United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS SENIOR UNITED STATES DISTRICT JUDGE.
civil action the Plaintiff, Joey Harper, claims that while he
was incarcerated in the Dekalb County Jail (the
“Jail”) from July 12, 2014, until August 7, 2014,
the Defendants violated his rights “as a pretrial
detainee under the Fourteenth Amendment in violation of 42
U.S.C. § 1983” when they “were
deliberate[ly] indifferent to [his] serious medical
needs.” (Doc. 1 at 9, ¶¶55, 56) (Count One).
The Plaintiff also contends that the Defendants discriminated
against him because of a disability in violation of the
Americans with Disabilities Act, 42 U.S.C.
§§12101-12213 (the “ADA”). (Doc. 1 at
10) (Count Two). The Defendants are: Jimmy Harris, who was
the DeKalb County Sheriff at all relevant times; Lieutenant
Matt Martin of the DeKalb County Sheriff's Department
(the “Sheriff's Department”), who was the
Jail administrator at all relevant times; Dr. Robert
Theakston, MD, who worked as the Jail physician at all
relevant times and also served as the Jail's medical
director; Lieutenant Jonathan Langley, a member of
the Sheriff's Department, who worked at the Jail as a
registered nurse and the head of the medical department. The
Plaintiff also sues John Smith, Chris Black, and Darlene
Hulgan, all of whom worked at the Jail in the medical
department at all relevant times. All Defendants are sued in
their individual capacities only.
case comes before the Court on the Defendants' Motion for
Summary Judgment (the “Motion”). (Doc. 46). For
the reasons stated herein the Motion will be GRANTED
in part and DENIED in part.
Federal Rule of Civil Procedure 56, summary judgment is
proper if there is no genuine dispute as to any material fact
and the moving party 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 (1986) (“[S]ummary
judgment is proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”) (internal quotation
marks and citation omitted). The party requesting summary
judgment always bears the initial responsibility of informing
the court of the basis for its motion and identifying those
portions of the pleadings or filings that it believes
demonstrate the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. Once the moving party has
met its burden, Rule 56(e) requires the non-moving party to
go beyond the pleadings in answering the movant. Id.
at 324. By its own affidavits - or by the depositions,
answers to interrogatories, and admissions on file - it must
designate specific facts showing that there is a genuine
issue for trial. Id.
underlying substantive law identifies which facts are
material and which are irrelevant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable
doubts about the facts and all justifiable inferences are
resolved in favor of the non-movant. Chapman, 229
F.3d at 1023. Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Anderson,
477 U.S. at 248. A dispute is genuine “if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. If the evidence
presented by the non-movant to rebut the moving party's
evidence is merely colorable, or is not significantly
probative, summary judgment may still be granted.
Id. at 249.
movant may satisfy its initial evidentiary burden depends on
whether that party bears the burden of proof on the given
legal issues at trial. Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the
movant bears the burden of proof on the given issue or issues
at trial, then it can only meet its burden on summary
judgment by presenting affirmative evidence showing
the absence of a genuine issue of material fact - that is,
facts that would entitle it to a directed verdict if not
controverted at trial. Id. (citation omitted). Once
the moving party makes such an affirmative showing, the
burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating
the existence of a triable issue of fact.” Id.
(citation omitted) (emphasis added).
issues on which the movant does not bear the burden of proof
at trial, it can satisfy its initial burden on summary
judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of
evidence to support the non-movant's case on the
particular issue at hand. Id. at 1116. In such an
instance, the non-movant must rebut by either (1) showing
that the record in fact contains supporting evidence
sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed
verdict motion at trial based on the alleged evidentiary
deficiency. Id. at 1116-17. When responding, the
non-movant may no longer rest on mere allegations; instead,
it must set forth evidence of specific facts. Lewis v.
Casey, 518 U.S. 343, 358 (1996). The second method a
movant in this position may use to discharge its burden is to
provide affirmative evidence demonstrating that the
non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the
non-movant must rebut by offering evidence
sufficient to withstand a directed verdict at trial on the
material fact sought to be negated. Id.
