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Troupe v. End

United States District Court, E.D. Washington

July 1, 2015

DAVID TROUPE, Plaintiff,
v.
WALTER J. END, Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Edward F. Shea Senior United States District Judge

Before the Court, without oral argument, is Defendant Walter End's Motion for Summary Judgment. ECF No. 50. Defendant asks the Court to dismiss Plaintiff David Troupe’s Eighth Amendment claim as a matter of law, to find that Defendant is entitled to qualified immunity as a matter of law, to find that Plaintiff failed to support a claim for injunctive relief, and to apply a strike against Plaintiff under 42 U.S.C. § 1915. Id. at 3–4. Plaintiff opposes the motion. ECF No. 91. In this 42 U.S.C. § 1983 lawsuit, Mr. Troupe alleges that his Eighth Amendment right to be free from cruel and unusual punishment was violated by Mr. End, a relatively new Psychology Associate (PA) at the Washington State Penitentiary (WSP), who was deliberately indifferent to the threat of serious harm to Mr. Troupe on December 2, 2011, when Mr. End responded slowly to Mr. Troupe's declaration of a mental health emergency.

On December 2, 2011, Mr. End had conducted a routine check of Mr. Troupe who did not appear to be experiencing any mental distress or other emergency. After Mr. End left the area, Mr. Troupe declared that he was experiencing a mental health emergency. Mr. End responded within 20 minutes. During that 20-minute period, Mr. Troupe did not harm himself or suffer any injury. When Mr. End returned to Mr. Troupe’s cell, Mr. Troupe did not appear to be suffering any discernible mental health emergency. When Mr. End tried to discuss the asserted mental health emergency with him, Mr. Troupe declined to communicate with Mr. End, though he was capable of doing so. Having determined that Mr. Troupe was not experiencing an emergency, Mr. End left the area once again, and within minutes, Mr. Troupe cut himself. Mr. End was notified, responded timely, and acted properly in response. Having reviewed the pleadings and the file in this matter, the Court is fully informed and finds no cruel and unusual punishment in violation of the Eighth Amendment involving either Mr. End's response to Mr. Troupe’s self-declared mental health emergency or his response to Mr. Troupe cutting himself. Therefore, the Court grants summary judgment to Defendant.

I. FACTUAL BACKGROUND [1]

Plaintiff David Troupe is an inmate who has been incarcerated by the Washington Department of Corrections (DOC) since 1999. May 3, 2013 Mental Health Appraisal at 091, Ex. 1, ECF No. 53-1; see also Offender Mgmt. Network Info., Attach. A, ECF No. 14-1, W.D. Wash. Case No. 3:14-CV-5650-BHS-JRC. He has spent much of that time in the Intensive Management Unit (IMU). May 3, 2013 Mental Health Appraisal at 086, Ex. 1, ECF No. 53-1. During his incarceration, Mr. Troupe has committed hundreds of infractions. Infraction Report, Ex. 10, ECF No. 54-1. Additionally, Mr. Troupe has filed at least 14 cases against DOC staff in state and federal court, four of which are currently pending before this Court. See Ex. 11, ECF No. 54-2; Case No. 13-CV-5028-EFS; Case No. 13-CV-5038-EFS; Case No. 15-CV-5021-EFS.

