Judge approved $200,000 settlement over 2010 death of Josh Holscher
The Mille Lacs County Jail is facing scrutiny after the Star Tribune newspaper made it a focus of a story on jail suicides last week. The story was prompted by the conclusion of a lawsuit against the county over the 2010 death of Josh Holscher of Onamia.
On Nov. 26, U.S. District Court Judge Michael Davis accepted a settlement of $200,000 to be paid by the county to members of Holscher’s family. The settlement came after Judge Davis rejected a motion by the county for a “summary judgement” or dismissal of the case.
In a brief filed in February of 2013, the judge denied the motion, claiming that enough evidence of negligence existed that the case should be put before a jury.
The brief summarizes the story of Holscher’s arrest and suicide. Holscher was arrested Dec. 3, 2010, after a call of a domestic disturbance. A woman told a Mille Lacs County deputy she had had an argument with Holscher that morning.
She also said he had made suicidal comments to her a few days or weeks ago, and that he might have gone hunting with a muzzle loader.
That afternoon Holscher’s truck was found in a ditch in the Mille Lacs Wildlife Management Area. The area manager went to check it out and asked Holscher how he was, but Holscher did not acknowledge his presence.
When Holscher reached for something near the center console, the manager decided to call for backup.
The deputy who had interviewed Holscher’s girlfriend came to the scene and knew Holscher might be armed.
According to the brief, the deputy told six other county officers that Holscher had been suicidal. Another officer at the scene told the court he was not aware Holscher had been suicidal.
Holscher refused to exit the truck, and the officers eventually stormed the truck and removed Holscher.
They found empty pill bottles in the truck and were afraid he might have overdosed, so they took him to the hospital.
Holscher denied that he had taken extra pills, and the officers did not request a suicide evaluation at the hospital.
Holscher’s mother, Debra Kickhafer, said she told a doctor at the hospital that her son might be suicidal. Holscher told hospital staff he was not having suicidal thoughts and denied having overdosed. Hospital tests led personnel to conclude that he had not taken an excess quantity of any prescription drugs, and Holscher was released to police custody in stable condition and taken to jail around 8 p.m. Dec. 3.
According to the judge’s memorandum, Holscher’s brother approached Sheriff Brent Lindgren at a convenience store and gave him a cell phone to speak with Kickhafer.
Kickhafer said she told Lindgren Holscher had suffered a traumatic brain injury and “had not been quite right ever since.” She also said she told an unknown deputy of a previous suicide attempt “and she believed that he would do it again.”
The deputy who brought him to the jail filled out an intake form saying he was not aware of suicidal tendencies.
Holscher was interviewed by a correctional officer, who asked him if he was suicidal. Holscher said he was not and that he had never tried to harm or kill himself. The officer requested further evaluation by the jail nurse but did not ask for a mental health or suicide evaluation.
That night Kickhafer called the jail and asked the jail administrator to watch her son because “he was not normal” and “there was something wrong with him.” She did not recall if she used the term “suicide.”
On Dec. 5, Holscher was escorted from the holding cell to the medium/maximum housing unit. The correctional officer on duty said he did not observe anything that made him appear suicidal.
On Dec. 6, Holscher told Investigator Brad Barnes that he had consumed 90 prescription pills while sitting in his truck on the day of the arrest. Barnes shared that information with Tara Lopez, an assistant attorney in the office of Mille Lacs County Attorney Jan Jude.
That morning Kickhafer called the attorney’s office for help getting Holscher to a hospital. Also that morning, Holscher appeared in court, and Lopez told a judge there were concerns that he had possibly ingested 90 pills in an attempt to harm himself. She did not oppose a medical furlough to have his emotional wellbeing evaluated.
Holscher visited the jail nurse on Dec. 6 and 7 but was not given a suicide assessment or mental health evaluation, and he denied having suicidal thoughts. The nurse, Michelle Wollak, testified that she did not believe Holscher was suicidal or a danger to himself.
Three correctional officers who were on duty that day said they did not notice anything out of the ordinary, but at 6:30 p.m. on Dec. 7, an officer found Holscher hanging in his cell by a sheet tied around his neck and connected to a grate located above the cell’s toilet.
Jail staff performed CPR, and he was taken by paramedics to the hospital, where he died at 8:55 p.m. due to brain damage from lack of oxygen caused by suicide.
