Ruth Denham v. Corizon Health, Inc. , 675 F. App'x 935 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12974
________________________
D.C. Docket No. 6:13-cv-01425-PGB-KRS
RUTH DENHAM,
as Personal Representative of the Estate of Tracy Lee Veira, Deceased,
Plaintiff-Appellant,
versus
CORIZON HEALTH, INC.,
a Delaware corporation,
VOLUSIA COUNTY, FLORIDA,
a political subdivision of the State of Florida,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_______________________
(January 13, 2017)
Before WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and
MARTINEZ, * District Judge.
*
Honorable Jose E. Martinez, United States District Judge for the Southern District of Florida,
sitting by designation.
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PER CURIAM:
This appeal requires us to decide whether a county and the healthcare
provider at its jail are liable for the death of pretrial detainee Tracy Lee Veira, 42
U.S.C. § 1983, where the record does not establish a pattern of similar incidents at
the jail, knowledge by county policymakers of the practice that the plaintiff alleges
violated the detainee’s constitutional rights, or a causal link between any custom of
the healthcare provider and the detainee’s death. Three days after Veira turned
herself in at the Volusia County jail, the medical staff at the jail, furnished by
Corizon Health, Inc., diagnosed her as suffering from opiate withdrawal. The
medical staff devised a treatment plan for Veira that required officers, not medical
personnel, to observe her every fifteen minutes. Officers found her dead in her cell
three-and-a-half days later. The personal representative of Veira’s estate, Ruth
Denham, sued Volusia County and Corizon for violating Veira’s rights under the
Fourteenth Amendment by acting with deliberate indifference to Veira’s serious
medical needs, id. § 1983. Volusia County and Corizon moved for summary
judgment on the ground that Denham failed to establish facts that proved that
either entity had a custom or policy of deliberate indifference to Veira’s serious
medical needs. The district court granted the motions. After reviewing the record
and the parties’ briefs, and hearing oral argument, we agree that Volusia County
and Corizon are entitled to summary judgment. Because Denham has failed to
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establish a genuine issue of material fact regarding whether either entity had a
custom or policy of deliberate indifference that caused Veira’s death, we affirm the
decision of the district court.
I. BACKGROUND
The facts of this case are undeniably tragic. On September 9, 2009, Veira
turned herself in at the Volusia County Jail, after she violated her probation for
convictions of driving with a canceled, suspended, or revoked license and fleeing
law enforcement officers. Corizon was the contract healthcare provider at the jail.
Before her imprisonment, Veira was prescribed Oxycodone and Xanax by her
physician to treat symptoms of chronic back pain. These prescribed medications
were discontinued after Veira’s booking because Oxycodone and Xanax may not
be distributed to inmates.
Three days after she entered the jail, Veira went to the medical clinic and
expressed that she had been vomiting in her cell. A nurse identified signs of opiate
withdrawal and called the nurse practitioner. Without examining Veira, a doctor
gave “Physician’s Orders” over the phone that prescribed various medications and
instructed that Veira be placed on a clear liquid diet for three days. The medical
staff also began a medical protocol to monitor Veira’s withdrawal symptoms and
moved Veira from the general prison population to medical segregation, where she
was placed on medical watch. Jail policy required that corrections officers observe
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an inmate on medical watch “in time intervals not to exceed every 15 minutes and
document[ ] as such” on a watch sheet.
In the “early afternoon” on September 14, two days after Veira was placed
on the medical protocol, she called her friend Crystal Wharton. She told Wharton
that she felt sicker than ever before and had submitted multiple requests for mental
health services but that no nurse had come to see her. Veira asked Wharton to call
the medical clinic for her, which Wharton did. The medical staff saw Veira at 3:45
p.m. that day.
Veira went to the nurses’ station again the next day, September 15, at around
2:30 p.m. According to one nurse, Nurse Jones, Veira “was slumped over lying
across 3 chairs, lethargic, diaphoretic, with pale skin, arms and legs twitching,
[and] exhibiting slurred speech.” Jones was concerned. She informed the head
nurse that Veira needed immediate medical attention and looked like she needed to
go to the hospital. But thirty minutes later, when Jones returned to the nurses’
station, Veira was in the same condition. The head nurse told Jones that she had
not seen Veira “and that the other [nurse] could see [Veira] when she was done
with what she was doing.” When the other nurse examined Veira, she discovered
that Veira had lost so much weight since she entered the jail that the blood pressure
cuff would not fit. The other nurse later told Jones that the head nurse had said
Veira was “just DT’ing, [was] already on MLD and medication,” and just needed
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water. 1 A member of the medical staff wrote in Veira’s medical record that, at this
time, Veira was suffering from mild withdrawal.
