Coffey v. United States (906 F. Supp. 2d 1114, 2012)

United States District Court for the District of New Mexico 2012-11-25

Indians Judiciary and Judicial Procedure The Public Health and Welfare

Citations

Full opinion text

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on the bench trial held on May 24 and 25, 2012. The primary issues are: (i) whether the Court has jurisdiction to hear the Plaintiffs’ lawsuit when Plaintiff Diana Coffey’s administrative claim did not specifically articulate the negligence theories that she alleged at trial; (ii) whether the Bureau of Indian Affairs’ decision to contract with the McKinley County Detention Center (“MCDC”), including its decision to screen the MCDC as an appropriate facility to house an American Indian inmate with Andrew Crutcher’s medical condition, falls under 28 U.S.C. § 2680(a), the Federal Tort Claims Act’s discretionary-function exception; (iii) whether the MCDC is the Defendant United States of America’s independent contractor, therefore precluding the Court from asserting jurisdiction to hear any tort claims against the United States concerning Crutcher’s treatment while he was in MCDC’s custody; and (iv) whether the United States’ negligence, when the BIA transferred custody of Crutcher to the MCDC, caused Crutcher’s death. The Court finds that, while Coffey did not articulate with specificity the claims that she is alleging at trial, her administrative claim provided sufficient underlying facts and circumstances related to Crutcher’s medical condition and medications to put the United States on notice of the negligence theories which she alleged at trial. The Court concludes, therefore, that it has jurisdiction to hear at least some of Coffey’s claims against the United States. The Court finds that the BIA’s decision to contract with the MCDC to provide detention services, including the decision whether to screen the MCDC as appropriate for American Indian inmates with certain medical conditions, was pursuant to the FTCA’s discretionary-function exception. Additionally, the Court finds that the MCDC is the United States’ independent contractor and that the BIA’s decision to award the underlying contract to McKinley County was pursuant to the FTCA’s discretionary-function exception. The Court concludes, therefore, that it lacks jurisdiction to hear any claims Coffey asserts against the United States based on the BIA’s decision to contract with the MCDC, and lacks jurisdiction to hear any claims Coffey asserts against the United States based on Crutcher’s treatment while in the MCDC’s custody. Finally, the Court finds that Crutcher’s death was caused by a bacterial infection which he contracted after December 10, 2006, and that Crutcher’s contraction of the bacteria, and his death from sepsis caused by infective endocarditis, was unrelated to his medical condition or needs existing on October 7, 2006, when the BIA handed him off to the MCDC’s custody. The Court concludes that to the extent that there was any negligence on the BIA’s behalf, it did not contribute to bring about Crutcher’s death, and the BIA, therefore, did not tortiously cause Crutcher’s death or Coffey’s alleged damages. The Court thus concludes that, because the BIA did not tortiously cause Crutcher’s death, the United States is not liable for any of Coffey’s damages.

FINDINGS OF FACT

The Court is familiar with the facts from the substantial pretrial motion practice and from the two-day bench trial held on May 24 and 25, 2012. Both parties have also submitted proposed findings of fact. The Court has reviewed both sets of proposed facts and accepts some of these facts, rejects some, and finds some facts that neither party brought to its attention. The Court’s findings are set forth below.

1. Andrew Crutcher’s Background and Medical History.

1. Andrew Crutcher was an enrolled member of the Reno-Sparks Indian Colony. See Trial Transcript at 65:1-3 (taken May 24, 2012) (Sanchez), filed July 13, 2012 (Doc. 172) (“May 24, 2012 Tr.”).

2. Diana Sanchez, formerly Diana Coffey, the Plaintiff in this case, is Crutcher’s mother. See May 24, 2012 Tr. at 64:7-12, 65:1-2 (Sanchez, Hearne).

3. Crutcher had a history of substance abuse. See Deposition of Dr. Ram Challapalli at 11:2-3, 39:7-12 (taken April 5, 2011) (“Challapalli Depo.”).

4. In 2004, Crutcher was diagnosed with nonischemic cardiomyopathy and congestive heart failure. His treating physician thought the origin of his medical condition was possibly substance abuse. See Challapalli Depo. at 7:22-24, 29:14-25.

5. To control his congestive heart failure, Crutcher received in 2004 a prescription for various heart medications, including a diuretic. He also had a defibrillator implanted in his chest. See Challapalli Depo. at 9:17-22, 10:16-17; Plaintiffs Exhibit 1 at H & H Coffey 00028 (Andrew Crutcher’s Medical Records Received from Dr. Challapalli and RENOWN Medical Center dated August 24, 2004) (“Medical Records from Dr. Challapalli”).

6. The signs and symptoms of congestive heart failure are shortness of breath, which is congestion in the lungs; swelling in the legs, which is congestion in the venous system; swelling in the abdomen or belly; heart murmur or abnormal heart sounds, exercise intolerance, and inability to lie flat in abed. See Trial Transcript at 244:5-7, 247:19-22, 268:13-22, 269:4-18 (taken May 25, 2012) (Court, Shadoff, Mitchell), filed July 13, 2012 (Doc. 173) (“May 25, 2012 Tr.”); Challapalli Depo. at 26:11-17.

7. Congestive heart failure is classified in four different classes from I to IV, with IV being the most serious. Class I means that a person can do essentially everything the person wants to do; the person has the disease, but is completely compensated— not impaired in any fashion. Class II means that it takes very consequential activity to make the individual feel short of breath or tired. See May 25, 2012 Tr. at 252:5-18 (Shadoff).

8. Either alcohol and/or methamphetamine use was the origin of Crutcher’s cardiomyopathy, because, when he stopped using those substances, his heart function improved and, when he went back to using those substances, his heart function deteriorated, and he had congestive heart failure once again. See May 25, 2012 Tr. at 247:9-20 (Mitchell, Shadoff).

9. In 2005, Crutcher had a normal aortic valve without aortic regurgitation, a normal mitral valve without mitral regurgitation, a normal tricuspid valve without tricuspid regurgitation, a normal pulmonic valve without pulmonic regurgitation, and was exercising on a regular basis. See Medical Records from Dr. Challapalli at H & H Coffey 00037, 00050.

10. Crutcher did not have a structural abnormality of his heart valves. Crutcher did not have structural valvular disease of any kind. See Defendant’s Exhibit E at H & H Coffey 000311 (Report of Findings, Office of the Medical Investigator dated March 15, 2007) (“Autopsy Report”); May 25, 2012 Tr. at 277:1-278:6 (Shadoff) (discussing the autopsy report).

11. Crutcher did not have coronary artery disease and did not have uncontrolled high blood pressure that would cause his cardiomyopathy. See May 25, 2012 Tr. at 247:11-22 (Shadoff).

12. When Crutcher engaged in substance abuse, i.e., use of alcohol or drugs, like he did in late 2005, his condition deteriorated, and he developed heart failure symptoms. When he stopped drinking and/or using drugs, however, and resumed his medications, his condition would rapidly improve, within a few weeks, to class I or perhaps class II heart failure symptoms. See Plaintiffs Exhibit 2 at H & H Coffey 001347 (Documents Re: Andrew Crutcher, Received by Way of Subpoena to Reno-Sparks Tribal Health Center); Medical Records from Dr. Challapalli at H & H Coffey 00048; Challapalli Depo. at 39:7-19, 41:2-23.