Mr. Troupe has a documented history of obstructive, manipulative, and staff-splitting behaviors and frequently threatens self-harm to achieve his objectives. June 4, 2013 Email from Tamara Russell at 081, Ex. 1, ECF No. 53-1; Mental Health Appraisal at 086– 87, Ex. 1, ECF No. 53-1; Jan. 1, 2013 Primary Encounter Report (PER) at 105–06, Ex. 1, ECF No. 53-1; May 4, 2012 Suicide Prevention Assessment at 109, Ex. 1, ECF No. 53-1; Sept. 19, 2012 PER at 111–12, Ex. 1, ECF No. 53-1; Aug. 28, 2012 PER at 116, Ex. 1, ECF No. 53-1; Aug. 27, 2012 PER at 117, Ex. 1, ECF No. 53-1; May 21, 2012 PER at 118, Ex. 1, ECF No. 53-1; Aug. 13, 2010 Psychiatric Consultation at 124, Ex. 1, ECF No. 53-1; Nov. 30, 2011 Note at 132, Ex. 1, ECF No. 53-1; Sept. 22, 2010 Admission Note at 133, Ex. 1, ECF No. 53-1; Specialized Protocol at 163 (Aug. 17, 2010), Ex. 1, ECF No. 53-1; Feb. 29, 2012 PER at 166, Ex. 1, ECF No. 53-1; Feb. 24, 2012 PER at 167, Ex. 1, ECF No. 53-1; Feb. 1, 2012 PER at 168, Ex. 1, ECF No. 53-1; Nov. 4, 2011 PER at 172, Ex. 1, ECF No. 53-1; Jan. 22, 2010 Note at 183, Ex. 3, ECF No. 53-3; Jan. 10, 2010 Note at 184, Ex. 3, ECF No. 53-3; Oct. 22, 2009 Note at 185, Ex. 3, ECF No. 53-3; Jan. 23, 2012 PER at 186, Ex. 3, ECF No. 53-3; Feb. 21, 2013 PER at 193, Ex. 4, ECF No. 53-4; Dec. 17, 2011 PER at 202, Ex. 4, ECF No. 53-4; Jan. 23, 2012 Emergency Grievance at 218, Ex. 6, ECF No. 53-6; Decl. of Karen Gleason at 2–3, ECF No. 55; Decl. of Bonnie Klahn at 2, ECF No. 56; Nov. 19, 2010 Psychology Suicide Risk Assessment, Attach. 3, ECF No. 91-1.

For example, around the time of the events at issue in this case, Mr. Troupe was requesting to work with a particular mental health provider (Ms. Calkins) and trying to avoid working with the other two mental health providers (Mr. End and Mr. Beck). Nov. 4, 2011 PER at 172, Ex. 1, ECF No. 53-1 (reporting Mr. Troupe appeared frustrated that he was not seen by Ms. Calkins and that she is always unavailable when he needs to talk to a counselor); Dec. 2, 2011 Suicide Risk Assessment at 180, Ex. 3, ECF No. 53-3 (requesting to work with Ms. Calkins); David Troupe, Level 1-Initial Grievance at 211 (Dec. 6, 2011), Ex. 6, ECF No. 53-6 (requesting another mental health provider); Appeal to Level II at 215 (Dec. 20, 2011), Ex. 6, ECF No. 53-6 (stating he does not feel comfortable with Mr. End or Mr. Beck and asking to work with someone else); Appeal to Level III at 216 (Jan. 18, 2012), Ex. 6, ECF No. 53-6 (“Requesting to be assigned to MHP Caukins [sic] since I do not get along with MHP Beck nor MHP End. . . . Please assign me to MHP Caukins’ [sic] case load.”); Decl. of Bonnie Klahn at 2, ECF No. 56.

Plaintiff asserts that the assessment of his behavior as manipulative rather than suicidal and a risk of serious harm began in summer 2011 when he threatened to file a lawsuit against WSP. Response Brief at 15, ECF No. 91. This assertion is flatly contradicted by the evidence in the record. See Jan. 22, 2010 Note at 183, Ex. 3, ECF No. 53-3; Jan. 10, 2010 Note at 184, Ex. 3, ECF No. 53-3; Oct. 22, 2009 Note at 185, Ex. 3, ECF No. 53-3; Nov. 19, 2010 Suicide Risk Assessment, Attach. 3, ECF No. 91-1; Sept. 22, 2010 Admission Note, Attach. 11, ECF No. 91-1 (characterizing Mr. Troupe’s behavior as manipulative prior to 2011).