That night, Veira “moaned and cried out loudly in pain . . . , asking for
help,” but the guards ignored her pleas and “talk[ed] among themselves in a
negative fashion about ‘people comin’ in here on drugs.” The watch sheet for that
evening and the following morning did not “show[ ] any hint of [a] problem.” But
at 9:45 a.m., an officer found Veira unconscious in her cell. Veira was “in full rigor
mortis and with moderate liver mortis.” Her body was covered in “a dark green
bilious vomit,” and a “cup next to her head was filled to the brim with the same
fluid.” According to the watch sheet for that time period, Veira had been observed
every fifteen minutes. The majority of the notations stated that Veira was observed
lying on her bunk breathing, and none of them marked anything out of the
ordinary.
Two officers admitted that they made incorrect entries on the watch sheet in
the hour or two before Veira’s death. One of the officers stated that she wrote “on
bunk breathing” on the watch sheet incorrectly for the 8:45 a.m. and 9:00 a.m.
entries. The officer said that she actually saw Veira sitting on the toilet at 8:45 a.m.
and standing at her cell door at 9:00 a.m. The other officer, a sergeant, wrote on the
watch sheet that she spoke with Veira at 8:33 a.m., but later stated that she did not
1
The abbreviations are not defined in the record or by the parties.
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speak with her and instead saw her on her bed, apparently sleeping. One of
Denham’s medical experts disputed these statements. He stated that “purported
observations of . . . Veira by [ ] staff that she was standing at her door less than an
hour before she was found unresponsive, or sitting on the toilet just over an hour
before she was found, are preposterous” because, based on the condition of the
body when it was found, Veira had likely been dead for at least one to two hours
before she was found at 9:54 a.m.
Additionally, the officers often recorded watches that never occurred, and
the supervisors would help the officers falsify the sheets. According to Dr. Marilyn
Ford, the Corrections Director for the Volusia County Division of Corrections,
employee records from 2005 through the date of Veira’s death in 2009 reveal that,
excluding the reprimands associated with Veira’s death, there were “eight other
instances where corrections officers either failed to properly maintain watch over
inmates or failed to properly document their activities.” Dr. Ford explained that
“[i]n every case, employees were disciplined.”
At the autopsy, the medical examiner discovered that Veira had lost at least
19 pounds over the six-and-a-half days she was imprisoned. He listed “withdrawal
from opiate abuse” as a significant condition of Veira’s cause of death. Dr. Kris
Sperry, one of Denham’s medical experts, stated that, in his opinion, “Veira died of
the complications of severe vomiting and dehydration which caused her to vomit,
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aspirate that vomit, develop aspiration pneumonia, and die.” Dr. Sperry stated that
Veira likely would have survived had she been transferred to a medical facility “at
least on the evening before she was found deceased.”
An inmate was discovered dead at the jail at least one other time. A former
officer reported that he “recall[ed] one instance prior to but similar to the Veira
case in which [he] and [another officer] were the first to respond to an inmate
classified close watch and housed in the former medical clinic who had been dead
so long when [they] discovered him that he [was] fully rigid and his bodily fluids
were soaking through the tissue of his back into the mattress.”
Denham, as personal representative for Veira’s estate, filed a complaint
against Volusia County and Corizon, alleging that Volusia County and Corizon
violated Veira’s Fourteenth Amendment rights by acting with deliberate
indifference to Veira’s serious medical needs, 42 U.S.C. § 1983. Volusia County
and Corizon filed motions for summary judgment, which the district court granted.
Specifically, the district court determined that Denham failed to produce evidence
that “Volusia County’s policymakers or the policymakers in its department of
corrections had actual or constructive knowledge of the constitutionally-violative
practice” and determined that Denham failed to prove deliberate indifference under
a theory of liability for failure to train because she did not establish a widespread
pattern of similar constitutional violations by untrained employees or establish that
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the need for more or different training was “obvious.” The district court also
determined that, although a rational jury could determine that Corizon had a
custom of failing to complete intake paperwork accurately, Denham failed “to
produce affirmative evidence showing a direct causal link between this custom and
Veira’s death.” And to the extent any of Denham’s arguments could be construed
as an allegation of a custom of providing inadequate medical care, the district court
stated that the record refuted this assertion by proving that Corizon’s staff
interacted with Veira multiple times every day. Finally, to the extent Denham
alleged in her complaint that Veira’s death may have been caused by a policy or
custom of understaffing the jail, the district court determined that Denham failed to
produce any evidence of understaffing and instead relied on conclusory allusions to
that effect.