13. When he returned to substance abuse and stopped his medications, there would, after about four months, be a decline in heart function or decompensation. See May 25, 2012 Tr. at 250:8-251:16 (Shadoff, Mitchell); Plaintiffs Exhibit 4 at H & H Coffey 000290-91(Medical Records from Gallup Detention).

14. Crutcher had gaps in time when he did not fill his medication prescriptions for several months at a time. See May 25, 2012 Tr. at 254:17-255:3 (Mitchell, Shadoff); Medical Records from Gallup Detention at H & H Coffey.

15. Dr. Challapalli did not see Crutch-er between May 2005, and January 2006. See Challapalli Depo. at 38:7-11, 42:9-13; Medical Records from Dr. Challapalli at H & H Coffey 00048.

16. A progress note record dated January 16, 2006, in Crutcher’s medical records from Sierra Nevada Cardiology Associates is the last notation in the medical records indicating that Dr. Challapalli saw Crutch-er; at that time, Crutcher had Class I to perhaps Class II heart failure symptoms. See Challapalli Depo. at 38:7-11, 41:13-23, 42:9-13; Medical Records from Dr. Challapalli at H & H Coffey 00048.

17. At that time, Crutcher’s ability to function was essentially normal, and he had limited ability to function only with extreme exertion. See May 25, 2012 Tr. at 253:3-6 (Mitchell, Shadoff).

2. Crutcher’s Conviction and Incarceration in Nevada Through the BIA.

18. Congress provided that the BIA “shall be responsible for providing ... law enforcement services in Indian country....” 25 U.S.C. § 2802.

19. ' Following Crutcher’s arrest for the discharge of a firearm on the Reno-Sparks Indian Reservation, in April 2006, Crutch-er was tried in the Reno-Sparks Indian Colony Tribal Court and was convicted of a violent offense. See Errata: Amended and Consolidated Complaint ¶ 11, at 4, filed February 1, 2012 (Doc. 118) (“Errata Complaint”).

20. In May 2006, the tribal court sentenced Crutcher to 360 days in Detention Facility for a weapons offense and committed him to custody at an available detention facility, the Washoe County Detention Facility, a contract detention facility with the BIA. See Errata Complaint ¶ 19, at 5.

21. Crutcher’s treating physician, Dr. Ram Challapalli, M.D., wrote a letter to the Tribal Court services to explain that Crutcher had a life-threatening heart condition. See Challapalli Depo. at 66:10-22.

22. The last time Dr. Challapalli treated Crutcher he was “stabilized,” which means that he was functioning day-to day, he could perform normal daily activities, his blood pressure was stable, his heart rate was stable, and he was not complaining of symptoms of congestive heart failure, which would be swelling in the legs, shortness of breath, exercise intolerance, inability to lie flat in a bed. See Challapalli Depo. at 26:2-8,12-17.

23. Crutcher has a large chest and is “barrel chested.” Medical Records from Dr. Challapalli at H & H Coffey 00037.

24. At the time of his incarceration in 2006, an observer would not have been able to tell that Crutcher had a bad heart. He was living a normal life and would lift weights. See May 24, 2012 Tr. at 75:2-5, 76:2-6 (Hearne, Sanchez).

25. From a medical perspective, there were no medical conditions that would have made it infeasible to incarcerate Crutcher. See May 25, 2012 Tr. at 257:10-14 (Mitchell, Shadoff).

26. Crutcher’s medical condition was controllable on an outpatient basis. See May 25, 2012 Tr. at 257:15-16 (Mitchell, Shadoff).

27. Medically, Crutcher could get back to virtually a normal lifestyle and exertional capacity. See May 25, 2012 Tr. at 257:16-18 (Mitchell, Shadoff).

28. As part of the Bureau of Indian Affairs Officer of Justice Services (“BIA-OJS”), the BIA is required to provide detention services or provide detention beds for American Indian inmates for tribal courts that do not have a tribal detention program or the ability to house inmates. See May 24, 2012 Tr. at 173:10-20 (Mitchell, Anchondo).

29. The United States and BIA picked up Crutcher for incarceration not because of a contract with the Reno-Sparks Indian Colony, but because of a fundamental trust responsibility to the Indian population to protect the public health and safety. See, generally, Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L.Ed. 25 (1831) (stating that the American Indian nations may “be denominated domestic dependent nations.... They are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardians.”); Cobell v. Norton, 240 F.3d 1081, 1086 (D.C.Cir.2001) (“The federal government has substantial trust responsibilities toward American Indians.... Such duties are grounded in the very nature of the government-Indian Relationship.”).

30. During his incarceration at the Washoe County Detention Center, Crutch-er completed his diploma and was recommended to go to community college when he was released from detention. See May 24, 2012 Tr. at 78:25-79:14 (Hearne, Sanchez).

31. In 2006, Vincente Anchondo was the Supervisory Correctional Program Specialist for BIA, District III, Phoenix, Arizona. His duties included oversight of Public Law 93-638 contracts, which are contracts between the BIA and tribes that facilitate the tribes operating their own detention programs under the Indian Self-Determination Act. See May 24, 2012 Tr. at 172:7-24, 235:1-10 (Mitchell, Anchondo).

32. There is no regulation or requirement that directs the BIA to issue a procurement contract with a specific entity for contract beds. That process is based on the determination of the Contracting Officer Technical Representative, the program area specialist, with the possible assistance of the Supervisory Correctional Program Specialist from the region of the procurement contract facility. See May 24, 2012 Tr. at 173:19-175:9 (Mitchell, Anchondo).

33. Detention services or beds for American Indian inmates are obtained by considering a number of factors, including: (i) the location of the facility; (ii) who is willing to contract with BIA and if they have the bed space to contract with BIA; (iii) what services the programs provide; and (iv) what options are available. See May 24, 2012 Tr. at 173:19-175:3 (Mitchell, Anchondo).

34. Anchondo’s duties as the Supervisory Correctional Program Specialist also included providing detention services through a procurement contract-beds program — a program in which the BIA would contract with certain state detention facilities to take custody of tribal inmates. See May 24, 2012 Tr. at 172:25-173:3 (Anchondo).

35. In terms of making a decision where to place American Indian inmates, various matters are taken into consideration, including: (i) budgetary concerns; (ii) the number of beds BIA is filling in a certain area that would inhibit new arrests to come into the facility; and (iii) the facility’s medical program, including proximity to a hospital. See May 24, 2012 Tr. at 178:10-181:17 (Mitchell, Anchondo).

36. The Washoe County Detention Facility provided detention services and beds to the BIA pursuant to a procurement contract. See May 24, 2012 Tr. at 174:10-18 (Mitchell, Anchondo). The Reno-Sparks Indian Colony did not have a detention facility. See May 24, 2012 Tr. at 173:4-9 (Mitchell, Anchondo).

3. The BIA’s Procurement Contract with MCDC.

37. McKinley County is a county of New Mexico and is not a part of any Indian nation. See, generally, McKinley County, http://www.co.mckinley.nm.us/ (last visited Nov. 17, 2012).

