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Juillerat v. United States

United States District Court, W.D. Kentucky, Louisville Division

October 31, 2017




         This matter is before the Court on several pending motions. First, Plaintiff Maki Juillerat has moved for summary judgment against all Defendants on the issue of liability. [DN 60.] All Defendants responded to Plaintiff's motion, [DN 66; DN 69], and Plaintiff replied, [DN 76; DN 77.] Second, Defendants the United States of America, Chief Steve Conrad, and Officer Greg Mudd have moved for summary judgment on all of Plaintiff's claims against them. [DN 65; DN 68.] Plaintiff responded to those motions, [DN 76; DN 77], and Defendants replied, [DN 80; DN 83.] Additionally, Plaintiff moved to exclude the United States' expert witness, [DN 67.] The United States responded to that motion, [DN 72], and Plaintiff replied, [DN 74.] Fully briefed, these matters are now ripe for decision.

         For the reasons set out in this Memorandum Opinion and Order, Plaintiff's motion for summary judgment and Plaintiff's motion to exclude the United States' expert witness, [DN 60; DN 67], are DENIED.

         Defendant United States' motion for summary judgment, [DN 65], is GRANTED IN PART AND DENIED IN PART.

         Defendants Chief Conrad and Officer Mudd's motion for summary judgment, [DN 68], is GRANTED.


         Plaintiff, Maki Juillerat, is a U.S. Army veteran who served more than fifteen years of active duty. [DN 68-2 at 8-9 (Juillerat Deposition).] During his time on active duty, Juillerat was deployed “[o]nce to Bosnia, twice to Iraq and once to Afghanistan, ” each time working as a paramedic, in addition to performing other jobs such as driving Humvees. [Id. at 9.] During his deployments, Juillerat worked in several combat zones. [Id. at 7.] Juillerat was medically discharged from the Army in September of 2014. [Id. at 6.]

         On February 19, 2015, Louisville Metro Police Department (“LMPD”) Officer Thomas G. (“Greg”) Mudd gave Juillerat a traffic citation for lack of insurance and for disregarding a traffic control officer's signals. [DN 65-2 at 2 (Jefferson County District Court Docket Sheet).] According to Officer Mudd, Juillerat “was very angry and combative during [the] exchange.” [DN 65-3 at 9 (Officer Mudd Deposition).]

         About a month later, on March 20, 2015, Juillerat attended a counseling session at the Robley Rex Veterans Affairs Medical Center (“VAMC”) in Louisville, Kentucky, where he was being treated for posttraumatic stress symptoms and depression. [DN 65-5 at 3 (March 20, 2015 VAMC Mental Health Note).] That day, Juillerat was treated by Dr. Mary Sweeny, Ph.D., a psychologist at the VAMC. In her notes from the March 20, 2015 appointment, Dr. Sweeny wrote the following:

Indications of risk factors (SI, HI, Abuse, etc.)? He reported both suicidal and homicidal ideation. Said his thoughts of suicide have progressed to thinking of how he would do it. he [sic] said he would probably run his car off the road or crash into a tree or something similar. This would make it less obvious as a suicide and preserve some “honor.” Said he should have died overseas “because that would have been honorable.” The pt. also reported “he already hates cops” and he recently was ticketed by a cop named Officer Mudd. The pt. said he thought about shooting the cop because he viewed him as unfair and inconsistent. He hasn't planned it out any further than thinking of shooting him but has to go to court on April 2. The pt. said he would make me the same promise he made Dr. Chopra that he would call 911 or go to ER if he thinks he can't control his impulses to hurt self or others. Affect: flat, dysthymic, angry
[T]he pt. said he was feeling “Shitty” and more depressed, hopeless, frustrated, overwhelmed, and disappointed. His son has commented that he's gotten worse since he's been living with him the past couple of months. His son pointed out that he doesn't bathe, shave, brush his teeth, or even get out of bed like he used to. The pt. declines his son's offers of going out with him. The pt. said he's wrestled with suicidal ideation for a long time but his thoughts have progressed to thinking of a plan. He denied any current intent.

