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Delaware prison officials have indicated they plan to appeal to the U.S. Supreme Court in a rare instance in which prison officials were found liable for the acts of subordinates.
In Barkes v. First Correctional Medical Inc., the Third Circuit determined that state prison administrators were responsible for the suicide of Christopher Barkes, an inmate at a Delaware prison.
Time to Find Another Contractor
Barkes had a criminal history, as well as a history of prior suicide attempts. On November 13, 2004, he was arrested and jailed for violating his probation. Part of the booking process involved a brief mental health evaluation. Barkes checked off on the form that he had attempted suicide in 2003, but didn't mention three other attempts. He was placed in a low-level suicide watch. By 11:30 am on November 14, he was dead, having hanged himself with a sheet.
First Correctional Medical (FCM) was the contractor tasked with providing medical care in the jail. FCM's suicide questionnaire asked about 17 risk factors; answering "yes" to eight would trigger suicide prevention measures. Barkes answered "yes" to just two.
So what's the problem? The National Commission on Correctional Health Care (NCCHC) standards from 1997 said that a "yes" answer to just one question should trigger suicide prevention.
Prison officials claimed qualified immunity because the right at issue wasn't clearly articulated. While they defined it as the right to "supervision of the medical vendor by the prison administrators," the Third Circuit wasn't going to let them off the hook just by narrowly defining the right out of existence. The court agreed with the appellees' characterization of the right at issue: "An incarcerated person's right to the proper implementation of adequate suicide prevention protocols." Such a right is well established in the Third Circuit and at the Supreme Court.
The appellants didn't fare any better on the second prong of qualified immunity. The court found that "they knew the quality of FCM's provision of medical services was degrading" because it was short-staffed and had problems with its computer management system. Prison officials, who were ultimately in a position of authority over FCM, knew that FCM was having trouble fulfilling its obligations, and yet did nothing. That's deliberate indifference, the Third Circuit explained.
Dissent Says the Ball Stops at Iqbal
A dissenting judge agreed with prison officials that this was a case of supervisor liability foreclosed by Ashcroft v. Iqbal, which prohibited supervisor liability based solely on the supervisor's authority position. The supervisor himself must have done something to participate in the action.
The Third Circuit denied a request for rehearing en banc, Delaware Law Weekly reports. The state plans to file a petition for certiorari with the U.S. Supreme Court, likely on the applicability of Iqbal and supervisory liability.