38. The BIA had a procurement contract with McKinley County to provide detention-bed services at the MCDC. See May 24, 2012 Tr. at 174:19-23, 234:19-23 (Mitchell, Anchondo, Court).

39. At some point in 2005, Anchondo, who at the time was the Lead Corrections Officer at the Truxton Canyon Adult Detention Facility (“Truxton Canyon”), determined that he needed to place inmates from Truxton Canyon at the MCDC. See May 24, 2012 Tr. at 172:7-12, 175:10-19 (Anchondo, Mitchell).

40. In September 2005, there was an existing procurement contract between the BIA and McKinley County for detention services at the MCDC and there were American Indian inmates housed at that facility. See May 24, 2012 Tr. at 175:16-19,176:1-177:22 (Anchondo, Mitchell).

41. Anchondo, personally, performed a physical inspection of the MCDC with respect to the transfer of the inmates from Truxton Canyon to MCDC. See May 24, 2012 Tr. at 175:24-177:14 (Mitchell, Anchondo).

42. In reaching a conclusion about the appropriateness of placing inmates at the MCDC, Anchondo saw no major issues with the facility. The facility was easy to access and leave, because it was on a main United States interstate. The officers were in uniform. The facility had a good sally port. There was a process for booking. There were medical personnel stationed at the facility, including either a nurse practitioner or a licensed practical nurse. The kitchen had no issues. And the MCDC had a drug and alcohol program. See May 24, 2012 Tr. at 179:18-181:1, 200:10-14 (Anehondo, Mitchell).

43. The Gallup Indian Medical Center (“GIMC”) was not very far away — approximately six blocks — from the MCDC. May 24, 2012 Tr. at 180:4-9 (Anehondo); Deposition of Judy A. Valle at 17:17-20 (taken July 21, 2011) (“Valle Depo.”).

44. The GIMC is a large Indian Health Service hospital which provides medical services for American Indians. Medical personnel at the GIMC sometimes consult by telephone about the treatment of patients with specialized medical personnel at the Presbyterian Heart Hospital in Albuquerque, New Mexico, and with medical personnel at the University of New Mexico. Medical personnel at the GIMC have the ability to treat patients with congestive heart failure and implanted defibrillators. See May 25, 2012 Tr. at 243:3-5, 285:24-286:11 (Mitchell, Shadoff).

45. The Contract between McKinley County and the BIA further states that McKinley County will not be reimbursed if a American Indian inmate is taken to any care facility other than Indian Health Services absent “extreme emergency.” Defendant’s Exhibit B at 15 (Modification of Contract, dated August 4, 2007) (emphasis in original).

46. By imposing the threat of non-reimbursement, BIA ensured that McKinley County would almost never choose a hospital, rather than the Indian Health Services clinic, for a American Indian inmate, whether needed or not. See Coffey Proposed FOF and COL at 13 (setting forth this fact).

47. There were other American Indian inmates in the MCDC. There had been no complaints from the inmates other than the distance from their homes. The facility was a good fit for the BIA’s needs. See May 24, 2012 Tr. at 178:2-9, 181:2-3 (Mitchell, Anehondo).

48. The MCDC was certified through the State of New Mexico as a county detention facility. See May 24, 2012 Tr. at 230:7-10 (Mitchell, Anehondo).

49. Under the Indemnification, Liability, and Insurance Clause in the procurement contract between the BIA and McKinley County, the BIA assumes no liability, and will not defend or indemnify, for any claims, judgments, or liabilities by third parties for property damage, personal injury, or civil liability arising out of the actions of McKinley County or its officers. See May 24, 2012 Tr. at 185:11-23 (Mitchell, Anehondo).

50. As part of the Statement of Work (“SOW”) included in the procurement contract between the BIA and McKinley County, McKinley County is contractually responsible for obtaining tribal inmate medical records, provided the inmate has signed a release of information form. See May 24, 2012 Tr. at 184:16-23 (Mitchell, Anehondo); Modification of Contract at 15.

51. In September 2004, the United States Department of the Interior, Office of the Inspector General, published Neither Safe Nor Secure — An Assessment of Indian Detention Facilities. See Plaintiffs Exhibit 8 at H & H Coffee 0382 (“Neither Safe Nor Secure ”).

52. The MCDC, and facilities for which there was like procurement contracts, were not the subject of the investigation underlying Neither Safe Nor Secure. See Neither Safe Nor Secure at H & H Coffey 000389; May 24, 2012 Tr. at 228:3-229:9 (Mitchell, Anchondo).

53. The Neither Safe Nor Secure report admits that the investigators “often found that complacency and resignation were the norm — at all levels of BIA management — with no evidence of a coordinated and comprehensive strategic plan to improve and manage the detention program.” Neither Safe Nor Secure at 4.

54. The “BIA has failed to provide safe and secure detention facilities throughout Indian Country.” Neither Safe Nor Secure at H & H Coffey 000386.

55. There is “a long history of neglect and apathy on the part of BIA officials, which has resulted in serious safety, security, and maintenance deficiencies at the majority of facilities.... Whether it lacks the organizational will, or infrastructure, or both, BIA cannot sustain its focus on the problems at its detention facilities long enough to resolve them.” Neither Safe Nor Secure at H & H Coffey 000386.

56. The Neither Safe Nor Secure report was beneficial in that it facilitated the BIA acquiring additional funding for contract beds under procurement contracts. See May 24, 2012 Tr. at 228:8-229:1 (Mitchell, Anchondo).

4. The BIA’s Transport Procedures.

57. In the spring of 2006, BIA-OJS, because of budgetary considerations, had to make decisions concerning moving inmates from higher-priced facilities, that were for shorter-term inmates, to either BIA-operated programs or to contract facilities that had the same services but were not as costly. See May 24, 2012 Tr. at 181:4-17 (Mitchell, Anchondo).

58. In early October 2006, because of the need to move certain inmates into long term detention facilities and to free up space for new arrests arriving at the Washoe County Detention Facility, the BIA made the decision to transfer inmates from the Washoe County Detention Facility to the MCDC in Gallup, New Mexico, under the procurement contract between the BIA and McKinley County. See May 24, 2012 Tr. at 185:24-186:11 (Mitchell, Anchondo).

59. There were no BIA detention facilities in western Nevada or within a reasonable distance to use for inmates from Washoe County Detention Facility. See May 24, 2012 Tr. at 181:18-182:24 (Mitchell, Anchondo).

60. Based on a contract modification to the contract between the BIA and McKinley County, the contract between these entities provided for McKinley County to house inmates from Western Nevada Agency Tribes from October 1, 2006 through September 30, 2007. See May 24, 2012 Tr. at 183:11-20 (Mithcell, Anchondo); Modification of Contract at 2.

61. Under a contract such as this one, the receiving agency, in this case McKinley County, would retrieve medical records for the inmates that were housed under the contract. See May 24, 2012 Tr. at 184:21-185:3 (Anchondo, Mitchell).

62. The MCDC was not certified by the American Correctional Association (“ACA”), nor did BIA check to see if the facility met the ACA’s standards. See May 24, 2012 Tr. at 202:7 (Anchondo).

