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Jury Awards $1.75 Million Against CMS in Illinois Jail Suicide

Correctional Medical Services (CMS), a private provider of medical services to jails and prisons, lost a jury verdict in a case brought by a former Lake County, Illinois, Jail prisoner's estate alleging that CMS violated the prisoner's constitutional rights, resulting in his suicide. The jury awarded compensatory damages to the estate of $250,000 each against a CMS employee and CMS, and $1,500,000 in punitive damages against CMS. The Lake County Jail settled its liability with the estate for $60,000.

Justin Farver was living in Zion, Illinois, with his brother and sister-in-law and their children when on September 24, 1998, he was arrested and charged with attempting to rape his twelve-year-old niece at knife point. Farver, a twenty-three year old man with cerebral palsy, had a ten-year history of psychiatric treatment, had been hospitalized in 1995 for attempted suicide, and was on psychotropic medication.

During booking at the Lake County Jail, Farver was interviewed by Karen Dean, R.N., a CMS employee, regarding his past and present health problems. Farver affirmatively stated he had suicidal thoughts. CMS policy required that the Jail Shift Commander be notified and that Farver be immediately referred for a mental health evaluation. Nurse Dean failed to do this. Farver was placed on the medical ward between two prisoners on suicide watch, but he was not placed on suicide watch.

On October 1, 1998, licensed clinical social worker and CMS employee Joel Mollner performed a routine mental health screening. He noted extensively Farver's mental health history, including "current suicidal proclivities." Mollner also noted that Farver felt "depressed [and] angry." Mollner referred Farver to jail psychiatrist Dr. Michael Fernando but did not recommend suicide watch. On October 11, 1998, Dr. Fernando confimed Mollner's observations that Farver was suicidal. Fernando prescribed an antidepressant and a tranquilizer for Farver but did not order a suicide watch.

On October 12, 1998, Farver was placed on lockdown and forbidden to use the telephone. On October 13, 1998, lockdown was extended "indefinitely" because Farver attempted to use the phone twice. Later that day, Farver hanged himself with a bedsheet tied to a coat hook.

Harriet Woodward, Special Administrator of Farver's estate, sued CMS, Lake County Jail, a Jail guard, and numerous CMS employees, including Dean, Mollner, and Dr. Fernando. Two suits were brought under 42 U.S.C. §1983 for violation of Farver's Eighth and Fourteenth (Due Process) Amendment rights and under Illinois law for medical malpractice and wrongful death. Farver's estate was represented by David C. Sleigh, Esq., of the law firm Sleigh & Williams, in St. Johnsbury, Vermont.

Judge Robert W. Gettleman denied Defendants' motions for summary judgment on May 11, 2001, and again on December 4, 2002. In Judge Gettleman's second order denying summary judgment, the court overruled Defendants' objections to two of Plaintiff's witnesses, noting that both witnesses (one of them the Defendants' expert) were originally Defendants' witnesses. They became Plaintiff's witnesses only after their testimony damaged the defense. The court held that there was enough evidence for a jury to reasonably conclude that the defendants were deliberately indifferent to Farver's suicide risk.

Following trial, on February 20, 2003, a jury reached verdicts against Defendants CMS and Mollner and awarded compensatory and punitive damages against them. These cases are unpublished. See: Woodward v. Myres, Case Nos. 99-C-0290 and 00-C-6010 (U.S. District Court, N.D. Ill.).

Justin Fauver's suicide was not a unique or isolated event at the Lake County Jail. A similar incident in 1996 resulted in the suicide of a young female prisoner. Again, Correctional Medical Services (CMS) played an important role in the prisoner's death.

Eighteen year old Natiera Cunningham was arrested by the Gurnee Police Department on June 3, 1996, for shoplifting. On checking, Gurnee Police found that Ms. Cunningham was wanted by the Waukegan Police Department on felony Aggravated Battery charges. They booked her and held her for Waukegan to pick up. That night, Gurnee officers prevented Cunningham from hanging herself with a piece of her clothing.

