Two interesting but diametrically opposed cases came out last month dealing with deaths of prisoners in Georgia jails. One came out in favor of the prisoner who was killed. The other came out in favor of the police department. Why? I thought it would be interesting to take a look and compare the two.
Jail deaths occur rather frequently. As I discuss “jail deaths” in this blog I am excluding death by natural causes, e.g., disease or old age and I am excluding for now wrongful death of an inmate caused by inadequate medical care in prison (which also is very frequent). I am referring to jail death proximately caused by another person, whether that other person is another inmate or a custodial officer. The nationwide average of jail deaths is 983. The annual average of jail deaths in Georgia is 46. Some of these deaths account for an increased fervor across the nation for criminal justice reform.
But how do the courts treat wrongful jail deaths? Two Georgia cases show a large disparity in court treatment even in the face of what are clearly egregious facts. It is notoriously difficult to sue successfully a prison warden or any state deputies, sheriffs or police officers for their conduct related to the death of an inmate. These suits are frequently brought but infrequently won. Why? Because the burden of proof for the family or estate administrator who would bring a wrongful death suit on behalf of a prisoner killed while incarcerated is astronomically high. So high it is seldom met. A plaintiff in a prisoner death case must allege violation of the prisoner’s 8th Amendment Constitutional rights, which is the Amendment that prevents the government from enacting cruel and unusual punishment on a prisoner. Beyond just restraining prison officials from inflicting “cruel and unusual punishments” upon inmates, the 8th Amendment also imposes duties on these officials to take reasonable measures to guarantee the safety of the inmates. But plaintiffs must show the prison officials acted with “deliberate indifference” to the prisoner’s constitutional rights, which is a pretty high mark to meet. It is just slightly shy of intentional conduct. “Deliberate indifference” in the context of a failure to prevent harm has a subjective and an objective component, i.e., the plaintiff must prove the prison official actually knew an inmate faced a substantial risk of harm and that the defendant disregarded that known risk by failing to respond to it in an objectively reasonable manner.
With this in mind, let’s take a look at the two Georgia cases that came out last month but which, applying the same law, came out remarkably different. The first is Bowen v. Warden Baldwin State Prison, No. 15-11109 (11th Cir. June 22, 2016), a Federal court case. In Bowen, a mentally ill inmate named Merkerson was incarcerated for murder and had been designated a Level III mental health inmate, which meant he had “a tenuous mental status that is easily overwhelmed by everyday pressures, demands and frustrations resulting in impulse behavior, poor judgment, a deterioration of emotional controls, loosening of associations and delusional thinking and/or hallucinations.” He was diagnosed with severe paranoid schizophrenia. Prison officials were aware of his mental status. On February 26, 2010 he assaulted his cellmate. Because of this attack, placement guidelines called for Merkerson to be housed alone. He was then placed in a single occupancy cell, the lock-down unit for mentally ill prisoners. Four days later, Merkerson’s mother called the prison to alert staff there that her son’s mental health was deteriorating even more, and that he ” needed to be isolated from other inmates, so that he would not hurt anyone.” Just five days after the mother’s warning, Mr. Bowen was placed in a cell with Merkerson. The very next day Mr. Bowen asked to be removed from that cell “because of Mr. Merkerson.” And we all know what happened next, right? That’s right, the very next day, prison officials found Mr. Bowen with his head stuffed in the cell’s toilet and his body limp, brutally beaten and not moving. Mr. Bowen was taken to the Medical Center but died a few hours later.
How can a death of an inmate that is seemingly so foreseeable and so very predictable even occur? If the 8th Amendment requires a prison to guarantee the safety of an inmate, how could they have even put Mr. Bowen in a cell with Merkerson? We all know how that would (and did) end. Isn’t this a slam dunk violation of Mr. Bowen’s 8th Amendment rights? Not so fast. The trial court, the United States District Court for the Middle District of Georgia, didn’t seem to think so. That court actually dismissed the lawsuit and held that these facts did not “state a plausible claim that [the prison officials] were subjectively aware that Merkerson posed a substantial risk of serious harm to Bowen.” Huh? Based on those facts? The trial court granted the prison officials qualified immunity and the case was tossed.