63. No BIA employees worked at the MCDC. See May 24, 2012 Tr. at 185:8-10 (Mitchell, Anchondo).

64. Anchondo, as the current lead instructor at the BIA United States Indian Police Academy, instructs new BIA officers on the basic principles of corrections, including matters such as interpersonal communications, intake procedures, transport, security, as well as safety policies and procedures. See May 24, 2012 Tr. at 162:10-11,162:19-24 (Anchondo).

65. One of the course materials used at the training academy which Anchondo has assisted in authoring pertains to the escorted transport program. See May 24, 2012 Tr. at 163:1-5 (Mitchell, Anchondo).

66. Anchondo, when he was acting in the capacity of a detention officer, has been involved in hundreds of inmate transports. See May 24, 2012 Tr. at 164:6-19 (Mitchell, Anchondo).

67. Anchondo has transported inmates from Washoe County or Reno to Gallup. See May 24, 2012 Tr. at 163:20-23 (Mitchell, Anchondo).

68. At the Native American Police Academy, BIA detention officers are not taught to obtain medical records on the inmates when transferring them from one facility to another because of concerns generated by the Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-191, 110 Stat. 1936 (“HI-PAA”) (codified as amended at 42 U.S.C. §§ 17937-54). May 24, 2012 Tr. at 165:14-166:3 (Mitchell, Anchondo).

69. HIPAA is a federal law that Congress enacted to protect individuals’ medical information from disclosure. HIPAA may impose penalties ranging from a minimum of $100.00 for each violation, capped at $25,000.00 per year for violations of the same requirement, up to $50,000.00 for each violation, capped at $1,500,000 per year for violations of the same requirement. See May 24, 2012 Tr. at 165:20-166:23 (Anchondo, Mitchell); 42 U.S.C. §§ 1320d-5(a),17937(b).

70. The BIA’s standard procedure was to have BIA detention officers performing a transfer receive medical information only when an inmate had a condition that might be of medical concern during the transport — specifically if the condition could implicate the safety of the officers and/or the inmates. See May 24, 2012 Tr. at 170:6-12, 205:7-10 (Anchondo).

71. The BIA’s standard procedure, given that it was playing the role of transferring inmates between two different detention facilities, was that the detention facilities would maintain the medical records for inmates rather than the BIA. See May 24, 2012 Tr. at 205:21-24 (Anchondo).

72. The predecessor of Judy Valle, R.N., a registered nurse employed at the MCDC, had contacted BIA and asked that the BIA stop sending inmates without proper medical records. See Valle Depo. at 18:15-21.

73. The BIA does not have funding from Congress to provide medically related services and does not staff the transport teams with medical personnel, or other individuals qualified to perform medical screenings, although the transport teams have some basic first-aid training. See May 24, 2012 Tr. at 167:6-14 (Mitchell, Anchondo).

74. Patricia Broken Leg-Brill is the Acting Deputy Associate Director for Corrections for the BIA-OJS. See May 24, 2012 Tr. at 142:16-24 (Richards, Broken-Leg Brill).

75. Medical screenings are not conducted by BIA detention officers transferring inmates between detention facilities, nor is there any requirement that they do so. Medical screenings are conducted in the detention facilities. See May 24, 2012 Tr. at 145:2-14 (Richards, Broken-Leg Brill).

76. The BIA detention officers picking up inmates for transfer expect that the inmates are healthy enough for transfer, unless the detention officers hear otherwise from the discharging detention facility. See May 24, 2012 Tr. at 147:6-16 (Richards, Broken-Leg Brill).

77. The BIA knew or had reason to know that the transfer of an inmate with serious heart trouble would be a risk for his health and safety. See Coffey Proposed FOF and COL at 8 (setting forth this fact).

78. The BIA focuses only on emergency issues during transport; thus, if Crutcher did not have asthma wheezing, a broken bone sticking out of his arm, or blood oozing from an open wound, the BIA would not notice nor consider any other non-glaring health problem. See Coffey Proposed FOF and COL at 13 (setting forth this fact).

79. If there is a medical emergency during the transfer trip, the detention officers go to the nearest medical facility. See May 24, 2012 Tr. at 171:1-14 (Richards, Broken-Leg Brill).

80. The BIA looked for nothing but problems during the transfer itself. See Coffey Proposed FOF and COL at 13 (setting forth this fact).

81. The contract provision governing the transport and incarceration of American Indian prisoners specifically provides that: “The Contractor will be responsible for providing medical screening of the inmate at the time of booking and the Agency’s Police Officer or Designee, from the Tuba City District; or other if approved in evidence by the District IV Supervisory Corrections Specialist, shall provide information regarding any current medical concerns at the time of transportation and booking.” Modification of Contract at 15-16.

82. BIA transport officers are trained at the BIA United States Indian Police Academy to ask the discharging officers if there are any concerns, including medical concerns, about the inmates to be transferred. See May 24, 2012 Tr. at 162:19-163:5, 168:14-169:2 (Anchondo, Mitchell).

83. A medical screening of an inmate is conducted at the facility where the inmate is initially taken for incarceration or at the facility, if applicable, to which the inmate may be transferred. Maintenance of medical issues, i.e., issues that arise during medical screening that require treatment or follow up, takes place at the respective facility. The transport officer has no role in the medical screening. See May 24, 2012 Tr. at 148:12-149:3 (Richards, Broken-Leg Brill).

84. The medical unit at the detention facility receiving the inmate performs a medical screening on the inmate, and arranges to obtain medical records and medication for that inmate. See May 24, 2012 Tr. at 151:2-8 (Richards, Broken Leg-Brill).

85. Detention facilities do not normally want to receive medication for inmates from other detention facilities, because of the burdens that come with receiving the medication from another facility, such as verifying that the medication is the correct one. There are many medications that look alike, which creates the potential for giving an inmate the wrong medication. See May 24, 2012 Tr. at 164:23-165:8 (Anchondo).

86. Under the BIA’s arrangement with procurement contract facilities, it is the responsibility of the receiving detention facility to obtain the medication or lists of medications for the incoming inmate. See May 24, 2012 Tr. at 151:9-152:5 (Richards, Broken-Leg Brill).

87. On October 7, 2006, Anchondo, a BIA employee and not an employee of the contractor, MCDC, made the decision to transfer inmates from the Washoe County Detention Facility to the MCDC. See May 24, 2012 Tr. at 188:7-20 (Mitchell, Anchondo).

88. There is no requirement that BIA officials conduct medical screenings before transporting an inmate. See May 24, 2012 Tr. at 145:7-14 (Broken-Leg Brill).

5. BIA’s Transfer of Crutcher

89. In October 2006, Anchondo made the decision to include Crutcher in the group of inmates transferred to the MCDC. Anchondo never received information that Crutcher had congestive heart failure. See May 24, 2012 Tr. at 186:12-22 (Mitchell, Anchondo).

90. If Anchondo had information about an inmate’s medical condition, knew that the inmate was medically stable, and was aware that the inmate would be transferred to a detention facility with a medical facility that was also close to a hospital like the GIMC, Anchondo would not have a problem with moving the inmate to the new facility. See May 24, 2012 Tr. at 189:5-20 (Mitchell, Anchondo).