II. STANDARD OF REVIEW
“This Court reviews de novo summary judgment rulings and draws all
inferences and reviews all evidence in the light most favorable to the non-moving
party.” Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2001). “Summary
judgment is appropriate ‘if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.’” Craig
v. Floyd Cty., 643 F.3d 1306, 1309 (11th Cir. 2011) (quoting Fed. R. Civ. P.
56(a)). If the moving party is able to successfully meet this initial burden, the
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burden then shifts to the plaintiff to provide evidence showing that a genuine issue
of material fact exists for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986).
However, the plaintiff must do more than simply cast a metaphysical doubt
regarding material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by citing to particular parts of materials in the
record.” Fed. R. Civ. P. 56(c)(1)(A).
Moreover, if the nonmoving party fails to make a sufficient showing to
establish the existence of an essential element to that party’s case, there can be no
genuine issue as to any material fact, since a complete failure of proof concerning
an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial. Craig, 643 F.3d at 1309 (quoting Celotex Corp., 477 U.S. at
322–23).
III. DISCUSSION
Section 1983 “creates a private right of action to vindicate violations of
‘rights, privileges, or immunities secured by the Constitution and laws’ of the
United States.” Rehberg v. Paulk, 132 S. Ct. 1497, 1501 (2012). Under the statute,
“‘[e]very person’ who acts under color of state law to deprive another of a
constitutional right shall be answerable to that person in a suit for damages.”
Imbler v. Pachtman, 424 U.S. 409, 417 (1976). “Local governing bodies” are
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“persons” for purposes of section 1983 and “can be sued directly under § 1983 for
monetary, declaratory, or injunctive relief where . . . the action that is alleged to be
unconstitutional implements or executes a policy . . . officially adopted and
promulgated by that body’s officers.” Monell v. Dep’t of Soc. Servs. of N.Y., 436
U.S. 658, 690 (1978). And “although the touchstone of the § 1983 action against a
government body is an allegation that official policy is responsible for a
deprivation of rights protected by the Constitution,” municipalities also “may be
sued for constitutional deprivations visited pursuant to governmental ‘custom’
even though such a custom has not received formal approval.” Id. at 690–91. A
private entity, like Corizon, is subject to liability under section 1983 when it
“performs a function traditionally within the exclusive prerogative of the state,”
such as contracting with the county to provide medical services to inmates because
it becomes “the functional equivalent of the municipality” under section 1983
when it performs such a function. Craig, 643 F.3d at 1310 (alterations and
quotation marks omitted). To survive summary judgment, the record must contain
sufficient evidence to create a genuine dispute of material fact on each of the three
elements of liability under section 1983. See id. at 1309–10.
First, Denham must establish that Veira’s constitutional rights were violated.
McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). Denham contends that
Volusia County and Corizon deprived Veira of her right to due process under the
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Fourteenth Amendment. As a pretrial detainee, Veira’s “rights exist[ed] under the
due process clause of the Fourteenth Amendment rather than the Eighth
Amendment,” but Denham’s “claims are subject to the same scrutiny as if they had
been brought as deliberate indifference claims under the Eighth Amendment.”
Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306 (11th Cir. 2009). To establish that
Veira’s constitutional rights were violated, or in other words, to prevail on a claim
of deliberate indifference to a serious medical need, Denham must show (1) a
serious medical need, (2) the Defendants’ deliberate indifference to that need, and
(3) causation between that indifference and Veira’s injury. Craig, 643 F.3d at
1310.
Second, Denham must show “that the municipality had a custom or policy
that constituted deliberate indifference to that constitutional right.” McDowell, 392
at 1289. A county is not liable under section 1983 for injuries caused solely by its
employees, McDowell, 392 F.3d at 1289, and may be held liable only when the
execution of a government policy or custom causes the injury. City of Canton v.
Harris, 489 U.S. 378, 385 (1989). There are at least five ways to prove a municipal
policy or custom, Erwin Chemerinsky, Federal Jurisdiction 511 (5th ed. 2007), but
only two are relevant to this appeal. A municipality may be liable under section
1983 for violations of constitutional rights caused by a policy of failing to train its
municipal employees, Canton, 489 U.S. at 380, and “an act performed pursuant to
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a ‘custom’ that has not been formally approved by an appropriate decisionmaker
may fairly subject a municipality to liability on the theory that the relevant practice
is so widespread as to have the force of law.” Bd. of Cty. Comm’rs of Bryan Cty. v.