Step in an unlikely hero, the 11th Circuit Court of Appeals. I say “unlikely” because the percentage of cases reversed by the 11th Circuit is probably pretty low, but in an 8th Amendment prisoner’s rights suit that has been dismissed by the trial court, the percentage of reversal is most likely less than five percent. Going to the 11th Circuit and asking for it to reverse a District Court on an 8th Amendment cruel and unusual punishment case would be your basic Hail Mary. But the 11th Circuit reversed and found that the plaintiff had, in fact, proven sufficiently that the prison officials were not just subjectively aware of a substantial and seemingly conspicuous risk posed to Mr. Bowen by allowing him to remain in the cell with Merkerson, but they were actually aware, i.e., they had actual knowledge of the almost certain harm they were subjecting Mr. Bowen to. So the family of Mr. Bowen will now get to try their case in front of a jury and, hopefully, obtain justice for the family.
Now let’s look at another prison death case that came out last month, this time by the Supreme Court of Georgia. The Supreme Court of Georgia is the highest state appellate court in the entire state. It is not a Federal court, as the court was in the Bowen case. In Pearce v. Tucker, No. S15G1310, (Ga. Sup. Ct. June 20, 2016) Mr. Pearce, who suffered from major depressive disorder, arrived at his pastor’s house carrying a gun in his hand. The pastor called the police. Police officers arrived at the pastor’s house and saw that Mr. Pearce, a convicted felon, was carrying a pistol. They arrested him and took him to police headquarters. There they placed Mr. Pearce in a holding cell with a monitored video feed. Pursuant to police department policy, the officers removed his shoes, belt, tie and contents of his pockets. After 15-20 minutes of being placed in the holding cell, Mr. Pearce committed suicide by hanging himself with his socks.
It was undisputed that the police officers failed to comply with another department policy that required a screening form to be filled out on every detainee before being placed in the holding cell. This screening form covered items such as detainee’s current health, mental status, behavior and state of consciousness. Mr. Pearce, therefore, was never screened for his state of mind before placing him in the cell. In deciding whether a police officer has immunity is such a situation, there must be an analysis of whether the alleged wrongful act was either discretionary or ministerial in nature. If discretionary, the officer has immunity. If ministerial, the officer does not have immunity. Ministerial duties are typically ones that must be carried out as a matter of course, because the department has a policy in place that requires that act to be done, for example. Here, in Pearce, the filling out of the medical screening form was required by department policy. So, one would naturally think it was a ministerial duty and one from which the police officer would not be entitled to immunity, right? Not so fast. The Supreme Court held the duty to fill out the medical screening form was discretionary because the medical screening form did not provide any guidance on how the medical screening might be conducted. The police officer “could have completed the medical screening in any number of ways, including simple observation.” The Supreme Court held “the duty…even if mandated by policy, would be discretionary in nature.” Huh? How can a duty that a department policy requires you to do for every detainee before placing that detainee in a holding cell be discretionary? Isn’t a mandated duty just the opposite of discretion? So, that case is now dismissed and the Pearce family will not ever be able to have a jury hear their case.
I should note that there was a strong dissent authored by Justice Harold Melton in Pearce and the Chief Justice, Thompson, joined it. Justice Melton wrote that the medical screening policy “creates a clear ministerial duty for officers to launch a medical screening that inquires into the health status of a detainee….” Justice Melton wrote that the flaw in the majority’s opinion is that the majority focused on the discretion an officer has after conducting the medical screening, but the point is the officer has no discretion on whether to conduct the medical screening in the first place. Justice Melton believed because the police officer did not do anything at all to comply with his duty to conduct the medical screening, he should not have been entitled to immunity. Interestingly, Justice Melton finally noted that the traditional rule of holding that suicide is always an intervening cause in a prisoner suicide case needs to be reexamined. Justice Melton wrote: “I believe that this Court needs to explicitly resolve the tension between the cases indicating that the general rule does not apply in cases where a special relationship exists, but somehow still applies in cases involving the special relationship between an officer and his prisoner.” Bravo, Justice Melton!
So, two prison death cases with remarkably different outcomes. And that’s tough to explain. Both had pretty bad facts. One family gets to ask for justice from a jury and the other does not. These cases should show you the difficulty in prevailing in any prison death case. Most of the law, particularly the ministerial versus discretionary duty analysis, is stacked against the plaintiff. In fact, ministerial duties are so seldom found to exist that they have become the snipe in the snipe hunt…we keep searching for it but never find it. The entire ministerial versus discretionary analysis should be retired. It gives litigants very little predictability and often seems outcome determinative. But don’t hold your breath.
Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 28 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.