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LEGAL PRECEDENCE AND LAW
New Hanover County’s liability for the death of Gary Rummer

References by: Marc Benson, Executive Director, Citizens Commission for Judicious Reform (www.JudiciousReform.com)

US COURT OF APPEALS 4th CIR. 634 F.2nd 740; 1980 US App. LEXIS 12305
HAYWOOD V. NEW HANOVER COUNTY

The above case brings up the potential liability of the County and the Sheriff’s Department in regards to the treatment of inmates in need of medical care.

Mentioned in the decision, by Chief Justice Haynsworth, Senior Circuit Judge Field, and Circuit Judge Ervin is the question of “malicious, wanton and oppressive conduct”. It is an Eighth Amendment issue.

The Supreme Court has stated that "deliberate indifference to serious medical needs of prisoners constitutes the`unnecessary and wanton infliction of pain' ... proscribed by the Eighth Amendment."

Estelle v Gamble, 429 US 97, 104, 97 S.Ct. 285 (1976).

The Eighth Amendment
Amendment VIII- Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This rule was first applied by the Supreme Court to medical care cases in:

Estelle v Gamble, 429 US at 104, 97 S.Ct. 285 (1976).

The Supreme Court later extended it to all conditions of confinement cases in
Wilson v Seiter., 501 US 294, 604-05, 111 S.Ct. 2321, 2327 (1991).

Deliberate indifference falls somewhere between mere negligence (carelessness) and actual malice (intent to cause harm).
Farmer v Brennan 114 S.Ct. 1970, 1978 (1994)

.
The Supreme Court held in Farmer that in an Eighth Amendment case, an official can be found reckless or deliberately indifferent if "the official knows of and disregards an excessive risk to inmate health or safety. . . ."

This is the same standard of recklessness that is used in criminal law and it is sometimes called the "subjective" approach to recklessness.

In this case, there is another standard of recklessness or deliberate indifference as defined by the civil law or tort law standard (also called the "objective" recklessness standard), which permits defendants to be held liable based on what they should have known or what was obvious. This tort law or objective standard is applied in determining whether the defendants have a policy of deliberate indifference that caused a civil rights violation. It can also apply to supervisory officials that caused the constitutional violations by failing to train or supervise their subordinates.

The plaintiff need only show with the above Exhibits as evidence that "painted . . . a picture that would be apparent to any knowledgeable observer" supported an inference of knowledge on the defendants' part.
Farmer v
Brennan

LaMarca v Turner , 995 F.2d 1526, 1536-37 (11thCir. 1993), cert.denied, 114 S.Ct. 1189 (1994)

.
The Supreme Court further held that "the long duration of a cruel prison condition may make it easier to establish knowledge."
Wilson v Seiter, 501 US at 300, 111 S.Ct. at 2325.

Under the Constitution, the defendants are required to provide care that is designated by a licensed medical practitioner.
Estelle v Gamble, 429 US 97, 104, 97 S.Ct. 285 (1976).

A medical need exists if it has been diagnosed by a physician as mandating treatment or is so obvious that even a lay person would easily recognize the necessity for a doctor's attention. A medical "condition that causes pain, discomfort, or threat to good health" would constitute treatment that could not be ignored, denied, or stopped by the defendants.

Moreland v Wharton, 899 F.2d 1168, 1170 (11thCir. 1989) ("significant and uncomfortable health problem" is actionable).

In North Carolina law, the General Statutes of North Carolina make it quite clear that inmates have a legal right to proper attention to medical needs and that a plan and procedure must be in place and followed to assure the protection of those rights.

§ 153A-216. Legislative policy.
The policy of the General Assembly with respect to local
confinement facilities is:
(1) Local confinement facilities should provide secure
custody of persons confined therein in order to
protect the community and should be operated so as
to protect the health and welfare of prisoners and
provide for their humane treatment.
(2) Minimum statewide standards should be provided to
guide and assist local governments in planning,
constructing, and maintaining confinement
facilities and in developing programs that provide
for humane treatment of prisoners and contribute to
the rehabilitation of offenders.
(3) The State should provide services to local
governments to help improve the quality of
administration and local confinement facilities.
These services should include inspection,
consultation, technical assistance, and other
appropriate services.
(4) Adequate qualifications and training of the
personnel of local confinement facilities are
essential to improving the quality of these
facilities. The State shall establish entry level
employment standards for jailers and supervisory
and administrative personnel of local confinement
facilities to include training as a condition of
employment in a local confinement facility pursuant
to the provisions of Chapter 17C and Chapter 17E
and the rules promulgated thereunder. (1967, c.
581, s. 2; 1973, c. 822, s. 1; 1983, c. 745, s. 4.)