91. In early October 2006, because of the BIA’s decision to transfer inmates from the Washoe Detention Facility to the MCDC, a transfer team came from the BIA to facilitate the transfer. See May 24, 2012 Tr. at 188:7-20 (Mitchell, Anchondo).

92. The Contractor facility that discharged Crutcher, Washoe County Detention Facility, had prepared a discharge transfer form. See Plaintiffs Exhibit 3 at H & H Coffey 001188 (Washoe County Detention Facility Records (dated October 7, 2006)).

93. These medical transfer sheets are prepared in the ordinary course of business by detention facilities for the purpose of transferring inmates with medical information. See May 24, 2012 Tr. at 32:1-10 (Paris).

94. The Medical Information Transfer Form, dated October 7, 2006, in Crutcher’s medical records at the Washoe County Detention Facility related that Crutcher had no medical problems that would restrict his transfer, although the form also noted that Crutcher was taking a variety of medications. See Plaintiffs Exhibit 3 at H & H Coffey 001188 (Washoe County Detention Facility Records (dated October 7, 2006))

95. The Transfer Form was inconsistent, because the form listed Crutcher as taking six medications and having no health problems, and additionally did not list that Crutcher had an implanted defibrillator. See May 24, 2012 Tr. at 50:14-51:20 (Paris).

96. In early October 2006, BIA employees arrived at the Washoe County Detention Facility to pick up inmates for transport. A number of other inmates from the Washoe County Detention Facility were secured and transported. See Deposition of Lorna Pettigrew-Garner at 12:19-13:7 (taken July 1, 2011) (“Pettigrew-Garner Depo.”).

97. Crutcher had received his daily medications at the Washoe County Detention Facility. See Washoe County Detention Facility Records at H & H Coffey 001218.

98. Lorna Pettigrew-Garner was one of the BIA detention officers on the transfer. See Pettigrew-Garner Depo. at 11:19-23,12:19-24.

99. The BIA employees made the decision to transfer Crutcher without a medical screening. See May 24, 2012 Tr. at 151:2-13 (Broken-Leg Brill).

100. The transfer team received no paperwork associated with the transfer of any of the inmates, but were only told orally to go to the Washoe County Detention Center, pick up the inmates and transfer them. See Pettigrew-Garner Depo. at 13:8-14:2.

101. The transfer team picking up the inmates from the Washoe County Detention Facility was informed that one of the inmates was schizophrenic and was provided his medication. See Pettigrew-Garner Depo. at 14:17-15:18.

102. The transfer team received no other medical information about any of the inmates, oral or written. See PettigrewGarner Depo. at 15:14-24.

103. Pettigrew-Garner did not see any medication for the prisoners. See Pettigrew-Garner Depo. at 16:6-13.

104. Neither Pettigrew-Garner nor the other officer transporting the inmates talked to or asked the inmates about their property, medical concerns, or medications. See Pettigrew-Garner Depo. at 16:14-22.

105. One of the inmates on the transfer that day, Johnny Christy, had received a diagnosis for schizophrenia and, when he was initially incarcerated, had taken his personal bottle of medication with him into the Washoe County Detention Facility as part of his personal property. See May 24, 2012 Tr. at 117:10-20 (Richards, Christy).

106. Christy’s personal property, including his clothing and the medication he brought with him into the Washoe County Detention Facility, was bagged and inventoried for transport. See May 24, 2012 Tr. at 117:10-20 (Richards, Christy).

107. The transport team placed the inmates’ personal property in the back of the transport van and placed any medication in the front of the van. See Pettigrew-Garner Depo. at 15:3-12.

108. There was no reason for the BIA transport officers to suspect that Crutcher had a defibrillator, because, when a person has a large chest, an implanted defibrillator is hidden under the collarbone and cannot normally be seen unless the person takes his or her shirt off. See May 25, 2012 Tr. at 254:9-15 (Mitchell, Shadoff).

109. Crutcher and some other inmates were transferred to the custody of MCDC detention officers in Peach Springs, Arizona. See May 24, 2012 Tr. at 188:7-20 (Mitchell, Anchondo).

110. The BIA was the only communication connection between the discharging facility, Washoe County Detention Facility, and the MCDC. See Coffey Proposed FOF and COL at 8 (setting forth this fact).

111. The Tribe did not know that Crutcher was being transferred, Washoe County Detention Facility did not know where Crutcher was going, and the MCDC did not know from where Crutcher had arrived. See Coffey Proposed FOF and COL at 8 (setting forth this fact).

112. The MCDC took no part in the decision to transfer Crutcher from the Washoe County Detention Facility to the MCDC. See Coffey Proposed FOF and COL at 8 (setting forth this fact).

113. The MCDC also did not decide to transfer Crutcher without his medical records. See May 24, 2012 Tr. at 151:2-18 (Broken-Leg Brill).

114. The BIA failed to inform the MCDC of Crutcher’s heart condition at the time of transportation and booking. See May 24, 2012 Tr. at 148:12-149:3 (Broken-Leg Brill).

115. The BIA-OJS and Tribal Police Officer did not provide any information to MCDC, at any time, regarding Crutcher’s current medical records at the time of transportation and booking. See May 24, 2012 Tr. at 196:9-15 (Anchondo).

116. The BIA could have gotten the Tribe’s court services file and medical records on the inmates. See May 24, 2012 Tr. at 208:20-209:6 (Anchondo).

117. If Anchondo had seen the letter from Dr. Challapalli to the Tribal Court he would not have transferred Crutcher. See May 24, 2012 Tr. at 189:5-20 (Anchondo).

6. Crutcher’s Arrival at the MCDC.

118. On October 8, 2006, at 11:30 a.m., after Crutcher arrived at the MCDC, Valle medically screened Crutcher in MCDC’s medical unit. See Defendant’s Exhibit C at McKinley 000019 (Records from the McKinley County Adult Detention Center Pertaining to Andrew Crutcher (dated October 8, 2006)) (“McKinley County Records”).

119. There is no evidence that the MCDC was never given Crutcher’s Medical Information Transfer Form. See May 24, 2012 Tr. at 38:8-16 (Paris).

120. On the MCDC’s Resident Receiving Screening Report, Crutcher listed Diana Coffey as his emergency contact and listed her phone number. See McKinley County Records at McKinley 000019.

121. Crutcher wrote on the MCDC’s Resident Receiving Screening Report: “I have congestive Heart Failure.” Under the section of the form asking for current medications, Crutcher wrote “[heart] meds & diuretics.” McKinley County Records at McKinley 000019.

122. There were two deficiencies in the MCDC’s medical screening of Crutcher on October 8, 2006 at the MCDC: (i) the lack of requesting prior medical information when Crutcher said that he had congestive heart failure, and was on cardiac medications and diuretics; and, (ii) the list of medications that Crutcher could not remember was not explored by other means. See May 24, 2012 Tr. at 45:14-23 (Paris).

123. Also listed on the form is the name of Crutcher’s “current Provider/Facility,” specifically “Reno-Sparks Indian Colony Health Cl.” The form listed the Health Clinic’s telephone number and fax number. McKinley County Records at McKinley 000019.

