Opinion
CIVIL ACTION NO. 2:00-CV-037-J
December 6, 2001
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
This civil rights action for money damages is brought pursuant to 42 U.S.C. § 1983. Plaintiff, Monica Burdex, as alleged widow of decedent, Dedrick Freeman, and mother and guardian of Dedrick Freeman, Jr., brings this action against Childress County, Texas, the Sheriff of Childress County, Darin Smith, and the Childress County Jailer and Chief Deputy, Mike Pigg. Plaintiff's action for damages follows the suicide of Dedrick Freeman while he was a pre-trial detainee in the Childress County jail. Plaintiff alleges that Defendants were deliberately indifferent to the constitutional rights of Dedrick Freeman. More specifically, Plaintiff has sued Defendant Darin Smith and Defendant Mike Pigg respectively as the Sheriff and Jailer of Childress County because, according to Plaintiff, as supervisory officials, both were responsible for the conduct, supervision, and proper training of jail employees, and as policy makers, were responsible for the policies governing the jail and the defendants. Plaintiff alleges that the Defendants' failure to supervise and train jail employees led to the deprivation of Freeman's civil rights. Plaintiff has also sued Childress County, Texas, as a person pursuant to 42 U.S.C. § 1983. Defendants have filed their respective motions for summary judgment seeking dismissal of this suit on the grounds of absolute and qualified immunity.
Plaintiff also brings pendent state law claims including negligence, negligence per se, personal injury, and wrongful death pursuant to the Texas Wrongful Death and Survivorship Statutes.
42 U.S.C. § 1983 states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any civil rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the injured party in an action at law, suit in equity, or other proper proceeding for redress.
Before the Court is Defendant Darin Smith and Childress County's Motion for Summary Judgment and Supplement, filed April 20, 2001, and response and reply thereto. Also before the Court is Defendant Mike Pigg's Motion for Summary Judgment and Supplement, filed April 20, 2001, and response and reply thereto. The Motions for Summary Judgment are GRANTED.
BACKGROUND
The following background facts are taken from Plaintiff's original complaint, Defendants' motions for summary judgment, and Plaintiff's response to Defendants' motions for summary judgment. For the purposes of these motions, the Court accepts the following facts as true.
On or about March 7, 1999, decedent Dedrick Freeman was arrested as a result of a domestic dispute with Plaintiff. Upon arriving at the Childress County Police Department, decedent demanded that the officers, "shoot him" or he would take his own life. Freeman subsequently became violent and officers present were forced to restrain him by way of force and chemical injection. On the same day, a signed and sworn Application for Court-Ordered Temporary Mental Health Services was issued by a Childress County judge and Freeman was referred for psychiatric evaluation. Freeman was returned to Childress County after being diagnosed with adjustment disorder, explosive disorder, and impulse control disorder. Defendants admit that on or about April 27, 1999, Childress County and its employees became aware that Freeman was again residing in the county and was no longer confined to the psychiatric hospital.
On or about April 27, 1999, Freeman was indicted on felony charges in Childress County and subsequently arrested and incarcerated on those charges. Defendants admit that during the time in question, Childress County had a written policy to screen inmates at booking utilizing an approved Mental Disabilities/Suicide Intake Screening Form. Defendant Smith admits that the policies were drafted and maintained and admits that he knew what they said. Defendants admit that the screening process was not used on Freeman but they insist that the failure to utilize the process is because Freeman was uncontrollable and uncooperative to such an extent that they could not do so.
While incarcerated, Freeman had many disciplinary problems, including acts of violence, assaults, and property destruction. It is disputed whether or not Freeman made known to Defendants his intention to take his own life. Plaintiff alleges that on or about April 29, 1999, Freeman was discovered trying to hang himself with a blanket and a phone cord. Defendants do admit that on May 6, 1999, Defendant Pigg discovered and confiscated a piece of torn blanket that had been tied to the inside of Freeman's cell door.
On May 10, 1999, Freeman was engaged in violent conduct and thereafter placed on a 15 minute watch.
On May 14, 1999, Freeman, in the presence of his attorney, threatened suicide by snorting crushed tylenol. In response, Jailer Tribble placed a call to poison control to determine whether or not the substance would cause harm to Freeman. Sheriff Smith's affidavit states that it was determined that the ingestion of the tylenol would cause only sneezing.
Later that evening, roughly 20 minutes after Jailer Tribble called poison control, Freeman was found hanging in his jail cell. A deputy arrived approximately 4 minutes later, the cell door was opened, Freeman was cut down and pronounced dead.
Prior to Freeman's suicide, Sheriff Smith imposed specific orders to jail staff regarding Freeman. His orders stated that Freeman's cell door were not to be opened unless Sheriff Smith or a deputy were present. Sheriff Smith imposed these orders specific to Freeman because in his judgment, the jailers could not control Freeman if he was able to get out of his cell. The orders were imposed because according to Sheriff Smith, Freeman was the most violent and uncontrollable detainee he had ever been in contact with.
SUMMARY JUDGMENT STANDARD
The United States Court of Appeals for the Fifth Circuit set forth the standard for summary judgment in Hibernia National Bank v. Carner, 997 F.2d 94 (5th Cir. 1993). In reviewing a motion for summary judgment, the Court must ask whether,
the pleadings, depositions, answers to interrogatories, and admissions, on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). In making this determination, we view all of the evidence in the light most favorable to the party opposing the motion for summary judgment. Reid v. State Farm Mutual Insurance Co., 784 F.2d 577, 578 (5th Cir. 1986).
