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Berkshire v. Dahl

United States Court of Appeals, Sixth Circuit

June 28, 2019

Randy Berkshire (17-1993 & 17-2039), Plaintiff-Appellee,
v.
Debra Dahl, Donna Beauvais, Christopher Sermo, and Michael Nelson (17-2039); Vasilis Pozios (17-1993), Defendants-Appellants.

          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 ...


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