Mr. Troupe has a history of declaring emergencies for non-emergent reasons. See Jan. 4, 2012 PER at 169, Ex. 1, ECF No. 53-1 (declared mental health emergency to ask where Mr. Beck was located); Mar. 6, 2010 Note at 182, Ex. 3, ECF No. 53-3 (declared mental health emergency to complain about leaky pipe in his cell); Jan. 10, 2010 Note at 184, Ex. 3, ECF No. 53-3 (declared non-emergency chest pains then denied chest pain and complained that he did not get a shower); Oct. 22, 2009 Note at 185, Ex. 3, ECF No. 53-3 (reported feeling suicidal then complained that he was not allowed to shower); Jan. 23, 2012 PER at 186, Ex. 3, ECF No. 53-3 (declared mental health emergency then complained that his mail had been held for five weeks); Dec. 5, 2011 PER at 206, Ex. 5, ECF No. 53-5 (declared mental health emergency because he wanted to talk about switching primary practitioners). Plaintiff states that any stressful situation is an emergency for him because it can cause thoughts of self-harm. Response Brief at 9, ECF No. 91.

In October 2011, Defendant Walter End began working as a PA at WSP and was assigned to work with Mr. Troupe. Decl. of Walter End at 1–2, ECF No. 53. The parties agree that Mr. End received yearly suicide-prevention training. Response Brief at 5, ECF No. 91; Defendant’s Reply Statement of Facts at 3, ECF No. 100. When Mr. Troupe was assigned to his caseload, Mr. End reviewed all five volumes of Mr. Troupe’s medical file. Id. at 3. Mr. Troupe has been diagnosed with a number of mental health disorders over the years, including attention deficit hyperactivity disorder, narcissistic personality disorder, bipolar disorder, and antisocial personality disorder. See Aug. 20, 2013 Psychiatric Evaluation at 076–78, Ex. 1, ECF No. 53-1; Mental Health Appraisal at 086, Ex. 1, ECF No. 53-1; July 27, 2011 Psychological Report at 227–28, Ex. 6, ECF No. 53-6; Oct. 15, 2012 Medical Record at 249–50, Ex. 9, ECF No. 53-9; see also Attach. 3, ECF No. 91-1. Mr. Troupe states that he has attempted suicide four times, most recently in March 2009. Response Brief at 13, ECF No. 91; see also Attachs. 9 & 10, ECF No. 91-1.

Based on his review of Mr. Troupe’s file and on his personal observation of Mr. Troupe, Mr. End did not consider Mr. Troupe to be at risk of suicide during the time Mr. End worked with him. Decl. of Walter End at 16–17, ECF No. 53. Instead, Mr. End believed that all of Mr. Troupe’s attempts at self-harm were to gain a specific result. Id. at 17. Documents in Mr. Troupe’s medical records prepared by other providers support Mr. End’s assessment. See, e.g., Aug. 27, 2012 PER at 117, Ex. 1, ECF No. 53-1; May 21, 2012 PER at 118, Ex. 1, ECF No. 53-1; Feb. 3, 2012 PER at 122, Ex. 1, ECF No. 53-1; Feb. 29, 2012 PER at 166, Ex. 1, ECF No. 53-1; July 27, 2011 Psychological Report at 223, Ex. 6, ECF No. 53-6. Ms. Klahn, the WSP Mental Health Program manager, agreed that Mr. Troupe was not an “imminent suicide risk from the summer of 2011 through 2012 when he was at WSP.” Decl. of Bonnie Klahn at 4, ECF No. 56.

Mr. Troupe asserts that Mr. End knew that he had suicidal tendencies. Response Brief at 5, ECF No. 91. He cites to a January 25, 2012 interview resulting from a Prison Rape Elimination Act complaint filed by Mr. Troupe against Mr. End, in which Mr. End stated that all of the times Mr. End saw Mr. Troupe at his cell front, “it was emergent. He was either ripping his wound open, or peeling his stitches out or slicing a new wound or something like that where there was blood everywhere and it was a crisis situation.” Attach. 1, ECF No. 91-1. Even construing the facts in the light most favorable to Mr. Troupe, this does not mean that all of Mr. Troupe’s self-harm events were emergencies or attempted suicide, but instead that Mr. End often saw Mr. Troupe at cell front, not in the normal course of treatment, but rather because Mr. Troupe was harming himself. Therefore, Mr. Troupe provides no support for his assertion that Mr. End believed that Mr. Troupe was suicidal, and it is undisputed that Mr. End did not believe that Mr. Troupe was suicidal during the time period relevant to this case.