§ 153A-217. Definitions.
Unless otherwise clearly required by the context, the
words and phrases defined in this section have the meanings
indicated when used in this Part:
(1) "Commission" means the Social Services Commission.
(2) "Secretary" means the Secretary of Health and Human
Services.
(3) "Department" means the Department of Health and
Human Services.
(4) "Governing body" means the governing body of a
county or city or the policy-making body for a
district or regional confinement facility.
(5) "Local confinement facility" includes a county or
city jail, a local lockup, a regional or district
jail, a juvenile detention facility, a detention
facility for adults operated by a local government,
and any other facility operated by a local
government for confinement of persons awaiting
trial or serving sentences except that it shall not
include a county satellite jail/work release unit
governed by Part 3 of Article 10 of Chapter 153A.
(6) "Prisoner" includes any person, adult or juvenile,
confined or detained in a confinement facility.
(7) "Unit," "unit of local government," or "local
government" means a county or city. (1967, c. 581,
s. 2; 1969, c. 981, s. 1; 1973, c. 476, s. 138; c.
822, s. 1; 1987, c. 207, s. 2; 1997-443, s.
11A.118(a); 1998-202, s. 4(cc).)

§ 153A-221. Minimum standards.
(a)The Secretary shall develop and publish minimum
standards for the operation of local confinement facilities and
may from time to time develop and publish amendments to the
standards. The standards shall be developed with a view to
providing secure custody of prisoners and to protecting their
health and welfare and providing for their humane treatment. The
standards shall provide for:
(1) Secure and safe physical facilities;
(2) Jail design;
(3) Adequacy of space per prisoner;
(4) Heat, light, and ventilation;
(5) Supervision of prisoners;
(6) Personal hygiene and comfort of prisoners;
(7) Medical care for prisoners, including mental
health, mental retardation, and substance abuse
services;
(8) Sanitation;
(9) Food allowances, food preparation, and food
handling;
(10) Any other provisions that may be necessary for the
safekeeping, privacy, care, protection, and welfare
of prisoners.
(b) In developing the standards and any amendments thereto,
the Secretary shall consult with organizations representing
local government and local law enforcement, including the North
Carolina Association of County Commissioners, the North Carolina
League of Municipalities, the North Carolina Sheriffs'
Association, and the North Carolina Police Executives'
Association. The Secretary shall also consult with interested
State departments and agencies, including the Department of
Correction, the Department of Health and Human Services, the
Department of Insurance, and the North Carolina Criminal Justice
Education and Training Standards Commission, and the North
Carolina Sheriffs' Education and Training Standards Commission.
(c) Before the standards or any amendments thereto may become
effective, they must be approved by the Commission and the
Governor. Upon becoming effective, they have the force and
effect of law. (1967, c. 581, s. 2; 1973, c. 476, ss. 128, 133,
138; c. 822, s. 1; 1983, c. 745, s. 6; c. 768, s. 20; 1991, c.
237, s. 1; 1997-443, s. 11A.118(a).)

§ 153A-224. Supervision of local confinement facilities.
(a)No person may be confined in a local confinement
facility unless custodial personnel are present and available to
provide continuous supervision in order that custody will be
secure and that, in event of emergency, such as fire, illness,
assaults by other prisoners, or otherwise, the prisoners can be
protected. These personnel shall supervise prisoners closely
enough to maintain safe custody and control and to be at all
times informed of the prisoners' general health and emergency
medical needs.

(b) In a medical emergency, the custodial personnel shall
secure emergency medical care from a licensed physician
according to the unit's plan for medical care. If a physician
designated in the plan is not available, the personnel shall
secure medical services from any licensed physician who is
available. The unit operating the facility shall pay the cost
of emergency medical services unless the inmate has third-party
insurance, in which case the third-party insurer shall be the
initial payor and the medical provider shall bill the
third-party insurer. The county shall only be liable for costs
not reimbursed by the third-party insurer, in which event the
county may recover from the inmate the cost of the
non-reimbursed medical services.
(c) If a person violates any provision of this section, he is
guilty of a Class 1 misdemeanor. (1967, c. 581, s. 2; 1973, c.
822, s. 1; 1993, c. 510, c. 539, s. 1061; 1994, Ex. Sess., c.
24, s. 14(c).)

