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Harper v. Harris

United States District Court, N.D. Alabama, Middle Division

February 21, 2019

JOEY HARPER, Plaintiff,




         In this 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[1]; 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.[2]

         The 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.

         II. STANDARD

         Under 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.

         The 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.

         How the 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).

         For 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.

         III. FACTS[3]

         A. The Treatment of Benzodiazepine Withdrawal of the Incarcerated

         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 effective.

(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).[4]

         The 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:

         Table 3, Symptoms of Benzodiazepine Withdrawal



Early Withdrawal

Increased pulse and blood pressure, anxiety, panic attacks, restlessness, and gastrointestinal upset.

Mid Withdrawal

In addition to the above, may progress to include tremor, fewer, diaphoresis, insomnia, anorexia, and diarrhea

Late Withdrawal

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).[5]

         B. No-narcotic Policy of the Dekalb County Jail

         Pursuant 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)).[6]

         Sheriff 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.

         There 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.

         C. The Plaintiff's Incarceration in the Dekalb County Jail

         1. Booking

         Harris 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[7], and that he had previously suffered a broken back and dislocated pelvis from an automobile accident.[8] 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.

         At the 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).[9]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.[10] 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 pounds.[11]

         On July 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.[12] Harper had been taking Xanax since he was prescribed it in 2000.

         2. Harper's First Visit to the Hospital

         On July 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.

         Thereafter, 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 available.

         The 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 and Zofran.

         At 3:42 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.

         At 5:36 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).[13] This note too was subsequently reviewed by Dr. Theakston.

         Regarding why the Plaintiff was not admitted to the hospital, the following exchange took place in Dr. Theakston's deposition:

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 private patients.

(Doc. 48-3 at 17(62)).[14] 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 at 17(62)).

         3. Harper's Possible Seizure

         On July 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).

         Harper's 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.[15] 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.

         4. Harper Is Placed on Suicide Watch

         On July 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).

         Suicide 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).[16] The logs also show that jailers were required to clean his cell on multiple occasions.

         5. Harper's Second Visit to the Hospital

         At 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)).

         Harper 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 said

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.

         In his 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)).

         The 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.

         6. Harper's First Court Appearance

         On July 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.

         7. Harper Is Interviewed by a Mental Health Professional

         On July 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 Plaintiff.

         Carter's 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 him.

         On 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.

         8. July 23, 2014

         Later 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. Theakston.

         At 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)).

         9. July 28, 2014

         On July 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.[17] Harper's weight was noted to be 196 pounds.

         10. July 30, 2014

         On July 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.

         Lt. 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)).

         11. August 2014 and Release from the Jail

         On 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.

         On 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 affect.

         On 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.

         On 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 15(53)).

         On 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.

         D. Dr. Theakston

         Dr. 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)).

         Dr. 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)).[18] 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?
A. Typically.
Q. Was the hospital ever informed that Mr. Harper was experiencing seizures?
A. I don't know the answer to that.
Q. Mr. Harper was not sent to the hospital once he started apparently ...

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