The Treatment of Benzodiazepine Withdrawal of the
primary issue in this case is the proper method of treatment
of prisoners undergoing withdrawal symptoms while in custody.
In 2014, the National Commission on Correctional Health Care
stated that “[p]rotocols exist for managing inmates
under the influence of alcohol or other drugs and those
undergoing withdrawal from alcohol, sedatives, or
opioids.” (Doc. 52-5 at 2).
Detoxification is the process by which an individual is
gradually withdrawn from a drug by the administration of
decreasing doses of the drug on which the person is
physiologically dependent, of one that is cross-tolerant to
it, or of one that medical research has demonstrated to be
(Doc. 52-5 at 2).
Inmates experiencing . . . severe alcohol/sedative withdrawal
are transferred immediately to a licensed acute care
facility. . . . Individuals showing signs of intoxication or
withdrawal are monitored by qualified health care
professionals using recognized standard assessments at
appropriate intervals until symptoms have resolved. . . .
Detoxification is done under physician supervision.
(Doc. 52-5 at 2).
The treatment for most non-life-threatening withdrawal is
amelioration of symptoms, which can be managed in the
convalescent or outpatient setting. . . .
Detoxification and withdrawal are best managed by a physician
or other medical professional with appropriate training and
experience. As a precaution, severe withdrawal syndromes must
never be managed outside of a hospital. Deaths from acute
intoxication or severe withdrawal have occurred in
correctional institutions. In deciding the level of symptoms
that can be managed safely at the facility, the responsible
physician must take into account the level of medical
supervision that is available at all times. Clinical
management should also include the use of validated
withdrawal assessment instruments, such as the Clinical
Opiate Withdrawal Scale or the Objective Opiate Withdrawal
Scale in cases of opiate withdrawal, and the Clinical
Institute Withdrawal Assessment of Alcohol Scale Revised in
the case of alcohol withdrawal.
(Doc. 52-5 at 3).
particular drugs the Plaintiff had been prescribed at the
time he was incarcerated included Xanax, which is in a class
of drugs known as benzodiazepines. In February of 2014, the
Federal Bureau of Prisons published a “Clinical
Practice Guideline” entitled “Detoxification of
Chemically Dependent Inmates” which noted that
[benzodiazepine withdrawal syndrome can begin within a few
hours of last drug use (especially when using short-acting
drugs), but may take several weeks to resolve. Because of
the high risk of delirium, seizures, and death,
benzodiazepine withdrawal should always be treated.
(Doc. 52-2 at 14) (emphasis in original). That same report
includes the following table:
3, Symptoms of Benzodiazepine Withdrawal
Increased pulse and blood pressure, anxiety, panic
attacks, restlessness, and gastrointestinal upset.
In addition to the above, may progress to include
tremor, fewer, diaphoresis, insomnia, anorexia, and
If left untreated, a delirium may develop with
hallucinations, changes in consciousness, profound
agitation, autonomic instability, seizures, and
Death Patients showing signs of late (severe)
withdrawal should be hospitalized.
(Doc. 52-2 at 15).
No-narcotic Policy of the Dekalb County
to a formal policy (the “Policy”) originally
proposed by the DeKalb County Commission, and subsequently
adopted by Sheriff Harris on June 1, 2011, narcotic
medication is not to be “kept, dispensed, or
administered in the Dekalb County Jail.” (Doc. 48-25 at
2). The policy limits the use of narcotics to “extreme
circumstances that are acute and time limited in
nature” (doc. 48-25 at 2), and applies to addictive
controlled substances, including narcotics and
benzodiazepines. Sheriff Harris testified that he believes
that maintaining a non-narcotic jail is safer for inmates,
staff, and the community. This belief is based not only on
his understanding of the past problems in the Jail, but also
on his awareness of other problems that are known to arise in
detention facilities because of narcotics, e.g.,
inducing drug-seeking behavior like self-harm and the
attempted theft of medical supplies. In his declaration,
Sheriff Harris stated that it was his belief that using
narcotics at the Jail was not good public policy because it
would, “[i]n a sense, feed the inmates' addiction
issues.” (Doc. 48-26 at 3, ¶3). According to
Darlene Hulgan, who worked in the Jail's medical center,
the Policy was necessary because the use of narcotics was a
“very big problem” in the Jail. (Doc. 48-7 at
8(26)). She stated in her deposition that “[e]verybody
wanted them. Everybody sold them. Everybody traded them back
there.” (Doc. 48-7 at 8(26)).