§ 153A-225. Medical care of prisoners.
(a)Each unit that operates a local confinement facility
shall develop a plan for providing medical care for prisoners in
the facility. The plan
(1) Shall be designed to protect the health and welfare
of the prisoners and to avoid the spread of
contagious disease;
(2) Shall provide for medical supervision of prisoners
and emergency medical care for prisoners to the
extent necessary for their health and welfare;
(3) Shall provide for the detection, examination and
treatment of prisoners who are infected with
tuberculosis or venereal diseases.
The unit shall develop the plan in consultation with appropriate
local officials and organizations, including the sheriff, the
county physician, the local or district health director, and the
local medical society. The plan must be approved by the local or
district health director after consultation with the area mental
health, developmental disabilities, and substance abuse
authority, if it is adequate to protect the health and welfare
of the prisoners. Upon a determination that the plan is adequate
to protect the health and welfare of the prisoners, the plan
must be adopted by the governing body.
As a part of its plan, each unit may establish fees of not
more than ten dollars ($10.00) per incident for the provision of
nonemergency medical care to prisoners. In establishing fees
pursuant to this section, each unit shall establish a procedure
for waiving fees for indigent prisoners.
(b) If a prisoner in a local confinement facility dies, the
medical examiner and the coroner shall be notified immediately.
Within five days after the day of the death, the administrator
of the facility shall make a written report to the local or
district health director and to the Secretary of Health and
Human Services. The report shall be made on forms developed and
distributed by the Department of Health and Human Services.
(c) If a person violates any provision of this section
(including the requirements regarding G.S. 130-97 and 130-121),
he is guilty of a Class 1 misdemeanor. (1967, c. 581, s. 2;
1973, c. 476, ss. 128, 138; c. 822, s. 1; 1973, c. 1140, s. 3;
1989, c. 727, s. 204; 1991, c. 237, s. 2; 1993, c. 539, s. 1062;
1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 385, s. 1; 1997-443,
s. 11A.112.)

