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Edson v. Riverview Psychiatric Center

United States District Court, D. Maine

February 28, 2017

ARLENE EDSON, Plaintiff,
v.
RIVERVIEW PSYCHIATRIC CENTER, et al., Defendants.

          ORDER ON DEFENDANT MARY MAYHEW'S MOTION TO DISMISS INDIVIDUAL CAPACITY CLAIMS

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         This case arises out of an incident that took place on December 2, 2013, in which staff at Riverview Psychiatric Center allegedly pepper sprayed, restrained, secluded, and failed to treat a patient without good cause. The patient filed a lawsuit against a number of state of Maine defendants in both their official and individual capacities. Mary Mayhew, the Commissioner of the Maine Department of Health and Human Services, moves to dismiss all individual capacity claims brought against her. The Court grants the motion to dismiss with respect to the constitutional claims pursuant to 42 U.S.C. § 1983 because the Plaintiff failed to plead sufficient facts to demonstrate that the Commissioner herself violated the patient's rights or acted or failed to act with deliberate indifference to them. The Court dismisses without prejudice the motion to dismiss the negligent supervision claim under Maine law because this aspect of the motion has not been thoroughly briefed and the Court is not sufficiently confident about the status of the tort in Maine to grant or deny the motion to dismiss.

         I. PROCEDURAL BACKGROUND

         On December 1, 2015, Arlene Edson filed a complaint in Kennebec County Superior Court for the state of Maine against Riverview Psychiatric Center (Riverview) and a number of other state of Maine entities and individuals, including Mary Mayhew, Commissioner of the Maine Department of Health and Human Services (MDHHS), in her official and individual capacities. Aff. of John J. Wall, III Attach. 3 Compl. (ECF No. 7). On February 10, 2016, Jamie Meader, a named Defendant, removed the case to this Court. Notice of Removal (ECF No. 1). On June 22, 2016, Commissioner Mayhew moved to dismiss the Complaint insofar as it made allegations against her in her individual capacity. Def. Mary Mayhew's Mot. to Dismiss Individual Capacity Claims (ECF No. 65) (Def.'s Mot.). On July 12, 2016, Ms. Edson filed her opposition to the motion to dismiss. Pl.'s Opp'n to Def. Mary Mayhew's Mot. to Dismiss Individual Capacity Claims (ECF No. 71) (Pl.'s Opp'n). On July 26, 2016, Commissioner Mayhew filed a reply. Def. Mary Mayhew's Reply in Supp. of Mot. to Dismiss Individual Capacity Claims (ECF No. 73) (Def.'s Reply).[1]

         II. THE ALLEGATIONS IN THE SECOND AMENDED COMPLAINT[2]

         A. Overview

         Arlene Edson has been a patient at Riverview since 2011. Second Am. Compl. ¶ 1. She has profoundly serious psychiatric illnesses and was involuntarily committed to Riverview after being found Not Criminally Responsible on arson and assault charges. Id. ¶¶ 1, 19. On December 2, 2013, Ms. Edson was pepper sprayed by Riverview employees, restrained in five-point restraints, and kept isolated for hours before anyone responded to her pleas for help. Id. ¶ 1. During all times relevant to this civil action, including December 2, 2013, Mary Mayhew was the Commissioner and policymaker for MDHHS. Id. ¶¶ 5, 26.

         B. Riverview

         MDHHS is a state agency responsible for overseeing Riverview. Id. ¶ 14. Riverview is a state-operated forensic hospital located in Augusta, Maine that provides psychiatric services to the corrections and judicial systems, including care for those committed under Maine statutes for observation and evaluation, persons found not criminally responsible, and for those found incompetent to stand trial. Id. ¶ 15. Since 1990, Riverview has been operating under a Consent Decree and incorporated Settlement Agreement. Id. ¶ 16. According to the Consent Decree, Riverview[3] failed to meet constitutional, statutory, and regulatory standards which deprived patients of fundamental rights, including freedom from restraint and freedom from abuse. Id. ¶ 17. The Consent Decree is a contract between MDHHS and class members, which includes all patients admitted to Riverview on or after January 1, 1988; Ms. Edson is a member of this protected class. Id. ¶ 18.