Brown, 520 U.S. 397, 404 (1997).
Third, Denham must establish “that the policy or custom caused the
violation.” McDowell, 392 F.3d at 1289. In sum, to survive summary judgment,
Denham must produce evidence sufficient to create a genuine dispute of material
fact on each element of liability under section 1983: “(1) that [Veira’s]
constitutional rights were violated; (2) that the municipality had a custom or policy
that constituted deliberate indifference to that constitutional right; and (3) that the
policy or custom caused the violation.” Id.
Denham asserts five theories of liability, and each of these theories fails.
First, she argues that Volusia County and Corizon had policies of failing to train
the guards at the Volusia County jail, but she fails to present evidence that proves
that the entities had this policy. This argument fails on the second factor. Second,
she argues that Volusia County had a custom of falsifying records to cover up the
officer’s failure to perform watches every fifteen minutes as required, but she fails
to establish that any policymaker at Volusia County knew about this practice. This
argument also fails on the second factor. Third, she argues that Corizon had a
custom of failing to perform the intake procedures correctly, but she does not
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explain how this custom caused Veira’s death. This argument fails on the third
factor. Fourth, Denham argues that Corizon had a custom of providing inadequate
medical care, but, at most, she submitted evidence suggesting that Corizon
provided inadequate medical care on only a single prior occasion. This argument
fails on the second factor. Fifth, Denham argues that Volusia County had a policy
or custom of understaffing, but she fails to establish that a policymaker’s budget
decision was highly likely to cause Veira’s death. This argument fails on the third
factor.
A. Denham Did Not Produce Sufficient Evidence to Establish that Volusia
County and Corizon Had Policies of Failing to Train the Officers at the Jail.
Denham argues that corrections officers in the medical segregation unit at
the jail “performed critical medical duties with respect to [the] most seriously ill
inmates” but were not trained to provide nonemergency medical services. She
asserts that this failure to train constitutes a custom or policy of deliberate
indifference. A municipality may be liable for failing to train its employees if
“such inadequate training can justifiably be said to represent ‘city policy.’”
Canton, 489 U.S. at 390. “Since a municipality rarely will have an express written
or oral policy of inadequately training or supervising its employees, . . . a plaintiff
may prove a city policy by showing that the municipality’s failure to train
evidenced a ‘deliberate indifference’ to the rights of its inhabitants.” Gold v. City
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of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). The failure to train must “reflect[]
a ‘deliberate’ or ‘conscious’ choice by a municipality.” Canton, 489 U.S. at 389.
“To establish a ‘deliberate or conscious choice’ or such ‘deliberate indifference,’ a
plaintiff must present some evidence that the municipality knew of a need to train
and/or supervise in a particular area and the municipality made a deliberate choice
not to take any action.” Gold, 151 F.3d at 1350.
A municipality might be on notice of a need to train or supervise in a
particular area if “the need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been deliberately
indifferent to the need” or if the employees of the municipality “in exercising their
discretion, so often violate constitutional rights that the need for further training
must have been plainly obvious to the city policymakers.” Canton, 489 U.S. at 390
& n.10. Denham argues that Volusia County and Corizon failed to provide the
correctional officers at the jail with medical training, despite using the officers to
perform “critical medical duties,” and that this need to train was obvious. This
argument fails.
Denham failed to produce sufficient evidence to prove that it was obvious
that the correctional officers at the Volusia County jail needed “more or different”
training. This standard is difficult to meet. The Supreme Court has never
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determined that the need for “more or different” training was obvious. It has
“given only a hypothetical example of a need to train being ‘so obvious’ without
prior constitutional violations: the use of deadly force where firearms are provided
to police officers.” Gold, 151 F.3d at 1352 (citing Canton, 489 U.S. at 390 n.10).
The facts in this appeal are not analogous to this hypothetical. Denham contends
that it was obvious that the officers at the jail needed medical training because
Volusia County and Corizon used the officers “to perform critical medical duties.”
But the record does not establish that the officers performed “critical medical
duties,” let alone medical duties. In fact, the officers were not permitted to perform
the functions of medical staff, except in emergency situations, for which the
officers were provided emergency medical training. To whatever extent the
officers needed training to deal with “split-second decisions with life-or-death
consequences[,]” like armed police contemplating the use of deadly force, Connick
v. Thompson, 563 U.S. 51, 64 (2011), that training was provided by virtue of the
emergency medical training.