Waukegan Police Detective Mark Tkadletz picked Cunningham up on June 4, 1996, and transported her to the Lake County Jail. Gurnee Police informed Tkadletz of Cunningham's attempted suicide the night before, but Tkadletz informed no one at the Lake County Jail. As part of her booking process, however, CMS employee Laarni Dazal conducted a suicide screening on Cunningham. Dazal's screening indicated clearly that Cunningham was at imminent risk of committing suicide. Like Justin Fauver's case, though, Dazal failed to inform the Shift Commander, failed to place Cunningham on suicide watch, and failed to refer her immediately for further psychological evaluation and treatment. Nor was there any oversight of Dazal to make sure his decision was appropriate. Early in the afternoon of June 6, 1996, Natiera Cunningham hanged herself in her jail cell.

Natiera's mother, Peggy Cunningham, sued the Lake County Jail, CMS, Detective Tkadletz, Laarni Dazal, and Jail guard Erica Sandahl under 42 U.S.C. §1983, claiming that the defendants violated Natiera's rights as a pretrial detainee by deliberate indifference to her risk of suicide. Dazal and CMS moved to dismiss under Fed.R.Civ.Proc. 12(b)(6) for failure to state a claim for relief.

Reciting the facts of the case and analyzing the claims under Eighth Amendment deliberate indifference standards, the U.S. District Court for the Northern District of Illinois held that Peggy Cunningham clearly stated a claim for deliberate indifference against Dazal. However, the complaint failed to state an adequate claim against CMS for deliberate indifference.

The court upheld the state law negligence claims agaisnt both Dazal and CMS. The defendants argued that Peggy Cunningham did not meet state pleading rules for medical negligence. The district court held that federal "notice pleading" rules prevailed over state "form pleading" rules, since the complaint was filed in federal court.

The district court granted dismissal without prejudice on the deliberate indifference claim against CMS and denied dismissal on all other claims. This case is unpublished. See: Cunningham v. Sandahl, 1998 WL 157415 (N.D. Ill.).

On October 26, 1998, a jury found the defendants liable for $1.35 million in compensatory and punitive damages. Detective Tkadletz was found liable for $750,000 in punitive damages.

Additional source: Daily Herald

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Related legal cases

Woodward v. Myres

Cunningham v. Sandahl

Not Reported in F.Supp., 1998 WL 157415 (N.D.Ill.)

Only the Westlaw citation is currently available.

United States District Court, N.D. Illinois.

Natiera CUNNINGHAM, deceased by Peggy Cunningham, Independent Administrator of
the Estate of Natiera Cunningham, and Peggy Cunningham, individually,
Lake County Correctional Technician Erica Sandahl, Waukegan Police Officer,
Tkadletz, Laarni Dazal, and Correctional Medical Services of Illinois, Inc.,

No. 97 C 1109.

March 31, 1998.


COAR, District J.

*1 Before this court is Defendants Laarni Dazal's ("Dazal") and Correctional Medical Services of Illinois, Inc.'s ("CMS") (collectively "Defendants") Motion to Dismiss Counts II (deliberate indifference by Dazal and CMS), IV (Negligence by Dazal and CMS) and V (Negligence and Loss of Consortium claims as applied to Dazal and CMS) of Plaintiffs Natiera Cunningham's ("Natiera") and Peggy Cunningham's ("Cunningham") ("Plaintiffs") First Amended Complaint. For the reasons given below, the motion is DENIED as to Dazal on Count II, GRANTED WITHOUT PREJUDICE as to CMS on Count II, and DENIED as to both Defendants on Counts IV and V.

II. Standard for Motion to Dismiss

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure does not test whether the plaintiff will prevail on the merits, but instead whether the plaintiff has properly stated a claim for which relief may be granted. Pickrel v. City of Springfield, Ill., 45 F.3d 1115 (7th Cir.1995). The court must accept as true all of plaintiff's well-pleaded factual allegations, as well as all reasonable inferences. Id. Thus, the court will dismiss a complaint under Rule 12(b)(6) only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Ledford v. Sullivan, 105 F.3d 354, 357 (7th Cir.1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)). However, the court need "not strain to find inferences favorable to the plaintiffs which are not apparent on the face of the complaint." Coates v. Illinois State Bd. of Ed., 559 F.2d 445, 447 (7th Cir.1977).