Harris relies on the medical staff to implement the Policy
and treat the inmates at the Jail for symptoms of addiction
and withdrawal. He agrees that “this policy has been
interpreted by the Jail physician medical staff to not permit
narcotics and benzodiazepines, like Xanax, to people [who]
are prescribed them.” (Doc. 48-8 at 9(30)). He does not
know whether prisoners are “even allowed to have those
medications in a limited form to wean them off of the
medications..” (Doc. 48-8 at 9(30)). Instead, when a
person is admitted to the Jail and reports having taken a
controlled substance, but does not show any signs or symptoms
of withdrawal, they will be housed in general population at
first. If an inmate starts to have problems or show symptoms
consistent with withdrawal, they may be monitored in medical
and then housed in a suicide watch cell on medical
observation by the Jail staff.
is not a specific detoxification protocol in place at the
Jail. If an inmate is presenting symptoms of withdrawal, Dr.
Theakston may prescribe certain medications to them depending
on the severity of the withdrawal and the symptoms. However,
the policy is that any person who appears to need more or
different treatment for withdrawal is to be immediately
transported to the hospital for treatment. Medical staff is
charged with the implementation of this policy and more
generally with healthcare in the Jail. Neither Sheriff Harris
nor Lt. Martin are medical professionals, and they do not
interfere with or second-guess the judgment of the medical
professionals employed at the Jail.
The Plaintiff's Incarceration in the Dekalb County
was arrested on July 11, 2014, by the Boaz Police Department
for non-payment of child support, and was booked into the
Dekalb County Jail on July 12, 2014. During booking, the
Plaintiff reported that he took Nitroglycerine, Methadone,
Xanax, and Soma, and that he had previously suffered a
broken back and dislocated pelvis from an automobile
accident. Harper had his bottles of medication with
him during booking. Harper also informed the Jail's
medical personnel that he had a history of seizures, with the
most recent seizure two months prior. The booking paperwork
notes that the Plaintiff had suffered a seizure about two
months prior to his incarceration. No. signs or symptoms of
withdrawal were noted at the time.
time of the events of this case, the Plaintiff was married to
Beth Harper, who is now known as Beth Harper Stewart.
According to Stewart, at the time the Plaintiff was arrested
he was living off of protein shakes and milkshakes and
experiencing other issues related to “achalasia
restricture, ” an esophageal condition that limited
Harper's ability to take in calories and ultimately
required surgery. (Doc. 48-13 at 5(14-15); at 11(39); at
22(82-83)); see also doc. 48-14 at 13-14,
16-17).Stewart called the Jail, informed the
personnel there of this condition, and requested that Harper
receive protein shakes, sometimes referred to by the parties
herein by the brand name “Ensure.” Harper also
disclosed this condition when he was booked into the Jail and
requested a special diet, in particular Ensure
shakes. All inmates go through a medical
screening when booked into the Jail. In this case, the
Plaintiff's medical screening was conducted by Chris
Black, who was a paramedic working in the Jail at the time.
No. significant medical problems needing immediate attention
were noted, although Harper was given a bottom bunk. Black
testified that when an inmate with a seizure history comes
in, “I put him on a low bunk profile.” (Doc. 48-5
at 7(22-23)). The Plaintiff's weight was listed as 215
pounds, but the Plaintiff states that he actually weighed 246
14, 2014, Hulgan faxed a request for records to the
Plaintiff's physician, Dr. Nicholas C. Pantaleone, asking
that Harper's records be provided “ASAP.” The
Jail summary reflects that a second request had to be sent on
August 7, 2014, and that the records were not actually
received until August 8, 2014. Dr. Pantaleone had prescribed
the Plaintiff 10 mg Methadone, 350 mg Soma, and 2 mg Xanax to
be taken three times daily. Harper had been taking Xanax
since he was prescribed it in 2000.
