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Russo-Wood v. Yellowstone County

United States District Court, D. Montana, Billings Division

March 7, 2019

PATRICIA L. RUSSO-WOOD, as personal representative of the Estate of Steven Tyler Russo, Plaintiff,
YELLOWSTONE COUNTY, et al., Defendants.



         Plaintiff Patricia L. Russo-Wood, as the personal representative of the Estate of Steven Tyler Russo (“Plaintiff”), brought this action against Yellowstone County, the City of Billings, and individual officers Brian Degele and Sandra Leonard.[1] Plaintiff asserts claims for negligence and civil rights violations under 42 U.S.C. § 1983 after her son, Steven Tyler Russo, committed suicide while being held as a pretrial detainee at the Yellowstone County Detention Facility. (Doc. 3.) Presently before the Court are Defendant Brian Degele's Motion for Summary Judgment (Doc. 61), Defendant Yellowstone County's Motion for Summary Judgment (Doc. 77), and Plaintiff's Motion to Amend Complaint. (Doc. 79.)

         Having considered the parties' submissions, the Court finds Plaintiff's Motion to Amend should be DENIED; Brian Degele's Motion for Summary Judgment should be GRANTED; and Yellowstone County's Motion for Summary Judgment should be DENIED.


         The Yellowstone County Detention Facility (“YDCF” or the “Facility”) is operated by the Yellowstone County Sheriff. (Doc. 62 at ¶ 1.) YCDF has policies, procedures and practices for the operation of the Facility, the classification of detainees, and the treatment of suicidal detainees. (Id. at ¶ 2.)

         The Facility has four general categories of housing units: classification, general population, administrative segregation, and disciplinary segregation. (Id. at ¶ 3.) There are three subcategories of general population units: maximum security, medium security, and minimum security. (Id.) The “Classification A” unit in the Facility is a maximum security unit. It is also used for administrative segregation, where a detainee is housed for protection from other detainees, and as a disciplinary segregation unit, when a detainee has violated a Facility rule. (Id.) The “North 1” and “North 3” units in the Facility are medium security units, while the “North 4” and “North 5” units are minimum security. (Id.)

         Detainees are screened for placement into the appropriate unit through a process called “classification.” (Id.) Detainees are typically placed in the “North 2” unit while waiting to be classified. (Id. at ¶ 12.) When there are too many detainees waiting to be classified in North 2, the excess detainees are placed in Classification A pending classification. (Id.)

         In dealing with potentially suicidal detainees, there is an apparent conflict between the written policies and procedures for the Facility, and the actual practices. The Policies and Procedures Manual provides that staff should place a suicidal detainee in administrative segregation (Classification A) pending an evaluation by the Facility's physician. (Id.)

         The Facility's actual practice, however, is to transport the detainee to the front, “Booking” area of the Facility. There, staff will provide the detainee with suicide resistant clothing, place the detainee in a holding cell, and contact the Facility's mental health provider for an evaluation. (Id. at ¶ 4.[3]) The staff in Booking frequently observes the detainee. (Id.) After an evaluation, the mental health provider may clear the detainee for placement back in his unit, have the detainee held in the Booking holding cell for continued observation, or have the detainee transferred to the Billings Clinic for treatment. (Id.) According to the County, this practice lessens the chance that a detainee will harm himself through the use of suicide resistant clothing and more frequent observations. (Id.)

         On June 5, 2013, at approximately 9:33 a.m., Billings police officers arrested the decedent, Steven Tyler Russo (“Russo”), on various charges and transported him to YCDF. (Id. at ¶ 7.) YCDF detention officers Jake Dunker and Jarred Anglin processed Russo into the Facility. (Id. at ¶ 8.) At the request of the Billings Police Department, Russo was not given telephone privileges. (Id.[4]) Russo was placed into a holding cell in Booking. (Id. at 9.)

         Anglin subsequently took Russo to the shower because he had soiled himself when he was tasered by law enforcement officers during his arrest. (Id.) While Russo was in the shower, Anglin heard him cry and then laugh. (Id. at ¶ 10.) Anglin noted on Russo's Prisoner Progress Sheet that “[Inmate] very emotional, bears watching.” (Id.; Doc. 76-22.)

         After the shower, Russo remained in Booking until approximately 1:30 p.m. (Id. at ¶ 11.) Russo was then transported to Classification A. (Id. at ¶ 12.) At that point, Russo had not been classified. (Id.) Defendants contend Russo was placed in Classification A while he was awaiting classification because it would be easier to prevent his use of a telephone. (Id.) Defendants maintain Russo was not placed in Classification A because of a Facility security concern or a mental health issue. (Id.)

