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Roy v. Lake County

United States District Court, D. South Dakota

July 9, 2014

JODI ROY, individually, and FIRST DAKOTA NATIONAL BANK, as special administrator of the estate of Christopher Bryon Mark John Alberty, deceased, Plaintiffs,
LAKE COUNTY, SOUTH DAKOTA; ROGER HARTMAN, individually and in his capacity as the Lake County Sheriff; TIMOTHY WALBURG, individually and in his capacity as a Lake County employee; REBECCA FIEGEN, individually and in her capacity as a Lake County employee; CHARLES PULFORD, individually and in his capacity as a Lake County employee; and OTHER UNKNOWN PERSONS, individually and in their capacity as employees of Lake County, South Dakota, Defendants.


KAREN E. SCHREIER, District Judge.

Plaintiffs, Jodi Roy and First Dakota National Bank, brought an action against defendants, Lake County, South Dakota, Lake County Sheriff Roger Hartman, Lake County Chief Deputy Sheriff Timothy Walburg, Correctional Officer Rebecca Fiegen, Correctional Officer Charles Pulford, and other unknown persons, alleging ยง 1983 claims for failure to provide medical care and for unlawful policy, custom, or habit, and state-law claims for wrongful death and a survival action based on defendants' actions leading up to the death of Christopher Alberty. Defendants move for summary judgment on all of plaintiffs' claims. For the following reasons, defendants' motion is granted.


The facts, viewed in the light most favorable to plaintiffs, the nonmoving parties, are as follows:

On October 3, 2009, Christopher Alberty was arrested for disorderly conduct by a highway patrol officer in Madison, South Dakota, and was booked into the Lake County Jail at 7:20 p.m. While being booked, Alberty reported to the booking officer that he was taking two medications. The corrections officers (CO) noted on an Arrest & Booking Medical Page that Alberty did not appear to be "despondent/depressed." Docket 35-1 at 2. At 8 p.m., CO Fiegen started her shift as the officer on duty at the jail. At 12:45 a.m. on October 4, CO Fiegen observed Alberty become agitated - he covered up the jail camera, spat, and acted unruly.[1] Docket 35-4 at 3. At 7:19 a.m., Alberty registered a 0.0000 on a preliminary breath test (PBT), and he was released shortly thereafter on a personal recognizance bond.

About two weeks later, on October 15, 2009, Alberty was again arrested, except this time for aggravated assault, and taken to the Lake County Jail. CO Fiegen was the officer on duty when Alberty was booked, and she was assisted by Chief Deputy Walburg. On the Arrest & Booking Medical Page, CO Fiegen noted that Alberty did not appear to be despondent or depressed and that Alberty was taking medications, "cleunipin for anxiety, conserta for ADHD."[2] Docket 35-3 at 2. CO Fiegen also asked Alberty several medical questions, including whether he had ever attempted suicide and whether he had any medical or mental health issues. Alberty responded "no" to both of these questions. Id.

After CO Fiegen and Chief Deputy Walburg learned Alberty did not have any of his medications, they inquired how to go about getting them. CO Fiegen stated, "You need your meds. There's no ifs, ands or buts. The meds have to get here.... My thing is the other week when you were here, you got extremely out of control because of the anxiety. It would be better to have at least, like, two pills." Docket 49-1 at 1-2. The officers attempted to get phone numbers from Alberty and his phone in order to call someone to retrieve the medications, but Alberty was unable to provide them with any. Alberty informed the officers that he could not get any from his doctor. Id. at 2. No further discussions took place regarding Alberty's medications at that time.[3]

During the October 15 booking process, CO Fiegen and Chief Deputy Walburg took pictures of Alberty due to the nature of the crime for which he was arrested, aggravated assault. While taking photos, they noticed scars on his arm and asked him if they were from a suicide attempt. Alberty responded, "No. really. I wouldn't say suicide." Docket 49-1 at 1. Alberty was placed in his cell after the booking process was completed.

On October 16, 2009, Alberty's mother, Jodi Roy, spoke with Alberty on the telephone. Docket 49-3 at 33. Roy believes Alberty was depressed at the time they spoke; he told her that he thought he had disappointed her. Alberty asked Roy to come see him, and she told him that she would come on Wednesday, October 21. After the phone call, Roy told her family and people she worked with that Alberty was depressed, but she did not relay this information to anyone at the jail. Id. Roy, however, was not concerned Alberty was a suicide risk and "actually thought he was safe." Id.

Alberty spent most of his time at the jail sharing a cell with Charles Wallowing Bull, Jr. Wallowing Bull believed Alberty was depressed and observed that he was not eating and was sleeping the majority of the time. There is no indication that Wallowing Bull informed jail staff of these concerns. Alberty never told Wallowing Bull that he was planning to kill himself. Docket 36-2 at 6.

On October 18, 2009, at approximately 6:41 p.m., CO Pulford heard Wallowing Bull yelling from his cell. Docket 35-4 at 11. When CO Pulford reached the cell, he saw Alberty hanging from a towel hook[4] and instructed Wallowing Bull to take him down. CO Pulford then ran back to the control room to radio for assistance.[5] Once assistance arrived - about seven minutes after CO Pulford was first alerted - the officers entered the cell and tried resuscitating Alberty.[6] The officers were unsuccessful; Alberty died by asphyxiation. Docket 36-2 at 3.


Summary judgment is appropriate if the movant "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party can meet this burden by presenting evidence that there is no dispute of material fact or that the nonmoving party has not presented evidence to support an element of her case on which she bears the ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "The nonmoving party may not rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.'" Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)).

Summary judgment is precluded if there is a dispute in facts that could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For purposes of a summary judgment motion, the court views the facts and the inferences drawn from such facts "in the light most favorable to the party opposing the ...

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