Full opinion text
MEMORANDUM OPINION EISELE, District Judge. INDEX TO MEMORANDUM OPINION Page No. I.INTRODUCTION ..854 II.PROCEDURAL BACKGROUND 854 III.FINDINGS OF FACT............................................ 855 1. Testimony of Darin Winters .................................. 855 2. The Last 4 Days and 16 Hours of Donald Winters’ Life......... 857 (a) The Arrest............................................... 857 (b) First Visit to Bates Medical Center....................... 858 (c) Arrival at Benton County Detention Center............... 859 (d) Civil Commitment Hearing.............................. 864 (e) Ozark Guidance Center................................... 866 (f) Second Visit to Bates Medical Center & Examination by Dr. Diadone .............................................. 869 (1)Dr. Paul Diadone’s Testimony........................ 869 (g) Return to Benton County Detention Center............... 871 (1) Officer Pelray’s Testimony........................... 871 (2) Officer Martinez’s Statement......................... 871 (3) Deputy Center’s Statement........................... 872 (4) Officer Shane’s Statement ........................... 872 (5) Sheriff Keith Ferguson’s Testimony................... 873 (6) Investigation Summary.............................. 875 3. Cause of Death............................................. 875 4. Views of Mental Health Experts and Other Interested Parties .. 877 (a) Dr. Robin Ross’ Testimony............................... 877 (b) Dr. Larry Miller’s Testimony............................. 879 (c) Dr. G. Rick Smith’s Testimony........................... 881 (d) Other Witnesses ........................................ 881 5. Aftermath of Closing of Highland Hall....................... 882 IV.CONCLUSIONS OF LAW..................................................888 1. Elimination of Certain Claims..........................................888 2. The Olmstead Decision.................................................892 3. Analysis of Remaining Legal Issues.....................................896 (a) Official Capacity Liability..........................................896 (b) § 1983 Claims .....................................................897 (c) ADA and § 504 Liability............................................898 (d) Sovereign Immunity................................................900 4. Discussion of Critical Circumstances....................................900 (a) Donald Winters’ Dual Status: Pre-trial Detainee & Civil Committee......................................................900 (b) Time-frame........................................................902 V.CONCLUSION............................................................904 I. INTRODUCTION Mr. Donald Winters, an acutely mentally ill person, died while in the custody of the Sheriff of Benton County, Arkansas. His son and the administrator of his estate, Darin Winters, brought this action on March 11, 2004, claiming, inter alia, that his father’s death was caused by the acts and/or omissions of the Defendants. This case focuses on society’s efforts to deal with the acutely mentally ill who at some point end up in our jails. More particularly, this case deals with pre-trial detainees, that is, those who have been arrested on criminal charges and are awaiting trial; and it also deals more directly with persons under civil commitment orders issued by our state courts. Mr. Donald Winters occupied both of those statuses during the days between his arrest on December 28, 2002, for criminal trespass, and his death on January 1, 2003. II. PROCEDURAL BACKGROUND The original Complaint alleged three separate causes of action, all under federal law: (1) violations of Title II of the Americans with Disabilities Act (ADA); (2) violations of Section 504 of the Rehabilitation Act of 1973; and (3) violations of certain of the deceased’s federal constitutional rights via 42 U.S.C. § 1983. An Amended Complaint was filed on October 1, 2004, and a Second Amended Complaint was filed on March 20, 2005. The Second Amended Complaint seeks: (1) compensatory damages against the Defendant Arkansas Department of Human Services (DHS) (the “State Defendant”) on the Section 504 claim; (2) compensatory and punitive damages against Defendants Keith Ferguson, Timothy Brasuell, Walter Nelson, Maurice Helms, Toby Cranston, Roberta Martinez, Sergeant See, and Sergeant Montgomery (the “County Defendants”) on the ADA claims; (3) “an order requiring the official capacity Defendants to complete a proper self-evaluation and to create a system under which persons with mental illnesses are properly screened and treated while incarcerated across the State of Arkansas”; (4) a Declaratory Judgment concluding that the Defendants’ actions have violated Donald Winters’ rights under federal law; (5) compensatory and punitive damages against all individual Defendants; (6) he-donic damages; and (7) reasonable attorneys fees and costs. The County Defendants filed a Cross-Claim against the State Defendants on April 14, 2005, alleging that “any failure to provide proper mental healthcare for Donald Winters” was the result of the State’s failure to fulfill its legal obligations. In the event a judgment is rendered against any County Defendant, the Cross-Claim seeks “a cross-judgment in like amount, or requirement, over and against the Arkansas Department of Human Services (DHS) and its Executive Director, Kurt Knick-rehm.” (Answer to Second Amended Complaint & Cross-Claim, p. 10, Dkt. #41). Plaintiff filed a Motion for Partial Summary Judgment against Defendants Kurt Knickrehm and DHS on June 28, 2005. Defendants Knickrehm and DHS responded and filed a Cross-Motion for Summary Judgment on August 10, 2005. The County Defendants filed a Motion for Summary Judgment against the Plaintiff on October 14, 2005. Plaintiff dismissed his claims against Defendants Timothy Brasuell, Walter Nelson, Maurice Helms, Toby Cranston, Roberta Martinez, Sgt. See and Sgt. Montgomery, leaving the County Defendants’ motion pending solely as to the Defendant Sheriff Ferguson. On November 10, 2005, the Court granted in part, and denied in part, the County Defendants’ Motion for Summary Judgment. The Court granted summary judgment on all individual capacity claims, but denied summary judgment on the official capacity claims. In a separate Order entered November 10, 2005, the Court denied Plaintiffs Motion for Partial Summary Judgment and the Cross-Motion for Summary Judgment pursuant to a telephone conference held on November 8, 2005. During the telephone conference, the Court discussed some of the applicable law and current developments therein to help set the stage for the trial. The trial was held January 3 through January 6, 2006, after which the Court took the matter under advisement. Post-trial briefs were submitted by the parties. The Court, after careful consideration of the entire record and applicable law, is now prepared to enter its findings of fact and conclusions of law. III. FINDINGS OF FACT 1. Testimony of Darin Winters Before detailing the facts chronologically from the arrest of Mr. Donald Winters on December 28, 2002, until his death on January 1, 2003, the Court will review the testimony of the Plaintiff, Mr. Darin Winters, the son of the deceased, because that testimony provides important background information as well as the perspective of a vitally interested family member attempting to protect an acutely mentally ill