124. Valle and Crutcher signed the MCDC’s Receiving Screening Report. See McKinley County Records at McKinley 000019.

125. On October 8, 2006, shortly after Crutcher arrived at the MCDC, MCDC employees in the medical unit knew that Crutcher had a diagnosis for congestive heart failure, were aware that he took heart medications and diuretics, and knew who his previous medical provider was— the Reno-Sparks Colony Health Clinic. See McKinley County Records at McKinley 000019.

126. The MCDC did not know the severity of Crutcher’s condition. See Coffey Proposed FOF and COL at 8 (setting forth this fact).

127. On October 8, 2006, shortly after Crutcher arrived at the MCDC, MCDC employees had the information available to them that would enable them to obtain Crutcher’s medical records and medication list. See May 24, 2012 Tr. at 49:1-50:2 (Mitchell, Paris).

128. Pursuant to the terms of the contract between the BIA and McKinley County, the MCDC personnel were required to obtain a medical release signed by the inmate and request the tribal inmate’s medical records. See Modification of Contract at 15.

129. MCDC employees did not obtain a medical release nor request Crutcher’s medication records until January 18, 2007. See McKinley County Records at McKinley 000009-10; Valle Depo. at 70:10-73:14.

130. There is no evidence that Crutch-er requested medical care from the time period between his initial medical screening at the MCDC and December 9, 2006. See May 24, 2012 Tr. at 53:15-22, 61:11-17 (Mitchell, Paris).

131. The MCDC medical staff knew of Crutcher’s diagnosis and need for medications. However, no medications, no return visits and no diagnostic tests were scheduled.” Plaintiffs Exhibit 5A at 4 (dated December 24, 2010) (“Report by Dr. Paris”).

132. Crutcher was supposed to have the defibrillator attached to his body checked every three to four months and was taking several heart medications to avoid heart failure symptoms and, if Crutcher contracted an infection, the heart condition would require that he be treated aggressively. See Challapalli Depo. at 12:16-22,14:21-23,15:1-9,16:5-22.

133. Plaintiff Diana Coffey (whose current last name is Sanchez) spoke with Crutcher on the telephone a number of times after his transfer to the MCDC. See May 24, 2012 Tr. at 79:22-80:4 (Hearne, Sanchez).

134. When Coffey spoke with Crutcher on the telephone in November he said that he was okay, but that he was concerned he did not have his medications. See May 24, 2012 Tr. at 80:23-81:3 (Hearne, Sanchez).

7. The Treatment of Crutcher’s Infection on His Thigh.

135. On December 9, 2006, Crutcher filled out a health service request form with the MCDC stating that he had a “bump on the back of [his] leg that is very painful and is getting bigger.” McKinley County Records at McKinley 000021.

136. On December 10, 2006, medical personnel at MCDC referred Crutcher for medical care at the GIMC for a “large erythemic area to L hamstring area.” McKinley County Records at McKinley 000024-25.

137. Medical personnel at the GIMC saw Crutcher on December 10, 2006. See Medical Records from Gallup Detention at H & H Coffey 000244.

138. On December 10, 2006, Crutcher did not have a fever. His temperature was normal. His heart rate was in a reasonable range. His respiration — his breathing — was normal. There was a slight elevation in his blood pressure. See Medical Records from Gallup Indian Medical Center at H & H Coffey 000244; May 25, 2012 Tr. at 258:15-259:9 (Mitchell, Shadoff).

139. The medical personnel at the GIMC gave Crutcher a tetanus shot, put a dressing on his thigh wound along with a topical antibiotic, instructed him to take an oral antibiotic (Bactrim) for ten days, and told him to return in forty-eight hours to have the thigh abscess checked. See May 25, 2012 Tr. at 261:20-263:13 (Mitchell, Shadoff).

140. On December 10, 2006, GIMC medical personnel obtained a bacterial culture from the fluid coming from the thigh abscess to do an antibiotic susceptibility test to rule out the presence of a Methieillin-resistant Staphylococcus aureus infection. Medical Records from Gallup Indian Medical Center at H & H Coffey 000244; May 25, 2012 Tr. at 259:10-17, 260:7-12 (Mitchell, Shadoff).

141. An antibiotic susceptibility test is used to determine if the bacteria in the culture is resistant to particular antibiotics. This test essentially provides a fingerprint of bacteria, which would also permit medical personnel to identify, with a greater degree of certainty, whether bacteria in one location of the body are the same as bacteria in another part of the body. See May 25, 2012 Tr. at 260:23-261:25 (Mitchell, Shadoff).

142. The fingerprint of the bacteria obtained from an antibiotic susceptibility test is based on the antibiotics to which the bacteria are sensitive and to which antibiotics they are resistant. See May 25, 2012 Tr. at 261:21-262:2 (Shadoff).

143. At the GIMC, Crutcher received an antibiotic called Bactrim, which was an appropriate antibiotic to treat the bacterial infection on his thigh. See May 25, 2012 Tr. at 259:18-260:22, 262:6-12 (Shadoff, Mitchell).

144. On December 12, 2006, Crutcher had a follow-up appointment at the GIMC, and reported a significant decrease in swelling and pain of the thigh. See Medical Records from Gallup Indian Medical Center at H & H Coffey 000241.

145. On December 12, 2006, the medical personnel at GIMC obtained the results from the antibiotic susceptibility test performed on Crutcher’s thigh abscess. See Medical Records from Gallup Indian Medical Center at H & H Coffey 000258.

146. The bacteria in the culture sample taken from Crutcher’s thigh abscess was a staph infection that was resistant to Penicillin and Ampieillin, but sensitive to the ten other antibiotics that were part of the test. The infection was not Methicillinresistant Staphylococcus aureus. See Medical Records from Gallup Indian Medical Center at H & H Coffey 000258; May 25, 2012 Tr. at 261:4-262:5, 262:16-19 (Shadoff, Mitchell).

147. Bacteria are such that they can evolve and acquire resistance to antibiotics. This process is a defense mechanism that allows bacteria to survive. Once bacteria obtain resistance to an antibiotic, any bacteria that are the offspring of the bacteria that acquired the resistance will maintain that resistance rather than lose it. See May 25, 2012 Tr. at 272:6-273:3 (Shadoff).

148. The medical personnel at GIMC who looked at Crutcher’s thigh abscess when he returned on December 12, 2006, said that it was improving. See Medical Records from Gallup Indian Medical Center at H & H Coffey 000241; May 25, 2012 Tr. at 263:21-25 (Shadoff).

149. Because the abscess was draining and the medical personnel prescribed a proper antibiotic that would respond to the bacterial infection, the medical personnel at GIMC appropriately treated Crutcher’s thigh abscess. See May 25, 2012 Tr. at 264:5-12 (Mitchell, Shadoff).

150. A person in the medical field would, in the absence of a prolonged illness, fever, or signs that the patient’s illness extends beyond the site of infection, normally treat an abscess with an oral antibiotic and then schedule a follow-up to ensure that the abscess was improving. See May 25, 2012 Tr. at 264:13-17 (Mitchell, Shadoff).