Harper's First Visit to the Hospital
15, 2014, at 12:11 p.m., the Plaintiff was seen by Black in
medical. Black noted that Harper had complained of being weak
and stated “that there are cameras looking into his
eyes and reflecting beams back into a helmet.” (Doc.
48-17 at 9). Medical notes reflect that Harper's vitals
were taken (“blood pressure 125/80, HR 86, Resp. 16,
Temp. 97.8 Wt. 210"), and it was noted that he appeared
to be “[w]ell nourished and well developed.”
(Doc. 48-17 at 9). It was noted that the Plaintiff had
delusions but no suicidal ideations. Under the Assessment
section, was written: “AMS [Altered Mental Status] ?
Medication Withdrawal.” (Doc. 48-17 at 10). Jail
records note that one of the Plaintiff's inactive
medications was listed to be Xanax. The plan was to take him
to DeKalb Regional Medical Center (“DMRC”) for
further evaluation. It is undisputed that these notes were
reviewed by Dr. Theakston.
Black transported the Plaintiff to the hospital. Black could
not remember exactly when he notified Dr. Theakston that he
had done so, but Black states that he probably would have
contacted him afterwards. Black also testified that he would
have provided the hospital with the records that he had
nurse's note in the DeKalb Regional Medical Center's
records for July 15, 2014, at 12:43 p.m. regarding the
Plaintiff states: “Presenting complaint: Patient
states: has been off methadone and [X]anax for past 4 days
and now having  altered mental status and seeing
things.” (Doc. 48-21 at 8). Harper was noted to be well
nourished, awake, in no acute distress, and without thoughts
of hopelessness/helplessness or suicidal ideation.
Harper's weight was listed at 210 pounds. The attending
physician, Dr. Shannon Morgan, noted that the Plaintiff
refused to answer her questions (although he had answered the
triage nurse's questions) but followed direction without
difficulty. She noted that he had a history of chronic drug
use. Blood tests, an EKG, and a CT scan were all performed.
All were normal, except that benzodiazepines and methadone
were found in the Plaintiff's system. He was given fluids
p.m. the Plaintiff was discharged and it was noted,
“Patient awake, alert and oriented x 3. No. cognitive
and/or functional deficits noted.” (Doc. 48-21 at 9).
The Discharge Instructions state, “Narcotic withdrawal
- brief.” (Doc. 48-21 at 5). Follow-up was recommended
in 2-3 days with Dr. Theakston to recheck. The ER records
show that Dr. Theakston was contacted and that Dr. Theakston
was responsible for continuity of care following discharge.
pm, Lt. Langley completed a note in the Plaintiff's jail
records which stated, “Inmate returned from DRMC with
diagnosis of opiate withdrawal. He was [discharged] without
prescription meds. [H]e was placed in observation in holding
area of the jail.” (Doc. 48-17 at 11). The plan was to
“[m]onitor in holding until further notice.”
(Doc. 48-17 at 11). This note too was subsequently reviewed
by Dr. Theakston.
why the Plaintiff was not admitted to the hospital, the
following exchange took place in Dr. Theakston's
Q. The reason Mr. Harper wasn't admitted into the
hospital was because you chose not to have him admitted?
A. That might be correct. While I admit my private patients
to the hospital and I have admitting privilege for them, the
patients in the jail, I'm contracted to be the doctor to
provide medical here at the jail. I am not their personal
physician. When they go to the emergency department, they are
considered unattached patients, and the hospital or the
emergency department staff would contact the on-call
physician regarding admitting those patients. It's not a
failure on my part to admit them, because those are not my
(Doc. 48-3 at 17(62)). Dr. Theakston, who also works as a
physician at the emergency room where Harper was treated,
concedes that he has admitted patients who were “not
even in as bad a condition as Mr. Harper.” (Doc. 48-3
Harper's Possible Seizure
16, 2014, at 11:32 a.m., Lt. Langley made the following note:
“Inmate observed in cell sitting on floor looking
around. [Five] minutes later inmate slid down the wall to a
laying [sic] position on his back. [N]ot responsive to verbal
stimuli. [I]nmate was transferred and released from DRMC last
date for AMS. His dx [diagnosis] was drug withdrawal.”