§ 162-39. Transfer of prisoners when necessary for safety
and security; application of section to municipalities.
(a)Whenever necessary for the safety of a prisoner held
in any county jail or to avoid a breach of the peace in any
county or whenever prisoners are arrested in such numbers that
county jail facilities are insufficient and inadequate for the
housing of such prisoners, the resident judge of the superior
court or any judge holding superior court in the district or any
district court judge may order the prisoner transferred to a fit
and secure jail in some other county where the prisoner shall be
held for such length of time as the judge may direct.
(b) Whenever necessary to avoid a security risk in any county
jail, or whenever prisoners are arrested in such numbers that
county jail facilities are insufficient and inadequate for the
housing of such prisoners, the resident judge of the superior
court or any judge holding superior court in the district or any
district court judge may order the prisoner transferred to a
unit of the State prison system designated by the Secretary of
Correction or his authorized representative. For purposes of
this subsection, a prisoner poses a security risk if the
prisoner:
(1) Poses a serious escape risk;
(2) Exhibits violently aggressive behavior that cannot
be contained and warrants a higher level of
supervision;
(3) Needs to be protected from other inmates, and the
county jail facility cannot provide such
protection;
(4) Is a female or a person 18 years of age or younger,
and the county jail facility does not have adequate
housing for such prisoners;
(5) Is in custody at a time when a fire or other
catastrophic event has caused the county jail
facility to cease or curtail operations; or
(6) Otherwise poses an imminent danger to the staff of
the county jail facility or to other prisoners in
the facility.
(c) The sheriff of the county from which the prisoner is
removed shall be responsible for conveying the prisoner to the
jail or prison unit where he is to be held, and for returning
him to the common jail of the county from which he was
transferred. The return shall be made at the expiration of the
time designated in the court order directing the transfer unless
the judge, by appropriate order, shall direct otherwise. The
sheriff or keeper of the jail of the county designated in the
court order, or the officer in charge of the prison unit
designated by the Secretary of Correction, shall receive and
release custody of the prisoner in accordance with the terms of
the court order. If a prisoner is transferred to a unit of the
State prison system, the county from which the prisoner is
transferred shall pay the Department of Correction for
maintaining the prisoner for the time designated by the court at
the per day, per inmate rate at which the Department of
Correction pays a local jail for maintaining a prisoner. The
county shall also pay the Department of Correction for the costs
of extraordinary medical care incurred while the prisoner was in
the custody of the Department of Correction, defined as follows:
(1) Medical expenses incurred as a result of providing
health care to a prisoner as an inpatient
(hospitalized);
(2) Other medical expenses when the total cost exceeds
thirty-five dollars ($35.00) per occurrence or
illness as a result of providing health care to a
prisoner as an outpatient (nonhospitalized); and
(3) Cost of replacement of eyeglasses and dental
prosthetic devices if those eyeglasses or devices
are broken while the prisoner is incarcerated,
provided the prisoner was using the eyeglasses or
devices at the time of his commitment and then only
if prior written consent of the county is obtained
by the Department.
If the prisoner is transferred to a jail in some other county,
the county from which the prisoner is transferred shall pay to
the county receiving the prisoner in its jail the actual cost of
maintaining the prisoner for the time designated by the court.
Counties are hereby authorized to enter into contractual
agreements with other counties to provide jail facilities to
which prisoners may be transferred as deemed necessary under
this section.
Whenever prisoners are arrested in such numbers that county
jail facilities are insufficient and inadequate for the
safekeeping of such prisoners, the resident judge of the
superior court or any superior or district court judge holding
court in the district may order the prisoners transferred to a
unit of the State Department of Correction designated by the
Secretary of Correction or his authorized representative, where
the prisoners may be held for such length of time as the judge
may direct, such detention to be in cell separate from that used
for imprisonment of persons already convicted of crimes, except
when admission to an inpatient prison medical or mental health
unit is required to provide services deemed necessary by a
prison health care clinician. The sheriff of the county from
which the prisoners are removed shall be responsible for
conveying the prisoners to the prison unit or units where they
are to be held, and for returning them to the common jail of the
county from which they were transferred. However, if due to the
number of prisoners to be conveyed the sheriff is unable to
provide adequate transportation, he may request the assistance
of the Department of Correction, and the Department of
Correction is hereby authorized and directed to cooperate with
the sheriff and provide whatever assistance is available, both
in vehicles and manpower, to accomplish the conveying of the
prisoners to and from the county to the designated prison unit
or units. The officer in charge of the prison unit designated by
the Secretary of Correction or his authorized representative
shall receive and release the custody of the prisoners in
accordance with the terms of the court order. The county from
which the prisoners are transferred shall pay to the Department
of Correction the actual cost of transporting the prisoners and
the cost of maintaining the prisoners at the per day, per inmate
rate at which the Department of Correction pays a local jail for
maintaining a prisoner, provided, however, that a county is not
required to reimburse the State for transporting or maintaining
a prisoner who was a resident of another state or county at the
time he was arrested. However, if the county commissioners shall
certify to the Governor that the county is unable to pay the
bill submitted by the State Department of Correction to the
county for the services rendered, either in whole or in part,
the Governor may recommend to the Council of State that the
State of North Carolina assume and pay, in whole or in part, the
obligation of the county to the Department of Correction, and
upon approval of the Council of State the amount so approved
shall be paid from Contingency and Emergency Fund to the
Department of Correction.
When, due to an emergency, it is not feasible to obtain from
a judge of the superior or district court a prior order of
transfer, the sheriff of the county AND the Department of
Correction may exercise the authority hereinafter conferred;
provided, however, that the sheriff shall, as soon as possible
after the emergency, obtain an order from the judge authorizing
the prisoners to be held in the designated place of confinement
for such period as the judge may direct. All provisions of this
subsection shall be applicable to municipalities whenever
prisoners are arrested in such numbers that the municipal jail
facilities and the county jail facilities are insufficient and
inadequate for the safekeeping of the prisoners. The chief of
police is hereby authorized to exercise the authority herein
conferred upon the sheriff, and the municipality shall be liable
for the cost of transporting and maintaining the prisoners to
the same extent as a county would be unless action is taken by
the Governor and Council of State as herein provided for
counties which are unable to pay such costs.