151. There would be no relationship between the medical effects of, or the treatment of, a patient’s congestive heart failure and a thigh-abscess infection, unless the infection involves other parts of the body and puts a stress on the heart. See May 25, 2012 Tr. at 264:18-22 (Shadoff).

152. Unless a defibrillator has recently been implanted, the presence of a defibrillator on a patient’s body would not impact the treatment of a thigh abscess. Once an individual has had a defibrillator implanted in the individual’s body for approximately one month, the body has coated the defibrillator in a way that significantly reduces the chance of infection at the implantation site. See May 25, 2012 Tr. at 264:18-265:11 (Shadoff).

153. Given that Crutcher did not have signs of illness that extended beyond his thigh abscess, such as a fever, a person in the medical profession would not likely have found it necessary to provide intravenously a higher dose of antibiotics to Crutcher as opposed to providing him antibiotics orally. See May 25, 2012 Tr. at 264:12-16 (Shadoff).

154. Between December 12, 2006, and February 8, 2007, the day Crutcher died, the thigh abscess infection had resolved itself. See May 25, 2012 Tr. at 265:21-25 (Shadoff).

8. The Treatment of Crutcher’s Medical Condition Before His Death in February 2007, and Crutcher’s Death.

155. On January 16, 2007, Crutcher had a cold that he thought was getting worse. See McKinley County Records at McKinley 000018.

156. On January 18, 2007, Dr. Christopher Thomas, a doctor from a private clinic who came to visit the MCDC several days a week to provide medical care for the inmates, saw Crutcher. See Valle Depo. at 67:13-69:3.

157. Dr. Thomas diagnosed sinusitis, noted congestive heart failure in Crutch-er’s history, and asked for a referral to cardiology. See McKinley County Records at McKinley 000018; May 25, 2012 Tr. at 266:11-14 (Mitchell, Shadoff).

158. On January 18, 2007, Valle obtained a medical release that Crutcher signed, which requested that the Reno-Sparks Indian Colony Health Clinic release to the GIMC Crutcher’s medication records. Crutcher and Valle signed the release on January 18, 2007. See McKinley County Records at McKinley 000010.

159. Valle sent the release by facsimile transmission to the Reno-Sparks Indian Colony Health Clinic on January 18, 2007. See McKinley County Records at H & H Coffey 000009.

160. On January 18, 2007, the Reno-Sparks Indian Colony Health Clinic sent by facsimile transmission a medication profile for Crutcher to the GIMC. See Medical Records from Gallup Detention at H & H Coffey 0Ó0239.

161. Crutcher did not receive his heart medication while at the MCDC from October 6, 2006, until, at the earliest, January 27, 2007, if at all. See Medical Records from Gallup Detention at H & H Coffey at 000233.

162. On January 26, 2007, Valle referred Crutcher to the GIMC urgent care clinic for an evaluation regarding his medications. See McKinley County Records at McKinley 000007.

163. Medical personnel at the GIMC saw Crutcher on January 26, 2007. The medical records for that visit reflect, in the subjective portion of those records, that Crutcher stated that he was feeling well, had no shortness of breath, was not waking up from sleep with shortness of breath, had no chest pain, and was able to exercise. See May 25, 2012 Tr. at 314:15-25 (Mitchell, Shadoff); Medical Records from Gallup Detention at H & H Coffey at 000233.

164. Andrew Crutcher was not significantly ill on January 26, 2007, when he was seen in the emergency room at the GIMC, because there were no findings of heart failure, he did not have a fever, and he had, if anything, a slightly higher than normal blood pressure. See May 25, 2012 Tr. at 274:12-21 (Shadoff); Medical Records from Gallup Detention at H & H Coffey 000233.

165. At GIMC’s physical examination of Crutcher on January 26, 2007, Crutcher had: “no ankle swelling; [was] feeling well; [had] no SOB; [had] no PND; [had] no CP; [was] able to exercise; [and was] occasionally working out.” Medical Records from Gallup Detention at H & H Coffey 000233. These notations show that there was no swelling of the extremities, no shortness of breath — indicating that the lungs were clear — and there was no heart murmur or abnormal heart sounds. See May 25, 2012 Tr. at 268:19-22 (Shadoff).

166. The absence of a heart murmur or abnormal heart sounds is significant, because in the past, when Crutcher had a decompensation — a worsening of his heart failure — routinely Dr. Challapalli noted both abnormal heart sounds and a heart murmur. See May 25, 2012 Tr. at 268:19-22 (Shadoff).

167. On January 26, 2007, there was no swelling — either in the abdomen, or in the legs, which indicates that Crutcher showed no signs of congestive heart failure on January 26, 2007. See May 25, 2012 Tr. at 269:13-18 (Shadoff); Medical Records from Gallup Detention at H & H Coffey 000233.

168. On January 26, 2007, Crutcher had no findings of heart failure, no fever, and only a slightly higher than normal blood pressure. He was not significantly ill on that date. See May 25, 2012 Tr. at 274:12-21 (Shadoff); Medical Records from Gallup Detention at H & H Coffey 000233.

169. Crutcher had not been taking his heart medications between October 6 or 7, 2006, and the examination at the GIMC on January 26, 2007, yet his heart condition was compensated and he was doing well in comparison with the times when he had obvious congestive heart failure. See May 25, 2012 Tr. at 269:19-270:2 (Shadoff).

170. On January 26, 2007, Crutcher did not have any objective findings that would indicate signs and symptoms of congestive heart failure. See May 25, 2012 Tr. at 268:9-16 (Shadoff).

171. On January 26, 2007, Crutcher was prescribed medications for his congestive heart condition, referred for an appointment for January 29, 2007 at GIMC Internal Medicine, referred for an appointment to have an echocardiagram, and discharged at 3:42 p.m. Medical Records from Gallup Detention at H & H Coffey 000233, 000237, 000238.

172. Based on the January 26, 2007 physical findings, no reasonable physician would have considered that Crutcher had sepsis. See May 25, 2012 Tr. at 304:20-305:1 (Shadoff).

173. If a physician had considered that Crutcher had sepsis on January 26, 2007, the administration of IV antibiotics would not have been an appropriate treatment. See May 25, 2012 Tr. at 305:2-8 (Shadoff).

174. Ms. Valle began dispensing the heart medications to Crutcher on January 27, 2007. See McKinley County Records at H & H Coffey 000016; May 25, 2012 Tr. at 270:8-16 (Shadoff).

175. Crutcher was seen for a follow-up appointment on January 29, 2007, in the GIMC Internal Medicine unit. His vital signs were noted, and he was scheduled for an echocardiogram appointment on February 23, 2007. Medical Records from Gallup Detention at H & H Coffey 000231, 000237.

176. If Crutcher had an intravenous infection on either January 26 or 29, 2007, he more likely than not would have gone into heart failure, so his lung sounds would most likely not have been clear and his skin could have been mottled, because the circulatory support for his extremities would not be normal. See May 24, 2012 Tr. at 55:14-56:6 (Challapalli).

177. If Crutcher had signs and symptoms of endocarditis on January 29, 2007, he would have developed congestive heart failure, he would have developed signs of circulatory collapse — which is low blood pressure — he would have had fevers, chills, rigors, a sense of lack of energy, difficulty breathing and perhaps difficulty with mentation. See May 24, 2012 Tr. at 70:14-25; 71:1-8 (Challapalli).

