Argued: May 1, 2019
Appeal
from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:12-cv-12038-Arthur J.
Tarnow, District Judge.
ARGUED:
Dale
A. Robinson, RUTLEDGE, MANION, RABAUT, TERRY & THOMAS,
P.C., Detroit, Michigan, for Appellant in 17-1993.
Adam
R. de Bear, OFFICE OF THE ATTORNEY GENERAL, Lansing,
Michigan, for Appellants in 17-2039. Conor T. Fitzpatrick,
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C., Detroit,
Michigan, for Appellee.
ON
BRIEF:
Dale
A. Robinson, RUTLEDGE, MANION, RABAUT, TERRY & THOMAS,
P.C., Detroit, Michigan, for Appellant in 17-1993.
Adam
R. de Bear, OFFICE OF THE ATTORNEY GENERAL, Lansing,
Michigan, for Appellants in 17-2039. Conor T. Fitzpatrick,
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C., Detroit,
Michigan, for Appellee.
Before: MERRITT, MOORE, and WHITE, Circuit Judges.
OPINION
KAREN
NELSON MOORE, CIRCUIT JUDGE.
Randy
Berkshire was formerly an inmate incarcerated at the Macomb
Correctional Facility in Michigan. There, he experienced a
parade of horribles. The question is whether those
responsible violated Berkshire's clearly established
constitutional rights. Different facts and different law
apply to each Defendant in this case.
Berkshire
had mental-health issues, but he began to improve while he
was in the Residential Treatment Program ("RTP") at
the Macomb Facility. In RTP, Berkshire worked as a Housing
Unit Representative on a "Warden's Forum," in
which he brought inmate complaints to the attention of prison
staff. After Berkshire brought one set of complaints, Dr.
Debra Dahl unilaterally raised Berkshire's Global
Assessment Functioning ("GAF") score, which
mental-health professionals use to measure a patient's
level of functioning, to a score that made Berkshire
ineligible to stay in RTP. Berkshire claims Dr. Dahl removed
him from RTP to retaliate against Berkshire for his
Warden's Forum complaints, thereby violating his First
Amendment rights.
Once
discharged from RTP, Berkshire's health and mental state
quickly deteriorated. Three individuals oversaw
Berkshire's care: Donna Beauvais, the unit chief of the
outpatient mental-health program; Christopher Sermo, a
psychologist with the outpatient program; and Dr. Vasilis
Pozios, a private doctor working for the government.
Berkshire had homicidal thoughts and engaged in
self-injurious activity, including depriving himself of food
and water. Eventually, Berkshire attempted to commit suicide.
Only then did Beauvais and Sermo transfer Berkshire to a
Crisis Stabilization Program, because, according to an email,
they "could not transfer [Berkshire] to Mars . . .
." Berkshire claims that Beauvais, Sermo, and Dr. Pozios
exhibited deliberate indifference to Berkshire's serious
medical needs in violation of the Eighth Amendment.
Finally,
after Berkshire attempted suicide, he was restrained. Around
midnight, Sergeant Michael Nelson entered Berkshire's
cell, and Berkshire requested a bathroom break. Sergeant
Nelson (now a lieutenant) told Berkshire to "hold
it" and that he was going to "stay just like that
until [his] mental illness goes away," and then left.
Sergeant Nelson never returned, leaving Berkshire to lie in
his own urine and feces for about six to seven hours.
Berkshire's claim against Sergeant Nelson turns on the
Eighth Amendment conditions-of-confinement standard.
The
district court denied qualified immunity to all the
Defendants. For the reasons that follow, we affirm.
I.
BACKGROUND
Berkshire
has a history of mental-health issues going back to early
childhood. See R. 183-4 (Clark Rep. at 2-3) (Page ID
#2430-31). Berkshire's problems with the law started when
he was just nine years old. Id. at 3 (Page ID
#2431). Eventually, Berkshire was incarcerated for thirteen
years (2001 to 2014) for second-degree home invasion,
id. at 2 (Page ID #2430), and from 2011 to 2012, he
was housed at the Macomb Correctional Facility in Michigan.
The instant case involves five Defendants and their
encounters with Berkshire at the Macomb Facility. The facts
as to each will be addressed in turn.
A.
Dr. Dahl: Berkshire's Time in RTP and His Discharge from
RTP
In July
2011, Berkshire entered RTP. RTP is an inpatient
mental-health wing at the prison that offers programs in art
and music therapy, weight lifting, and psychotherapy for
inmates with needs like Berkshire. At the time, Berkshire was
diagnosed with bipolar disorder, obsessive-compulsive
disorder, and major depression.
In
early March 2012, RTP residents elected Berkshire as their
Housing Unit Representative. R. 183-2 (Berkshire Aff. at
¶¶ 25-26) (Page ID #2407). These representatives
work on behalf of RTP residents, solicit residents'
complaints and concerns, and share those complaints and
concerns with the Resident Unit Manager. See R.
184-5 (Policy Directive) (Page ID #2616). A representative
like Berkshire carries out their role by compiling resident
input into an "Agenda" that is submitted to the
unit manager prior to meetings between the representative and
the unit manager and other staff. Id. Relatedly,
representatives participate in the "Warden's
Forum," which "assist[s] the Warden in identifying
and resolving problems which exist in the general population
of the institution." Id.