After Holscher’s suicide, the jail conducted an internal review and determined that staff had followed jail policy and procedures. The Department of Corrections also reviewed the incident and concluded that staff did not violate any state rules governing jail facilities.
According to the judge’s memorandum, Alvin W. Cohn, an expert for the plaintiffs on jail and prison issues, said the jail’s policy was adequate but was not followed by jail personnel.
The memo also says all officers who had contact with Holscher had attended a refresher course on suicide prevention in 2010.
Jason Heacock, the correctional officer who booked Holscher into the jail, testified that the jail’s policy was to put someone on suicide watch only if that person said he or she was suicidal or actually attempted to harm him or herself.
The memo summarizes the seven attempted suicides and two suicides in the jail from 2002 to 2010. Of the five who attempted suicide, only one had been placed on medical hold after self-reporting “suicidal ideation.” The other four denied suicidal ideations.
“(D)espite other potential red flags such as histories of depression, past suicidal thoughts, past suicide attempts, and/or hearing voices telling them to self-injure, no suicide evaluations or suicide watches were ordered,” the memo states.
The memo also says Walter Wildhirt, who had committed suicide less than a year before Holscher, also did so by hanging himself from a sheet tied to a grate in the same cell block.
Wildhirt also denied suicidal thoughts, but the jail was aware of previous attempts. No suicide evaluation or suicide watch was ordered.
The lawsuit filed against the county by Kickhafer and Randy Holscher, Josh’s father, alleged that the county denied Holscher due process rights, failed to train officers, and was negligent under Minnesota’s Wrongful Death Act.
Judge Davis upheld the county’s request for summary judgment on counts related to the Minnesota Constitution and Minnesota law because “there is no private right of action for compensation or damages under the Minnesota Constitution for violation of rights guaranteed under the Minnesota Constitution.”
Summary judgment was also granted on the claim of violation of the state’s wrongful death law because the county is immune.
Judge Davis denied the county’s motion for summary judgment on two counts: denial of the right to adequate medical care and failure to train, which are both covered under the 14th Amendment.
Davis specifically questioned the county’s “custom of only treating an inmate as suicidal if he explicitly stated that he was suicidal.”
He listed several items of evidence that a jury could rely on to conclude that the county was “deliberately indifferent” to Holscher’s risk of suicide.
He also cited Cohn’s opinion that Holscher “‘should have been classified as High Risk,’ that it is not uncommon for an offender who is considering suicide to deny such thoughts, and that such denials should not be taken at ‘face value.’”
He quoted testimony from Heacock, who said the only way someone would be designated “high risk” would be if he said he was suicidal or actually tried to hurt himself.
The judge concluded that “Between Heacock’s testimony and the evidence of the County’s treatment of previous inmates were not treated as suicidal, despite red flags, because they did not self-report suicidal ideations, Plaintiffs have raised a genuine issue of material fact regarding the existence of an unconstitutional custom, to which the County was deliberately indifferent, and which was the moving force behind Plaintiffs’ injury. The Court denies summary judgment on the federal portion of Count 1.”
On the accusation that the county failed to train staff adequately, Davis said, “the Jail experienced multiple suicide attempts and two successful suicides by persons with suicide red flags who were not referred for further evaluation based solely on their own failure to self-report. ... From these facts, a jury could infer that the County’s training was inadequate; the County was deliberately indifferent in failing to revise its training; and this inadequate training caused Plaintiffs’ injuries.”
The Messenger explored the issue in a story in January of 2011, after two out of five jail suicides in the state in 2010 occurred in the Mille Lacs County Jail.
At the time Lindgren defended the jail’s suicide prevention protocols, including a pre-booking questionnaire, a one-to-one mental health screening, and suicide watch procedures for inmates who exhibit suicidal tendencies.
Lindgren said at the time that he was not convinced that the suicides indicated a trend or safety problems in his jail. “Obviously you don’t want to see anyone harm themselves,” he said. “But we know that people can hurt themselves. They can hurt themselves in custody. They can hurt themselves out of custody.”
He pointed to the 93 jail suicides since 1985 as evidence that jail suicide is inevitable. “There is not a way to make a cell suicide proof,” Lindgren said in an interview on Dec. 30. “Our goal is to have none, but we know in our profession it is going to happen.”
