when you really your honor and good morning may please court my name is joe cleveland and i represent the state in family of dion lee simpson a pretrial detainee who died from drug overdose due to the failure of the young county jail to screen in monitors simpson's serious medical needs during the eight hour period she was in custody and denied the freedom to act on her own behalf and seek emergency medical attention with the help of jail seventy five miles from the finals of that failure was not an unintended error but the predictable result of county policies that denied simson adequate screening monitoring and care versus serious medical needs like orange county young county had a policy of observation only which the sheriff the policy maker testified he knew about and endorsed the sheriff testified that for detainees who suffer mental disability or a suicide risk he testified that jailers conducted quote just observation basically is what they do close quote that's at the record it three forty nine beacon of just observation i can remember the man's name it came on around midnight in was taken back to the so is simpson was in to look at her through the glass window after you open the metal covering was he coming on to physically those cert they don't it's through a window and when he was asked if they go into the cell jail the rich slack likewise testified that quote we check in mates every twenty five minutes as required by gun carrying rules for jailers that's at the record one fifty three jail jail rich referred to it as a self check does the county had an established policy of silk checks only and merely observed a detainees indirectly through a cell window regardless of the detainees medical condition and this is fully separate more than our brief at pages thirty nine to forty one fifty five to fifty six but why is this an observation only case because the plaintiff has to prove necessarily a policy of deliberate indifference it depends on the condition of the patient doesn't it is your daughter does alright and you go to some lengths in your chart here to compare this with the recently decided montana what was known from simpson's arrest report simpson was suicidal she denied she was suicidal repeatedly did she not she denied that she was suicidal but the police officer indicated his arrest record that she was a risk to herself and they did yes but then admitted to ingesting a mix of alcohol and at least twenty four capsules to seven different drugs well that's not completely true because she told the jailer as opposed to the would they knew she had and they thought she was intoxicated for some reason and it was and her husband kept calling and what her husband said was she's threatening to commit suicide but he couldn't even drive seventy five miles to look at her him self and the county said well we think she's just drunk right or and or intoxicated in some way that's correct but he didn't say that she told me she was going to check into a motel and take a bunch of pills he never told them that i please aside he told him that she was going to take kill the pills just said well i didn't see that in your briefs in the the county or the city told them the jail he told the jailer that she was going to take pills what they will if you can give us a record cite for that i would appreciate it but because it looked to me as if the woman is clearly you know intoxicated and maybe not able to take care of herself but she's walking by herself at critical moments she answers all the questions on the intake form even though the intake form didn't have where the officer put in his comments and so on so how do you respond to all that know that she answered the intake for that she was pregnant that what did she she answered in the intake form that she was pregnant she was a fifty year old woman with no uterus she answered an intake form that shell they didn't know she had no uterus but she that's the way she answered that and this pain that that's the level of confusion that she was operating under at the time but then you're right they did not know that but they certainly knew what was reflected in the arrest report that she had trouble walking not twenty minutes before she entered the jail she was talking incoherently she had slurred speech but people who go d are probably like that all the time or or people they didn't screen or for diabetes but somebody may be going into diabetic problems that way when that doesn't show risk of overdose and suicide necessarily does it otherwise wouldn't they have to take every drunk to the hospital and get their stomach pumped though not because the if you look at the wrist report that it was reflected on there what she admitted that she took and it reflected as you indicated earlier twenty four pills of seven different prescription drugs they had no other indication they did she didn't take those and she admitted that she but they are tough i mean everybody a lot of people have a blister but empty blister packs that they don't throw away but she admitted in the police report that she took all of them that were missing that morning how was the police report on the jail had that police report walk us through the process where they bring around she's being brought in basically for own protection  and they what is a record show they handed the arrest report to this officer rich i think the rest report was prepared at the jail i think that's what the record reflects because he brought in the bit back of pills into the jail to appear that rip arrest report and the booking report that's it's not basically identical to the arrest report so