Mr. Troupe also appears to assert that Mr. End should have known that Mr. Troupe was at significant risk of suicide or serious harm because other providers classified Mr. Troupe as suicidal in the past. Mr. Troupe points to a statement by PA Thomas Roe on June 27, 2011 that, “Mr. Troupe is most capable of continually planning self harm events, perhaps even suicidal events, while presenting as ‘normal’ and baseline. For that reason, I shall continue with the restraint table placement within the plan described below.” June 27, 2011 PER, Attach. 2, ECF No. 91-1. Mr. Roe wrote this in a PER Intake Note and Initial Treatment Plan after Mr. Troupe had harmed himself twice in the previous 72 hours and had been placed on the six-point restraint table to prevent further self-harm. Id. Mr. Roe’s Treatment Plan addressed the question of how long Mr. Troupe should remain on the restraint table. Id.

In response, Defendants cite the declaration of Mr. Roe in case number 13-CV-5038 in which he states, “In the time I observed Mr. Troupe and was involved in his treatment in 2011 and 2012, I never evaluated Mr. Troupe to be suicidal.” Decl. of Thomas Roe at 3, ECF No. 86, Case No. 13-CV-5038. Less than a year after he made the statement on which Mr. Troupe relies, Mr. Roe wrote that Mr. Troupe’s self-harm events were voluntary and “designed for legal issues and grievances.” Feb. 29, 2012 PER at 166, Ex. 1, ECF No. 53-1. Viewed in context and together with his other statements, Mr. Roe’s statement on July 27, 2011, that Mr. Troupe was “perhaps even” capable of planning suicidal events, does not indicate that Mr. Roe believed Mr. Troupe was suicidal or suggest that Mr. End should have known that Mr. Troupe was suicidal during the time period at issue in this case. Additionally, Mr. Troupe has never asserted that he was suicidal during the relevant time period.

The events at issue in this case occurred on December 2, 2011. Complaint, ECF No. 1. At that time, Mr. Troupe was housed in the IMU under a sharps restriction and orders for his fingernails to be cut at a length that would prevent him from using them to cut himself. Decl. of Walter End at 14, ECF No. 53; Aug. 30, 2012 Conditions of Confinement – Mental Health at 113, Ex. 1, ECF No. 53-1; Aug. 29, 2012 PER at 114–15, Ex. 1, ECF No. 53-1; Specialized Protocol at 163 (Aug. 17, 2010), Ex. 1, ECF No. 53-1. Although Mr. Troupe’s medical providers frequently placed Mr. Troupe in restraints to prevent continuing self-harm, they agreed it was preferable to keep Mr. Troupe in the IMU and avoid placing him in restraints whenever possible. Feb. 21, 2013 PER at 098, Ex. 1, ECF No. 53-1; May 21, 2012 PER at 118, Ex. 1, ECF No. 53-1; June 27, 2011 PER, Attach. 2, ECF No. 91-1. Inmates in the IMU are checked at least every 30 minutes. Decl. of Walter End at 14, ECF No. 53. Under DOC’s Suicide Prevention Policy, supervision of an inmate is increased when self-harm is a serious concern, Ex. 8, ECF No. 53-8, but Mr. Troupe states that custody did not do increased tier checks on December 2, 2011. Response Brief at 11, ECF No. 91. He provides no support for this assertion, although the Court assumes it is based on his personal knowledge. Id.