II. Facts

Plaintiffs' lawsuit arises from the suicide of Natiera while in custody as a pretrial detainee. On June 4, 1996, Natiera was arrested, charged with a misdemeanor criminal offense, and held in custody by the Gurnee Police Department, who continued to hold Natiera in custody because there was an outstanding warrant for Natiera. (Cpt. 11.) On or about June 4, 1996, while in the custody of the Gurnee Police, Natiera attempted to commit suicide by hanging herself in a jail cell, prompting the Gurnee Police Department to take Natiera for medical treatment. (Cpt. 12.) On the morning of June 4, 1996, Natiera was transported to the Lake County Department of Corrections ("DOC"), as a pretrial detainee. (Cpt. 16.) Despite knowing that Natiera had attempted to commit suicide while in the custody of the Gurnee Police Department, the officer who transported Natiera to the DOC failed to inform the personnel of the DOC of Natiera's recent suicide attempt. (Cpt. 15, 17.)

Pursuant to a contractual agreement with the DOC to provide medical and psychological services to persons incarcerated in the DOC, CMS was responsible for conducting a suicide screening of each individual who was detained in the DOC, in order to identify and provide treatment to detainees who were found to be at risk of committing suicide. (Cpt. 7.) On June 4, 1996, Dazal, an employee of CMS, conducted a suicide screening of Natiera. (Cpt. 8, 21.) The responses and observations received from Natiera's suicide screening clearly indicated that there was an imminent risk that Natiera would attempt to commit suicide. (Cpt. 29.) Based upon the results obtained from Natiera's suicide screening, the standards governing the screening process employed by CMS called for Dazal to notify the Shift Commander of Natiera's condition and for Natiera to be referred immediately for further psychological evaluation and treatment. (Cpt. 29.) Despite the fact that the results of Natiera's suicide screening clearly indicated that she was in need of immediate psychological help, Dazal failed or refused to either alert the Shift Commander of Natiera's condition or to refer Natiera to a mental health professional for treatment, as required to do so by CMS rules and regulations. (Cpt. 30.) CMS had no supervisory or oversight process to review the results of suicide screenings of detainees in the DOC, so as to ensure that immediate suicide referrals would be made in cases, like that of Natiera, where such referrals are indicated. (Cpt. 31.) In the early afternoon of June 6, 1996, Natiera took her life by hanging herself in her cell at the DOC. (Cpt. 38.)

III. Analysis

A. Count II--Deliberate indifference

*2 "[D]eliberate indifference to a prisoner's serious illness or injury states a cause of action under § 1983." Estelle v. Gamble, 429 U.S. 97, 104-105, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). The test for deliberate indifference is both objective and subjective, such that a prison official "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994). See also Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir.) ("[I]nfliction of suffering on prisoners can be found to violate the Eighth Amendment only if that infliction is either deliberate, or reckless in the criminal law sense"), cert. denied, 479 U.S. 816, 107 S.Ct. 71 (1986); id. at 652 (defining "recklessness in criminal law" as requiring "an act so dangerous that the defendant's knowledge of the risk can be inferred"). Neither negligence nor gross negligence is sufficient to find a defendant liable under the Eighth Amendment. Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir.1991). Whether the prison official knew of the risk is a question of fact which can be proven from direct or circumstantial evidence, and knowledge of a substantial risk can be inferred from the fact that risk was obvious. Farmer, 511 U.S. at 842, 114 S.Ct. at 1981.

Plaintiffs have stated a claim of deliberate indifference to the risks of Natiera's death by suicide on the part of Dazal. Plaintiffs allege that Natiera's responses on the suicide screening "clearly indicated" an imminent risk of suicide and that Dazal either "failed or refused" to follow the procedures to ensure that Natiera would receive the treatment and care that she needed to avert her risk of suicide. Defendants characterize this as a "single mistake" amounting to, at worst, negligence. However, what the complaint alleges is more than negligence--it alleges pur poseful ignoring of the risk of serious bodily harm or death to Natiera. Cf. Sivard v. Pulaski County, 959 F.2d 662, 669 (7th Cir.1992) (distinguishing between case where plaintiff alleges that prison official "ignored his injuries" and one where plaintiff alleges "simple malpractice" which "does not create a claim for relief under the Eighth Amendment"). Whether Dazal's actions amounted to deliberate indifference or negligence or no wrongdoing whatsoever depends entirely upon what happened during the suicide screening and whether the suicide screening did, indeed, "clearly indicate" an imminent risk of suicide. Such factual questions are not, however, to be resolved on a motion to dismiss.