         Riverview is a Medicaid and/or Medicare participating hospital that has accepted federal funds. Id. ¶ 20. Following two highly publicized incidents of client abuse and subsequent investigation, the United States Centers for Medicaid and Medicare Services (CMS) found that Riverview violated constitutional, statutory, and regulatory standards. Id. ¶ 21. As a result of Riverview's multiple violations, it was decertified by CMS on or about September 2, 2013 for failing to comply substantially with Title XVIII of the Social Security Act and implementing regulations of the Secretary of Health and Human Services specified at 42 C.F.R. Part 482, Conditions of Participations for Hospitals. Id. ¶ 22. For approximately two years, Riverview operated without court supervision under the Consent Decree until about October 25, 2013, when State Superior Court supervision was reinstated. Id. ¶ 23.

         C. The December 2, 2013 Incident

         A special relationship existed between Arlene Edson and Riverview because the law required her to be in Riverview's physical custody. Id. ¶ 24. As a result of the special relationship, Mary Mayhew had a duty to control the conduct of parties to prevent them from harming Ms. Edson. Id. ¶ 25. On December 2, 2013, Ms. Edson was a forensic patient at Riverview, housed in the Lower Saco Unit, which Riverview used to house forensic patients. Id. ¶¶ 28-29.

         During the evening of December 2, 2013, William Lord, Jr. was the Registered Nurse and the Nurse on Duty in the Lower Saco Unit. Id. ¶ 30. During that evening, Kelly Lavigne and Carlos Taylor, III were working as corrections officers (COs) in the Lower Saco Unit under contract between Riverview and/or MDHHS and the Maine Department of Corrections. Id. ¶ 31. Corrections Officers Lavigne and Taylor wore video camera recording devices while on duty at Riverview that evening. Id. ¶ 32. Riverview also had surveillance video cameras, which recorded the hall and nurses' station in the Lower Saco Unit. Id. ¶ 33.

         On December 2, 2013 at approximately 8:15 p.m., Ms. Edson left a bathroom and walked into a conference room. Id. ¶ 34. When she walked into the conference room, Ms. Edson was followed by a corrections officer but no clinical staff. Id. ¶ 35. Ms. Edson asked to be left alone, but the corrections officer confronted her about a comment she had made earlier in the evening. Id. ¶ 36. Ms. Edson left the conference room and began to undress as she walked back to her room. Id. ¶ 37. Nurse Lord said to Ms. Edson: “I'll go with a three-strike rule basically, if we gotta do that.” Id. ¶ 38. After that, Ms. Edson put her clothing outside the door leading to the hallway. Id. ¶ 39. Nurse Lord and three other Riverview employees saw Ms. Edson put her clothes in the hallway. Id. ¶ 40. A corrections officer picked up Ms. Edson's clothing and placed it in the doorway of her room, after which Ms. Edson kicked her clothes back into the hallway. Id. ¶ 41. Out of view of Riverview's surveillance cameras, a corrections officer picked up Ms. Edson's clothes and removed them from the hallway. Id. ¶ 42.

         On December 2, 2013 at approximately 8:58 p.m., Ms. Edson was standing naked in her room with her back against a wall, shoulders hunched forward, displaying no signs of assaultive, violent or aggressive behavior. Id. ¶ 43. Without provocation, Corrections Officer Lavigne sprayed Ms. Edson with pepper spray, causing her to cough, spit, choke and double over in pain. Id. ¶ 44. Corrections Officer Taylor asked Nurse Lord: “Do you want [Ms. Edson] cuffed?” Id. ¶ 45. After Nurse Lord said “yes, ” Corrections Officer Taylor handcuffed Ms. Edson while she was on the floor, even though she was not assaultive, violent or aggressive. Id. ¶ 46.

         Ms. Edson told Corrections Officers Lavigne and Taylor that she could not breathe and asked for a shower to remove the pepper spray, but her requests were ignored. Id. ¶ 47. Ms. Edson was wrapped in a sheet, taken to another room, placed on her back, and placed in five-point restraints. Id. ¶ 48. Ms. Edson told those present that the pepper spray was running down her nose and once again begged for a shower to remove the pepper spray. Id. ¶ 49. While Ms. Edson was begging for a shower, a male Riverview staff member could be heard on the recording coughing from the pepper spray used against Ms. Edson. Id. ¶ 50. A video recording shows that at 9:04 p.m., Ms. Edson continued to beg for a shower and asked for someone to speak with the nurse. Id. ¶ 51. The video recording shows a mental health worker wiping his or her face off with a wash cloth in an effort to remove the pepper spray affecting him or her. Id. ¶ 52.