(Doc. 48-17 at 18).
vitals were taken. Lt. Langley assessed that the Plaintiff
possibly had a seizure due to drug withdrawal, but the
Plaintiff was not sent to the hospital. Instead, Lt.
Langley received a verbal order from Dr. Theakston to begin
the Plaintiff on 500 mg Keppra, an anti-seizure medicine, at
night for ten days. The mental health department was
contacted to evaluate him.
Harper Is Placed on Suicide Watch
16, 2018, hours after Harper's seizure, Harper made
suicide threats and was placed by Smith on a suicide
protocol. Harper was placed in an observation cell under 24/7
lighting with a concrete slab for a bunk and without a
blanket, mattress, or clothes. At 10:44 p.m., Smith sent an
email to Lt. Langley, with a copy to Theakston, reporting
that the Plaintiff refused to take the Keppra prescribed to
him, that the Plaintiff was “awake and
ambulatory” all night but most of his responses were
“inappropriate, ” and that he had been put on
suicide protocol. (Doc. 48-17 at 20).
watch logs appear in the record. These logs began on July 16,
2014, and continued through July 30, 2014, when the Plaintiff
was removed from suicide watch. The logs show that Harper was
agitated, spent substantial time just screaming (45 entries),
did not sleep, only ate limited amounts, and spent hours just
lying on his bunk and shaking (61 entries). The logs also
show that jailers were required to clean his cell on multiple
Harper's Second Visit to the Hospital
approximately midnight on July 17, 2014, the Plaintiff fell
and bumped his head, causing a one-inch laceration. It is
unclear from the record whether the Plaintiff had a seizure,
but Black agreed in his deposition that “one reason
that somebody would fall and bump their head is because they
have a seizure.” (Doc. 48-5 at 17(62)).
was transported to DeKalb Regional Medical Center by Officer
Seth Cagle where he was treated and released. No. medications
were sent back with the Plaintiff. The physician's note
Patient fell from a height of 2 - 3 feet from a bunk
bed… The patient sustained an injury to the head,
laceration… The patient has been recently seen in this
Emergency Department. He was seen here on 7/15/14 about 12
noon for AMS and discharged back to jail. Labs done then was
(sic) unremarkable except for UDS showing positive for
Methadone and benzos.
(Doc. 48-22 at 4). Except for pain caused by the laceration,
the notes indicated that the Plaintiff was ambulatory; in no
apparent distress; cooperating; awake, alert, and oriented;
and that there were no signs or indications of neglect, such
as malnutrition. The Plaintiff also denied suicidal ideation.
The laceration was cleaned and stapled, and the Plaintiff was
given Zofran again because he complained of nausea. When
discharged at 2:20 a.m., the Plaintiff was “awake,
alert and oriented x 3. No. cognitive and/or functional
deficits were noted.” (Doc. 48-22 at 7). The
Plaintiff's weight was listed as 200 pounds.
deposition, Black agreed that there is no evidence that
anyone from the Jail had communicated to the hospital during
this visit that a previous seizure may have happened. (Doc.
48-5 at 29(112)). Lt. Langley agreed that the hospital should
have been given this information. (Doc. 48-2 at 12(44)).
discharge instructions state that the Plaintiff was to get
his staples removed in 9-10 days, which would be around July
27. The Jail medical record does not show that the Plaintiff
was taken back to the hospital for staple removal or that
they were removed by Jail personnel.
Harper's First Court Appearance
18, 2014, the Plaintiff had his first court appearance. The
proceeding was conducted by video. According to the order
issued as a result of that hearing, Harper informed the court
that he thought that “his family made a child support
payment for him about the time of his incarceration.”
(Doc. 48-16 at 15). The court found no payment.