relative and to obtain for that relative the medical and psychiatric services needed to return him to his prior level of functionality. The Court was impressed with Darin Winters’ testimony. Darin Winters is not the natural son of Mr. Donald Winters, but they treated each other as father and son from the time Donald Winters married Darin’s mother when Darin was eight years old. Donald Winters was the only father Darin ever really knew. He testified that his father was an eccentric person, but a wonderful man who had some success in business. He stated his father never used drugs, was greatly interested in health, jogging ten or twelve miles a week, and that he loved life. According to Darin Winters, his father had two prior psychotic episodes, one in 1996 and one in the year 2000. In 1996 Mr. Donald Winters lived by himself in a secluded river cabin located in Missouri. The cabin had no electricity or running water but was considered “heaven” by his father. In connection with the 1996 incident, Donald Winters had delusional thoughts and behaved erratically. The neighbors complained. He apparently stopped several cars and complained that people were out to kill him. He was taken to a mental hospital and recovered to his prior functional level. According to Darin, his father had no additional significant incidents until December 2000. In 1997 Darin started living with his father. In December of 2000 his father’s behavior again became erratic and paranoid. He felt that Walmart and the Rogers Police were planting mini-cameras into people to spy on him. After a stand-off and confrontation with the police, during which his arm was broken, he was taken to Highland Hall where he was treated for almost three weeks and then released. Late in December of 2000, after his release, his father asked to see a psychiatrist at Ozark Guidance Center. However, he only went once. He apparently continued to have some delusional thoughts until his arrest in December of 2002. He would talk incessantly about the conspiracy against him and how he had barricaded himself and had a stand-off with a swat team back in December of 2000. In 2002 Donald Winters had no health insurance and little cash. He could not pay for medical services. According to Darin his father had a “bad week” just before Christmas 2002, his condition getting worse on Christmas Eve and Christmas Day. Darin was planning to take his own son to St. Louis to visit relatives and asked his father to come with them. His father responded that he could not leave because, “something is going to happen.” During the same time period, his father also tried to call Michael J. Fox in order to tell him how to treat his medical condition. Darin did not call the authorities because there was nothing to suggest another incident like two years before. Darin also testified that his father had been given medication at Highland Hall in 2000, but did not like it. He was opposed to taking any kind of medicine. By December 2002 he had been off his medication for almost two years. Darin stated that his father had been healthy and fit and there was nothing to suggest that he suffered from any physical ailment. He expressed no complaint of stomach pain and no complaint that consuming food or water hurt or pained him. When Darin departed on December 27 his father was at work at his job. Darin wanted to say goodbye. His father responded that he had been jogging and that there was a sniper in a nearby wooded area and he could see the red laser beam from a weapon. On the night of December 27 Darin received a call in St. Louis from an Arkansas neighbor, complaining that Donald Winters was banging on his door. The neighbor, Jim Nelson, had first called the Sheriffs office in Bella Vista before calling Darin. After Darin received the call from his neighbor, he called the Sheriffs Office in Bella Vista and requested that they pick up his father. He advised the authorities that his father needed mental health services and the Sheriffs Office reported that they were not equipped to provide such services. Darin then received a call from Deputy Brasuell advising him that his father had been arrested for criminal trespass. Officer Brasuell called back a second time and advised that his father was in the Benton County Jail. Darin returned to Benton County from St. Louis and went to visit his father at the Detention Center on Sunday December 29, 2002, but the officers could not get Mr. Donald Winters to come out of his cell. Darin left without seeing him. He called the Sheriffs Office at 6:00 a.m. on Monday, December 30, 2002 and was advised he would probably be able to visit his father. He called later that morning and was told that his father was banging around in his cell and had to be placed in a suicide jacket. Darin Winters stated that Captain Drake okayed him to see his father around 2:30 p.m., Monday, December 30. The officers tried to coax Donald Winters out of his cell. They opened the cell door and kept pointing to Darin in an attempt to get his father to come out and talk to him. But his father thought the room was an “acid vat” and he would not enter that room. Lt. Tester then had Darin come into the booking area. It took a while before he was able to approach his father. He asked his father if he trusted him and he replied, “Fuck no, I don’t trust you!” He was, nevertheless, able to get his father to drink five or six cups of water. After drinking the last cup Donald Winters grabbed his right side and said, “Oh no, that was the acid.” His father stated that if he remained in jail he would be dead before the morning. The visit lasted thirty to forty-five minutes. His father was not in his right mind. He had many bruises and a very haggard look. Lt. Tester told Darin that he could take his father out of the Detention Center if he would assume responsibility for him. Darin replied, “No,” because he could not handle his father in his then condition. His father was fully clothed during the visit. Darin knew that he would have to sign a petition for a civil commitment on Monday, December 30, 2002. He had filed a similar petition back in December of 2000 and understood the process. The petition was prepared with the assistance of the prosecuting attorney’s office. Mr. Darin Winters inserted the following language in the petition under the caption “Conduct/Signs Symptoms:” Don Winters (my Dad) believes that Rogers P.D., Benton Co. Sheriffs Dept., and Wal-Mart are conspiring to have him killed. He believed this because of a lawsuit filed in federal court. My Dad believed that people close to him are “in” on this as well. My Dad needs professional help to overcome. Under “Time & Place of Occurrence” Darin stated: Starting last Thursday, December 27, 2002, through currently. Place is our home that we share in Bella Vista. (Commitment Petition, Defendants’ Exh. 3). 