(d) Whenever a prisoner held in a county jail requires
medical or mental health treatment that the county decides can
best be provided by the Department of Correction, the resident
judge of the superior court or any judge holding superior court
in the district or any district court judge may order the
prisoner transferred to a unit of the State prison system
designated by the Secretary of Correction or his authorized
representative. The sheriff of the county from which the
prisoner is removed shall be responsible for conveying the
prisoner to the prison unit where he is to be held, and for
returning him to the jail of the county from which he was
transferred. The prisoner shall be returned when the attending
medical or mental health professional determines that the
prisoner may be returned safely. The officer in charge of the
prison unit designated by the Secretary of Correction shall
receive custody of the prisoner in accordance with the terms of
the order and shall release custody of the prisoner in
accordance with the instructions of the attending medical or
mental health professional. The county from which the prisoner
is transferred shall pay the Department of Correction for
maintaining the prisoner for the period of treatment at the per
day, per inmate rate at which the Department of Correction pays
a local jail for maintaining a prisoner, and for extraordinary
medical expenses as set forth in subsection (c) of this section.
(e) The number of county prisoners incarcerated in the State
prison system pursuant to safekeeping orders from the various
counties pursuant to subsection (b) of this section or for
medical or mental health treatment pursuant to subsection (d) of
this section may not exceed 200 at any given time unless
authorized by the Secretary of Correction. The Secretary may
refuse to accept any safekeeper and may return any safekeeper
transferred under a safekeeping order when this capacity limit
is reached. (1957, c. 1265; 1967, c. 996, ss. 13, 15; 1969, cc.
462, 1130; 1973, c. 822, s. 3; c. 1262, s. 10; 1983, c. 165, ss.
1-4; 1985 (Reg. Sess., 1986), c. 1014, s. 198(a)-(c); 1989, c.
1, s. 7; 1991, c. 535, s. 1; 1991 (Reg. Sess., 1992), c. 983, s.
1; 2002-126, s. 17.1.)

Wilmington Star News articles of interest

August 2, 2000
New Hanover Court Backlog Causes Serious Problems

“Inmates plead guilty even if they’re innocent”

Inmates, excluding murder defendants, ‘had spent an average 80 days in jail..”

Murder defendants spend “average of 332 days”

“’Sometimes, someone that hasn’t done anything is going to get put in jail,’ said Capt. Steve Smith, chief jailer. ‘ that’s just humanity. It’s sad for something like that to go on…there’s a hairball in the pipeline between here and the courthouse.’”

A felony charge (for those unable to afford bond) requires an inmate to “… sit at least three months before they are scheduled to trial.”

“After cases pass through three monthlong preliminary stages, trial dates are scheduled for at least two months after that.”

“… it is extremely difficult to get a case to trial in under six to eight months…”

“District Attorney John Carriker said he believes the long stays in jail involve many issues, including the difficulty defense lawyers have in talking to clients who are being held in distant jails, a result of over crowding.”

The Jail is to be occupied “… by Nov. 2001”

August 4, 1999
Editorial

Four years ago (1995) , a grand jury pointed out the obvious: The New Hanover County Jail was crowded”

The threat of the June 1999 lawsuit by the NC Prisoners Legal Services calls for action.
September, 11, 1998

Dead Inmate’s Family Settles for $500,000

A two week long trial regarding the death of Gerald Blackledge, 41 (Joe McQueen’s nephew)

An inmate who died as a result of an “accident” when he fell and hit his head because of a seizure.

The inmate was in jail because of a probation violation.

“… sheriff’s department also agreed to install a padded cell as part of the settlement”
Is there a padded cell at the New Hanover County Jail?

July 23, 1979
Riot in the New Hanover County Jail

“The jail has come under criticism recently because of overcrowding conditions. Most of the prisoners in the jail are held there awaiting trial.”

Recent Death in the New Hanover County Jail

Mark Christopher Davis died on September 9, 2002 (Rummer died in January 2003)

Davis died as a result of a seizure related to alcoholism. The death report said he died from Delirium Tremens (DT's)

Davis was awaiting trial

James Bliss was the jailer who discovered him.

Rick Hatch was Supervisor

Davis died 4 days after being locked up