After both suicides, Lindgren asked the Bureau of Criminal Apprehension to investigate to avoid the appearance of a conflict. The results of the investigations were forwarded to the Department of Corrections, which issued a report.
The report from Wildhirt’s suicide was released Nov. 16, 2010, with this conclusion from Timothy G. Thompson, DOC Unit manager, Inspection and Enforcement Unit: “Upon the completion of the review of the documentation that was sent by your staff, there does not appear to be any violations of the Chapter 2911 rules as they pertain to this incident.” Thompson commended Lindgren for turning over the investigation to the BCA.
Victim’s mother: ‘Nobody listened to me’
Following is an excerpt from the StarTribune story on jail suicides, including two in the Mille Lacs County Jail.
Perhaps no Minnesota jail has such a troubled pattern as the one in Mille Lacs County.
Between 2002 and 2010, the jail had two suicides and seven attempts. Five of the inmates who attempted suicide had documented mental illnesses, but only one was placed on a medical hold and evaluated.
In the case of Josh Holscher, jailed in 2010 in a domestic assault case, records show a series of breakdowns from the moment of his arrest. When deputies found him slumped over in his pickup truck deep in the woods near Onamia, Minn., Holscher had a faraway stare across his face and a gun and an empty pill bottle at his side.
A few days later, at his first court appearance, his mother, Debra Kickhafer, instantly saw her son slipping away.
“I kept warning the jail that he’s going to die in there,” she said in an interview. “He had a blank stare. Nobody listened to me.”
Deputies who knew of his previous suicide threats failed to tell their colleagues, court records show. At the jail, an officer noted that Holscher had been hospitalized for depression, but did not notify colleagues or ask the on-call jail nurse for an evaluation, according to jail logs and court documents. The nurse failed to assess Holscher for suicide or evaluate him for mental health problems — despite his mother’s warnings, records show.
Ten months earlier, similar breakdowns had led to another suicide in the jail. That inmate, Walter Wildhirt, 32, told jailers he had mental illness when booked into the jail, but he denied having suicidal thoughts, according to court records.
And though jailers learned that Wildhirt previously had threatened to kill himself and had told them he was on psychiatric medications, no suicide evaluation was ordered, according to records and interviews. In February, 2010, Wildhirt hanged himself in the same cellblock where Holscher would die.
Mille Lacs County Sheriff Brent Lindgren says his staff should not be blamed.
“The documents are very damning, very damaging,” Lindgren acknowledged in an interview. “But I still believe there’s nothing that anyone did that caused his death.”
Holscher’s mother remembers it another way. “I asked for the jail nurse; they said she was too busy,” she said. “I spoke to the probation officer and he said, ‘My job is to put him in jail.’ ”
The suicides of Holscher and Wildhirt took place under the watch of the jail’s for-profit medical provider, MEnD Correctional Care, of Waite Park, Minn. MEnD, which says it creates a “win-win situation” for inmates and taxpayers by providing quality care while reducing costs, has similar contracts with 10 other jails in Minnesota. The nurse who failed to give Holscher a mental health screen is a MEnD employee who still works at the jail, according to Sheriff Lindgren.
Dr. Todd Leonard, MEnD’s president, said his medical staff is “painstakingly” careful with inmates, particularly when the risk of suicide is clear.
In an interview, Leonard declined to explain why Holscher did not receive a mental health evaluation.
“As it relates to any allegations raised, MEnD is confident that its staff followed the proper medical standard of care in its treatment of Mr. Holscher,” Leonard said in a statement.
... In 2011, Leonard’s license was put on conditional status by the Minnesota Board of Medical Practice due to unprofessional and unethical conduct, prescribing a drug for other than medically accepted practices and improper management of medical records. His license restrictions were lifted in August after he completed courses in chronic pain management, records management and professional boundaries.
... To this day, Sheriff Lindgren defends his jail and medical staff. He points out that after Holscher’s death, the county spent $10,000 to modify the cellblocks where an inmate might find a way to kill himself.
“Holscher was not a ‘suicide watch’ because he told the nurse he was not suicidal,” the sheriff said.
“Yes, we’ve had two suicides, but we’ve also had several ‘saves,’ and that needs to be recognized by the public,” he said. “We try our best to treat our inmates with dignity and respect — 365 days a year and about every 20 minutes.”
After Holscher’s death, Lindgren said he ordered an internal jail review. It concluded that the jail staff followed proper procedures.