I had to rush getting this out due to some time constraints. The devil is in the details as always, but the issue of SOL is significant, but so too for jail policy is the ADA piece to this and that was clearly 2-1. Charles W. Thompson, Jr. Of Counsel P: (202) 466-5424 x7110 M: (240) 876-6790 D: (202) 742-1016 [facebook icon]<https://www.facebook.com/InternationalMunicipalLawyersAssociation/>[twitter icon]<https://twitter.com/imlalegal>[linkedin icon]<https://www.linkedin.com/company/international-municipal-lawyers-association-inc./> [logo]<https://imla.org/> 51 Monroe St. Suite 404 Rockville, MD, 20850 www.imla.org<http://www.imla.org/> Plan Ahead! IMLA's 2022 Mid-Year Seminar<https://imla.org/seminars/>, April 8-11, 2022 in Washington, D.C.! IMLA's 2022 Annual<https://imla.org/annual-conference/> Conference, October 19-23, 2022 in Portland, OR! Check out our On-Demand webinar library<https://netforum.avectra.com/eweb/shopping/shopping.aspx?site=imla&webcode=shopping&cart=0&shopsearchCat=Merchandise&productCat=Webinar> with 100+ webinars at your fingertips. From: Martha Thompson <Martha.Thompson@clevelandcountync.gov> Sent: Wednesday, August 17, 2022 11:36 AM To: Chuck Thompson <cthompson@imla.org>; jails@imla.org; counties@lists.imla.org; Federal Law List Serve <federal@lists.imla.org>; cityattorneys@lists.imla.org; diversity@lists.imla.org Subject: RE: Cases of Interest - Jails - ADA - gender dysphoria - deliberate indifference - medical care Whoa! I think the naming "john/Jane Doe" and tolling SOL is a much wider concern for all in the 4th Circuit. As always, thanks for your summaries, Chuck From: Chuck Thompson <cthompson@imla.org<mailto:cthompson@imla.org>> Sent: Wednesday, August 17, 2022 10:56 AM To: jails@imla.org<mailto:jails@imla.org>; counties@lists.imla.org<mailto:counties@lists.imla.org>; Federal Law List Serve <federal@lists.imla.org<mailto:federal@lists.imla.org>>; cityattorneys@lists.imla.org<mailto:cityattorneys@lists.imla.org>; diversity@lists.imla.org<mailto:diversity@lists.imla.org> Subject: [CCSPAM (HC)] - [Counties] Cases of Interest - Jails - ADA - gender dysphoria - deliberate indifference - medical care As a County Attorney I always felt that our jail was a percolating source for litigation and of liability. While short term stays don't usually create the recreational litigation prisons do, more and more inmates are staying longer in jails and with little else to do find suing the jail and jailors something to fill the time. As we know most complaints are spurious, but many are not. Establishing policies, doing legal risk analysis (or audits) of those policies and practices in the jail ought to be a part of every legal department's regular portfolio of duties. What follow are two recent cases. 7th Circuit - deliberate indifference - excessive force - medical The jail in this case was subject to a consent decree dating back to 2001 that included requirements for improving the manner in which the jail handled inmate's medical needs. The jail contracted with a private company to meet these requirements but it seems all agreed the resources provided were sometimes inadequate. The inmate was incarcerated on a non-judicial violation of probation warrant and entered the jail suffering from addiction to narcotics as well as congenital heart failure among other ailments. Over the course of several weeks (between incarceration and death about a month transpired), the inmate went through withdrawal and sought medical intervention for various complaints. At each intervention the inmate was evaluated by a nurse and offered various medications based on the symptoms presented. Unfortunately, the inmate was suffering from undiagnosed infective endocarditis which ultimately led to the inmate's death. In terms of the litigation, the lower court dismissed all claims against all of the municipal defendants and on appeal all of those claims were affirmed except one. Of significance to readers, the court noted in a footnote that within the Circuit the law regarding applicability