Harper Is Interviewed by a Mental Health
23, 2014, the Plaintiff was seen by Debby Carter of CED
Mental Health (the DeKalb County Mental Health Department)
from 8:08 AM to 9:12 AM. Ms. Carter is a licensed
professional counselor, and, as part of her position in 2014,
she saw inmates at the Jail. She visited the Jail and
provided assessments and counseling and could refer inmates
to in-patient treatment. She vaguely remembered the
notes reflect difficulty in obtaining background information
from Harper. However, the Plaintiff was able to provide some
correct background information, such as that he had
previously worked for a security company, the number of his
children, and his education level. Some information that he
gave was incorrect, such as the number of his marriages.
Carter's notes state that Harper was not sleeping well
and was experiencing auditory hallucinations and paranoia
because he believed that someone put pencil shavings in his
cell and was watching him. Ms. Carter concluded that the
Plaintiff was suffering from a psychosis, not otherwise
specified, and planned to pursue in-patient hospital care for
August 7, 2014, Ms. Carter spoke with Shane Healey at Gadsden
Regional Medical Center who told her that “it sounded
like” the Plaintiff “was in acute benzo
withdrawal.” (Doc. 48-23 at 2). Ms. Carter did not
believe that the psychosis was caused by drug withdrawal at
that point. She did not rule out a medical cause to the
Plaintiff's psychosis, which is why she sought in-patient
hospitalization at Gadsden Regional Medical Center. She
conferred with Lt. Langley regarding the Plaintiff's
history, care, and treatment.
July 23, 2014
in the day on July 23, 2014, the Plaintiff had another
episode of non-responsiveness that Lt. Langley assessed in a
note as a “recurrent episode of AMS.” Harper had
been alert an hour before this note. The Plaintiff's
vitals were taken. The plan was to keep the Plaintiff in
booking and to monitor him. This note was reviewed by Dr.
10:36 p.m. a note is made by John Smith regarding an
evaluation and well-being check made on the Plaintiff by Dr.
Theakston. Smith believed that the Plaintiff was lucid and
kempt during the well-being check and that his answers and
statements were appropriate. Dr. Theakston testified that the
Plaintiff “seemed very slow to respond to questioning.
At times, some of his answers were nonsensical. At times, he
would not answer at all.” (Doc. 48-3 at 5(14)). It is
undisputed that on that date Dr. Theakston noted that the
Plaintiff had begun experiencing altered mental status a few
days after being removed from Xanax and Methodone. (Doc. 47
at 17, ¶46; Plaintiff does not dispute). Dr. Theakston
ordered that the Plaintiff be placed on .5 mg of Risperidone,
which is a mild anti-psychotic which would help the Plaintiff
sleep. He also ordered that the Plaintiff be allowed one hour
outside each day and that he be allowed to shower daily.
(Doc. 48-17 at 27). Dr. Theakston ordered the treatment
because he believed that the Plaintiff's circadian clock
needed to be regulated. Regarding his impressions at this
time, Dr. Theakston testified:
Now, multiple days later, he continues to have altered mental
status. I think at that point you have to say maybe this
isn't completely drug withdrawal. This seems to be going
on for a longer period of time. We now have to entertain that
this altered mental status is more mental psychosis.
(Doc. 48-3 at 11(37)). However, he admitted that ruling out
the medical causes for his psychosis and related symptoms on
July 23rd would perhaps have been better accomplished in a
hospital setting. (Doc. 48-3 at 14(52)).
July 28, 2014
28, 2014, the Plaintiff was seen and treated for foot
pain/infection. He was prescribed antibiotics. The note
reflects that the Plaintiff's vitals were taken and that
he was still on the Risperidone, but that its dosage could be
increased to 1 mg. The Plaintiff was able to describe his
complaint. Lt. Langley discussed with the Plaintiff the
importance in complying with the treatment regimen, since
Harper would occasionally refuse to take his
medication. Harper's weight was noted to be 196
July 30, 2014
30, 2014, Harper was seen by Carter and taken off of suicide
watch. That same day, the Plaintiff was taken to DeKalb
County Mental Health and was evaluated by its medical
director, Dr. Richard Grant, who is a psychiatrist. Dr. Grant
diagnosed the Plaintiff as having a psychosis, not otherwise
specified, and prescribed 20 mg Zyprexa, which is an
antipsychotic/mood stabilizer medication.