2. The Last 4 Days and 16 Hours of Donald Winters’ Life (a) The Arrest Deputy Timothy Brasuell worked at the Bella Vista Division of the Benton County Sheriffs Office starting in February 2002. He was on duty during the night of December 27 — December 28, 2002. Previously he had worked at the Rogers Police Department. While at the Rogers Police Department he had talked to Mr. Donald Winters by telephone two or three times at which times Mr. Winters complained about Wal-Mart or doctors. Officer Brasuell had never met Mr. Winters face to face until December 28, 2002. The Sheriffs Office had received a call from Mr. Winters’ son, Darin Winters (who was then in St. Louis, Missouri) advising that his father had mental problems and had gone over to their next door neighbor’s house and was banging the neighbor’s front door. He also advised that his father was excessively strong and that they would need two deputies and two mental health professionals to deal with him. Officer Brasuell and Deputy Nelson Walter who was riding with him went to the residence located at 7 Lyndhurst Drive in Bella Vista. Deputy Maurice Helms who was riding in another unit met them at the residence to act as backup. They found Mr. Donald Winters knocking on the front door. When Mr. Winters saw the officers he told them that he and the officers were going to be executed. Mr. Winters would give them a blank stare when they tried to talk to him. The officers were unable to establish a meaningful dialogue with him. The officers told him to go to his home which was located next door at 5 Lyndhurst Drive. He responded that if he went home the officers would kill him. He also talked about a federal lawsuit. Officer Brasuell told Mr. Winters that if he did not go home that he would be arrested for criminal trespass. Mr. Winters did not acknowledge this message so Officer Brasuell began escorting him to the patrol car. Suddenly Mr. Winters tightened his body, struggled to pull loose and refused to walk. He was then taken to the ground by the three officers and handcuffed. Mr. Winters was very strong. It took all three offices to handcuff him and load him into the patrol car. Winters bit and kicked the officers. Officer Helms was a field deputy at the Bella Vista Sheriffs Office. He was the senior officer there on the night of December 28, 2002. That night was his first ever contact with Mr. Winters. Officer Helms was on another call when he heard that Officers Brasuell and Walter were directed to check out 7 Lyndhurst Drive in reference to a mentally ill individual. He arrived there a few minutes after Brasuell and Walter. He observed the two officers talking to Mr. Winters who was on the front porch of the residence. They tried to talk Mr. Winters into going home but it was apparent that he was mentally ill and was not going home. Officer Helms heard Mr. Winters say that he was there to talk to “Nancy.” He would then knock on the door. They told him he needed to go home and that he could talk to Nancy the next day. He was further advised that if he did not go home he would be arrested for criminal trespass. Officer Helms gave essentially the same description of the difficulties in getting Mr. Winters into the patrol car as that given by Officer Bras-uell. But, he also noted that in the struggle Mr. Winters was not struck by a baton or other object. He states that Mr. Winters was “not really fighting but more just resisting the deputies.” He was thrashing and kicking his feet and legs the whole time. Officer Helms states that as they were taking Mr. Winters to the patrol car he fell face down in the snow but did not appear to be injured. Officer Nelson Walters’ account of the arrest tracks closely the statements of Officers Brasuell and Helms. He states that when they approached Mr. Winters he asked him “what the problem was, if he had been drinking and if he had taken any drugs.” Mr. Winters did not respond to the questions but told them that they were going to be executed. After the officers got Mr. Winters in the patrol car, they took him directly to Bates Medical Center. On their way there Officer Brasuell contacted the Bentonville Police Department and requested that an officer be sent to assist. Bentonville police officers Timothy Martin and Bryan Hobbs met them at the Bates’ Emergency Room and assisted the deputies in unloading Mr. Winters and taking him to the Emergency Room. Mr. Winters had calmed down some until they entered the hospital at which time he began struggling again. (b) First Visit To Bates Medical Center After his arrest for criminal trespass, Donald Winters was taken by the deputies directly to the Bates Medical Center in Bentonville “to have him examined and admitted to the psychiatric ward.” Mr. Winters had calmed down some until they entered the hospital whereupon he began struggling again. He had to be physically placed on a bed and restrained with bed sheets along with handcuffs. He was examined by Dr. Curtis Wulz who said that he was too violent and aggressive to be admitted to the hospital. (See Statement of Deputy Sheriff Brasuell of January 10, 2003, Def.’s Exh. 37). Officer Bryan Hobbs of the Bentonville Police Department assisted the deputy sheriff in handling Mr. Donald Winters when he arrived at Bates Medical Center on December 28, 2002. In his statement dated April 25, 2003, he advised that the officers had to hold Mr. Winters down when the nurse took his temperature, blood pressure and a blood sample. He further stated that Mr. Winters was not given any medication while at the emergency room. He stated that Mr. Winters calmed down and he was able to talk with him briefly. Mr. Winters stated that he was upset with the Rogers Police Department over the way that they had treated him and that he had filed a lawsuit against them. Ms. Angel Hoover, a registered nurse in the emergency room at Bates Medical Center on December 28, 2002, was able to take a blood sample from Mr. Winters, get his blood pressure, listen to his chest and abdomen, and ascertain his respiration rate. Mr. Winters did not complain of pain. She was in the room when Dr. Wulz came in to examine him. She stated that Mr. Winters’ son called later that morning (December 28, 2002) and advised that Mr. Donald Winters had experienced similar violent episodes in the past but could not recall his father having a history of any serious physical problems. Mr. Ronald Ralph Summerlin, a licensed practical nurse, was working in the emergency room at Bates when Mr. Winters was brought in. He stated that Mr. Winters came in around 12:50 a.m. and was released around 2:17 a.m. He stated that nurse Angel Hoover was able to get him calmed down enough to get his vital signs. He did not see Dr. Wulz actually examine Mr. Winters. Mr. Nelson R. Walter, a deputy in the Bella Vista division of the Sheriffs Office was with Deputy Brasuell when they first made contact with Mr. Winters at # 7 Lyndhurst Drive. In his statement (given January 20, 2003) he noted that after his arrest Mr. Winters was taken to the Bates Medical Center ER to be admitted to the psychiatric ward. Mr. Walters stated that Mr. Winters was examined by Dr. Wulz and released back to the deputy. He stated that Dr. Wulz agreed that Mr. Winters was a danger to himself and others but stated that the psychiatric ward at Bates was not equipped to handle violent cases like his. He stated that the prosecuting attorney’s office could be contacted about getting a civil commitment order for Mr. Winters. However, when the prosecuting attorney’s office was contacted it advised that it would be Monday before an Order could be obtained. Mr. Walter stated that Deputy Brasuell contacted Mr. Darin Winters and requested that he go to the prosecutor’s office on Monday to file the necessary paperwork to get a civil commitment order on his father. Mr. Darin Winters replied that he would be back from St. Louis on Sunday and would go down on Monday to get a commitment order. The Bates medical record has a handwritten note: “Discharged to police” and the following instruction: “Return anytime if you would like further treatment.” Donald Winters was discharged at'2:17 a.m. on December 28, 2002. There is no indication whether a psychiatric consult was requested. Mr. Donald Winters was then transported to the Detention Center. (c) Arrival at Benton County Detention Facility The Benton County Sheriffs Office “Criminal Intake Form” shows that Donald Winters arrived at the jail at 2:30 a.m., December 28, 2002. The form has the hand-written notation: “Can release to son Darin Winters.” Under “Housing” it states, “to be housed alone.” (Plaintiffs Exh. 3). Deputy Beck states in an “Incident Report,” written at 4:00 a.m., that at 2:30 a.m. he received “an assistance call” to which he responded. When he arrived in the pre-booking area, Mr. Winters had just entered with deputies -from the Bella Vista office. Mr. Winters began walking away. He was asked to face the wall at which point he fell to the floor, laid on his back and refused to get up. Mr. Winters was told he needed to be patted down before he could enter the jail. One deputy tried to pat him down while he was on the floor but was unsuccessful. Finally, three officers held Mr. Winters while the fourth deputy did the pat-down search, after which Donald Winters was placed in holding cell # 113. (Officer Beck’s Incident Report, Pl.’s Exh. 4). When the intake process was completed Deputy Austin went to Mr. Winters’ cell and told him he was going to take him into booking and place him in another cell. Mr. Winters said he liked the cell he was in and that he wanted to be left alone. Officer Austin told Mr. Winters to stand up. He refused to leave, wedging himself into a corner of the cell. Other deputies helped in removing Mr. Winters and in placing him in booking cell # 7 for observation. Mr. Winters was still handcuffed. At 3:15 a.m., when an officer said he was going to remove the handcuffs, Mr. Winters refused, stating he was used to the cuffs. Force was used to remove the cuffs. At approximately 6:45 a.m., December 28, Officer Austin entered Mr. Winters’ cell and told him that he needed him to come out so he could fingerprint him. He refused. As Deputy Austin continued to talk to him Mr. Winters began hitting his forehead on' the toilet while screaming “Stop beating me.” This was the first instance of such behavior. Deputy Austin immediately reported this to Sgt. Winters. By the time Sgt. Winters (no relation to Donald Winters) arrived, Mr. Winters had stopped and was sitting in the corner. At approximately 7:10 a.m. Sgt. Montgomery arrived and was briefed on Mr. Winters’ behavior. While the officers were considering how to get Mr. Winters fingerprinted he once again started beating his head, chin, elbows and shins against the toilet. Deputy Austin along with Deputies Hook, Shipman and Collins then entered Mr. Winters’ cell and told him he was going to be moved to the “Detox cell” where his actions could be monitored by video. Mr. Winters resisted but was forcefully removed and placed in detox. As the officers left the cell Mr. Winters began to beat himself against the toilet again. Sgt. Montgomery entered the cell and informed Mr. Winters that if he continued he would be restrained for his safety. The Detox cell is right next to cell # 7. The Court finds no significant record entries before the next morning. On Sunday, December 29, 2002, at approximately 6:45 p.m. the deputy sheriff forcefully put restraints on Donald Winters so that they could take him before Magistrate Garten for his first judicial appearance after his arrest on criminal trespass charges. The Court is located within the detention facility. The hearing was for the purpose of determining probable cause and to consider pre-trial release. The Court conducted the hearing pursuant to Rule 8.3 of Arkansas Rules of Criminal Procedure. The Court found that there was sufficient evidence presented to constitute probable cause. Bond was set at $500 and the defendant was directed to appear in the District Court of Benton County on January 5, 2003, at 7:30 a.m. The citation was considered a “must appear” citation. (See Defendant’s Exh. 45). Donald Winters resisted both going to and coming from the hearing. Upon his return he was placed back in the Detox cell and the restraints were removed. There were no significant entries for the remainder of the day of December 29, 2002. On Monday morning, December 30, 2002, at approximately 7:37 a.m. Mr. Winters was standing on a bench in the Detox cell and exposing himself in front of a window. When ordered to stop this behavior, he refused and was then placed in a suicide smock. However, he was able to escape therefrom and continued exposing himself. At this point he was placed in a restraint chair for 45 minutes. The following testimony and statements of the Jail Administrator and the deputies who observed Mr. Donald Winters while he was in the Detention Center from December 28 until he was taken to the Court for the civil commitment hearing on December 31, 2002, help complete the picture of Mr. Winters’ behavior and the officers’ responses thereto. Officer Pelray, Jail Administrator, Benton County Sheriffs Office, manages the jail on a day to day basis. He testified that he took over that job on January 1, 2003. However, he had served as an assistant for five years before assuming the position of Administrator. He first saw Donald Winters on Monday, December 30, 2002. He reviewed Defendant’s Exhibit 37 and Plaintiffs Exhibit 1, investigative summaries by the Arkansas State Police and the Prosecuting Attorney, respectively. When officers saw Donald Winters harming himself Officer Pelray had him removed to the Detox cell where he could be observed with surveillance cameras. He states that Mr. Winters was seen by the jail medical staff. He said, “We did all we could.” When asked whether Mr. Winters was continually thrashing about or was calm the reply was, “off and on.” Mostly he displayed episodic violent behavior until medicated at Ozark Guidance Center on December 31. No staff person beat or hit Mr. Winters. Rather, staff personnel tried to protect him from himself while trying to carry out their many duties. No one allowed him to harm himself. Mr. Winters did not eat and only drank occasionally. Officer Martinez works the day shift 7:00 a.m. to 4:00 p.m. He saw Donald Winters in a “suicide gown.” On Monday (December 30) at 3:30 p.m. they gave Donald Winters a cup of water. Page 2 of Plaintiffs Exhibit 11 describes the incident as follows: “And he did take the cup of water and he kept yelling it’s acid — it’s acid and we kept assuring him it was not acid, and then he stuck his finger in it and tasted it and he — and we said, ‘See, it’s water.’ And he goes, ‘This is slow burning acid,’ and we just turned around and walked away you know ... This would be Monday.” (December 30). The statement of Deputy Crabtree describes the scene at 7:30 a.m. on December 30 (Monday): “Inmate Winters was in detox and had stripped his anti-suicide smock off. He stood upon the bench and began playing with his genitals in front of the females and everyone else in booking. Sgt. Carter told him to stop, get down, and put his clothes back on. He refused. Deputy Hook and I went into detox and placed him on the floor. We put the smock on him and placed him in waist and leg restraints. We exited the cell with no further incidents.” (Deputy Crabtree’s statement, Plaintiffs Exh. 12). The Statement of Deputy Hook describes the scene at 9:15 a.m., December 30 (Monday): “Sgt. Carter informed me that inmate Winters ... needed to be put in the restraint chair for his own safety. Sgt. Carter and I placed inmate Winters in the restraint chair at 9:15. After inmate Winters calmed down, Deputy Stewart and I removed inmate Winters from the restraint chair at 10:01. I returned to my duties.” (Deputy Hook’s Statement, Plaintiffs Exh. 13). The Statement of Deputy Bruce Center, who worked the night shift from 11:00 p.m. to 9:00 a.m. His first contact with Donald Winters was on Monday morning (December 30) around 3:00 a.m.: “He was in the nurses station in the holding cell and he was naked the whole time. And probably about 3:00 a.m. ... they had me go in there and another deputy (Bailey) and put his — -try—whenever you’d go in there he’d just ... jump up on the bunk and ... clamp down. Well we went in there and put his pants on him and then he took them off and so we put them on again and he took them off.” “Yeah ... that’s all we did you know, we tried to get him clothes because that was the first night I think he started getting naked ever ... you know he wouldn’t keep his clothes on. So Monday morning (December 30) we knew we had nurses call, everything else going on so we went in and put a smock on him and took ... that’s when we took him to detox.” “... You’d go in there and he’d say you’re going to— you know like when we’d go and put his pants on he’d say get that gun out of my head — quit pouring acid on me.” (Deputy Center’s Statement, Plaintiffs Exh. 14). When asked if he ever had a normal conversation with Mr. Winters, Officer Center stated: “No — never like me and you are talking — I mean but he understood because he knew me. You know every time I’d come in he’d call me the fat, bald Nazi ... and he knew all the officers — that’s why I thought it was weird you know he talked so crazy but he knew all of us.” Deputy Center’s Statement continues: “Monday night when we came in he was talking a little bit but he stood — there’s a grate — the drain grate. I noticed he was up all night ... around 2:30 a.m. I noticed I couldn’t see him any more. So I walked over there and he was standing on that grate — just standing there naked — and he stood that way until ... 7:00 a.m.- — -never moved ... he never moved from that grate for about 5 hours. He was talking a little bit, just mumbling ...” “[Ajfter the day shift got there around 7:00 a.m. he started getting upon the bench ... and we’d take him down ... and he’d get right back up there so we’d go back in and take him down. We did that 4 or 5 times and finally I called the Sgt. and said ... this guy is getting up on the bench, is there anything you want us to do? I guess after the Lt. and the Captain talked about it they said no, just — you know quit — quit going in there and getting him off the bench. So he just stood up on the bench the rest of the time I was here until 9:00 a.m.” (Id.). Darin Winters returned from St. Louis and attempted to visit his father on December 29 and the morning of December 30, but the officers could not coax Mr. Winters out of his cell for Darin to visit him. However, at around 2:30 p.m. that afternoon (Monday, December 30) Captain Drake authorized Darin to see his father. Once again there was an effort to entice him out of the cell but Mr. Winters said that the room was “an acid bath.” Darin came to the booking area and after a while was able to approach his father. He was able to get his father to drink three or four cups of water. After drinking the last cup Donald Winters grabbed his right side and said “That was the acid.” On Monday, December 30, 2002, Darin Winters went to the prosecuting attorney’s office to sign a petition for involuntary commitment. Deputy Prosecuting Attorney Candance Taylor assisted him with the necessary paperwork. Defendant’s Exh. 3 is a copy of the petition. The Arkansas Statutes controlling involuntary civil commitment found at § 20M7-201, et seq. Donald Winters fought being transported to the Court for the involuntary commitment hearing on December 31, 2002. He had to be physically restrained and carried to the transport vehicle and then into the courthouse. (d) Civil Commitment Hearing The civil commitment hearing took place 0n Tuesday, December 31, 2002. Two deputies had to forcefully bring in Mr. Donald Winters who was cuffed and shackled. Mr. Donald Winters stated that he was about to be executed. The deputies were assisted by a police department officer, Mr. Scott Parks. The hearing began at 1:00 p.m. before Judge Scott. Judge Scott had to have Mr. Donald Winters removed from the courtroom because of his behavior. Officer Brasuell testified about the circumstances surrounding the arrest of Donald Winters around 12:30 a.m. on Saturday, December 28. He was asked to describe Mr. Winters demeanor. Officer Brasuell described Mr. Winters’ conduct and the difficulty they had in controlling him. He also advised the Court that they first took Mr. Winters to the Bates Medical Center, “knowing they had a psychiatric unit.” Officer Brasuell stated: “During that time I wasn’t in the examination room a whole lot. I was speaking to the Dr. about getting him committed that night or, a seventy-two hour holding period for the psychiatric unit there. But he (Donald Winters) did speak a lot about the lawsuit and again constantly repeating that we were going to be executed.” (County Defendant’s Exh. 47). Near the end of the commitment hearing the following colloquy occurred: THE COURT: However I am going to commit him to the Arkansas State Mental Health System. It’s the finding of this Court that Mr. Winter’s behavior demonstrates that he so lacks the capacity to care for his own welfare that there’s a reasonable probability of his death, serious bodily injury, or serious physical or mental debilitation if his admission is not ordered. Ms. Taylor, did you bring an order? MS. TAYLOR: I did, your Honor. If I may have Mr. Parks’ signature obtained. MR. WINTERS: Your Honor, may I say something, please? THE COURT: Yes. MR. WINTERS: Just for the record, ma’am, my name is Darin Winters. I’m Donald’s son. I would just like to say this. If it’s possible, I would like to keep my father in a northwest Arkansas facility rather than Little Rock, where it’s a great distance to travel to see him; and I don’t know if it’s going to be for seven days on his first committal or what, but I just have to figure if he’s discharged after a week, or after several weeks, it’s not going to get much better at all; and I would just ask the Court, your Honor, to take that into account and to do what we need to do to get the help that my father deserves and really needs and just keep him within the system absolutely as long as possible. That’s about all I have. THE COURT: Mr. Winters, I appreciate that. There is no facility in northwest Arkansas that is built or designed to hold your father at this time. He’ll have to go to the State Hospital in Little Rock and, depending on what the assessment is there and his treatment, he may or may not have a seven day hearing within a week, but you can stay in touch with Ms. Taylor and she can keep you apprized of what’s going on down there. (County Defendant’s Exh. 47). The Court thereupon entered the Commitment Order the important portions of which read as follows: That there is probable cause to believe that the Respondent has a mental illness, disease, or disorder, and by reason