Estate of Mori v Chuuk [2001] FMSC 49; 10 FSM Intrm. 6 (Chk. 2001) (15 January 2001)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Estate of Mori v Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6 (Chk. 2001)

ESTATE OF JOHNNY MORI, through its administratrix, Moria Ruben,
and Moria Ruben as personal representative of the heirs and beneficiaries of Elena Mori,
Plaintiff,

vs.

THE STATE OF CHUUK, FRANCIS HALLERS, KAPIER KAMERINO,
T. TAKKI, Y. KANSECO, J. SOICHY, EDWIN RAED, IOSICHY MANAS, FRANCIS HARTMAN,
ERICK EDGAR, KASTINA KAMINO and ERADIO WILLIAM,
Defendants.

CIVIL ACTION NO. 1998-1000

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Richard H. Benson
Associate Justice

Trial: April 3-7, May 31-June 6 and August 7-9, 11, 2000
Decided: January 15, 2001

APPEARANCES:

For the Plaintiff:
Stephen V. Finnen, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendant (Chuuk):
Joses Gallen, Esq.
Chief of Litigation
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

For the Defendant (William):
Eradio William, pro se
P.O. Box 482
Weno, Chuuk FM 96942

For the Defendant (Kamerino):
Kapier Kamerino, pro se
P.O. Box 115
Weno, Chuuk FM 96942

For the Defendant (Kamino):
Kastina Kamino, pro se
P.O. Box 246
Weno, Chuuk FM 96942

For the Defendants:
pro se

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HEADNOTES

Civil Procedure - Pleadings
A caption may be changed to reflect the defendants' name corrections in the plaintiff's motion to amend complaint, and to reflect the plaintiff's request in the opening statement at trial, that the caption be altered to conform to the pleadings. Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 9 (Chk. 2001).

Criminal Law and Procedure - Arrest and Custody
Police must bring an arrested person before a state court justice without unnecessary delay, not to exceed 24 hours. Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 10 n.1 (Chk. 2001).

Civil Rights
A detainee may be deprived of his civil rights in violation of 11 F.S.M.C. 701(3) by the arbitrary and purposeless denial of medical care. Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 13 (Chk. 2001).

Civil Rights
Deliberate indifference to a detainee's medical needs is policy when there is no training which would prepare a shift supervisor or other officers to evaluate an illness's or injury's severity and the decision to refer to the hospital resides in the shift supervisor's unlimited discretion. Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 13 (Chk. 2001).

Civil Rights; Statutes - Construction
Because the FSM statute is based upon the United States model, the FSM Supreme Court should consider United States court decisions under 42 U.S.C. § 1983 and § 1988 for assistance in determining the intended meaning of, and governmental liability under 11 F.S.M.C. 701(3). Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 13 (Chk. 2001).

Civil Rights
Although Chuuk state law does not appear to recognize survival causes of action, the right to damages for civil rights violations under national law survives a victim's death. If it did not, the purpose of the civil rights cause of action would be thwarted. Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 13 (Chk. 2001).

Civil Rights; Constitutional Law - Due Process
When the failure to refer a detainee for medical treatment is arbitrary and purposeless, it constitutes punishment of someone who has not been convicted of any crime. This punishment is a denial of the right to due process. Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 13 (Chk. 2001).

Torts - Wrongful Death
In Chuuk, wrongful death is a state law cause of action created by a Trust Territory statute, 6 TTC 201-203, that is state law pursuant to the FSM and Chuuk Constitutions' transition clauses. Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 13 (Chk. 2001).

Jurisdiction - Pendent; Torts - Wrongful Death
The FSM Supreme Court may exercise pendent jurisdiction over a state law wrongful death claim when it arises from the same nucleus of operative fact and is such that it would be expected to be tried in the same judicial proceeding as a plaintiff's national civil rights claims. Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 13 (Chk. 2001).

Torts - Negligence
Under Chuuk state law the elements of actionable negligence are the breach of a duty on the part of one person to protect another from injury, and that breach is the proximate cause of an injury to the person to whom the duty is owed, which may be summarized as: a duty of care, a breach of that duty, which breach proximately causes damages. Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 14 (Chk. 2001).

Torts - Negligence; Torts - Wrongful Death
Jailers, and their superiors, owe detainees a duty of care, which may include the duty to regularly observe a detainee's condition, and may breach that duty by failing to provide the required checks on his condition, had a duty of watchfulness when they are aware or should be aware of the effect on the detainee of the scolding he received and when these failures are the proximate cause of the plaintiff's death, these defendants are liable under 6 TTC 201(1) for the plaintiff's death by neglect. Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 14 (Chk. 2001).