         Plaintiff contends Russo was placed in Classification A because the Facility was overcrowded at the time, and classification officers addressed overcrowding by reassigning or juggling inmates among different jail sections, contrary to written policy. (Doc. 91 at ¶ 12.) Plaintiff points out that YCDF was designed to house 286 inmates. (Docs. 90-1 at 16; 90-3 at 7-8.) But at the time Russo was detained, there were approximately 400 inmates. (Id.)

         Russo was housed in Classification A from approximately 1:30 p.m. on June 5, 2013 until 9:20 a.m. on June 6, 2013. (Doc. 62 at ¶ 13.) He did not have a cellmate during that time. (Id.)

         At approximately 6:10 p.m. on June 5, 2013, Detective Sandra Leonard (“Leonard”) arrived at YCDF to interview Russo. (Id. at ¶ 14.) Leonard interviewed Russo in Booking. (Id.) Defendants contend that Russo was well-behaved during the interview, and Leonard did not observe any behavior that indicated Russo presented a suicide risk. (Id.) Plaintiff counters that Leonard told her in a phone call later that evening that “I have been a Billings police detective for many years. I have met many bad people and evil people and I can tell you that your son is neither. Your son is a very troubled person.” (Doc. 91 at ¶ 14.)

         Immediately after Leonard's interview, Defendant Brian Degele, a YCDF Officer (“Degele”), performed a classification interview of Russo in Booking from approximately 6:45 p.m. to 7:30 p.m. (Doc. 62 at ¶ 15.) Russo's objective classification score, based on the Initial Custody Assessment Scale, was 13. (Id.) The score indicated Russo should be placed in maximum security. (Id.) But Degele determined Russo could be placed in medium security based on his prior behavior in the Facility, and his demeanor during the interview. (Id.) According to the Classification Interview Sheet, Russo indicated he had no mental health problems, was not suicidal, and he had not attempted suicide in the past. (Id.; Doc. 76-21.) Degele's only contact with Russo was during the classification interview. (Id.)

         Following, the classification interview, Russo was returned to Classification A for a medical check prior to being placed in either North 1 or North 3 when space was available. (Doc. 62 at ¶ 15.)

         On June 6, 2013, Russo was interviewed by Billings Police Department Detectives Keith Buxbaum and Brett Kruger from approximately 7:30 a.m. to 8:45 a.m. (Doc. 62 at ¶ 16.) Defendants assert the interview took place in Booking. (Id.) Plaintiff disputes this, stating Russo's Progress Sheet showed he was in Classification A until he was moved to the medium security unit. (Doc. 91 at ¶ 16.)

         At approximately 9:20 a.m. on June 6, Robert Dunker, a YCDF Officer, transferred Russo from Classification A to North 3. (Doc. 62 at ¶ 17.) Officer Dunker believed that a medical check had been performed on Russo, but a medical check had never been completed prior to Russo's transfer from Classification A. (Id.; Doc. 91 at ¶17.)

         From approximately 9:20 a.m. until 2:00, Russo was in North 3, Cell 42. (Doc. 62 at ¶ 18.) Russo's cellmate was Corey Johnson. (Id.) YCDF Officer James Shirley was assigned to North 3 during that time. (Id.)

         At approximately 2:00 p.m., Russo requested to use the shower, and was allowed to do so. (Id. at ¶ 19.[5]) At 2:15, Shirley began to lockdown the unit and noticed Russo was not in his cell. (Id.) Shirley asked Johnson where he was, and Johnson indicated Russo was still in the shower. (Id.) Shirley went to check on Russo and found he had hanged himself with his underwear in the shower. (Id.) Shirley summoned assistance and rendered first aid. (Id.) The Billings Fire Department and American Medical Response arrived and transported Russo by ambulance to the Billings Clinic. (Id.) Russo was pronounced dead in the Emergency Department shortly after his arrival. (Id. at ¶ 20.)

         On June 10, 2013, Dr. Thomas Bennet, a pathologist, performed an autopsy on Russo and determined Russo had died from asphyxiation by hanging himself. (Id. at ¶ 21.)

         Prior to his incarceration in June 2013, Russo had been detained at YCDF seven times. (Id. at ¶ 5.) He had never threatened suicide, attempted suicide, or claimed to be suicidal during any of his prior stays in the Facility. (Id.)

