Case 3:17-cv-03025-RAL Document 1 Filed 10/10/17 Page 1 of 9 PageID #: 1 filed OCr 1 0 2017 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA ■ VC-— cur.K CENTRAL DIVISION ) EMERSON LITTLE ELK, ) Special Administrator ofthe ESTATE OF ) J.L.E., ) /7'3(^5^ / Plaintiff, ) ) ) Vs. COMPLAINT ) UNITED STATES OF AMERICA, ) \ ) Defendant. ) ) ) COMES NOW Emerson Little Elk, as Special Administrator for the Estate of J.L.E., and for his Complaint against Defendant states and alleges as follows: JURISDICTION,VENUE AND PARTIES 1. This claim is brought under the Federal Tort Claim Act,28 U.S.C. § 1346 et seq., in which the United States may be liable for negligent acts of employees ofthe federal government, certain contractors. Public Health Services officers as well as Tribal contractors acting within the scope of a contract pursuant to the Indian Self-Determination and Education Assistance Act. 2. J.L.E., a minor born in April 2001, was a resident of South Dakota who resided at the Pierre Indian Learning Center in Pierre, South Dakota until her death in Minnehaha County, South Dakota on October 25, 2015. 3. Emerson Little Elk is an adult resident of Todd County, South Dakota. He is the surviving grandparent and was legal guardian of J.L.E. On September 22,2016, Mr. Little Elk was appointed as a Special Administrator ofthe Estate of J.L.E. Case Document 1 Filed 10/10/17 Page 2 of 9 PageID 2 4. The Pierre Indian Learning Center is a full-time boarding school for special needs or high risk Indian students in grades 1?8. It is located in Pierre, South Dakota. 5. To the best of Plaintiff?s knowledge, at all relevant times PILC was ?grant school? overseen by and funded through the Department of Interior?s Bureau of Indian Education, a federal agency of the Defendant. 6. To the best of Plaintiff?s knowledge, the administrators, teachers, counselors and supervisory staff who interacted with .L.E. were federal employees or agents within the meaning of the Federal Tort Claims Act. 7. On or about December 14, 2016, Plaintiff presented a timely administrative Claim for Damage as a result of injury and death to the United States Department of the Interior. On April 10, 2017, the Defendant agency mailed it Administrative Determination of Claim to Plaintiff. 8. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1346(b)(1). FACTUAL ALLEGATIONS 9. PILC is an off?reservation boarding school for children in grades 1-8 who because of abuse, negligent and social disruptions have not succeeded in other schools. 100% of the enrollment at PILC is children of Native American descent. 10. PILC represents that it exclusively services a severely at?risk population of students. A high percentage of PILC students have conduct disorders, and a signi?cant percent of the PILC students engage in periodic outbursts or extreme acting out. 11. Poor life expectancy is a recognized disadvantage for PILC students. Case Document 1 Filed 10/10/17 Page 3 of 9 PageID 3 12. Self?harm and suicide are ongoing, foreseeable problems with ?at risk? students at PILC, as suicide has been identi?ed as a crisis-of near epidemic proportions for youth with Tribal connections. 13. PILC represents that it provides its students with a safe, supervised and healthy boarding school environment that focuses on wellness and safety. 14. PILC students are to be supervised by PILC educational staff during school hours and by dormitory and counseling staff during non-school hours. 15. Beginning with the 2015-2016 school year, .L.E. enrolled with, was admitted to and attended school at PILC. At PILC, she resided in the ?Big Girls Dorm, which has separate rooms for resident students, shared bathrooms and common areas which are subject to supervision by PILC staff. 16. Prior to her admission at PILC, .L.E. had engaged in documented behaviors and had been exposed to life experiences that classi?ed her as an ?at risk? student at PILC. 17. Prior to her admission at PILC, .L.E. had a record of being treated for mental health issues including anxiety and depression, and including a commitment at Avera Behavioral Health in Sioux Falls related to suicidal ideation in Sioux Falls in March, 2014 and further treatment in Rapid City Regional Hospital in 2014. 18. PILC knew or should have known of ?at risk? status and her mental health history when it accepted custody and control over her during the 2015-2016 school year. 19. Beginning in August 2015 through October 25, 2015, .L.E. lived on-campus at PILC in its boarding school dorm, and she also spent most weekends in its care and custody. 