         On December 2, 2013, Nurse Lord talked on the telephone and stood at the nurses' station for approximately fifteen minutes after Ms. Edson was pepper sprayed. Id. ¶ 53. Ms. Edson continued to cough, beg and whimper from the effects of the pepper spray and was denied a blanket and the water she asked for. Id. ¶ 54. A Riverview video recording shows Ms. Edson was still restrained at 9:18 p.m., while she continued to ask for a nurse. Id. ¶ 55. Ms. Edson told a Riverview nurse on duty that her side was burning, and in response, Staff said: “If it was burning that bad, you would know what to do to get out of here, but you aren't, ” after which they left her still in restraints with the corrections officers. Id. ¶¶ 56-57. Riverview's surveillance video shows that Ms. Edson was passive and cooperative throughout these events. Id. ¶ 58.

         Ms. Edson was not seen by a nurse until 11:30 p.m., almost three hours after she was pepper sprayed. Id. ¶ 59. The nurse who saw Ms. Edson discussed “boundaries” with her, after which she released her from the restraints and allowed her to take a shower. Id. ¶ 60. Ms. Edson suffered extreme physical and mental pain and humiliation by being pepper sprayed and restrained without cause or provocation while Riverview staff and corrections officers ignored her pleas for help. Id. ¶ 61.

         D. Riverview Policies and Arlene Edson

         Riverview's policy on the use of restraints stated that physical “[r]estraint will be used only when there exists an imminent risk of danger to the individual or others and no other safe and effective intervention is possible.” Id. ¶ 62. Riverview policy defined “imminent threat” as “making verbal threats to harm, posturing to physically harm, brandishing an item that could be used as a weapon, concealing a weapon that they are refusing to surrender, taking a hostage, holding an item to themselves and threatening to harm themselves or others, or attempting to escape.” Id. ¶ 63. Ms. Edson's behavior during the events of December 2, 2013 did not satisfy the definition of “imminent threat” under Riverview policy. Id. ¶ 64.

         Riverview's policy on the use of restraints also stated: “Law enforcement restraints will never be used for the purposes of discipline, coercion, active treatment, staff convenience or as a replacement for adequate levels of staff.” Id. ¶ 65. Riverview policy defined abuse as “the infliction of injury, unreasonable confinement, intimidation or cruel punishment that causes, or is likely to cause, physical harm or pain or mental anguish, sexual abuse or sexual exploitation.”[4] Id. ¶ 66. In accordance with Riverview's policies, staff was responsible for taking “action to protect clients from abuse” and to immediately “report[] abuse . . . which they have witnessed or have knowledge of.” Id. ¶ 67. On December 2, 2013, Riverview's Documentation Standards and Requirements' Protocol and Procedure stated: “Accurate, detailed documentation shows the extent and quality of care provided, the outcome of that care and the treatment and education that the client still needs.” Id. ¶ 68.

         The Defendants actively concealed the abuse inflicted on Ms. Edson by Riverview staff and corrections personnel.[5] Id. ¶ 69. The Defendants failed to follow the law, policies, guidelines, protocols and terms of the Consent Decree in regard to the events leading to the abuse inflicted on Ms. Edson. Id. ¶ 70. The Defendants filled out false and misleading paperwork and reports about what happened to Ms. Edson. Id. ¶ 71. A December 2, 2013 nursing note falsely stated that Ms. Edson was “unable to deescalate with multiple attempts . . . began banging head and kicking, hitting walls. [Corrections Officers] intervened as client was kicking holes and picking shards of wall, warned client several times.” Id. ¶ 72. In fact, Ms. Edson did not bang her head, kick or hit the walls, display any threatening behavior, or put a hole in the wall of her room during the incident. Id. ¶ 73.

