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Fether v. Frederick County

United States District Court, D. Maryland

February 6, 2015

FREDERICK COUNTY, MARYLAND, et al. Consolidated No. CCB-13-1083


CATHERINE C. BLAKE, District Judge.

Justin Michael Lihvarchik was detained at the Frederick County Adult Detention Center ("Detention Center") early in the morning of June 10, 2009. A few hours after being placed into his cell, he committed suicide by hanging himself by his shoelaces from the top bunk in his cell. Plaintiff Nancy Fether-Lihvarchik's mother and personal representative of his estate-brings this consolidated civil rights lawsuit[1] against four deputies from the Frederick County Sheriff's Office[2]; four correctional officers working at the Detention Center[3]; Frederick County Sheriff Charles Jenkins; and Frederick County. Fether alleges defendants' deliberate indifference to her son's serious medical needs resulted in her son's death at the Detention Center. She also alleges gross negligence. Presently pending is a motion for summary judgment filed by the deputies and correctional officers. At this stage, the court considers only the Fourteenth Amendment claims as to the eight defendants and the gross negligence claim as to the four deputy defendants.[4] For the reasons stated below, the motion will be granted in part and denied in part.


At around 1 a.m. on June 10, 2009, Debra Miller called 911 to report that a renter in her basement had been "messing up the house" and was "tearing the driveway up" in his car. (Defs.' Mot. Summ. J. Ex. A, 911 Call, at 0:17.)[5] That renter was Justin Michael Lihvarchik-whose tragic suicide is at the heart of this case.

Lihvarchik had been drinking with Miller and his girlfriend, Cara Dempsey, in his basement apartment late on the night of June 9, 2009. At some point, Lihvarchik became abusive towards both women. ( See Defs.' Mot. Summ. J. Ex. K, Miller Dep. 81, ECF No. 85-12.) He had pushed and thrown them around, (911 Call, at 8:35), and had "already bruised [Miller] one time" that night, ( id. at 3:24). In Miller's words, he was acting "like freaking nuts." ( Id. at 4:02.)

Lihvarchik's behavior in the kitchen was particularly disturbing. Earlier, while all three were in the kitchen, Lihvarchik had grabbed a steak knife from a drawer and, without saying a word, held it against his throat. (Miller Dep. 59.) He held the knife there until Miller and Dempsey yelled at him to put it down. ( Id. ) He complied, but almost immediately after putting the knife down, picked up a pizza cutter that was on the kitchen counter. ( Id. at 60.) This time Lihvarchik went further; he touched the pizza cutter to his neck and "drew it across his throat" with enough force that blood was "dripping out" of his neck. ( Id. at 62-63.) In Miller's estimation, this gesture left a mark that was four to five inches long. ( Id. at 64.) On seeing this gesture, Miller jumped up and pleaded for Lihvarchik to stop, telling him she was scared. ( Id. at 62.) Meanwhile, Dempsey wrested control over the pizza cutter and placed a rag on his neck "where it was bleeding." ( Id. at 63.) At no point did Lihvarchik resist or say a word. ( Id. )

Over the course of seventeen minutes, Miller recounted that evening's events to the 911 operator. Several of Miller's statements are particularly relevant. Just under six minutes into the call, Miller-distressed by Lihvarchik's behavior-stated, "he needs to get fixed. He needs an intervention. He needs an intervention. He's not right." (911 Call, at 5:45.) Miller then said that Lihvarchik "tried to cut his own throat with a pizza knife tonight." ( Id. at 5:55.) When the operator asked whether "he cut himself when he did it, " Miller clarified, "yeah, you'll see a knife [inaudible] on his throat when you get him.... Believe me, it's there." ( Id. at 6:27.) After further describing how Lihvarchik had pushed her and Dempsey that night, Miller confirmed that the pizza cutter Lihvarchik had used was still with him in the basement. ( Id. at 10:27.) She confirmed again that "he cut himself by that [pizza cutter]-yes he did!" ( Id. at 10:37.) Just over a minute later, as she was describing how she and Dempsey had "got hurt" by Lihvarchik, Miller incredulously exclaimed, "he did it with a fucking pizza cutter! He cut himself with... [inaudible]." ( Id. at 12:30.) Several minutes later, the 911 operator confirmed that the deputies "have him, " at which point the call ended. ( Id. at 16:20.)

As Miller was communicating with the 911 operator, a police dispatcher was issuing dispatches over the police radio.[6] The first dispatch advised that "a 1056 subject there messing up the house is reported to now be driving around outside the residence." (01-02-18 Radio, at 0:15.) About five minutes later, the dispatcher reported-in clear, audible language-that "apparently the male subject also tried to cut his throat this evening with a pizza cutter." (01-08-16 Radio, at 0:00.) Four minutes later, an unidentified deputy asked whether the suspect "ha[d] any weapons or anything on him, " to which the dispatcher responded, "he had the pizza cutter earlier-that should be it." (01-12-13 Radio, at 0:07.) Between the dispatcher's statements regarding the unfolding events, several unidentified voices acknowledged the dispatcher's reports, asked clarifying questions, and provided reciprocating updates.