thereof, the Respondent poses a clear and present danger to himself or others. That the Respondent should be, and is hereby involuntarily admitted to the Arkansas Mental Health System for a period of seven (7) days for evaluation to determine whether treatment for mental illness is appropriate. If, Ozark Guidance Center, the designated receiving facility, determines that the Respondent requires hospitalization and there is no state mental health detention facility that can provide 24-hour inpatient care within the physical jurisdiction of this Court, then such inpatient treatment shall be provided at the Arkansas State Hospital, 4314 West Markham, Little Rock, Arkansas, for a period of seven (7) days, for evaluation to determine whether treatment for mental illness is appropriate. Nothing shall prevent the Respondent from being released sooner if, in the judgment of the treating physician, at either the Ozark Guidance Center or the Arkansas State Hospital, the Respondent does not require further mental health treatment. The Court shall be immediately advised of such release and dismiss the Petition pursuant to A.C.A. 20-47-213. If determined that Respondent needs the services of Ozark Guidance Center and a Section 9 Hearing on this matter is necessary, it shall be scheduled on or before the 6th day of January, 2003, at 1:30 p.m. before the Probate Judge pursuant to Act 861 of 1989, at which time a treatment plan as defined in Act 861 of 1989, will be submitted to the Court. In the event the Respondent is in Little Rock, then the hearing time and date shall be set by the presiding judge. (Commitment Order, Defendant’s Exh. 4). Darin Winters testified that when his father was hospitalized at Highland Hall in 2000 he was often forcefully medicated. He continued to get better until he left that institution. Highland Hall had released Donald Winters into the custody of Mr. Darin Winters and it was Darin’s hope that a similar procedure would be followed on this occasion. Immediately after the entry of the civil commitment order, Mr. Donald Winters was transferred to Ozark Guidance Center “the designated receiving facility,” as directed in the Commitment Order. (e) Ozark Guidance Center At Ozark Guidance Center, Donald Winters was observed for about two hours and, to a limited degree, examined by psychiatric nurse Beth Meltzer, clinic social worker Jeanie Jenkins and Dr. Lance Foster. All three reported that Mr. Winters was uncooperative with all aspects of their examinations. Ms. Jenkins was interviewed in March 2003. She stated that during the entire time Donald Winters was at Ozark he acted as if he were speaking into an invisible recorder noting everything that was going on. She stated that she called the Arkansas State Hospital in Little Rock and was told that there were no beds available, but that Mr. Winters would be placed on the waiting list. She states that she also called Living Hope and left a message to have them contact Nurse Meltzer. And, she advised Darin Winters that she had attempted to find a bed for his father but that all facilities were full. Dr. Foster’s notes expressed his opinion that Mr. Winters was “a clear and present danger” because of his condition. After his examination of Mr. Winters, Dr. Foster caused two drugs (Ativan and Geodone) to be administered by injection into his left and right buttocks while Mr. Winters was restrained by the deputies. This apparently was done just before Ozark turned Mr. Winters back over to the deputies to transfer him back to the Detention Facility. Dr. Foster also called Dr. Mullins, the jail physician, to advise that Mr. Winters appeared severely dehydrated. According to the deputies, Mr. Winters calmed down and fell asleep on his way back to jail. The deputies carried him back to the detox cell and removed his restraints without incident. The Ozark Guidance Center’s records show that Mr. Winters was there from around 3:10 p.m. until 5:00 p.m. on December 31, 2002. Under “legal status” is found: “Court Order dated 12/31/02.” Under “Type” is the entry “7-day.” The legal charge of “criminal trespass,” a “misdemeanor,” is noted. Under “Prior Inpatient Psychiatric Treatment” is found “Highland Hall, Springdale, AR 12/07/00 to 12/28/00 at NWMC” (Northwest Medical Center). Under “signs of severe stress” is found “blood pressure normal, dehydrated, refuses food and fluids, electrolytes and potassium level [cannot decipher] ...” The records also state that Mr. Winters “refused all medication” and showed blood pressure as 150/90 and pulse 90. There is a printed inquiry which states, “If the person is not admitted to treatment NOW, is there a reasonable probability of death or serious bodily injury.” Both were checked indicating the affirmative. The following explanation for those answers is given: “Client is seriously mentally ill— acutely psychotic — unable to function in society — no family can care for him,” and there is the note: “According to son, client was employed last week and doing fairly well. He’s become acutely psychotic (paranoid).” The “Screener’s Recommendation” reflects the following entry “psychiatric hospitalization.” Another entry states that there were “no physical medical problems known” and that the “type of treatment received” was “haldol injection 1 — 50 mg.” (Plaintiffs Exh. 16). The form, “Additional Information” has the following entry: “Client to return to Benton County Jail to await placement at Arkansas State Hospital (ASH). Single Point of Entry done and faxed to ASH. No charitable care male bed available at any facility that accepts mental health commitments at the present time.” The “General Notes” section (prepared by Ms. Jenkins) reads: “After two hours and uncountable attempts to calm client, injection given per Dr. Order, with hope that client may calm enough to at minimum allow a physical assessment and treatment of his obvious physical distress. Extreme concern over his dehydration and metabolic status. Geodone 10 mg. Given IM in LGM and Ativan 2 mg. Given IM in RGM using aseptic technique ... Deputies restrained client while injection was given. Samples of Zyprexa Zydia given to deputies with instructions to give 10 mg. sub ling. Daily. Enc. Them to call Ozark Guidance Center with problems, questions or concerns. Understanding voiced. Client escorted out of Ozark Guidance Center, continuing to talk non-stop and refusing to cooperatively ambulate ...” The last entry by Ms. Jenkins in the “General Notes” section states: “Completed SPOE [Single Point of Entry form] which was faxed to ASH. There were no beds available and client was placed on waiting list. Attempted to contact Living Hope for placement and left message for admissions coordinator to contact this social worker and/or Director of Emergency Services, Beth Meltzer. See SPOE same date.” (PL’s Exh. 17). The last record in evidence from Ozark Guidance Center is Plaintiffs Exhibit 18 which, in three pages, gives Dr. Lance Foster’s “Progress Note, Subjective/Objective,” his “Assessment,” and an “Addendum” (under “General Notes”). The entire exhibit is quoted as follows: Mr. Winters is a 59-year-old white male referred from Benton County Jail for commitment evaluation and Single Point Entry. He is seen along with Beth Meyers, RN. For evaluation. Mr. Winters presents with significant concerns of threats to his life. He states that Rogers Police Department, as well as Wal-Mart, is trying to kill him. He believes that Ozark