Civil Rights; Torts - Wrongful Death
A Public Safety Director, as the policy maker for the department, may, by failing to investigate the issue of accountability for a detainee's death, ratify the shift supervisor's and the jailer's actions. Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 14 (Chk. 2001).

Civil Rights
A jailer is not liable for the arbitrary and purposeless failure to refer a detainee for medical treatment when he referred the matter to the shift supervisor who had the authority to authorize the referral because he could not have done anything more. Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 14 (Chk. 2001).

Attorney, Trial Counselor and Client - Fees; Civil Rights
The prevailing party in civil rights actions under 11 F.S.M.C. 701 is entitled to reasonable attorney fees and costs of suit as compensatory damages. Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 14 (Chk. 2001).

Torts - Damages; Torts - Wrongful Death
Since wrongful death actions are brought for the exclusive benefit of the deceased's "surviving spouse, the children and other next of kin," 6 TTC 202, when the deceased had no spouse or children, the damages are the next of kin's pecuniary injury. Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 15 (Chk. 2001).

Torts - Damages; Torts - Wrongful Death
A deceased's parent (or her estate) is entitled to damages that include her mental pain and suffering for the loss of her child that resulted from her child's wrongful death, without regard to provable pecuniary damages. Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 15 (Chk. 2001).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This action arises out of Johnny Mori's death by strangulation on February 18, 1996 while he was detained in the Chuuk State jail. The caption has been changed to reflect the defendants' name corrections in the plaintiff's Motion to Amend Complaint, filed August 17, 1998, and to reflect the plaintiff's request in the opening statement at trial, that the caption be altered to conform to the pleadings that Moria Ruben is the estate administratrix and the heirs' personal representative. The complaint alleges survival, wrongful death and civil rights causes of action. Francis Hallers, Kastina Kamino, T. Takki and Erick Edgar never answered the Complaint. The plaintiff moved for an entry of default against these defendants and that trial also be a default judgment hearing for them. That motion is hereby granted.

Trial was held April 3-7, May 31-June 6 and August 7-9, with closing arguments on August 11, 2000. In her case in chief the plaintiff presented 24 witnesses, 11 of them police officers, ten of whom were also defendants. The defendants, in their case in chief, recalled four of the defendant police officers plus an additional police officer and one of the plaintiff's other witnesses. The plaintiff did not present any rebuttal witnesses. Based on the evidence presented, the court makes the following

Findings of Fact.

1. In the afternoon of February 18, 1996 Johnny Mori ("Mori") borrowed a car from a relative, joined a friend, and the two began consuming an alcoholic beverage purchased from Moria's Store.

2. About 4:00 p.m., the two, now intoxicated, went to the friend's home for something to eat. At that house, the friend, driving the borrowed car, hit a car owned by a relative of the friend. The angry relative smashed in the borrowed car's windows, causing extensive damage, and called the police to complain about the two intoxicated men.

3. Mori was sleeping in the borrowed car when its windows were smashed. A splinter of glass entered his eye. Following his death a physician at the hospital noted that the white part of his right eye was red.

4. Police responded to the complaint, arrested Mori and his friend, and transported them to the Chuuk State jail about 5:00 p.m., where the state police confined them. It is undisputed that the police owed a duty of care to Mori during his confinement.

5. The borrowed car's owner's wife complained to the police that night. The case of the damaged car was investigated three days later.

6. Mori complained repeatedly to the jailer of glass in his eye and asked to be taken to the hospital. Other police officers on duty also heard his complaining. That night's jailer, Kastina (or Kastian) Kamino, told his shift supervisor, Kapier Kamerino, about Mori's complaint. The supervisor looked at Mori and decided not to refer him to the hospital. At all times relative to this case, Kastina Kamino was acting within the scope of his employment.

7. The shift supervisor, when present at the station, is the person who alone decides whether to refer an ill or injured arrestee to the hospital. That night's shift supervisor, Kapier Kamerino, was present throughout the period relevant to this case and acting within the scope of his employment. Neither he nor the jailer had any training which would support the decision not to refer for an injury which was not apparent. His reasons were that Mori had sight, the eye was not closed, Mori could see well enough to walk, and that Mori was lying about the injury. He also had a policy not to refer drunk arrestees for non-visible injuries unless they were peaceful. The shift supervisor further contended that Mori was an escape risk because he had asked to be released.

8. The shift supervisor is the Director of Public Safety's representative when the Director is not at the police headquarters. The Director is the government official responsible for the Department of Public Safety's policy. On February 18, 1996, Eradio William was and had been Director of Public Safety for six years.