Because Denham failed to identify a pattern of similar constitutional
violations, she also has not established that the Volusia County officers so often
violate constitutional rights that the need for further non-emergency medical-
services training must have been plainly obvious to the Volusia County
policymakers. See Connick, 563 U.S. at 62. She cites two incidents—the incident
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involving Veira and one previous incident where an officer found a dead body. But
even assuming that this prior incident constitutes a “similar constitutional
violation,” we have declined to hold a supervisor liable for failure to train where
the plaintiff provided evidence of a prior, similar incident with facts similar to the
plaintiff’s. Keith v. DeKalb Cty., 749 F.3d 1034, 1053 (11th Cir. 2014). We
determined that the one prior “incident did not provide the requisite notice to [the
supervisor] that the training provided to detention officers was constitutionally
deficient.” Id. Likewise, ten complaints filed against one officer did not establish
that city officials were aware of past police misconduct because there was no
evidence that the past complaints had merit. Brooks v. Scheib, 813 F.2d 1191, 1193
(11th Cir. 1987). In contrast, we held a city liable where “[t]he evidence revealed
several incidents involving the use of unreasonable and excessive force by police
officers” that established that the “city had knowledge of improper police conduct,
but failed to take proper remedial action.” Depew v. City of St. Marys, 787 F.2d
1496, 1499 (11th Cir. 1986) (emphasis added). Denham has produced only two
incidents. These incidents do not establish sufficient evidence for a jury to find a
pattern of constitutional violations supporting Denham’s theory of liability for
failure to train on non-emergency medical services.
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B. Denham Did Not Produce Sufficient Evidence to Establish that Volusia
County or Corizon Had a Custom that Caused Veira’s Death.
Denham also argues that Volusia County and Corizon had customs that
constitute policies of deliberate indifference. “[A]n act performed pursuant to a
‘custom’ that has not been formally approved by an appropriate decisionmaker
may fairly subject a municipality to liability on the theory that the relevant practice
is so widespread as to have the force of law.” Brown, 520 U.S. at 404. “But it is
well established that a municipality may not be held liable under section 1983 on a
theory of respondeat superior.” Davis ex rel. Doe v. DeKalb Cty. Sch. Dist., 233
F.3d 1367, 1375 (11th Cir. 2000). “Instead, ‘recovery from a municipality is
limited to acts that are, properly speaking, acts of the municipality—that is, acts
which the municipality has officially sanctioned or ordered.’” Id. (quotation marks
omitted) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986)). In
addition to identifying “conduct properly attributable to the municipality,” Denham
must “show that the municipal action was taken with the requisite degree of
culpability,” that is, “with ‘deliberate indifference’ to its known or obvious
consequences.” Id. at 1375–76 (quoting Brown, 520 U.S. at 407).
Denham argues that Volusia County had a custom of recording watches that
were not performed, but fails to produce evidence that this conduct is properly
attributable to the municipality. Denham cites the affidavit of a former officer that
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states that the practice of failing to perform watches and falsifying the watch sheets
was “so pervasive” that he “personally [found] it inconceivable that they were not
known to the top administrators.” But a municipality may not be held liable for the
acts of its employees unless the municipality sanctioned or ordered the acts. And
the record establishes that to the knowledge of Dr. Ford, a policymaker for Volusia
County, whenever an officer failed to perform a watch or falsified a record, the
officer was disciplined. On this record, there is no evidence that the county in any
way sanctioned the behavior of the officers who violated the watch policy because
to the extent the policymakers knew about this practice, the policymakers thought
the officers were punished. The record establishes that officers routinely falsified
records and the supervisors assisted in this practice, but does not establish that any
policymaker knew about this practice and did nothing. As such, Denham has failed
to establish a custom that is properly attributable to the municipality.
Denham also argues that Corizon had a custom of failing to perform intakes
correctly and that this failure prevented Corizon from diagnosing Veira for three
days, but Denham has not established that this practice caused Veira’s death. The
medical staff diagnosed Veira as suffering from opiate withdrawal and placed her
on a treatment protocol three days after she entered the jail. But nothing in the
record suggests that Veira died because of Corizon’s failure to diagnose Veira
sooner. Even assuming that the failure to diagnose Veira earlier violated Veira’s
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rights and satisfies the standard for a policy of deliberate indifference, Denham
failed to establish that this policy caused Veira’s death.