         Defendants contend that other than being emotional in the shower after he arrived at the Facility on June 5, 2013, Russo did not display any other external indications of emotional liability. (Id. at ¶ 10.) They assert he interacted appropriately, did not yell or scream, did not threaten to harm himself, and did not appear suicidal. (Id. at ¶¶ 11, 13, 14, 15, 16, 18.) Defendants further assert law enforcement officers and the YCDF Officers, including Degele, did not observe anything that indicated Russo was suicidal, or that the YDCF staff needed to initiate the suicide prevention protocol. (Id. at ¶¶ 8, 10-11, 13-16, 18.)

         Plaintiff counters that the notation in his Progress Sheet that he was “very emotional, bears watching” travelled with him throughout the facility and was never changed or modified. Plaintiff contends that it should have been read by every officer who came in contact with Russo, and should have provided notice that he was at risk to harm himself. (Doc. 91 at ¶ 6, 8, 12-14, 18.)


         The Court will first address Plaintiff's Motion to Amend the Complaint. (Doc. 79.) Plaintiff seeks to remove the City of Billings from the caption as a named Defendant, and seeks to more specifically allege her claim against Degele under 42 U.S.C. § 1983. Plaintiff does not seek to add any additional claims or parties. The County and Degele oppose the motion to the extent the amendment seeks to add new facts, arguing Plaintiff was not diligent in moving to amend, the proposed amendment is unnecessary, and it would be prejudicial to Defendants.

         On May 15, 2017, the Court issued a Scheduling Order setting the deadline to amend pleadings for June 30, 2017. (Doc. 23.) Plaintiffs filed the instant motion seeking leave to amend on April 16, 2018. (Doc. 79.)

         A. Legal Standards

         In situations where the deadline for amendments to pleadings has passed, a party must meet the more stringent requirement of Rule 16(b), which requires a showing of good cause why the party did not seek leave to amend within the Court's scheduling order. Fed.R.Civ.P. 16(b)(4) (“[a] schedule may only be modified for good cause and with the judge's consent”); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000).

         In Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992), the Ninth Circuit explained that “[u]nlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s ‘good cause' standard primarily considers the diligence of the party seeking the amendment.” Good cause to excuse noncompliance with the scheduling order exists if the pretrial schedule “cannot reasonably be met despite the diligence of the party seeking the extension.” Id. (quoting Fed.R.Civ.P. 16 Advisory Committee's Notes (1983 Amendment)).

         Prejudice to the opposing party may provide an additional reason to deny a motion to amend, but “the focus of the inquiry is upon the moving party's reasons for seeking modification.” Id. at 609. “If that party was not diligent, the inquiry should end.” Id.; see also In re Western States Wholesale Natural Gas Antitrust Litigation, 715 F.3d 716, 737 (9th Cir. 2013) (upholding denial of motion to amend where “the party seeking to modify the scheduling order has been aware of the facts and theories supporting amendment since the inception of the action”).

         If good cause exists for seeking amendment after the scheduling order's deadline, the Court then turns to Rule 15(a) to determine whether amendment should be allowed. “Although Federal Rule of Civil Procedure 15(a) provides that leave to amend ‘shall be freely given when justice so requires,' it ‘is not to be granted automatically.'” In re Western States, 15 F.3d at 738 (quoting Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir.1990)). Under Rule 15(a), the Ninth Circuit directs that courts consider the following five factors to assess whether to grant leave to amend: “(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint.” Id. These factors do not merit equal weight, however. “[I]t is the consideration of prejudice to the opposing party that carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

         B. Good Cause Under Rule 16

         As noted above, Plaintiff seeks to amend the Complaint to include additional facts regarding her §1983 claim against Degele. The Court finds that Plaintiff did not act diligently in seeking to amend the Complaint. The motion to amend was filed over nine months after the Court's deadline to amend pleadings. Further, Plaintiff has not shown good cause for her noncompliance with the Scheduling Order. Plaintiff indicates discovery produced additional facts that allow her to more specifically allege the § 1983 claim against Degele. But Plaintiff has not specified what discovery she is referring to, or when she received it. Defendants note that Degele was deposed on December 4, 2017, which was over four months before the motion to amend was filed. Because Plaintiff fails to offer any explanation why the motion to amend could not have been filed sooner, the Court finds the good cause requirement of Rule 16 is not satisfied. See e.g. Schwerdt v. Int'l Fidelity Ins. Co.,28 Fed.Appx. 715, 719 (9th Cir. 2002) (delay of one month after learning of facts from a witness's deposition did not constitute diligence under Rule 16 in seeking leave to amend); Sako v. Wells Fargo Bank, Nat. Assoc., 2015 WL 5022326, *2 (S.D. Cal. 2015) (“[W]aiting two months after ...

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