9. The decision to deny referral was arbitrary since it was not based on any informed examination. It was purposeless in that a minimal effort would have accomplished the referral. It was not related to any legitimate goal of detention.

10. No evidence was presented as to whether prompt medical attention was required for an injury of a splinter of glass in an eye, that is, whether delay in medical attention aggravated the injury.

11. The glass in Mori's eye was painful. The injury and the denial of care for this injury did not cause Mori's death.

12. In conformity with continuing police practice, Mori would have been released 24 hours after his arrest.[1]

13. No impediment existed which would have prevented medical referral: police officers were on duty who could transport Mori, police vehicles were available, referral can be made at no cost to Public Safety, and the hospital is less than one mile from the jail. Nor did the shift supervisor call the physician on duty at the hospital for advice.

14. Mori described, to a police officer that evening, the borrowed car's owner as "his cousin," "his true brother, older [than Mori]." That man's wife gave Mori permission to use the car. She heard about the car damage and about 7:00 p.m. came to the police station where the jail was located. She remained there up to two hours filing her complaint and waiting for the promised police assistance to take her to her damaged car. She heard Mori's repeated complaints about pain and glass in his eye.

15. The angry wife complained to Mori about the damaged car and demanded replacement. Mori apologized to her.

16. Mori had earlier spoken to the jailer about the borrowed car's damage.

17. Mori was crying, in tears, and embarrassed by the owner's wife's anger, complaint and demand.

18. Mori and his friend were detained in a cell which had three openings: a door, one window facing the jailer's station, and a second window facing the main street. The cell had no electric light in it. Both the window facing the jailer's station and the door were covered by plywood. The window facing the street was not covered and Mori had at least two conversations with officers outside.

19. Public Safety had a mandatory policy or regulation requiring a visual "check" every 15 minutes of all arrestees and prisoners. This sensible requirement and its purpose were well-known to all police officers. The policy was implemented to insure that those in confinement did not harm others or themselves, including by suicide, and that no escapes occurred. One reason for the policy was a detainee's death by suicide several years earlier. The jailer was required to note in his log each time he checked.

20. The only way to check Mori's and his friend's cell was to open the door and look in. The 15-minute checks were not made as required. After the death neither the shift supervisor nor the Director nor the detective assigned to investigate examined the log to see if checks had been made. The night of February 18, 1996, was the first or second time police officer Kastina Kamino had been assigned to work as the jailer. There is no evidence that the shift supervisor that night directed, guided or verified his performance.

21. None of the police officers had suicide prevention training and no policies were implemented, other than the 15-minute checks, to prevent suicide. There was no first aid equipment available in the jail area.

22. At 10:06 p.m. on 18 February 1996, Mori was found dead of strangulation. He had been dead more than 30 minutes. He died by strangling himself with elastic of his underpants around his neck. When found, he was beyond any chance of resuscitation.

23. Before his death Mori was employed and gave all his earnings, which were $280 biweekly, to his mother, Elena Mori, whom he looked after. Mori lived with his mother and took care of her, transporting her to the hospital when required, administering her prescription medicine, bringing people to her to treat her, getting water for her shower, and combing her hair. Elena Mori died on July 23, 1997.

24. The following defendants were Chuuk State police officers on duty from 4:00 p.m. to midnight, February 18, 1996.

a. Francis Hallers. Hallers testified that he was dispatched to the location of Mori and his friend where one car stuck another. He arrested the two, transported them to the Chuuk State jail and surrendered them into the jailer' custody.

After Mori's death was discovered, and as directed by the shift supervisor, Kapier Kamerino, he drove the police vehicle carrying Mori's body to the hospital.

b. T. Takki. Takki was among the first to enter the cell to remove Mori from the cell. He assisted in carrying him to the jailer's work area.

c. Yas Kanseco (also known as Yas Kanesco, Yas Kaneso and Yas Kanoso). At Mori's request Kanseco obtained the key to Mori's cell from the jailer so Mori could go to the restroom. This happened one time.

After Mori's death was discovered he assisted in carrying Mori from the jail to the police vehicle and then rode in that vehicle to the hospital.

d. J. Soichy. Soichy helped carry Mori's body from the jail to the police vehicle.

e. Iosichy Manas. Manas, a police sergeant, signed the police report on the death of Mori. He claimed at trial to have no remembrance of the event. He testified that he signed it under protest at the direction of the shift supervisor.