As a
representative, Berkshire made "rounds" with
residents to discuss their concerns, which he would then
compile into an Agenda. R. 183-2 (Berkshire Aff. at
¶¶ 27-28 (Page ID #2407). Moreover, in his role as
representative, Berkshire assisted other inmates, "many
of whom could not read or write, with drafting
grievances." Id. at ¶ 29. On March 19,
2012, Berkshire submitted an Agenda to Dr. Dahl, the RTP unit
chief, and the Resident Unit Manager, Geraldine Wilson.
Id. at ¶ 35 (Page ID #2409); R. 183-10 (Agenda)
(Page ID #2491). The Agenda contained six issues and requests
and included citations to prison policies. R. 183-10 (Agenda)
(Page ID #2491-93). Berkshire addressed the Agenda to Dr.
Dahl, and he asserts that he delivered it to her personally.
Id.; R. 183-2 (Berkshire Aff. at ¶¶ 36-37)
(Page ID #2409). Over the course of the next two days, RTP
staff refused to let Berkshire make his rounds, even though
other representatives were able to do so. See R.
183-2 (Berkshire Aff. at ¶¶ 38-40) (Page ID
#2409-10).
Then on
March 21, 2012-two days after Berkshire submitted his
Agenda-Dr. Dahl increased Berkshire's GAF score from 48
to 53. See R. 183-13 (Page ID #2500-02). (As
mentioned above, the GAF is a measure used by mental-health
professionals to indicate the level of functioning of a
patient.) A GAF score of 51 makes an inmate ineligible for
RTP. Consequently, Berkshire was transferred from RTP back
into the general population on about March 23, 2012.
Berkshire states that he "had not discussed [his] mental
health situation with any of [his] treating doctors in months
nor did [he] feel that [he] was ready to be placed in the
general population of a prison." R. 183-2 (Berkshire
Aff. at ¶ 41) (Page ID #2410); see also R.
183-4 (Clark Rep. at 7) (Page ID #2435) (noting a "three
month lapse in documentation" between December 20, 2011,
when Berkshire's GAF was 48, and March 21, 2012, when Dr.
Dahl raised Berkshire's GAF to 53). For her part, Dr.
Dahl could not recall meeting with Berkshire, creating the
record, or the review of Berkshire. See R. 183-7
(Dahl Dep. at 65-66) (Page ID #2472-73). The record itself
states that, "[s]ince being in the RTP, Mr. Berkshire
has made good progress," and goes on to recount some of
Berkshire's experiences in RTP. See R. 183-13
(Page ID #2501).
Ultimately,
Berkshire was discharged from RTP. Any "good
progress" that Berkshire had made during his time there
declined quickly once he entered the general population.
B.
Beauvais, Sermo, and Dr. Pozios: Berkshire's Decline
After His Discharge From RTP, His Treatment, and Suicide
Attempt
Donna
Beauvais, Christopher Sermo, and Dr. Pozios each had a hand
in Berkshire's treatment after Berkshire's discharge
from RTP. (Because Dr. Pozios forfeited his
qualified-immunity defense below and because his appeal is
squarely decided by binding Sixth Circuit precedent, we
address the facts related to him only to the extent that
those facts interrelate with those relevant to Beauvais's
and Sermo's appeals.)
"Discharge
from RTP was traumatic for Mr. Berkshire." R. 183-4
(Clark Rep. at 4) (Page ID #2432). Indeed, an April 1, 2012
medical record reveals that Berkshire was hospitalized due to
an "abrup[t] stop[p]age of his medication, and he
hadn't . . . eaten any food, drunk any water in 3 days .
. . . When asked how he is doing, prisoner Berkshire stated
'doesn't matter'." R. 183-16 (Page ID
#2522). The record also states that treatment was necessary
to "reduce risk of [Berkshire] needing a more intensive
level of care, reduce risk of harm to self or others,
maintain or improve current level of functioning."
Id. When Berkshire was asked whether he had
attempted suicide in the past, he responded "many
times." Id.
On
March 26, 2012, three days after Berkshire was discharged
from RTP, Beauvais met with Berkshire for about ten to
fifteen minutes. Beauvais knew then that Berkshire was
expressing homicidal thoughts. R. 212-2 (Beauvais Dep. at 61)
(Page ID #4436). After this meeting, Beauvais testified that
she "did not provide any treatment," but she
assigned Berkshire "to a case manager and a
psychiatrist." Id. at 67 (Page ID #4439). It is
possible that Beauvais was referring to Sermo, who is a
psychologist. Sermo indicated that Beauvais
"was happy that she gave [Berkshire] to [him] . . .
because [Berkshire] was presented to [him] as being
problematic." R. 212-3 (Sermo Dep. at 65) (Page ID
#4447). Within days after Berkshire's meeting with
Beauvais, he stopped eating and drinking and abruptly stopped
his medications, which triggered his hospitalization.
On
April 3, 2012, Sermo visited Berkshire in his cell to
evaluate him, allegedly for less than five minutes. Berkshire
stated that Sermo asked him "what [Berkshire] felt was
best for [himself]." R. 93 (Berkshire Aff. at ¶ 35)
(Page ID #996). Berkshire asked to be placed back into RTP,
but Sermo responded that neither Berkshire's
"diagnosis [n]or behaviors met the criteria" for
RTP. Id. Berkshire then requested to be placed in a
Crisis Stabilization Program, in which Berkshire could have
received a psychiatric evaluation to determine appropriate
treatment. Id. Berkshire asserts that Sermo stated
"that he did not feel like doing all of that paperwork
and ...