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Perniciaro v. Lea

United States Court of Appeals, Fifth Circuit

August 16, 2018

HAMPTON "STEVE" LEA, M.D., In his individual and official capacity as administrator and/or employee of Eastern Louisiana Mental Health System ("ELMHS"); JEFFREY S. NICHOLL, M.D., In his individual and official capacity as administrator and/or employee of Eastern Louisiana Mental Health System ("ELMHS"); JOHN W. THOMPSON, M.D., In his individual and official capacity as administrator and/or employee of Eastern Louisiana Mental Health System ("ELMHS"), Defendants-Appellants

          Appeal from the United States District Court for the Middle District of Louisiana

          Before HIGGINBOTHAM and HIGGINSON, Circuit Judges. [*]

          STEPHEN A. HIGGINSON, Circuit Judge.

         Dominick Perniciaro, III, who suffers from schizophrenia, has been committed to the Eastern Louisiana Mental Health System ("ELMHS") since he was arrested for battery and found incompetent to stand trial in 2013. He has sustained numerous injuries throughout his commitment-some minor, some more serious-as a result of physical altercations with other patients and with guards. He filed suit under 42 U.S.C. § 1983, alleging that he received inadequate medical care and that defendants-his treating psychiatrist (Dr. Jeffrey Nicholl), ELMHS's chief of staff (Dr. John Thompson), and its chief executive officer (Hampton "Steve" Lea)-failed to protect him from harm. Only Lea is a state employee. The other defendants are psychiatrists employed by Tulane University who provide services at ELMHS pursuant to a contract between Tulane and the state. All three defendants moved for summary judgment on the basis of qualified immunity. The district court held that the Tulane-employed defendants could raise the defense, but held that none were entitled to summary judgment. We agree that the Tulane-employed defendants may raise qualified immunity, but reverse the denial of summary judgment. Viewing the evidence in the light most favorable to Perniciaro, he has failed to establish that defendants violated his clearly established rights.



         Perniciaro's schizophrenia manifests in symptoms such as auditory hallucinations, paranoia, delusions, and aggression. He suffers from violent outbursts that occur without warning or apparent provocation. Due largely to the unpredictability of his aggressive and assaultive behavior, his doctors have described him as a "challenging" or "very difficult" patient to treat. He has been committed to ELMHS, a mental-health facility owned and operated by the Louisiana Department of Health, since his arrest for battery in 2013. He was found incompetent to stand trial and committed to ELMHS for competency restoration.[1] When deemed competent to stand trial by his treating psychiatrist in 2014, he was discharged to the Jefferson Parish Prison but was again found incompetent by the state court and recommitted to ELMHS. One year later, after again being deemed competent to stand trial, he was found not guilty by reason of insanity. He was recommitted to ELMHS for treatment until no longer dangerous to himself and others.

         ELMHS is a state-run facility, but the state has contracted out the provision of psychiatric services to Tulane University.[2] As with all psychiatrists at ELMHS, Perniciaro's treating psychiatrist, Dr. Jeffrey Nicholl, is an employee of Tulane, where he serves as a professor of clinical psychiatry and neurology.[3] In addition to his teaching duties, he maintains a caseload of 12 to 13 patients at ELMHS. As Perniciaro's treating psychiatrist, Dr. Nicholl was the leader of Perniciaro's treatment team and was responsible for developing and updating a holistic treatment plan for Perniciaro's mental and physical health. Dr. Nicholl was also responsible for making decisions related to Perniciaro's physical safety, such as separating him from other patients following physical altercations or placing him on some form of restrictive observation as needed.

         Dr. John Thompson is the chief of staff at ELMHS. Like Dr. Nicholl, Dr. Thompson is an employee of Tulane University. He is the chair of the Department of Psychiatry at Tulane, but works at ELMHS several days per week pursuant to Tulane's contract with the state. As chief of staff, Dr. Thompson oversees the provision of all medical and psychological care. He supervises both the psychiatric doctors, who are not state employees, and the medical doctors and nursing staff, who are. Dr. Thompson reports to Steve Lea, the chief executive officer of ELMHS. Lea, who is employed directly by the state, is responsible for overseeing operations at ELMHS, including ensuring that all state policies are followed.