The report, in effect written in the first person, states what Manas did and saw. Thus, according to the report, he heard a knock from the cell, entered the cell and found Mori "hanging from the bars on the side of the cell;" that he and other officers cut Mori down and carried him outside the cell; and that others then took Mori's body to the hospital.

f. Francis Hartman. Hartman talked to Mori at the jailer's work area. Mori told him that he had been arrested for drinking. A short time later Mori spoke to Hartman through the window of the cell facing the road. Mori spoke with concern of the damage to the borrowed car, and of his relationship to the car's owner.

Later Hartman saw Mori's body on the floor of the jailer's work area. He saw the body carried to the police vehicle which would carry it to the hospital.

g. Erick Edgar. Edgar, with others, removed Mori's body from the cell to the jailer's work area, and then to the police vehicle. He rode in that vehicle to the hospital.

The plaintiff failed to establish that all or any of these police officers caused or contributed to the cause of Mori's death.

25. Edwin Raed. Raed was a detective captain with the Department of Public Safety on February 18, 1996. He was notified of Mori's death and summoned to the police station to investigate the death. In the course of the investigation Kastina told him that he had taken Mori to the bathroom at 10:00 p.m. This is in accord with Kastina's testimony at trial. After the medical report was received, with no autopsy, Raed concluded that the cause of death was suicide. Raed's report was destroyed in a fire and was unavailable. The copy given the Chuuk Attorney General's office could not be located. On the witness stand, Raed was unable to remember any details of his investigation of Mori's death.

The plaintiff failed to establish that Raed caused or contributed to the cause of Mori's death.

26. The Director of Public Safety did not require an internal investigation into the causes of Mori's death. No police officer was disciplined.

27. Mori died unmarried and without children. His next of kin are his mother, since deceased, and sisters Iosinta Paul, Moria Ruben, Faustina, Toni, and Tina, and brothers Jembo, Pauley and Sandy.

28. Mori was an attentive and helpful sibling, the only unmarried male. He assisted his brothers and sisters by freighting fish to Guam, feeding the pig, repairing vehicles, washing machines, and generators, and sharing local food.

29. There was no testimony of the frequency of this assistance, or its monetary value, or who the recipients were, other than the general statement of the nature of the assistance rendered.

30. Funeral expenses totaled $7,269.90.

Based on these findings, the court makes the following

Conclusions of Law.

A. Civil Rights Cause of Action

1. Mori was deprived of his civil rights in violation of 11 F.S.M.C. 701(3) by Public Safety's arbitrary and purposeless denial of medical care.

2. Deliberate indifference to a detainee's medical needs was policy because there was no training which would prepare a shift supervisor or other officers to evaluate an illness's or injury's severity and the decision to refer to the hospital resided in the shift supervisor's unlimited discretion.

3. Chuuk state law does not appear to recognize survival causes of action. The civil rights claim was brought pursuant to a national statute codifying a national cause of action for violation of a person's civil rights recognized by the national Constitution's Declaration of Rights. 11 F.S.M.C. 701(3). Because the FSM statute is based upon the United States model, the FSM Supreme Court should consider United States court decisions under 42 U.S.C. § 1983 and § 1988 for assistance in determining the intended meaning of, and governmental liability under 11 F.S.M.C. 701(3). Plais v. Panuelo, [1991] FMSC 25; 5 FSM Intrm. 179, 204 (Pon. 1991) (following Tolenoa v. Kosrae, [1987] FMSC 15; 3 FSM Intrm. 167, 170 (App. 1987)). Under 42 U.S.C. § 1983, a civil rights cause of action survives death. Bell v. City of Milwaukee, [1984] USCA7 796; 746 F.2d 1205 (7th Cir. 1984). The right to damages for civil rights violations thus survives Mori's death. If it did not, the purpose of the civil rights cause of action would be thwarted. Id. at 1236-40.

4. The failure to refer was arbitrary and purposeless and thus constituted punishment of Mori, who had not been convicted of any crime. This punishment was therefore a denial of Mori's right to due process. Bell v. Wolfish, [1979] USSC 82; 441 U.S. 520, 539[1979] USSC 82; , 99 S. Ct. 1861, 60 L. Ed. 2d 447, 468 (1979).

B. Wrongful Death Cause of Action

5. Wrongful death is a state law cause of action created by a Trust Territory statute, 6 TTC 201-203, that is state law pursuant to the FSM and Chuuk Constitutions' transition clauses, FSM Const. art. XV, § 1; Chk. Const. art. XV, § 9.

6. The FSM Supreme Court may exercise pendent jurisdiction over the state law wrongful death claim because it arises from the same nucleus of operative fact and is such that it would be expected to be tried in the same judicial proceeding as Mori's national civil rights claims. Ponape Constr. Co. v. Pohnpei, [1993] FMSC 23; 6 FSM Intrm. 114, 116 (Pon. 1993); Ponape Chamber of Commerce v. Nett, [1984] FMSC 2; 1 FSM Intrm. 389, 396 (Pon. 1984).

