Court entered a default against Thompson that same day. Plaintiffs now move the Court to enter a default judgment against Thompson for their state law tort claims and section 1983 claim. In the alternative, plaintiffs move for summary judgment against Thompson.
In addition, plaintiffs move for partial summary judgment against Defendant Sheriff Gusman on their state law claim for vicarious liability for Thompson's tortious misconduct and on part of their federal claim against Gusman, in his official capacity, under 42 U.S.C. § 1983 and Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
For the following reasons, the Court GRANTS the motion for partial summary judgment against Thompson and the motion for partial summary judgment against Sheriff Gusman.
This action arises out of the August 7, 2011 suicide of plaintiffs' brother, Mr. Goetzee, while he was in custody at OPP as a pretrial detainee on charges related to a suicide attempt five days earlier.
Plaintiffs allege that Mr. Goetzee experienced a " profound mental health crisis and breakdown" while working in " highly responsible and high-stress positions with the Coast Guard,"  including " working around the clock during and following both Hurricane Katrina and the BP oil spill."  On the morning of August 2, 2011, Mr. Goetzee approached a marked Federal Protective Services vehicle occupied by a uniformed law-enforcement officer. Mr. Goetzee opened the front passenger door, entered the vehicle, and seated himself in the front passenger seat. The officer asked Mr. Goetzee why he thought he could just sit down in his vehicle. At that point, Mr. Goetzee took several deep breaths and lunged for the officer's service weapon, exclaiming, " I want to kill myself, give me your gun."  The officer, with the assistance of several other federal law enforcement officers, subdued Mr. Goetzee and placed him in handcuffs. Mr. Goetzee was then transferred by ambulance to Tulane Medical Center.
After Mr. Goetzee received treatment for physical injuries related to his encounter with the federal officers, Tulane Medical
Center released him. Plaintiffs allege that while Mr. Goetzee's fiancee was in the process of arranging for appropriate mental health care for him at East Jefferson Hospital, federal agents picked Mr. Goetzee up and transported him to OPP. Mr. Goetzee was booked into OPP at approximately 9:00 P.M. on August 2, 2011.
The next day, prison officials brought Mr. Goetzee to federal court for his initial appearance on charges related to his conflict with the federal officer during his suicide attempt the day before. At Mr. Goetzee's initial appearance, Mr. Goetzee's attorney explained to the court that when he had tried to meet with Mr. Goetzee before the appearance, " [h]e was unresponsive and obviously having mental issues."  That same day, while still in custody, Mr. Goetzee was admitted to University hospital to " rule out delirium."  He was discharged two days later on August 5, 2011 with a diagnosis of psychosis and transferred back to OPP. At OPP, Mr. Goetzee was placed on the tenth floor of the House of Detention, where OPP housed all of its inmates on suicide watch.
On August 6 and 7, 2011, Mr. Goetzee was under direct observation and suicide watch. This meant that an Orleans Parish Sheriff's Office employee was required to " maintain direct and constant observation" of Mr. Goetzee at all times. Orleans Parish Sheriff's Office training materials taught that one of the two " greatest myths" about suicide is the myth that " [y]ou can't stop someone who is truly set on killing themselves."  Orleans Parish Sheriff's Office training materials also indicated that failure to observe a suicide watch inmate would be an example of a " wrongful death" tort. In addition, at the time of the events giving rise to this action, it was Orleans Parish Sheriff's Office policy that " all inmates with active suicidal ideation . . . be directly observed by the Security staff at all times" because " the few moments required to successfully commit suicide necessitates continuous, direct observation." 
On the morning of August 7, 2011, Thompson, a commissioned deputy with the Orleans Parish Sheriff's Office, was assigned to conduct direct supervision (a.k.a. suicide watch) of Mr. Goetzee. During his suicide watch shift, Thompson
left his post at least three times, leaving Mr. Goetzee unobserved each time: first, to help another employee distribute meals to other inmates; second, to take a restroom break; and third, to visit the nurses' station. During these absences, Mr. Goetzee went unobserved for an hour and a half, fifteen minutes, and two hours respectively. No other staff took Thompson's place observing Mr. Goetzee during the times when Thompson abandoned his post.
During Thompson's final absence, which he spent in the nurses' station, an inmate notified another on-duty officer that Mr. Goetzee was lying on the floor of his cell, unresponsive. When New Orleans Emergency Medical Services personnel arrived, they were unable to revive him. He was then pronounced dead at LSU Interim Hospital. Mr. Goetzee had asphyxiated after his airway became blocked by a wad of toilet paper. When the coroner autopsied Mr. Goetzee, he found toilet paper in at least four locations in Mr. Goetzee's body. Specifically, the coroner recovered a " bolus of toilet paper" that obstructed Mr. Goetzee's airway and " residual masticated paper" from Mr. Goetzee's mouth, esophagus, and stomach.
After Mr. Goetzee died, the OPSO Mental Health Director, Dr. Higgins, performed a " Psychological Autopsy" in which he assessed the events surrounding Mr. Goetzee's death. He concluded: " Mr. Goetzee was treated appropriately by the OPSO Medical Department. He was ordered Direct Observation. . . . Medical had continued the order for direct observation up until the time of his death; however security failed to provide the continuous observation allowing Mr. Goetzee to kill himself." 
As a result of these events, Thompson later pleaded guilty to the felony crime of malfeasance in office. While under oath, and as part of his plea, Thompson accepted the state's factual basis for the charge. The factual basis specified that Mr. Goetzee was under suicide watch on August 7, 2011; that OPSO policy required detainees under suicide watch to be continuously monitored and for an " observations and restraint checklist" to be maintained for each such detainee; that Thompson was assigned to continuously monitor Mr. Goetzee beginning at 10:20 A.M. on August 7, 2011; that Thompson left his post three times during his assigned shift for one and half hours, fifteen minutes, and two hours, respectively; that Mr. Goetzee was discovered unconscious by another inmate at around 5:45 P.M., when Thompson was not monitoring him; that Mr. Goetzee died of swallowing toilet paper; and that Thompson had fraudulently submitted his observation checklist for August 7, 2011, because the checklist indicated that Thompson had continuously monitored Mr. Goetzee all day when in fact Thompson had not done so.
Defendant Thompson has also given a deposition in this case. At his deposition, Thompson stated that during the times when he was observing Mr. Goetzee, he never saw him with toilet paper. Instead, he expressed the belief that it was during the time when he was not observing Mr. Goetzee that Mr. Goetzee swallowed the toilet paper.
II. LEGAL STANDARD
Summary judgment is warranted when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014). When assessing whether a dispute as to any material fact exists, the Court considers " all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but " unsupported allegations or affidavits setting forth 'ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment." Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). " No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Simbaki, 767 F.3d at 481.
A. The Admissibility of Defendant Thompson's ...