On December 2, 2011, Mr. End checked on Mr. Troupe as part of his regular duties, and Mr. Troupe “did not present as having any mental health emergency.” Decl. of Walter End at 15, ECF No. 53. The officers on duty in the IMU had not noted any changes in Mr. Troupe’s behavior in their log books, which Mr. End checked. Id. At approximately 3:45 pm, after Mr. End left the IMU, Mr. Troupe contacted the booth officer and declared a mental health emergency. David Troupe, Level 1-Initial Grievance at 211 (Dec. 6, 2011), Ex. 6, ECF No. 53-6; Decl. of Walter End at 15, ECF No. 53. Approximately ten to fifteen minutes later, around 4:00 pm, Mr. Troupe contacted the booth officer again and stated that if he did not see someone within five minutes he would harm himself. Compare Id. (10 minutes later), with, Second Amended Complaint at 1, ECF No. 16 (15 minutes later). Mr. End arrived in the IMU approximately five minutes later, around 4:05 pm. David Troupe, Level 1-Initial Grievance at 211 (Dec. 6, 2011), Ex. 6, ECF No. 53-6; Decl. of Walter End at 15, ECF No. 53. Mr. End “expected that Mr. Troupe was up to something due to his specific demand that [Mr. End] be there within 5 minutes and based upon his prior kites regarding the response time.” Decl. of Walter End at 15, ECF No. 53; see also, Mar. 18, 2012 Kite at 195, Ex. 4, ECF No. 53-4.

Mr. Troupe states that he yelled to Mr. End that he was “suicidal/self harmful” when Mr. End entered the IMU. Response Brief at 7, ECF No. 91. He asserts that there is a report that will support this but that the report is missing from the record. Id. Because there is nothing in the record supporting his assertion-nothing in his Level I Grievance, nothing in his Level II Appeal, nothing in his Level III Appeal, and nothing in Mr. End’s account of the event-the Court discounts his assertion. See David Troupe, Level 1-Initial Grievance at 211 (Dec. 6, 2011), Ex. 6, ECF No. 53-6; Appeal to Level II at 215 (Dec. 20, 2011), Ex. 6, ECF No. 53-6; Appeal to Level III at 216 (Jan. 18, 2012), Ex. 6, ECF No. 53-6; Decl. of Walter End at 16, ECF No. 53. Mr. Troupe states Mr. End walked upstairs and spoke to other inmates. David Troupe, Level 1-Initial Grievance at 211 (Dec. 6, 2011), Ex. 6, ECF No. 53-6. According to Mr. Troupe, while Mr. End was upstairs he could not see Mr. Troupe. Response Brief at 17, ECF No. 91. Mr. End next walked downstairs and spoke to other inmates, before “finally” checking on Mr. Troupe who “did not feel comfortable talking to him.” David Troupe, Level 1-Initial Grievance at 211 (Dec. 6, 2011), Ex. 6, ECF No. 53-6. Mr. Troupe stated that he felt slighted because Mr. End talked to other inmates. Appeal to Level II at 215 (Dec. 20, 2011), Ex. 6, ECF No. 53-6.

Mr. End declares that upon arriving in the IMU he looked in on Mr. Troupe who appeared in no distress. Decl. of Walter End at 16, ECF No. 53. Mr. End states that he asked Mr. Troupe about his well-being and mental status but Mr. Troupe refused to respond, which was typical behavior for him. Id. Mr. End remained in the IMU for approximately 20 minutes, until approximately 4:25 pm, checking on other offenders and monitoring Mr. Troupe’s behavior.[2] Id. He again checked on Mr. Troupe before he left the area, and Mr. Troupe still appeared fine with no indication of distress. Id.

Although Mr. Troupe and Mr. End provide somewhat different accounts of the order of events during Mr. End’s response to Mr. Troupe’s self-declared mental health emergency on December 2, 2011, there is no material difference in their accounts. It is clear that Mr. End responded and offered counseling and that Mr. Troupe declined to communicate with him. It is also apparent that when Mr. End assessed him, Mr. Troupe had ...


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