20. Upon admission to PILC, .L.E. earned good marks for her academic performance and was a promising, bright student. Case Document 1 Filed 10/10/17 Page 4 of 9 PageID 4 21. Beginning in August 2015, PILC teaching staff documented that .L.E. was exhibiting some repeated behavioral issues, including con?icts and aggressive interactions with other PILC students. 22. On September 7, 2015, .L.E was ?pantsed? by another student and was visibly upset. J.L.E. told PILC counseling staff that she had been bullied at her prior school. PILC staff represented that they would check with her from time to time about whether she was being bullied at PILC. There is no record that any PILC staff member followed up with .L.E. 23. On September 16, 2015, .L.E. was counseling for engaging in ?ghting behavior with another student. She reported to PILC counseling staff that this was because she was frustrated. PILC counselor Sheena Thomson got LE. to agree to ?stop her part of the drama,? and instructed .L.E. to check in with Thomson later to let her know if things had improved. There is no record that any PILC staff followed up with LE. 24. In September 2015, a friend of who also attended PILC and resided in her dormitory attempted suicide and was hospitalized. 25. .L.E. was aware of her friend?s suicide attempt and was upset by it. .L.E. sought approval to Visit her friend in the hospital. 26. On October 5, 2015, PILC staff documented in a ?behavior report? that .L.E. reported to PILC staff member Rose Calla that she was upset after a weekend visit because she had argued with a family member who said that she should kill herself. The PILC staff member documented that she would continue to talk with LE. to build trust. 27. On October 6, 2016, PILC counselor Sheena Thomson talked with .L.E. about the suicide comment she mentioned to staff the day before. .L.E. was subdued and con?rmed that this statement had happened and hurt her feelings. Thomson told LE. to tell her if it bothered Case Document 1 Filed 10/10/17 Page 5 of 9 PageID 5 .L.E. again. There is no record that PILC staff followed up with .L.E. about her suicide comment. 28. J.L.E. continued to exhibit behaviors and depressed mood during the following weeks, including talking to other students about suicide, having a con?ict with staff about her phone that resulted in it being taken away, and having further con?icts with peers including being called names and ?ghting with a boyfriend. 29. .L.E. had made self-harm attempts that were not discovered by PILC supervisory staff. 30. On October 25, 2015, .L.E. attempted suicide in the PILC Big Girls? dorm by trying to hang herself in the girls? bathroom area. Immediately prior to the suicide attempt, J.L.E. carried a chair from a room, out into the hallway and into a shared bathroom in the dorm area. She also took a thick black rope into the bathroom which she tied around the top of a toilet partition. 31. A fellow student subsequently heard a loud noise from the bathroom area and discovered J.L.E. hanging in the bathroom. She screamed. 32. PILC residential staff did not immediately respond to the screaming students, and the students came to them to explain that there was a student hanging in the bathroom. 33. PILC residential staff members Melissa Betone, Sherri Lappe, Sara Wilson and Robert Hockett delayed in responding in to the students? screams, which resulted in .L.E. hanging longer from the toilet partition. 34. .L.E. was resuscitated and was transported to a hospital. She was later air-?ighted to Avera hospital in Sioux Falls. 35. .L.E. suffered immediate injury, pain and ultimately died of the injuries incurred while she was in the care, custody and control of PILC. Case Document 1 Filed 10/10/17 Page 6 of 9 PageID 6 36. Following death, superintendent and administrator began researching how to recognize signs and of suicide. COUNT ONE: NEGLIGENCE 37. Plaintiff realleges the allegations in paragraphs 1-39. 38. PILC was or should have been aware of the supervision and safety needs required in the education and protection of the minor children it assumed custody, care and control of. 39. PILC actively sought grant money and otherwise represented to the public, to its students and to their families and guardians that it was adequately meeting the needs of what it described as an ?at risk? student population. 40. To the best of the Plaintiff?s knowledge, .L.E. was not the ?rst student in care and custody to engage in dangerous suicidal or self-harming behavior attempt in its dormatories. 41. To the best of the Plaintiff?s knowledge, the PILC administrators, teachers, counselor and residential supervisors who interacted with .L.E. between August 2015 and October 25, 2105 qualify as employees of the Defendant. 