Guidance is also trying to kill him related to lawsuits pending in Federal Court. He states that if we continue the evaluation and our “plans,” that it will ruin our careers. He believes that there is a microphone in the room recording. He states that he feels we are trying to poison him. The deputies bringing Mr. Winters in state that he has not had any fluids for three days and he will refuse any types of fluids, but does seem to be eating. He denies any sleep disturbance, though they state that they observed he has had somewhat disturbed sleep. He states that he believes that we will put a “chemical” on his face and that this will kill him. He believes that any type of water that we bring into the room is “acid.” During evaluation of his blood pressure, he believes the nurse is injecting something into his arm. He has similar concerns as she takes his pulse. He is quite angry and belligerent, swearing often throughout the interview. He is hostile and demeaning toward staff as well as the deputies. He has significant abrasions on both ankles and purple discoloration of his toes and the bottoms of his feet. He also has a cut on his head, though it is difficult to get a clear look at this because he is refusing to be seen and approached. The nurse, however is able to get a clear look at noted small laceration on his head, left side/eentral. He is notably very dry with chapped lips and dried spittle. Overall, he is quite paranoid and delusional. He currently denies any thoughts of self harm. He does not threatened (sic) others with self harm while I am in the room, though does make multiple litigation threats toward staff here as well as the deputies. He strongly believes that he is being targeted for murder. He states that he has inner peace and does not have any “negative feelings.” He tells me that he is in the “gap” stating that this is the space between people’s racing thoughts through the day that allows him to be at peace. He overall has poor grooming and hygiene. He has intense eye contact, poor impulse control, is redirectable with some degree of effort. He has a normal level of psychomotor activity. There are no noted tics or tremors. No evidence of EPS or tardive dyskinesia. Speech is significantly pressured with increased volume at times, moderately increased rate, normal tone. Affect is paranoid and anxious and quite angry with quite limited range. He does appear to be in a very agitated state. He is quite paranoid and delusional. He denies any auditory, visual, tactile hallucinations. He denies any suicidal ideation. He denies any homicidal ideation. Intelligence is judged to be above average to clinical assessment. Insight is very poor. ASSESSMENT: Mr. Winter’s current state appears to be very similar to when he was hospitalized approximately two years ago at Northwest Medical Center where he spent approximately three weeks on the inpatient unit. At that time, he was very delusional and agitated and fearful of being killed. He eventually was stabilized to the point of presenting no clear and present danger and was discharged to follow up with a guarded prognosis due to his anticipated poor compliance with treatment. He appears to be appropriate for diagnosis at this time, of Delusional Disorder, Paranoid Type. PLAN: Related to his significant problems with paranoia and his delusions of being targeted by law enforcement as well as the medical community, I strongly believe he represents clear and present danger to himself in his inability to care for himself to make concrete decisions, his refusal to take in fluid is of great concern, as are his wounds which also appear to be related to his paranoia and battling with his restraints and the officers attempting to assist him. Many concerns of metabolic imbalance related to dehydration and his increased risk factors for heart attack and stroke make treatment emergent at this time. He will be given injectable medications on emergency basis: Geodon, 20mg IM and Ativan, 2mg IM. Also, I strongly recommend that he be evaluated medically in the emergency room related to his dehydrated state. Current blood pressure is 140/90. Pulse is 90. This is taken during his very agitated state. We were not able to perform orthostatics. I will also discussed (sic) this further with Dr. Mullins of the Benton Country (sic) Jail. I also prescribed Zyprexa Zydis to be given 10 mg. q. Day. The Deputies are given samples to this medicine. Lance C. Foster, M.D. Staff Psychiatrist L.C. Foster, M.D. Authenticated Electronic Signature 01/02/2003 16:14 Addendum: I spoke with Dr. Mullins by phone after Mr. Winters was seen in the clinic. We discussed our evaluation and the treatment done here including medications used for emergency treatment. I described to Dr. Mullins my concerns over Mr. Winters’ current medical and psychiatric condition and my opinion that he needed to be seen in the emergency room today rather than evaluated medically in the future. Dr. Mullins also expressed concern and stated that he would contact the deputies and instruct them to have him seen in the ER. L.C. Foster, M.D. Authenticated Electronic Signature Date Locked: 01/02/2003 (Plaintiffs Exh. 18). The deputies took Mr. Winters back to jail as directed by Ozark Guidance Center. They noted that Mr. Winters calmed down and fell asleep on the way back to the jail. The deputies carried him to the detox cell and removed his restraints without incident. Since Ozark Guidance Center completed its work at about 5:00 p.m. on December 31, 2002, it is assumed that Mr. Winters was back in the jail by 5:30 p.m. (f) Second Visit to Bates Medical Center & Examination by Dr. Dia-done After Dr. Mullins, the jail physician, received Dr. Foster’s call advising that Mr. Winters was severely dehydrated, Dr. Mullins promptly directed that Mr. Winters be taken to the Emergency Room at Bates Medical Center to be checked for dehydration. Deputies Scourers and Turner placed restraints on Mr. Winters without incident and transported him to Bates Medical Center Emergency Room without resistance. They arrived at Bates around 6:00 p.m. Because of the medication that had been administered to Mr. Winters earlier at Ozark Guidance Center, the Bates staff was able to examine him without incident. At Bates, Mr. Winters was seen by Nurses Paula Basse and Gail Swisher and Dr. Paul Diadone. By agreement of the parties, Dr. Diadone’s testimony was taken by phone, he being at a remote site. The Court has reviewed his testimony carefully noting that he was the last physician to see Mr. Winters before his death. (1) Testimony of Dr. Paul Diadone Dr. Diadone was working at the Emergency Room at Bates Medical Center on the evening of December 31, 2002 when the deputies brought in Donald Winters. Dr. Diadone graduated from Rutgers Medical School in 1996 and did a residency-in internal medicine in New Jersey. He moved to Bentonville, Arkansas, in 2001 and opened an internal medicine practice. Dr. Diadone was standing at the nurses station when the two officers brought Mr. Winters in. Mr. Winters was not combative. He was handcuffed and shackled and very sedate. He was placed in a wheelchair and moved to examination room number two. Dr. Diadone was informed that Dr. Mullins, the Benton County Detention Facility’s doctor, instructed the officers to bring Mr. Winters to Bates Medical Center because of his dehydration. Dr. Diadone did not have a direct conversation with Dr. Mullins. The officers also told