         On December 2, 2013, Julia Wise, PA-C, filled out a Medical Staff Restraint and SRC Progress Note which stated Ms. Edson “was maced, put back in restraints, see CO/Nursing notes for more details” at 9:00 p.m. and never mentioned the use of pepper spray against Ms. Edson.[6] Id. ¶ 74. Riverview Psychiatric Center Incident Report #5255 dated December 2, 2013 and signed by Nurse Lord at 9:00 p.m. stated: “Client cont'd banging, kicking, property destruction despite several attempts to redirect and deescalate verbally . . . CO's Lavigne/Taylor intervened, gave the client several warnings to gain control of behavior . . . Client sprayed by CO-behavior ceased immediately-staff/patient [without] injury.” Id. ¶ 75.

         Riverview's “Seclusion and Restraint Events Policy” stated: “Seclusion and restraints are considered emergency measures or interventions of last resort to protect clients in imminent danger of harming him/herself or others . . . seclusion and restraint will be used only when there exists an imminent risk of danger to the individual or others and no other safe and effective intervention is possible.” Id. ¶ 76. Ms. Edson was pepper sprayed and placed in five-point restraints, even though she was not in imminent danger of harming herself or others. Id. ¶ 77.

         Riverview's “Seclusion and Restraint Events Policy” required a physician, physician's assistant, or nurse practitioner to evaluate the client within thirty minutes of the initiation of restraint and to document the findings of the evaluation in a progress note. Id. ¶ 78. Riverview had no documentation showing that Ms. Edson was given a physical examination after she was pepper sprayed. Id. ¶ 79.

         Even though Maine law required Riverview staff and corrections personnel to immediately report Ms. Edson's abuse to MDHHS, her abuse was not reported to Maine's Adult protective services until February 27, 2014. Id. ¶ 80.

         Between February 27, 2014 and March 10, 2014, Thomas Woodman, RN, HSC II and Alelia Hilt-Lash, RN, BSN, MBA, HSS conducted an investigation at Riverview, #ME00015398. Id. ¶ 81. Investigation #ME00015398 substantiated the complaint for abuse and inappropriate use of restraints on Ms. Edson. Id. ¶ 82.

         III. THE COUNTS AGAINST MARY MAYHEW

         The Second Amended Complaint contains sixteen counts; Ms. Edson directs six against Ms. Mayhew: (1) Count IV-failure to train pursuant to 42 U.S.C. § 1983; (2) Count V-supervisory liability pursuant to 42 U.S.C. § 1983; (3) Count VI-custom, practice and policy liability pursuant to 42 U.S.C. § 1983; (4) Count VIII-Americans with Disabilities Act (ADA) pursuant to 42 U.S.C. § 12132; (5) Count IX-equal protection pursuant to 42 U.S.C. § 1983; and (6) Count XII-negligent supervision under Maine state law. Second Am. Compl. at 1-26. Ms. Edson's Second Amended Complaint specifies that she is bringing Count VIII, the ADA claim, against Commissioner Mayhew only in her official capacity. Id. at 18 (“Riverview Psychiatric Center, Mayhew & McEwen in their Official Capacities”). Therefore, the pending motion does not reach Count VIII. The remaining five Counts against Ms. Mayhew, all of which make claims against her in her individual capacity, may be broadly categorized into two theories: constitutional rights claims and a state tort claim.[7]

         IV. THE PARTIES' POSITIONS

         A. Mary Mayhew's Motion

         In her motion to dismiss, Mary Mayhew moves for the dismissal of the Counts against her only to the extent those Counts assert claims against her in her individual, not official capacity. Def.'s Mot. at 1. Regarding the constitutional rights claims, Ms. Mayhew points out that a supervisor may not be held responsible under § 1983 based solely on her position of authority and instead the law requires that the plaintiff allege some individual misconduct on the part of the supervisor to violate the plaintiff's constitutional rights. Id. at 5-6. Citing First Circuit law, Ms. Mayhew says that a supervisor may be liable under § 1983 if she is the “primary violator or direct participant in the right-violating incident” or if she “supervises, trains, or hires a subordinate with deliberate indifference toward the possibility that deficient performance of the task eventually may contribute to a civil rights deprivation.” Id. at 6 (quoting Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir. 2009) (quoting Camilo-Robles v. Zapata, 175 F.3d 41, 43-44 (1st Cir. 1999))). Ms. Mayhew quotes the First Circuit's three-part test for the deliberate indifference inquiry: “(1) ‘that the officials had knowledge of facts, ' from which (2) ‘the official[s] can draw the inference' (3) ‘that a substantial risk of serious harm exists.'” Id. at 6 (quoting Ramírez-Lluveras v. Rivera-Merced, 759 F.3d 10, 20 (1st Cir. 2014) (quoting Ruiz-Rosa v. Rullán, 485 F.3d 150, 157 (1st Cir. 2007))). She says that the plaintiff must also demonstrate that there is a “strong causal connection between the supervisor's conduct and the constitutional violation, ” id. (quoting Ramírez-Lluveras, 759 F.3d at 19), and that the supervisor's conduct “led inexorably to the constitutional violation.” Id. at 6-7 (quoting Ramírez-Lluveras, 759 F.3d at 19-20 (emphasis added) (quoting Hegarty v. Somerset Cty., 53 F.3d 1367, 1380 (1st Cir. 1995))). Finally, she notes that the “supervisor must have notice of the unconstitutional condition said to lead to the claim.” Id. at 7 (quoting Ramírez-Lluveras, 759 F.3d at 20).