[Id. at 4.] In his deposition, Juillerat admitted that he made these statements and that he made them truthfully during his appointment with Dr. Sweeny. [DN 68-2 at 18-19.] Under the heading “Description of Psychotherapy/Counseling/Teaching Interventions & Pertinent Themes Discussed, ” Dr. Sweeny wrote that she “[p]rovided support and empathetic listening. Assessed his symptoms . . . Both scores are extremely high and suggestive of severe PTSD and depression.” [Id.]

         The following week, on March 27, 2015, Dr. Sweeny's Mental Health Note about Juillerat's March 20 visit was reviewed at an “integrated care staff meeting.” [DN 65-7 at 5-6 (Sonny Hatfield Deposition).] The integrated care staff is a team of multi-disciplinary VAMC employees who meet once a month to review various patients. [Id. at 5.] The patients who get reviewed “tend[] to be patients who are having some difficulty in their treatment, and notes are put on a smart board so they can be reviewed by everyone at once.” [Id. at 5-6.] One of the attendees of the integrated care staff meeting was Sonny Hatfield, a licensed social worker who is employed at the VAMC as a “veterans justice outreach specialist.” [Id. at 3, 5-6.] During his deposition, Hatfield testified that, at the meeting, Dr. Sweeny's note about Juillerat's March 20 visit was brought up, and a discussion ensued about whether employees of the VAMC had a duty to warn Officer Mudd that Juillerat was a potential danger to him.[1] [Id. at 7.] When questioned about the contents of that discussion, Hatfield stated that “[t]here were other clinicians who felt there was a duty to warn. There w[ere] other clinicians who felt like there was not. There was no unanimous feeling or thought in the meeting about the duty to warn.” [Id. at 10-11.] According to Hatfield, the ultimate decision was that Hatfield would reach out to his contacts at the LMPD and, “simultaneously, ” the rest of the team would attempt to contact Dr. Sweeny to discuss the Mental Health Note with her. [Id. at 12.] However, Hatfield did not wait to confer with Dr. Sweeny about Juillerat before he contacted the LMPD.

         Hatfield began by calling LMPD Sergeant Pam Oberhausen, who was off duty and therefore asked Hatfield to send her an email containing the relevant information. [Id. at 16; DN 65-2 at 15 (Sergeant Oberhausen Deposition).] Hatfield then sent Sergeant Oberhausen the following email message at 9:16 a.m. on March 27, 2015 with the subject line “duty to warn”:

Sgt. Pam Oberhausen,
In a staff meeting I was made aware after viewing a note than an Officer Mudd was threatened “to be shot” by a patient at the VA. The person in question is
Maki James Juillerat
Also documented in the VA note is that the Veteran will be presenting to court on Thursday April 2nd I [sic] regards to the arrest (?) or citation. Myself and/or Abbe Johnson will be present as part of our reuglar duties in the court that day as VJO's
Thank you for your assistance.

[DN 68-2 at 45 (Email Correspondence).] Hatfield copied other VAMC employees, including Dr. Sweeny, Kelly Montgomery, Abbe Johnson, and Jamie Watts, on the email. Sergeant Oberhausen testified that, upon receiving this email, she “forwarded it to Officer Mudd, ” and, though she could not remember for certain, “probably [also] forwarded it to his supervisors.” [DN 60-2 at 17.] Sergeant Oberhausen described her involvement from that point on as minimal, “because that's where they took over.” [Id. at 18.]

         A few hours later, at 12:37 p.m., Dr. Sweeny “replied all” to all the individuals on the email, including Sergeant Oberhausen and Hatfield, and wrote:

My note went on to say the pt had “no intentions” of actually hurting the officer and he agreed to go to ER or call 911 if he felt like he was losing control over his impulses to hurt self or others. I did not and do not view him as an imminent risk for either suicide or homicide.

[DN 68-2 at 45.] Sergeant Oberhausen did not testify as to whether she also forwarded Dr.

         Sweeny's reply to Officer Mudd and his supervisors as she had done with Hatfield's original email. [See DN 60-2.]