there's some indication the record that that was prepared a bad officer rich or whatever the title was well in that was doing the booking or the own protection they had a duty to take care of her what's the exactly what's the policy you're saying they should a supervised more no i think what kind of policy that led to this this tragedy the policy where there are three actually there is one established policy into de facto policies the established policy was an observation only for c inmates with serious medical needs through the window they this was a not a readily accepted that depend on someone recognizing an individual jailer recognizing she had serious medical needs yes because even if there were this policy that we're going to deserve more often no one recognized a serious medical needs or how how did the policy on that caused this to happen because they should have they should facto policies were one they did not want to see c q worry on her determine what her previous hospitalizations were she'd been possible allies in january that year for suicide and that would have clarified for them the form that she told them the second thing it was a defect in that was a de facto policy because that was the sheriff testified in his deposition that he didn't know that was required by state law and he'd been the sheriff since two thousand and ten in need and he said  that even he didn't know that until two thousand and fifteen the other policy that the county was found noncompliant for a defacto policy was the failure to fully complete gives the screening forms in those forms are extremely important because they communicate to the what is going on with this person that seems to be your best evidence that there actually was a de facto policy but again how would filling out the bottom of the form which is the jailers observations how would that have changed anything because they all said when be walking fine incoherent well i think that the the entirety of the form would require that the arresting off served at the top for the top of the form requires the arresting officer indicate you know what her status was and on intak if they properly put in what their status was that she was at risk to herself i think that were alerted jail staff to cheating to be monitored more frequently for the this drug overdose situation the other thing that the evidence of the police officer would have said she's a  the vehicle in the paramedic with him says she's fine we don't need to take you to the hospital so what's your evidence that if they had asked all these questions paramedics did not say she was fine she didn't need to pull the pyramid i know there's a lot of when the paramedic did not say she needs to go to hospital right i signs i mean what did that there's no argument whatsoever that they did anything that was deliberately and are even negligent what the what she told the police officer was that she took twenty four pills and the police officer told her my time's up but the police officer told the i'm sorry the police officer told the the jail staff that she was a risk to herself and to benadryl this was an  incident report that was going to even available to the jail that's correct that's correct and so the the so what the jail knew the jail staff knew when they took her in and was that the police officer had taken her in for the protection of her that she'd taken twenty four pills with alcohol but again i hear you know she she answers these question i mean what you're really arguing for is a policy that the person who rests or has to be physically present at the jail when the recipe answers the questions in order to say whether those answers are consistent with the rest report no i just obvious saying that the person ought to look at rest report and see if this person is telling you that it's you know that i mean that paperwork is not i mean sometimes you can't fill out the whole arrest report that quickly but in in the facts and circumstances this case stand on their own i mean if she had ever been them then it's not a conditions of confinement case if the facts stand on their own and talk about the facts of what she what she presented with and the she presented with a person that was attempting suicide if they'd run the c c q on her they would have determined that what she said in that in her interview was entirely in get accurate and the reason she was able to do it was she was trying to committed she was trying to kill herself so she was lying to the to the intake person about what her status was but if they run the six acute actually she told the paramedics she did she didn't want to killers she told the officers money killers but i don't think anybody the right mind would believe somebody when they took twenty four were i mean to be honest with you i don't understand why or has for you couldn't drive seventy five miles to holler out knowing what he knew i mean naches but he told me he told the sheriff's department your  that she had taken pills and he told her that she has had a was to suicidal well i'll read that i mean i know he said suicidal yes but but let me ask you a question here says a rest i mean this intake form and you know he they ask are there any current medical problems he has peptic ulcer are you pregnant yes medications no have you ever received serious mental mental health services no do you see a social security check no have you had special ed no previous military service in this is a whole wide range of questions and it seems to me she was coherent to answer these questions or else the jailer's not telling the truth and she was a fifty year old woman and