7. Under Chuuk state law the elements of actionable negligence are the breach of a duty on the part of one person to protect another from injury, and that breach is the proximate cause of an injury to the person to whom the duty is owed, which may be summarized as: a duty of care, a breach of that duty, which breach proximately causes damages. Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 65 (Chk. 1997).

8. The defendants (state, director, shift supervisor and jailer) owed Mori a duty of care, had a duty to regularly observe his condition, breached that duty by failing to provide the required checks on his condition, had a duty of watchfulness because they were aware or should have been aware of the effect on Mori of the scolding he received which failures were the proximate cause of Mori's death. These defendants are therefore liable under 6 TTC 201(1) for Mori's death by neglect.

9. The Director of Public Safety is the policy maker for the Department. Accord Davis v. Kutta, [1996] FMSC 25; 7 FSM Intrm. 536, 548 (Chk. 1996). By failing to investigate the issue of accountability for Mori's death, he ratified the shift supervisor's and the jailer's actions. Id.

Liability and Damages

A. Dismissal of Certain Defendants

The plaintiff failed to prove by the preponderance of the evidence that Francis Hallers, T. Takki, Y. Kanseco, J. Soichy, Edwin Raed, Iosichy Manas, Francis Hartman, and Erick Edgar either violated Mori's civil rights or breached any duty they owed him. The plaintiff failed to prove any liability for these defendants. The plaintiff's complaint against them is therefore dismissed. Additionally, Francis Hallers's, T. Takki's and Erick Edgar's defaults are vacated and no default judgments will be issued against them.

B. Civil Rights

1. Liability

Kastina Kamino is not liable for the arbitrary and purposeless failure to refer Mori for medical treatment for his eye injury because he referred the matter to the shift supervisor who had the authority to authorize the referral. He could not have done anything more. Therefore, although a default was entered against Kastina Kamino, no default judgment will be entered against him on the civil rights claim.

The shift supervisor Kapier Kamerino, Public Safety Director Eradio William, and the State of Chuuk are jointly and severally liable for the due process violation. The Estate of Johnny Mori is awarded $250.00 for this violation of Mori's civil rights.

2. Attorney's Fees

The prevailing party in civil rights actions under 11 F.S.M.C. 701 is entitled to reasonable attorney fees and costs of suit as compensatory damages. Davis v. Kutta, [1997] FMSC 38; 8 FSM Intrm. 218, 220 (Chk. 1997); Davis, 7 FSM Intrm. at 549 (relying on 11 F.S.M.C. 701(3)). Therefore within thirty days of receipt of this order plaintiff's counsel shall submit a detailed and itemized motion for attorney's fees and costs for this action.

C. Wrongful Death

Wrongful death actions are brought for the exclusive benefit of the deceased's "surviving spouse, the children and other next of kin." 6 TTC 202. Since Mori had no spouse or children, the damages are the next of kin's pecuniary injury. 6 TTC 203(1). The proven pecuniary injury consists of the $7,269.90 in funeral expenses and the $10,080.00 in earnings that Mori would have, had he lived, given his mother, Elena Mori, before she died. Under 6 TTC 203(1) Mori's mother as the deceased's parent is entitled to damages that "include h[er] mental pain and suffering for the loss of [her] child, without regard to provable pecuniary damages." Elena Mori (or her estate) is therefore awarded $25,000.00 for her pain and suffering that resulted from Mori's wrongful death.

The wrongful death damages total $42,349.90. The State of Chuuk, Eradio William, Kapier Kamerino, and Kastina Kamino are jointly and severally liable for this $42,349.90.

Conclusion

The State of Chuuk, Eradio William, and Kapier Kamerino and are jointly and severally liable for $250 for the civil rights violation. Plaintiff's counsel will submit a detailed and itemized motion within thirty days for plaintiff's reasonable attorney's fees and costs. The State of Chuuk, Eradio William, Kapier Kamerino, and Kastina Kamino are jointly and severally liable for $42,349.90 plus costs. The plaintiff's combined award, without attorney's fees and costs, is $42,599.90.

Let judgment be entered accordingly.

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^[1] Police must bring an arrested person before a state court justice without unnecessary delay, not to exceed 24 hours. Chuuk v. Arnish, 6 FSM 611, 613 (Chk. S. Ct. Tr. 1994). But police practice has been to keep drinking case arrestees 24 hours and then release them. Mori’s friend was released in the evening of the 19th.