178. There was nothing concerning about Crutcher’s vital signs on January 29, 2007: he did not have a fever; his heart rate was at a reasonable range; his blood pressure was normal; he had excellent oxygen carry capacity; and he had an optimal blood pressure. See May 25, 2012 Tr. at 270:18-271:11 (Shadoff).

179. On February 8, 2007, at 1:00 p.m., a MCDC corrections officer who was conducting a cell check, saw Crutcher lying on his bunk, and he appeared ill. See Plaintiffs Exhibit 7 at H & H Coffey 000351 (“BIA Internal Affairs Report”).

180. Crutcher was taken to the MCDC medical unit, where medical staff evaluated him and determined that he needed to be taken to the hospital. See BIA Internal Affairs Report at H & H Coffey 000351.

181. Crutcher was transported to the GIMC Emergency Department by a MCDC employee. See BIA Internal Affairs Report at H & H Coffey 000351-352.

182. Crutcher was disoriented, with abnormal vital signs: See Medical Records from Gallup Detention at H & H Coffey 000197-98.

183. A fingerprint of the bacteria was taken and bacterial culture was grown from Crutcher’s blood on February 8, 2007. The Antibiotic Susceptibility Test Results showed that the Staph Aureus infection was sensitive to all of the antibiotics used in the test. See Medical Records from Gallup Detention at H & H Coffey 000255; May 25, 2012 Tr. at 271:17-272:7 (Shadoff).

184. The Antibiotic Test Results showed that the Staph Aureus obtained from the culture on February 8, 2007, was not the same as the Staph Aureus bacterial infection which Crutcher had in December 2006, when he had an abscess on his thigh. See May 25, 2012 Tr. at 272:8-14 (Shadoff).

185. Crutcher had two chest x-rays taken on February 8, 2007, the first taken at 2:06 p.m. See Medical Records from Gallup Detention at H & H Coffey 000266.

186. The chest x-ray obtained at 2:06 p.m. showed: “[h]eart is mildly enlarged without failure,” with “[c]ardiomegaly no definite failure.” Medical Records from Gallup Detention at H & H Coffey 000266.

187. Based on the radiology report, Crutcher’s heart was mildly enlarged, which is consistent with his known cardiomyopathy; but, even at this point, when he was extraordinarily ill and dying, he had not developed congestive heart failure. See May 25, 2012 Tr. at 273:3-16 (Shadoff).

188. A second chest x-ray taken at 4:54 p.m., approximately one hour before Crutcher died, indicated: “[h]eart size appears mildly enlarged considering patient position but pulmonary vessels do not appear abnormally distended;” “[c]ardiomegaly without other findings to suggest decompensation of CHF.” Medical Records from Gallup Detention at H & H Coffey 000263-64. Accord May 25, 2012 Tr. at 275:6-9 (Shadoff).

189. The second chest x-ray confirms that there was no evidence of congestive heart failure, meaning, there was no congestion in the lungs even when he was critically ill. See May 25, 2012 Tr. at 273:18-274:1 (Shadoff).

190. Crutcher’s condition continued to deteriorate and a full code was called. Despite considerable effort to resuscitate him, he was pronounced dead at 5:52 p.m., on February 8, 2007. See Medical Records from Gallup Detention at H & H Coffey 00198.

191. It was only days before his death that Crutcher was critically ill with endocarditis and, on the day of his death, demonstrated the abnormalities of multiorgan failure from which he was not capable of improving. See May 25, 2012 Tr. at 313:3-6 (Shadoff).

192. Crutcher had a fulminant illness— an acute illness, i.e., something that would be characterized by a time line of hours to days, resulting in his death. See May 25, 2012 Tr. at 274:2-11 (Shadoff).

193. If a patient has sepsis, with an infection that is widespread throughout the body, that patient would not survive for more than periods of days — less than a week. It would be extraordinarily rare to get into the category of weeks of survival with sepsis. See May 25, 2012 Tr. at 308:9-20 (Shadoff).

194. The BIA did not treat Crutcher’s body with respect for his American Indian burial traditions, because it did not make arrangements with Coffey or the Reno-Sparks Indian Colony to ensure that Crutcher would be buried within three to four days, as the tribe believes is proper. See May 24, 2012 Tr. at 84:6-16 (Sanchez, Richards).

195. Max Dickens, a BIA investigator, conducted an investigation into the circumstances surrounding Crutcher’s death, as is the usual course of conduct for an in-custody death. See May 25, 2012 Tr. at 129:5-9 (Dickens).

196. It was not the purpose of the investigation to determine what medical mistakes, if any, were made in connection with Crutcher’s treatment. See May 24, 2012 Tr. at 129:5-9 (Dickens).

197. The purpose of Dickens’ investigation conducted by Max Dickens was to conduct an administrative review of the circumstances surrounding Crutcher’s in-custody death, including the possibility of potential criminal violations. See May 24, 2012 Tr. at 131:9-13 (Dickens).

198. No part of the review was intended to look at the BIA’s transportation of Crutcher from Washoe County, to McKinley County. See May 24, 2012 Tr. at 131:14-17 (Dickens).

199. The results of the BIA’s investigation were that McKinley County failed to adequately respond to Crutcher’s emergency medical situation by transporting him to the hospital in a prison vehicle rather than ambulance when he was extremely ill, in violation of its own policy. See May 25, 2012 Tr. at 133:17-134:3 (Dickens).

200. Because the MCDC was not a BIA-operated facility, any disciplinary action which might have resulted from the investigation would have been related to the procurement contract by which McKinley County incarcerated inmates. See May 24, 2012 Tr. at 135:11-17 (Dickens).

9. Crutcher’s Autopsy.

201. An autopsy was performed on Crutcher at the Office of the Medical Investigator of New Mexico on February 9, 2007. See Coffey’s Exhibit 14 at H & H Coffey 000309-16 (Autopsy Report, Office of the Medical Investigator) (“Autopsy Report”).

202. At autopsy, there was no evidence in the external examination of Andrew Crutcher that the left thigh abscess that he had in December 2006 was present, active, or apparent. See May 25, 2012 Tr. at 281:11-14, 283:12-15, 284:3-5 (Mitchell, Shadoff); Autopsy Report at H & H Coffey 000310.

203. The tricuspid valve of the heart had eroding vegetations of all leaflets. See May 25, 2012 Tr. at 277:1-2 (Shadoff); Autopsy Report at H & H Coffey 000311.

204. The vegetations on the tricuspid valve confirm that Crutcher had endocarditis, an infection on the heart valve. See May 25, 2012 Tr. at 277:16-17 (Shadoff).

205. The remaining heart valves were normally formed, thin, pliable, and free of vegetations and degenerative changes. See May 25, 2012 Tr. at 277:24-278:1 (Shadoff). The fact that the remaining heart valves had no abnormalities or vegetations confirms that Crutcher was not at any increased risk for any infection of the heart valves, because they were normal. See May 25, 2012 Tr. at 278:1-6 (Shadoff).

206. Based on Andrew Crutcher’s medical records from October 8, 2006, to February 8, 2007, there is