Dr. Dia-done that Mr. Winters had been combative over the previous two days and that they had taken him to Ozark Guidance Center earlier that day where he had been administered “some medications.” The officers told him that Mr. Winters had been drinking some fluids but was apparently dehydrated. According to Dr. Diadone, Mr. Winters did not respond very well to physical or verbal stimuli and was not able to carry on a meaningful conversation. He could not get a history. He was able, however, to perform a physical examination, checking Mr. Winter’s “eyes, pulse rate, expirations, did a tongue depression ... did an external chest rub, listened to his heart and lungs and examined his abdomen, which was soft ... membranes in mouth were dry and he appeared to be mildly dehydrated.” Mr. Winters’ temperature was 100 degrees. There was nothing indicating peritonitis. Dr. Diadone was aware that Mr. Winters had been at Bates on December 28th and that his blood sugar was elevated. He ordered two liters of normal saline solution and ordered glucose to be added to the I.V. He stated that Mr. Winters did not present symptoms of severe clinical dehydration, only mild dehydration. He noticed a small abrasion above the left eye which was not serious enough to require sutures. Dr. Diadone called Ozark Guidance Center to obtain the itemization of the medications prescribed at Ozark for Mr. Winters. He was told that Ozark ordered injections of Geodon and also Ativan. He also reviewed Mr. Winters’ earlier chart which he found in the emergency room. Dr. Diadone conducted a physical examination of Mr. Winters while Mr. Winters was on a stretcher. He found his pupils to be equal and round; his heart regular; his lungs clear; his abdomen soft; many bruises; and that he moved his extremities normally. Dr. Diadone had blood work done which turned out to be essentially normal. He stated that the mucus membranes were not bad, and that there was no significant dehydration. He felt that the two liters of fluids were sufficient. Nevertheless, he told the deputies that if Mr. Winters did not eat or drink for the next twelve to sixteen hours, he might need further hydration. Before discharging Mr. Winters, Dr. Diadone did a second physical examination and found him to be more responsive at that time. He worked closely with Mr. Winters and observed him for over one and one-half hours. In sum, Dr. Diadone found that there was no indication that Mr. Winters was suffering from any serious medical problem and concluded that he was “stable” upon discharge. Dr. Diadone mentioned that Bates Medical Center was not equipped or staffed to handle or deal with acutely psychotic patients. Bates relies upon the Ozark Guidance Center and the Arkansas State Hospital to provide any needed psychiatric treatment. If an emergency room patient presented in need of such of psychiatric treatment, Dr. Diadone would ordinarily call Ozark. However, in this instance he knew that Mr. Winters had first been seen by the staff at Ozark. Before discharging Mr. Winters, Dr. Diadone reviewed the blood sugar, found it lower, improved and concluded the blood work was normal. When asked what would be the symptoms of peritonitis, Dr. Diadone mentioned distension of the abdomen which should be hard and rigid with rebound pain, fever and discoloration. Normally of course, the examining doctor relies heavily upon the patient’s complaints which were not available here. But, he did observe that peritonitis “is not subtle.” One of Plaintiffs witnesses, Dr. Larry Miller, took issue with Dr. Diadone’s finding that Donald Winters was “stable” upon discharge on the evening of December 31, 2002. He reviewed the medical records and concluded that Winters’ blood sugar and other readings called out for further tests. But, this is not a malpractice case. None of the doctors or medical personnel who dealt with Donald Winters are parties to this lawsuit. The Defendant Sheriff and his deputies had no choice but to accept the professional decisions of the medical staffs and to follow their directions. (g) Return to Benton County Detention Center The information for this section comes from Plaintiffs exhibits which contain the statements of officers taken during the investigation into the death of Donald Winters and from the trial testimony of Officer Pelray. (1) Officer Pelray’s Testimony By 4:30 a.m., January 1, 2003 the medication given Mr. Winters at Ozark had worn off. Deputies tried to get Mr. Winters to take the medicine prescribed at Ozark but he refused to take it. Nothing unusual was noted until 7:40 a.m. at which time Mr. Winters was seen lying on his back waving arms in the air and talking to himself. Between 8:00 a.m. and 10:00 a.m. he was observed lying on the mat in the middle of cell sleeping. At 12:30 p.m. a sheet was put over one window (but the video was clear). Officer Pelray investigated after Mr. Winters death to see if anything could have been done that was not done. He found nothing and concluded that the acts of Sheriffs Office personnel were proper and consistent with Sheriffs Office policies. (2) Officer Paul Martinez’s Statement Officer Martinez saw Mr. Winters on January 1, 2003. He statement reads: I saw him this morning ah when we came in from briefing to swap out the shifts about 8:00 o’clock. He was laying in the — detox where the camera was on him. He was laying on the mat — he was like half way on the mat — half off — half, on. And I saw him later on about— somewhere close to 10:00 and he was on the mat then. He moved all the way on the mat and he was in his stripes. He was wearing his clothes then. He was— he was out. I mean he was out. I guess they’d given him shots somewhere where he was out completely. (Martinez Statement, Pl.’s Exh. 11). Officer Martinez fed the inmates starting at 10:30 a.m. He looked in Donald Winters cell. As Officer Martinez described: “No I didn’t open the door — I just looked inside and he was still sleeping on the mat ... he didn’t eat — we didn’t feed him. At least, I didn’t feed him — he was — he was out.” (Id.) Officer Martinez’s statement continues detailing event occurring around 2:30 p.m.: I was coming back from lunch ... and Deputy Switzer (who was in Central Control) had said over the speaker as I was going down the hallway that I go check ... [because] he says he thinks that Mr. Winters might have fallen. So I walked down to detox and went in and I — I observed him through the— through the door and he was — he was naked and he was leaning over- — he was ah on his knees with his head down with his rear up in the air. And I stood there and I observed him ah he was breathing ... he seemed to be alright. Ah — -I tapped on the door ... he didn’t move— he just — just stayed there in the position breathing and ah then went about my other duties ... cause ... we had a whole bunch of inmates coming in from Pulaski County and so we were busy taking care of that. (Id.) When asked if he told anybody, Officer Martinez replied: No — well I know he was getting poop and all that all over the walls and everything. Yeah, I did tell whoever was at the counter — I said ah he’s messed that whole cell up ... crap all over the walls. He smudged it — he’s smearing it — he had smeared it all over the walls. That’s as far as it went and ah I went about my other duties ... that was the last time that I ah — I observed anything on him. (Martinez Statement, Plaintiffs Exh. 11). (3) Deputy Bruce Center’s St