March 20, 2023 at 1:39 p.m.
County defendants file motion to dismiss federal lawsuit involving death of inmate
In late February, Oneida County and the four defendant corrections officers filed a motion seeking dismissal of the family's lawsuit on the grounds that their claim fails as a matter of law.
The family of Gavin Wallmow filed the lawsuit last year in the United States District Court for the Western District of Wisconsin alleging "deliberate indifference to serious medical conditions, namely suicide and severe mental illness, at the Oneida County Jail," that resulted in Gavin's death by suicide on July 8, 2021.
The complaint alleges that two days before Wallmow died his probation officer reported to a county corrections employee that Wallmow acted strangely during a face-to-face meeting and made statements indicative of serious mental illness, including making references to his own death. It further alleges that the corrections employee passed the information on to other corrections employees but none of the corrections employees made the health care workers at the jail aware of the information the probation officer shared.
In the motion to dismiss, the county defendants argue the case should not go to a jury because the "plaintiff cannot establish that Defendants knew or should have known that Wallmow was at a substantial risk of committing suicide based on the information known to them"
"Similarly, without the benefit of hindsight, Plaintiff cannot demonstrate that any defendant's response to the information known was objectively unreasonable," they argue.
A brief in support of the motion includes a detailed recitation of events from the time Wallmow was booked into the jail until his death, including the process by which corrections officers relayed information about him and other inmates as shift changes took place.
In the filing, attorneys for the county argue that none of the corrections officers saw anything that indicated Wallmow was suicidal.
In addition, both filings indicate there is some uncertainty as to the exact information the probation officer conveyed to jail staff.
"Not a single OCJ officer observed Wallmow acting strangely, saying demonic things, hitting himself, or otherwise exhibiting any kind of unusual behavior," the brief states. "No one observed any behavior that could remotely corroborate (the probation officer's report). No one observed Wallmow do or say anything at any point during Wallmow's incarceration that would suggest that Wallmow was even upset, let alone that he was suffering from a mental illness, had suicidal thoughts, or was at a substantial risk of committing suicide."
The defendants also argue that "bizarre" behavior is not unusual in corrections settings and is not necessarily indicative of suicidal ideation.
"As courts have said over and over, and especially in the correctional setting, bizarre behavior and suicidal behavior are different," the defendants allege. "A risk of suicide cannot automatically be assumed merely as the result of bizarre behavior. Therefore, as a matter of law, no reasonable jury could find that the individual defendants acted purposefully, knowingly, or recklessly with respect to the consequences of his or her actions."
Ultimately, when an inmate gives no indication that he is thinking of harming himself, staff "cannot be faulted for failing to read his mind," the brief states.
In a written reply to the defense motion, filed on March 14, the Wallmow family counters that the named defendants had information that should have prompted them to take further action. The corrections officers behaved like "ostriches" and buried their heads in the sand, the family contends.
They also allege that the county's unspecific policy of "keeping an eye on" inmates who have been reported to have exhibited concerning behavior is insufficient.
"The keep-an-eye-on practice kept medical staff completely out of the loop. It placed the burden on officers to determine what was bizarre enough to report to medical when they are not qualified to do so," the plaintiff's filing reads. "Additionally, the keep-an-eye-on practice was not defined. It meant something different to nearly every officer. Furthermore, insofar as it simply meant looking for behavior officers were already supposed to look for, it was meaningless. Additionally, it lacked a defined duration. And critically, it did not involve speaking with an inmate subject to the keep-an-eye-on practice."
The county defendants have until March 24 to reply to the plaintiff's March 14 filing.
Should the judge rule in the plaintiff's favor and move the case forward, a trial is scheduled for July.
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