said she was pregnant well that may be true that could show that she was drunk or ideating or something but it doesn't show a suicidal though it does not and it is doesn't even necessarily show a level of intoxication that's intolerable but i think not that i know about drug overdoses but i guess i know maybe i probably know less than the jailer does that that's the reason for that though my time is up is that the even on suicide kate the classic suicide case where the suicide happens in a jail cell i mean doesn't matter what the event actually is doesn't matter what the lawyers alleging i mean you could have a suicide committed in the jail cell and someone's attacking a policy of not taking sharp objects out of jail cells that be a condition of confinement case one and it is it would even though it's a suicide i think it would yes so what matters is what's being challenged by the plaintiff it not take  acts of individuals or conditions does any if you look at the complaint in the case it was a petition which we we removed to federal court the state petition complained in in the most  simplistic terms that there was a condition here lack of medical care like america that's what they started the case like medical want medical care good care it certainly appears to be that  interest apparently of wanting to look in the women's detox and that was a wrong thing for him to do thankfully he was fired by the sheriff and prosecuted for something completely different  he was the jailer who took him back to the jury and answers well if for some reason the arresting officers in that case were back in the cell block they had brought their prisoners back and that the monday and way caster apparently was doing the same way castro made this observation they did they go to a leap of faith in their argument and say wait caster was observing her for hours and knew she was in a coma covering over one of them look at this partially dressed woman officer rich as a woman officer had processed her interviewed her and put her in the cell never went inside the cell until she went in there at two ten in the that she opened the door wasn't there an electronic system that if you open the door it registers there is electronic system of checking prisoners it's on that it's on the outside of the cell that it judge this issues to my jail staff my chief jailer and i'm not familiar with a lot of the details so they don't have or they don't have a conditions case here based on a policy that we  deposition he wasn't sure but what is a c c q chuck they never explained that's a c c q check is here's something that you can go on a database and find out if this person who you're interviewing who's probably under the influence has ever been in a state mental facility that's all it tells you a state mountain so that there's no evidence in the record she  model that's mandated by some texas commission on jails or something that yet the texas commission has required jailers to do that we don't know if it was done in this case there's no record where they did or didn't they did there is a record that it wouldn't have shown anything another misrepresentation of the record they claim she was hospitalized for suicide in twenty thirteen that they use for that authority is testimony of the husband who said she was in drug rehab for three days and twenty twelve that they'd just he just indicated to you that the city policeman ford told the jail staff that she had taken all these drugs there's no record of that unfair we don't know which one because it's not in the record it's certainly not in the record that ms rich ever saw that report but even if she did she knew the and the jailers know she's just been checked by the medics on the side of the road they put her in the detox in this case not like not like your you there for a matter of hours before she passed it was a very regrettable situation but this jail by the way this is also in the records is of is among the top twenty five her husband did it because she left him i mean you know i observed that her speech was slurred she was slow on our answers and talking real quiet ye that she had something to drink last night to help her to sleep and that's the real what the resting officer and then he says i found that twelve empty capsules i located individual capsule simpson how much of the medicine she had taken all of it was that was missing this morning i asked if she was trying to hurt herself she buys no so we know now judge you pointed out t the street and i think one of the great salaries of the case is this this magic statement that they attribute to to her and i don't doubt that she said but it had to do with i took all the drugs that are missing this morning she didn't explain what was missing the night before or the day before but again it's irrelevant she policy on county has are these five types of conditions where they to admit an inmate without a physician examination one of them is high levels of alcohol intoxication drug overdoses is not on that isn't that a policy that helped lead to this by not having physicians examine people who might be subject to drug overdose and certainly if you have if you start to have physicians examine everyone who's brought in the to the jail  it's the officer then brings her in a normal her breath test shows that she has a high elevation of alcohol they can refuse or at that point and have a physician exam and i thought is what the policy said well like they have a physician on call and they have rated why not include drug overdoses with high levels of alcohol intoxication yes we could you could i suppose you could require