         Officer Mudd testified that he could not recall whether Sergeant Oberhausen forwarded the email directly to him or sent him an email summarizing Hatfield's email, but he does recall receiving an email from Sergeant Oberhausen explaining that a patient at the VAMC had threatened to shoot him. [DN 68-3 at 15-16 (Officer Mudd Deposition).] In response, Officer Mudd told his Commanding Officer, Sergeant Ernst, “that there had been a death threat from a man who [he] had cited.” [Id. at 16.] According to Officer Mudd, Sergeant Ernst responded by telling him to take out a report. [Id. at 18.] Another LMPD officer, Officer Jermeco Boleyjack, ultimately took out the police report. [Id.] Officer Mudd testified that he relayed to Officer Boleyjack the information conveyed to Officer Mudd in the email from Sergeant Oberhausen and that Officer Boleyjack also called the VAMC to obtain additional information for the report. [Id. at 20-21.]

         In her deposition, Dr. Sweeny testified that she did not believe that Juillerat made an “actual threat” on March 20, 2015. [DN 60-3 at 26 (Dr. Sweeny Deposition).] Moreover, Dr. Sweeny testified that deciding whether Juillerat made an actual threat was not a close call or something that she struggled with deciding; rather, she “didn't give it a second thought.” [Id. at 27.] Dr. Sweeny first learned that Hatfield contacted the LMPD when she checked her email on March 27 and saw that she had been copied on the email from Hatfield to Sergeant Oberhausen. [Id. at 28-29.] In other words, Hatfield never discussed Juillerat's statements with Dr. Sweeny before contacting the LMPD. [Id. at 29.] Dr. Sweeny testified that, when she saw Hatfield's March 27 email, she “felt stunned.” [Id. at 31.] After Dr. Sweeny looked back at her notes from her March 20 appointment with Juillerat, she promptly replied to that email explaining that Juillerat did not make an actual threat and that he was not an imminent risk. [Id.] Dr. Sweeny also contacted Juillerat and explained to him what happened and advised him to stay calm. [Id. at 31.]

         Dr. Sweeny also remembers being contacted by an LMPD officer the following week. Though she could not remember the name of the Officer, she stated it was “probably . . . Officer Boleyjack.” [Id. at 34.] Dr. Sweeny testified that she explained to the LMPD officer who contacted her that the lead psychologist at the VAMC, Dr. Karen Grant, advised her to share only what was necessary but nothing else with the LMPD. [Id. at 33-34.] Accordingly, Dr. Sweeny told the officer who called her “that Maki [Juillerat] was not a threat, that he had no intentions of hurting Officer Mudd. That was about the extent of it. I just told him that there was no threat.” [Id. at 34.]

         Officer Mudd testified that, at some point, he asked Officer Boleyjack about the status of the report, and Officer Boleyjack told Officer Mudd that he had spoken with Hatfield “and a doctor” at the VAMC. [DN 68-3 at 23-24.] According to Officer Mudd, Officer Boleyjack told him that, when he spoke to those VAMC employees, they told him that Juillerat was not a threat, but they would not elaborate any further. [Id. at 26.] However, it appears that Officer Boleyjack did not include this information in his report. [See Id. at 29-30.]

         On April 3, 2015, Officer Mudd wrote out a criminal complaint against Juillerat in which he averred that, while Juillerat

was being seen as a patient in VA Hospital (800 Zorn Avenue), deft stated to Dr. Mary Sweeny that he had thought about shooting Officer Mudd (aft). Deft was angry over a citation that aft have given to deft. A liason [sic] from the VA Hospital informed LMPD about the statement made by deft as a “duty to warn.” Aft fears what deft may do. LMPD report 8015023014.

[DN 60-10 (Criminal Complaint).] Officer Mudd testified that he then took the criminal complaint to the Jefferson County Attorney's Office, where a prosecutor read it and wrote out a warrant application for Juillerat's arrest. [DN 68-3 at 32.] The arrest warrant was signed by Jefferson County District ...

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