of the 8th Amendment or the 14th Amendment to pre-trial inmates seems subject to debate and that the standards for a claim applicable under the 14th Amendment are not nearly so high as under the 8th. Because the Plaintiff only sought to claim under the 8th Amendment the panel merely noted the disagreement and did not opine on whether the lower standard might have helped the Plaintiff. As to the one Defendant who lost immunity the court described what was the last interaction between the inmate and officers and nurses in the jail when the inmate's medical emergency became clear. The inmate could not stand and one of the officers lifted the inmate, placed the inmate against a wall and used the officer's legs to support the inmate against the wall. A nurse testified that the officer intentionally moved that support to allow the inmate to fall onto the inmate's head on the floor. Based on that testimony, the officer could not claim immunity. As to the nurse's misdiagnosis the court noted: "Mistakes in medical judgment, even negligence, are insufficient to support deliberate indifference. Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016)" and specifically: "Although Mahaga apparently misdiagnosed Madden, there is no evidence she "acted with the requisite culpable state of mind," Gayton, 593 F.3d at 620 (internal quotations omitted), to meet deliberate indifference's "high hurdle and exacting standard," Donald, 982 F.3d at 458 (cleaned up)." As to two of the defendants, the facts indicated that the actions for which they were sued occurred after all experts agreed that the inmate's condition was such that the course towards death was inevitable, thus, nothing they did in terms of indifferent medical treatment caused injury. As to Monell liability, an interesting and important evidentiary decision supports an IMLA amicus argument in a case involving Syracuse NY (albeit a bit different issue factually). This court held that reports by the consent decree health expert monitor describing the conditions at the jail were inadmissible hearsay and could not be used to support a breach of duty under Monell. Stockton vs. Milwaukee County rssExec.pl (uscourts.gov)<https://urldefense.proofpoint.com/v2/url?u=http-3A__media.ca7.uscourts.gov_cgi-2Dbin_rssExec.pl-3FSubmit-3DDisplay-26Path-3DY2022_D08-2D09_C-3A22-2D1116-3AJ-3ASt-5F-5FEve-3Aaut-3AT-3AfnOp-3AN-3A2915775-3AS-3A0&d=DwMFAg&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=0SeTY5xTYzlnEpZimwgcfvl1VHZsrHbaQ4uFGsVR9Wg&m=ljNCP-kTYEk3KMkcEBNM7Eiig8Oyu2Xt1q4CqvNQwfk&s=kGxfu8CTGG45qKXUB3ElHOGUmYIN8CkeB4TlHvzY1ic&e=> 4th Circuit - Jails - ADA - Gender identity disorder - gender dysphoria A transgender woman upon incarceration was assigned to the woman's section of the jail but upon discovery of her male genitalia, she was immediately reassigned. Once released the former inmate sued the jail and several others including the sheriff and some guards. The panel in a 2-1 decision reversed the lower court on a number of grounds all important to defending these cases and setting policy: * The ADA exclusion of coverage for "gender identity" does not exclude claims based on gender dysphoria. The latter being a later amendment to the DSM some 20 years or more after adoption of the ADA and its exclusion. * The sheriff's policy of assigning inmates based on their genitalia violates constitutional rights as the policy should be based on a case by case analysis of the inmates well being during incarceration. * Suing "Does" may be sufficient to avoid the statute of limitations for later amending the complaint to bring in individual defendants. Williams vs. Kincaid 212030.P.pdf (uscourts.gov)<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.ca4.uscourts.gov_opinions_212030.P.pdf&d=DwMFAg&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=0SeTY5xTYzlnEpZimwgcfvl1VHZsrHbaQ4uFGsVR9Wg&m=ljNCP-kTYEk3KMkcEBNM7Eiig8Oyu2Xt1q4CqvNQwfk&s=dA4qD0hMSsOVMuU_D41id90ImIvVuCQI2EQZd3mAz2Q&e=> Charles W. 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