42. To the best of Plaintiff 5 knowledge, Defendant employed or provided day to day direction in regard to the teachers, educators, counselors and supervisory staff who interacted with LE. 43. To the best of Plaintiffs knowledge, Defendant exercises control and supervision of these employees, and held them out and warranted them to the public, the PILC students and the families and guardians of the PILC students as competent, careful and trained to address the mental health and safety needs of the ?at risk? students entrusted to their care. Case Document 1 Filed 10/10/17 Page 7 of 9 PageID 7 44. To the best of Plaintiffs knowledge, Defendant controlled the operation, planning, management supervision and training of the PILC employees in terms of their training to recognize and address self-harming behaviors, and it is responsible for the carelessness and negligence of employees. 45. To the best of Plaintiff? 3 knowledge, the authority exercised by Defendant over the PILC staff include the implementation of policies and procedures utilized by the facility to provide for the safety, health and well-being of the known needs of its ?at risk? residential students and other requirements of the Bureau of Indian Education. 46. To the best of Plaintiff? knowledge, Defendant is liable for the acts and omissions of PILC and its staff in performing their ministerial duties to provide adequate counseling, self- harm prevention, supervision and emergency response to .L.E. and the other children entrusted to its care. 47. At the time she was injured, .L.E. was under the exclusive care, supervision and protection of agents or employees of the Defendant, and the injuries complained of were proximately caused by the acts and omissions of the Defendant?s agents or employees 48. injuries as the result of a self-harm attempt were or should have been foreseeable to properly trained PILC staff. 49. The incidents alleged in this case took place in South Dakota, and as a result PILC had a duty to exercise ordinary care in protecting and supervising the students in their care, custody and control. 50. While .L.E. was in its care, custody and control, PILC assumed a special relationship with .L.E. under South Dakota law that heightened its duty to care for her. Case Document 1 Filed 10/10/17 Page 8 of 9 PageID 8 51. PILC, its agents and employees had a ministerial duty to adequately monitor its students? daily activities. 52. PILC, its agents and employees had a ministerial duty to provide adequate mental health care to protect .L.E. from self-harm while she was in its care and custody. 53. PILC, its agents and employees had a ministerial duty to provide adequate training and self-harm protocols to protect LE. and other at risk students from self harm while they were in their care and custody. 54. its agents and employees had a ministerial duty to provide adequate supervision to prevent and address .L.E. from engaging in self-harming behavior. 55. A properly operated boarding school that served a high volume of traumatized and ?at risk? children, operating under the same of similar conditions, would not have failed to provide care and supervision listed in this Complaint. 56. failure to supervise .L.E. was a proximate and legal cause of injuries, suffering and death. 57. failure to provide .L.E. with adequate mental health care was a proximate and legal cause of injuries, suffering and death. 58. failure to train its staff to recognize signs of self-harming behavior or suicidal ideation was a proximate and legal cause of injuries, suffering and death. 59. failure to train its staff to respond to incidents of self-harming behavior was a proximate and legal cause of injuries, suffering and death. 60. As a result of the Defendant?s negligence, .L.E. suffered pain, suffering and permanent injuries and death. WHEREFORE, the Plaintiff requests the following: Case Document 1 Filed 10/10/17 Page 9 of 9 PageID 9 A. Just compensation for the physical pain, mental and emotional suffering which .L.E. sustained while she was under the care and control of Defendant; B. Just compensation for the medical expenses incurred; C. Just compensation for the funeral expenses and other out of pocket expenses incurred by Plaintiff as a result of death; D. For prejudgment interest, costs and attorney fees as allowed by law; and E. For such other and further relief as the Court deems just. Dated this 6th day of October, 2017. JOHNS OP BARTLING Ste a i lsochop A 11g 405 ain Street Gregory, SD. 57533 (605) 835-8391 Stephanie@Rosebudlaw.com A1ny@Rosebudlaw.com Attorneys for Plaintiff