         ELMHS has a policy of minimizing the use of physical restraints as a means of preventing patients from harming themselves and others. Accordingly, ELMHS uses alternative measures to deescalate and monitor patients when they are agitated or likely to become violent. In acute situations, patients are given an injection of medication to immediately calm them down. If the medication fails to calm them down and they remain an immediate danger to themselves or others, then physical restraints may be used. Patients who present a continuous risk of hurting themselves or others are monitored pursuant to either arm's-length observation ("ALO"), meaning that one or two guards must remain within an arm's length of the patient, [4] or close-visual observation ("CVO"), which requires a guard to remain within 15 feet of the patient and maintain the patient within sight at all times.


         Almost immediately after he was first admitted in 2013, Perniciaro was involved in numerous physical altercations with treatment providers, guards, and other patients. In light of his violent outbursts, Dr. Nicholl placed Perniciaro on ALO within one day of his admission. A few weeks later, while the guards assigned to monitor him assisted with another violent patient, Perniciaro ran out of his room and repeatedly struck another patient, referred to as Patient 3800, in the face. Following that incident, Dr. Nicholl spoke to Patient 3800, who denied any feelings of revenge. Perniciaro remained on ALO for approximately three months, at which point he had not had a violent incident in seven weeks. Dr. Nicholl then downgraded Perniciaro from ALO to CVO. He also prescribed various medications for Perniciaro, adjusting them frequently based on Perniciaro's level of violence.

         By March 2014, Perniciaro had not been involved in any violent behavior in nearly three months. He was taken off CVO, deemed competent to stand trial by Dr. Nicholl, and discharged to the Jefferson Parish Prison. While at the jail, Perniciaro apparently stopped taking his medication and was involved in one physical altercation, which he said was in self defense. He was again found incompetent to stand trial by the state court and ordered to return to ELMHS.


         Upon Perniciaro's readmission to ELMHS, he was evaluated by Dr. Nicholl, who found him to be "quite coherent" with "fairly good" judgment. He was also evaluated by two psychologists who found him to be "fairly stable." It appears Perniciaro went for about two weeks without incident after his readmission. However, that ended early one morning in April 2014, when Patient 3800 ran into Perniciaro's room after asking to go to the water fountain and hit him in the face. Perniciaro suffered a black eye, bloody lip, and fractured jaw. He was sent to the hospital for treatment, including surgery to repair his jaw. He returned to ELMHS a few days later, and was placed on a liquid diet and ALO for medical purposes in order to prevent choking. According to Dr. Nicholl, Perniciaro was "very different when he came back from the hospital," possibly because he "may not have gotten his medications" while hospitalized.

         Following his return from the hospital, Perniciaro was involved in a number of physical altercations. For example, on one occasion about two months after his return, he struck one guard in the face, punched another in the groin, and attempted to attack a third. That day, the justification for his ALO was changed from "medical" to "assaultive behavior towards others." On another occasion, Perniciaro hit one guard in the jaw and attempted to bite and scratch the eyes of another. He was also involved in physical altercations with other patients. In the vast majority of such altercations, Perniciaro was indicated as the aggressor.

         On one occasion, Perniciaro reported that "they" (apparently referring to guards) had attacked him the night before. He had bruising on his arms, knuckles, hips, chest, and legs, which a doctor determined likely resulted from the use of manual holds to break apart physical altercations. Nonetheless, in light of Perniciaro's allegations, a report was made to Adult Protection Services, a division of the Office of Aging and Adult Services ("OAAS"), which is itself part of the Department of Health and Hospitals. During OAAS's investigation, two guards disclosed that Perniciaro's injuries may have been caused by an unreported incident that occurred the day before Perniciaro claimed to have been attacked. The guards disclosed that they had been trying to keep Perniciaro in his room while he tried to push his way out and, in the course of the struggle, Perniciaro's hip and leg were caught between the door and door frame as the guards tried to push the door closed. Following its investigation, OAAS generated a report that was reviewed by an investigative review committee and CEO Lea. After reviewing the report, the committee and Lea found the allegations of abuse to be unsubstantiated.