the conditions of confinement to question one of the elements is what's reasonable is that what's reason why there's a distinction yes again that they never created any kind of a record of constructive a record like the plague or still understand it when she was arrested she was asked if she wanted to go to a hospital where is that in the record is that in the rest report leave it is in the west loop right and she was asked if you want to go to the hospital and she said no because do i have to go to the jail after that yes so well so know that at least the person that arrested her was thought perhaps it was necessary for her to go to the hospital well they had that they had a e m t there to second guess someone and sure the arresting officer felt like if the e m t was going to allow this woman to go to the jail  made by the plaintiffs in the case that would support the conclusion that anything back that they're arguing about is really material what what would be the material fact or how how material is it being completed one is to see c q not being run and the third one is supposed to observation only policy for inmates with serious medical needs and what to or why is there no material fact on that opposite side of the tasted to judge o'connor we waited until the discovery could long have expired we followed the motion for summary judgment in the district court they did talk about lack of medical as a condition of confinement and there were some allusions to training but there's no there's no record here and of course you've got several cases about one off instances of a lack of training not a mile in to a condition you c i was looking i thought reading the briefs pretty closely and i did not see records cite to the fact that her husband told them that she was going to ingest a bunch of pills husband said during his deposition that he was afraid that she would try to commit suicide that's what he said on the phone to the cd he said he said that to the city and then later he said to exactly who was afraid she would try to commit suicide he didn't say that he knew that she had taken anything which judge will come or thought was important and he also testified in his deposition that  felt like my gosh this woman was just examined by medics in the jail knew that when they when they brought her in then she insisted that she was not trying to commit suicide and then they put her in quote that she was going to take drugs close quote that's at the record at two thirty five in two fifty nine mr simpson told him that quote i want to make sure that she's safe that she's ok close quote and implored the jailer to quote please get her some help close quote that's at two thirty five to two thirty six and the record at two fifty nine about addressing the claim by counsel opposite that you are misstating the record in that the record is totally  case the jailers did frequent monitoring to ensure that she was still breathing attempted to rouse her allow her to speak with her husband and when he had to help her take the medication that she needed in this in that case the fifth circuit said there's no evidence of that there was any overdose on pills but but the fiserv revealed that the a objective lee reasonable for the jailers to allow the intoxicated inmate to sleep it off with periodic monitoring to safeguard her well being and that's what was completely absent from this case there was zero monitoring over the policies that every twenty five minutes you need to monitor i'm not talking to anyone following that although i'm not saying that you're all you're i'm saying they did not go inside the jail to assess her condition and he says there's evidence about that and you're the trial counsel didn't bother to get the evidence i don't know what evidence he's referring to the evidence that they did not conduct monitoring but i'm saying that there for trial and there is no evidence in the record that anyone in or her still there is evidence of what happened you have the burden as established a fact question that nobody entered her cell and did an observation that's correct or and there's no evidence in the record that that ever occurred there is evidence in the record that miss ridge testified in a two page affidavit that checks were made every twenty five in his order i'm i'm not i don't know ok but well that may be because episodic business but i mean you you articulated three policies to us earlier and one was  and the third was observation only right and that's in our brief it pages thirty nine to forty one fifty five to fifty six pages eighteen twenty two and twenty six line a u r e four where did you argue that in the district court not an isolated instance of an adequate medical care and there is no single individual's errors that caused the heart you've got the undertone officer that took the intake form and didn't communicate what was on the intake form apparently t see what her physical condition was during the course of her of stay at the jail so there was a systematic and person pervasive deficiencies in screening and monitoring think you need to persuade us that this is a possibility we're what we've been talking about is whether there is any evidence to support a conditions of confinement claim well in this case the the the conditions themselves were that were the result of the policies of our  thing if you had a policy that said that no the person the a prison officials are not allowed this incomplete make incomplete intake forms or policy to run off all seasick use then that would be something else  right final case on argument this morning is number fifteen hyphen three one