Some of the dispatcher's statements were also sent, in text form, to the computers in the deputies' cars. ( See Defs.' Mot. Summ. J. Ex. I, Poole Dep. 82, ECF No. 85-10.) The information the deputies "were receiving from the dispatcher as [they] responded to the scene" included the following two text statements: "Caller states that subject tried to cut his throat with a pizza cutter earlier tonight" and "has mark on neck from it." ( Id. at 82-83.)

* * *

Several deputies from the Frederick County Sheriff's Office-all named in this lawsuit- responded. With the exception of Deputy LoRusso, the deputies testified in their depositions that they did not hear the dispatcher say Lihvarchik had tried to cut his own neck with a pizza cutter. ( See, e.g., Defs.' Mot. Summ. J. Ex. G, Turvin Dep. 16, ECF No. 85-8.) According to Deputy Turvin, he "didn't hear that" statement because he was "concentrating on driving." ( Id. at 17.) Deputy Poole did not recall hearing that Lihvarchik had tried to cut himself, but only "that he had a pizza cutter"-it had "vaguely be[en] mentioned" on the radio. (Poole Dep. 19, 48.) Deputy LoRusso denied being "told" that Lihvarchik had tried to cut himself with a pizza cutter, (Defs.' Mot. Summ. J. Ex. B, LoRusso Dep. 21, ECF No. 85-3), but then admitted he had heard the dispatcher make that statement, ( id. at 21-22). He noted, however, that, even though "the dispatcher put that [statement] out... that doesn't make it true." ( Id. at 21.)[7]

All four deputies arrived at Miller's home within a five-minute span, beginning at 1:15 a.m. (Defs.' Mot. Summ. J. Ex. H, Background Event Chronology, ECF No. 85-9.) Deputy Turvin arrived first. He spoke briefly with Miller and Dempsey, who mentioned that Lihvarchik had a pizza cutter with him. (Turvin Dep. 21.) Deputy Turvin then proceeded downstairs to find Lihvarchik. ( Id. ) Because Deputy Hyatt had arrived by this time, they entered Lihvarchik's basement unit together, where they found Lihvarchik, handcuffed him, and brought him out onto the front porch. (Hyatt Dep. 38, 47; Turvin Dep. 22.) After assisting Deputy Turvin with the arrest, Deputy Hyatt served primarily as "cover."[8] (Hyatt Dep. 51.)

Deputy Turvin began to interview Lihvarchik, asking him "what was going on[, ]" "what his intention was about a pizza cutter[, ]" and whether he was trying to hurt himself.[9] (Turvin Dep. 25.) Lihvarchik denied having tried to hurt himself, and did not acknowledge anything regarding a pizza cutter. ( Id. ) Although Deputy Turvin claimed he did not know Lihvarchik had tried to cut himself with a pizza cutter, he stated he "gave [Lihvarchik] a suicide screening[.]" ( Id. 47.) Deputy Turvin said he had asked Lihvarchik questions about self-harm "I guess because he had, they said he had a pizza cutter in his hand" and "[t]o see if he was suicidal." ( Id. at 26, 37.) As part of this screening, Deputy Turvin observed Lihvarchik's behavior and physical condition. ( See Id. 39.) He noticed Lihvarchik had an alcoholic "odor, " "slurred" speech, and "bloodshot and glassy eyes." ( Id. at 37.) And he used his flashlight to "[l]ook[] at [Lihvarchik's] face and neck area" but did not recall seeing any marks. ( Id. at 39, 47.)

At some point, Deputy Poole, who had arrived as back-up officer, joined Deputy Turvin in questioning Lihvarchik. ( Id. at 77.) Deputy Poole asked similar questions about whether he had harmed himself recently. (Poole Dep. 56.) Like Deputy Turvin, Deputy Poole did not recall being told that Lihvarchik had cut his neck with a pizza cutter, and instead "remember[ed] the pizza cutter being brought up very-very vaguely." ( Id. at 17.) He also "tried looking at [Lihvarchik's] entire body" with a flashlight for injuries and saw no marks on his neck. ( Id. at 46-47.) Deputy Poole did not speak to Miller or Dempsey. ( Id. at 66.)

Meanwhile, Deputy LoRusso, the arresting officer, had arrived and was interviewing Dempsey and Miller upstairs. Dempsey began by explaining the circumstances of the dispute that had led Lihvarchik to assault her. (LoRusso Dep. 36.) After hearing her "blow by blow" account, Deputy LoRusso asked Dempsey about the pizza cutter. ( Id. at 38.) Dempsey told him Lihvarchik's use of the pizza cutter was a "tactic... to gain sympathy from her for whatever purpose"-"in this case, because he wanted her to come to bed." ( Id. at 29.) Deputy LoRusso learned that this "feigning some kind of... traumatic event" was a "common tactic" that Lihvarchik had "previously done." ( Id. at 29-30.) Miller told LoRusso she basically agreed with Dempsey's account of the evening. ( Id. at 57.)

Deputy LoRusso also interviewed Lihvarchik. ( See id. at 69.) He asked questions like, "are you injured" and "are you okay." ( Id. ) Deputy LoRusso testified that he did not notice any unusual marks on Lihvarchik's neck when he visually inspected him. He explained that "it was 1 o'clock in the morning" and that, after Lihvarchik answered "medical screening-type questions, " he saw no indication that Lihvarchik was injured, cut, or bleeding. ( Id. at ...

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