The question of liability for CMS, however, presents a different problem. To find CMS liable for Natiera's death, Plaintiffs need to prove that " 'systemic and gross deficiencies" ' in CMS's policies or procedures caused Natiera's death. Holmes v. Sheahan, 930 F.2d 1196, 1200 (7th Cir.) (quoting Benson v. Cady, 761 F.2d 335, 339 (7th Cir.1985)), cert. denied, 502 U.S. 960, 112 S.Ct. 423 (1991). Plaintiffs, however, have alleged nothing more than an " 'inadvertent failure to provide adequate medical care" ' on the part of CMS, and such "inadvertent failure" is insufficient to state a claim under the Eighth Amendment. Estelle, 429 U.S. at 105, 97 S.Ct. at 291-92. By claiming merely that CMS failed to install an oversight procedure to ensure that persons, like Natiera, received the suicide referrals that they need, Plaintiffs have failed to allege any facts to show that CMS knew that there was a serious risk that suicidal prisoners would not receive the suicide referrals mandated by CMS's guidelines nor that CMS was aware that such an oversight procedure was necessary to prevent such a failure to refer suicidal prisoners to medical treatment. [FN1] Indeed, the only facts that Plaintiffs allege about CMS are that it has contractual duties to provide medical treatment to DOC prisoners, employed Dazal, and did not utilize a supervisory or oversight procedure regarding suicide referrals. Such facts are insufficient to meet the standards put forth in Estelle and its progeny.

FN1. Indeed, Plaintiffs do not even allege that there was a serious risk that CMS's employees would fail or refuse to follow CMS's rules regarding mandated suicide referrals or that an oversight procedure was necessary to prevent such rule violations.

*3 Defendants' motion to dismiss is GRANTED as to CMS but is DENIED as to Dazal. Count II is dismissed as to CMS without prejudice; Plaintiffs have leave to replead with sufficient facts.

B. Counts IV and V--Negligence claims

Counts IV and V are negligence claims--Count IV applies only to CMS and Dazal, while Count V applies to all of the named plaintiffs. Insofar as Counts IV and V apply to CMS and Dazal, they allege medical malpractice--i.e., negligence in providing "competent" care to Natiera, (see Cpt. 41-43 (alleging that Dazal breached her "duty to competently conduct a suicide screening"), and negligence in providing proper procedures, (see Cpt. 44 (alleging that CMS negligently failed to provide proper supervisory or oversight procedures)-- which Defendants claim should be covered by 735 ILCS § 5/2-622. See Jacobs v. Rush North Shore Medical Center, 284 Ill.App.3d 995, 673 N.E. 364 (1st Dist.1996) (applying § 5/2-622 to a variety of negligence claims against two hospitals, including failure to provide proper treatment and failure to establish proper procedures), appeal denied, 172 Ill.2d 553, 223 Ill.Dec. 196, 679 N.E.2d 381 (1997). Section 2-622 is a state-law pleading requirement which states that a particularized affidavit should be attached to "any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice." § 2-622(a). See 735 ILCS § 5/2-622(a)(1)- (3) (setting forth requirements of affidavit).

Plaintiffs failed to attach the § 2-622(a) affidavit to their complaint; Defendants argue that such failure is grounds for dismissal in this court. 735 ILCS § 5/2-622(g). See also Thompson v. Kishwaukee Valley Medical Group, 1986 WL 11381, *1 (1986). However, the court will not dismiss Counts IV and V for failure to meet the requirements of a state pleading rule. Defendants are on notice that Plaintiffs seek to find them liable for negligence in the medical field, and that is sufficient under the Federal Rules of Civil Procedure, which has rejected such form pleading in favor of notice pleading. Cf. American Nurses' Assoc. v. State of Illinois, 783 F.2d 216, 723 (7th Cir.1983) ("For fact pleading the federal rules substituted notice pleading. The complaint would have to indicate the nature of the plaintiff's claims with only enough specificity to enable the parties to determine the preclusive effect of a judgment disposing of the claim.") (citing Red. R. Civ. P. 8(a)(2)).

IV. Conclusion

For the foregoing reasons, Defendants' motion to dismiss is GRANTED as to Count II for CMS but DENIED as to Dazal and is DENIED as to Counts IV and V for both Defendants. Count II is DISMISSED as to CMS but WITHOUT PREJUDICE.

Not Reported in F.Supp., 1998 WL 157415 (N.D.Ill.)