Langley observed that the Plaintiff's altered mental
status would come and go. Lt. Langley's opinion at the
time, and still today, is that the Plaintiff's issues
were mental health related and not from drug withdrawal.
(Doc. 48-1 at 35(136)).
August 2014 and Release from the Jail
August 2, 2014, Harper got into an altercation with officers
after he would not stop hitting a door and yelling profanity.
Lt. Martin signed off on the report of this incident. On
August 4, 2014, Harper got into an altercation with officers
after he would not stop beating his head against a wall. He
was treated by Lt. Langley. After showering and being placed
back in the cell, Harper continued beating his head against
the wall. Lt. Martin was informed and signed off on the
report of this incident.
August 5, 2014, the Plaintiff was seen again by Carter. The
Plaintiff stated that he was hearing voices but did not know
what they were saying. He was picking at things on his
clothing. The Jail staff told Carter that the Plaintiff had
been acting like “a log truck.” She was also
informed that when he is out of the cell and outside he acts
“OK.” At the interview the Plaintiff was oriented
to time, place, and person and had normal appearance and
August 7, 2014, the Plaintiff was evaluated again by Lt.
Langley. The Plaintiff became lightheaded when he was taken
outside. Lt. Langley noted that the Plaintiff was unsteady
and making motions like he was eating something. His vitals
were taken, which showed that the Plaintiff weighed 191
pounds. The Plaintiff was given water and an Ensure. He
quickly consumed them, requested more, and was given more and
lunch. Lt. Langley requested another mental health evaluation
on the Plaintiff.
August 7, 2014, Carter spoke with Lt. Langley who expressed
to Carter his concern that the Plaintiff was getting worse as
he was experiencing weight loss and dehydration. Lt. Langley
wanted to pursue inpatient treatment. Carter testified that,
on that same day, Lt. Langley also expressed to her his
concerns about Harper and said, “If we don't get
him out of here, he is going to die.” (Doc. 48-13 at
August 7, 2014, after his bond was lowered and paid, the
Plaintiff was released from the Jail to his wife, mother, and
stepfather. Upon his release, the Plaintiff immediately
resumed taking Xanax and Methadone.
Theakston admits that the reason that patients are weaned off
of benzodiazepines and opiates is to minimize potential
complications which can be connected with withdrawal. (Doc.
48-4 at 4(12)-5(13)). He concedes that severe drug withdrawal
generally needs to be treated in a hospital. He agrees that
when Harper was in the Jail he was at risk for severe
withdrawal because he was withdrawing from three drugs and
not just one, because of his history of seizures, because of
the length of time he had been taking Xanax, and because he
was taking a higher dose of Xanax. Dr. Theakston further
concedes that “[a]ll patients with an altered mental
status should be admitted into the hospital.” (Doc.
48-3 at 10(36)).
Theakston concedes that in his work as an ER doctor he would
hospitalize a person like Harper:
Q. If a patient comes in with a history of cold turkey
benzodiazepines use withdrawal over multiple days with
altered mental status and a fall that lead to a head injury
and an observed possible seizure, at least one, are you going
to -- aren't you going to admit that person?
A. I would probably admit that patient.
(Doc. 48-3 at 21(79)). He continued:
Q. . . . Do you have any opinion about whether Mr.
Harper's withdrawal symptoms should be considered severe
or not given when he started having seizures?
A. Yes. I would say seizures indicate at least a moderate
level of withdrawal.
Q. Isn't it generally accepted that if somebody is
experiencing seizures that are likely connected to
benzodiazepine withdrawal, that they need to be monitored and
evaluated in a hospital?
Q. Was the hospital ever informed that Mr. Harper was
A. I don't know the answer to that.
Q. Mr. Harper was not sent to the hospital once he started