         Applying these standards, Ms. Mayhew sees three potential bases in the Second Amended Complaint for liability: (1) that she was involved in the decision to place correctional officers at Riverview; (2) that she failed to properly train Riverview staff; and (3) that she failed to properly supervise Riverview staff. Id. Turning to the first theory, the placement decision, Ms. Mayhew points to the allegations in Ms. Edson's Count IV, where Ms. Edson claims that Ms. Mayhew with Mary Louise McEwen and William Lord, Jr. made a decision “to use corrections officers at Riverview” and to “put the officers in direct contact with vulnerable and mentally ill at-risk patients, including Ms. Edson.” Id. (quoting Second Am. Compl. ¶ 101). Ms. Mayhew argues that this decision “does not support a Section 1983 claim against [her]” because this decision did not lead “‘inexorably' to Ms. Edson being pepper-sprayed and placed into restraints.” Id. Even if Ms. Edson's complaint could be construed as meeting this standard, Ms. Mayhew contends that Ms. Edson's complaint does not allege facts sufficient to establish that, in staffing Riverview with corrections officers, she was deliberately indifferent as to the consequences of this decision on the civil rights of patients, including Ms. Edson, or that she had knowledge of facts from which she could have drawn the inference that to do so would place the patients at a “substantial risk of serious harm.” Id. at 7-8 (quoting Ramírez-Lluveras, 759 F.3d at 20).

         Regarding the second theory, failure to train, Ms. Mayhew notes that Ms. Edson has alleged in Count IV that she, Ms. McEwen and Mr. Lord “failed to train Riverview employees [on] how to deal with, interact, and protect mentally ill patients.” Id. at 8 (quoting Second Am. Compl. ¶ 102). Even assuming that this allegation is sufficient to allege inadequate training, Ms. Mayhew argues that there are no specific allegations that she, “the head of the entire Department of Health and Human Services, was responsible for training Riverview employees.” Id. Ms. Mayhew contends that without specific allegations, this theory amounts to an attempt to hold Ms. Mayhew responsible under the doctrine of respondeat superior, which is not applicable to § 1983 claims. Id. at 9.

         Finally, on the third theory, the failure to supervise found in Count VI, Ms. Mayhew quotes the allegation, which states that she failed to end a “workforce culture” that “made patient abuse at Riverview likely because staff members routinely provoked responses from patients and ostracized and/or marginalized employees who reported patient abuse.” Id. (quoting Second Am. Compl. ¶ 115).

         Here, Ms. Mayhew argues that there is no allegation that she was “directly involved in the management of Riverview such that she can be held responsible for the December 2 incident.” Id. In support of her position, Ms. Mayhew cites Ashcroft v. Iqbal, 556 U.S. 662 (2009), and maintains that the Supreme Court's dismissal of the Attorney General and the Director of the Federal Bureau of Investigation suggests the same result should obtain here. Id. at 9-10. She also cites Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527, 533-34 (1st Cir. 2011), where the First Circuit concluded that similar allegations against “very high-level officials” with “vast responsibilities” could not be subject to suit based on “conclusory allegations.” Id. at 10-11.

         Next, Ms. Mayhew maintains that even if Ms. Edson has successfully stated a § 1983 claim, Ms. Mayhew is entitled to qualified immunity “insofar as [her] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 11 (quoting Pearson v. ...


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