         At some point, Perniciaro developed a shoulder injury. The first report of a shoulder injury occurred in July 2014, when Perniciaro lost his balance running out of his room, slipped, and fell, hitting his left shoulder on the ground. He complained of severe shoulder pain and was examined by a medical doctor who did not detect any serious injury or disfigurement but ordered x-rays to confirm. The x-rays did not indicate any injury. During a medical exam about a month later, Perniciaro's left shoulder was found to have a possible old dislocation injury. Subsequent x-rays indicated a displacement and injury to ligaments in the shoulder. A medical exam a few weeks later noted a possible separation of the acromioclavicular ("AC") joint, but found no intervention necessary at that time. At another exam a few weeks after that, Perniciaro did not complain of any pain with shoulder movement. The medical report from that exam notes that "AC Separation Type III can be managed conservatively" and indicates that the treating physician would prescribe pain killers if Perniciaro ever complained of shoulder pain. A few days later, Perniciaro was sent to physical therapy, but the therapist concluded that physical therapy would likely not be helpful at that time. Perniciaro was then referred to an orthopedic specialist for a consultation.[5]

         Concerned about his son's injuries, Perniciaro's father, Dominick Perniciaro, Jr., called Lea in the fall of 2014 to discuss Perniciaro's shoulder. Lea then observed Perniciaro's shoulder himself, spoke with one of the ELMHS medical doctors about the treatment Perniciaro was receiving for the injury, and then reported back to Perniciaro, Jr. Perniciaro, Jr. filed an official complaint regarding his son's treatment. The Total Quality Management department at ELMHS responded to the complaint by noting that Lea had already addressed Perniciaro, Jr.'s concerns and that the administration was still investigating.[6]

         In early November 2014, Dr. Nicholl started Perniciaro on a new medication. Dr. Nicholl had been wary of prescribing the drug due to its risk of serious side effects. After trying various other drugs, however, he concluded that it was worth the risk because nothing else was able to manage Perniciaro's psychosis and violent tendencies without rendering him overly sedated. Within one week of starting the new drug, Dr. Nicholl described Perniciaro's progress as "nearly unbelievable." Perniciaro was deemed competent to stand trial in December 2014.


         Perniciaro stood trial and was found not guilty by reason of insanity. He was readmitted to ELMHS in June 2015, and was assigned a new treating psychiatrist.[7] In July, he was seen by an orthopedic specialist, who confirmed an AC separation. The specialist stated in his notes from the exam that "[l]iterature supports treating Grade III AC separation non-operatively," and that "AC repair is controversial" and "not recommend[ed]."


         Perniciaro initiated this § 1983 action in April 2015, alleging that defendants failed to maintain reasonably safe conditions of confinement and that the medical care he had received at ELMHS fell below the level required under the Fourteenth Amendment. The parties filed cross motions for summary judgment, which the district court denied. As is relevant here, the district court held that although defendants-including the privately employed Drs. Nicholl and Thompson-were entitled to assert the defense of qualified immunity, issues of material fact precluded summary judgment on that defense. Defendants timely appealed.


         We must first decide whether we have jurisdiction over this interlocutory appeal. "Ordinarily, we do not have jurisdiction to review a denial of a summary judgment motion because such a decision is not final within the meaning of 28 U.S.C. § 1291." Palmer v. Johnson, 193 F.3d 346, 350 (5th Cir. 1999). However, the "denial of qualified immunity on a motion for summary judgment is immediately appealable if it is based on a conclusion of law." Id. (citing Johnson v. Jones, 515 U.S. 304 (1995)). Perniciaro argues that immediate appeal is foreclosed here because the district court's decision was based not on a conclusion of law but on its finding genuine disputes of material fact. See Johnson, 515 U.S. at 313 ("[T]he District Court's determination that the summary judgment record in this case raised a genuine issue of fact . . . was not a 'final decision' within the meaning of [28 U.S.C. § 1291].").

         But as the Supreme Court clarified in Behrens v. Pelletier, 516 U.S. 299 (1996), the "[d]enial of summary judgment often includes a determination that there are controverted issues of material fact, and Johnson surely does not mean that every such denial of summary judgment is nonappealable." Id. at 312-13 (citation omitted). Although we lack jurisdiction to consider "whether there is enough evidence in the record for a jury to conclude that certain facts are true," we do have jurisdiction "to decide whether the district court erred in concluding as a matter of law that officials are not entitled to qualified immunity on a given set of facts." Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc).

         Accordingly, we have jurisdiction to review whether-taking Perniciaro's summary judgment evidence as true-defendants' "course of conduct [is] objectively unreasonable in light of clearly established law." Id. at 347. ...

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