And to the extent Denham argues that Corizon had a custom of providing
inadequate medical care, she failed to establish that Corizon provided inadequate
medical care to other inmates. Denham established that, on one other occasion, an
inmate on medical watch was found dead and had been dead for a long time. But
she produces no evidence tying this death to any action of Corizon. Her claim that
Corizon had a custom of providing inadequate medical care rests only on Veira’s
experiences, which are, at most, proof of “‘a single incident of unconstitutional
activity.’” Craig, 643 F.3d at 1312 (quoting Oklahoma City v. Tuttle, 471 U.S. 808,
823–24 (1985)). “That proof is ‘not sufficient to impose liability’ under section
1983.’” Id. (quoting Tuttle, 471 U.S. at 824). Assuming that “providing inadequate
medical care” could be a custom and assuming that the medical care provided to
Denham was inadequate, Denham failed to present evidence of other incidents that
prove that Corizon had a custom of providing inadequate medical care.
Finally, Denham also seeks to hold Volusia County liable for Veira’s death
based on an alleged policy or custom of understaffing at the jail. She relies on the
declarations of two former Volusia County correctional officers and a licensed
practical nurse at the jail to support her assertion. These declarations, however, are
insufficient to establish Volusia County’s liability in this case. To survive
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summary judgment, Denham must produce sufficient evidence that a
policymaker’s specific budget decision was highly likely, and not simply more
likely, to inflict a particular injury. See Brown, 392 F.3d at 1292 (providing that in
order to prevent municipal liability for a decision from collapsing into respondeat
superior liability, a court must carefully test the link between the policymaker's
inadequate decision and the particular injury alleged). As we stated in McDowell,
to test such a link, we look to whether a complete review of the budget decision
and the resulting understaffed jail reveal that the policymaker should have known
that Veira’s death was a “plainly obvious consequence” of that decision. Id. “The
County’s liability cannot be dependent on the scant likelihood that its budget
decisions would trickle down the administrative facets and deprive a person” of her
constitutional rights. Id. While the declarations mentioned above may support
Denham’s contention that the jail was understaffed, Denham has failed to present
sufficient evidence that a policymaker’s specific budget decision was highly likely
to cause, or the “moving force” behind, Veira’s death. Id. at 1293. Although
Veira’s death was a tragic occurrence, the fact that the County’s “budget practices
resulted in understaffing does not amount to a purposeful disregard which would
violate any citizen’s constitutional rights.” Id.
The standard for holding a municipality liable under section 1983 is high. A
plaintiff must prove that a federal right was violated, that the municipality had a
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policy of deliberate indifference, and that this policy caused the violation of the
plaintiff’s federal right. Here, even assuming that the actions of Volusia County
and Corizon violated Veira’s constitutional rights, Denham fails to establish the
facts necessary to survive summary judgment. She has not established that either
Volusia County or Corizon had policies that caused Veira’s death. Because she has
failed to make a showing sufficient to establish the existence of elements essential
to her case, Volusia County and Corizon are entitled to summary judgment.
IV. CONCLUSION
We AFFIRM the entry of summary judgment in favor of Corizon and
Volusia County.
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ROSENBAUM, Circuit Judge, concurring:
I concur in the panel’s decision that the district court’s grant of summary
judgment to both Corizon Health and Volusia County must be affirmed on the
record in this case. I write separately, however, to note that, as to the County, in
the eight prior instances where corrections officers either failed to properly
maintain watch over inmates or failed to properly document the inmates’ activities,
the corrections officers were disciplined by only their immediate supervisors and
not by a policymaker for the County. Nor does the record in this case contain any
evidence that any County policymaker was ever aware that corrections officers
regularly and often with the encouragement of their immediate supervisors,
falsified inmate watch records. Had such evidence of a County policymaker’s
knowledge of this practice existed, the result here would have been different
because sufficient evidence exists to create a material issue of fact as to whether
the practice of falsifying inmate watch records was so widespread as to constitute a
custom or policy of Volusia County.
What happened here should not happen again. Counsel for Volusia County
conceded during oral argument that the facts adduced in this case have since been
“looked at” by County policymakers and would serve as “pretty firm evidence” of
notice in any future litigation. So I would expect that the County will immediately
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Case: 15-12974 Date Filed: 01/13/2017 Page: 23 of 23
take all necessary remedial actions to correct the systemic failures identified in this
tragic and preventable case.
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