To defeat a motion for summary judgment, Rule 56(e) of the Federal Rules of Civil Procedure requires the non-moving party to set forth specific facts sufficient to establish that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). While the mere allegation of the existence of a dispute over material facts is not sufficient to defeat a motion for summary judgment, if the evidence shows that a reasonable jury could return a verdict for the non-moving party, the dispute is genuine. Id. at 247-48, 106 S.Ct. at 2510.
On the other hand, if a rational trier of fact, based upon the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. Amoco Production Co. v. Horwell Energy, Inc., 969 F.2d 146, 147-48 (5th Cir. 1992). Such a finding may be supported by the absence of evidence necessary to establish an essential element of the non-moving party's case. See Celotex Corp. v. Cartrett, 477 U.S. 317, 322, 106 S.Ct. 82, 121 L.Ed.2d 265 (1986); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 954 U.S. 1125, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992); International Ass'n of Machinists Aerospace Workers, Lodge No. 2504 v. Intercontinental Mfg. Co., 812 F.2d 219, 222 (5th Cir. 1987).
Finally, where the non-moving party has presented evidence to support the essential elements of its claims but that evidence is merely colorable, or is not significantly probative, summary judgment may be granted, Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11 (citations omitted). A summary judgment assertion made in an affidavit is simply not enough evidence to raise a genuine issue of material fact. See Lechuga v. Southern Pacific Transp. Co., 949 F.2d 790, 798 (5th Cir. 1992) (Conclusory statements in an affidavit do not provide facts that will counter summary judgment evidence, and testimony based on conjecture alone is insufficient to raise an issue to defeat summary judgment.); Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) ([Affidavits setting forth ultimate or conclusory facts . . . are insufficient to either support or defeat a motion for summary judgment . . .) (citations omitted). Similarly, it is insufficient for the non-movant to argue in the abstract that the legal theory involved in the case encompasses factual questions. See Pennington v. Vistron Corp., 876 F.2d 414, 426 (5th Cir. 1989).Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97-98 (5th Cir. 1993). Therefore, where the defendant has properly pleaded the affirmative defense of immunity, the plaintiff must present sufficient summary judgment evidence to create a genuine issue of material fact as to any element of the affirmative defense, or summary judgment will be granted for the defendant.
QUALIFIED IMMUNITY
Defendants have sought summary judgment based on qualified immunity. In an individual capacity, the doctrine of qualified immunity serves to shield a government official from civil liability for damages based upon the performance of discretionary functions if the official's acts were objectively reasonable in light of then clearly established law. See Thompson v. Upsher County, et al, 245 F.3d 447, 451 (5th Cir.2001) (citing Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)).
In Pierce v. Smith, 117 F.3d 866, 871-71 (5th Cir. 1997), the Fifth Circuit held that where a section 1983 defendant pleads qualified immunity and shows he is a governmental official whose position involves the exercise of discretion, the plaintiff then has the burden to rebut this defense by establishing that the official's allegedly wrongful conduct violated clearly established law. Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1982). The Fifth Circuit does not require that the official demonstrate that he did not violate clearly established federal rights; precedent places that burden upon the plaintiff. See Id.
The first step in the qualified immunity analysis is to determine whether the plaintiff has alleged the violation of a clearly established federal constitutional or statutory right. See Thompson, 245 F.3d at 452 (citing Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998); Pierce, 117 F.3d at 872. If the plaintiff does so, the Court must then assess whether the defendant's conduct was objectively reasonable in light of clearly established law. See Hare, 135 F.3d at 326; Pierce, 117 F.3d at 872. Unlike the first step, the second step inquiry applies the law that was clearly established at the time of the alleged violation. To ensure that qualified immunity serves its intended purpose, it is of paramount importance, during step two, to define "clearly established law" at the proper level of generality. See Thompson at 452 (citing Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987); Petta v. Rivera, 143 F.3d 895, 899 (5th Cir. 1998)).
"Clearly established" means that the "contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." See Thompson at 452 (citing Anderson, 107 S.Ct. at 3039). The defendant's acts are held to be objectively reasonable unless all reasonable officials in the defendant's circumstances would have then known that the defendant's conduct violated the United States Constitution or the federal statute as alleged by the plaintiff. Id at 452 (citing Anderson at 3040; Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). The defendant's circumstances include facts known to the defendant. However, because qualified immunity turns only upon the objective reasonableness of the defendant's acts, a particular defendant's subjective state of mind has no bearing on whether that defendant is entitled to qualified immunity. Id at 452 (citing Anderson at 3040). An official is entitled to qualified immunity even if the official violated another's constitutional rights if the conduct was objectively reasonable. Id at 452 (citing Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir.2000); Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990)).
DISCUSSION
Prudence, along with precedent of the Fifth Circuit dictates that the Court examine each individual defendant's entitlement to qualified immunity separately. See Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir. 1999).
At the outset, this Court notes that the Fifth Circuit has adopted the heightened pleading requirement for cases against government officials in their individual capacities. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 954 F.2d 1054, 1057-58 (5th Cir. 1992), cert. granted, 505 U.S. 1203, 112 S.Ct. 2989, 120 L.Ed.2d 867 (1992); Palmer v. City of San Antonio, 810 F.2d 514, 516-17 (5th Cir. 1987); Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985).
In Elliott, the Fifth Circuit opined that in section 1983 cases, "we consistently require the claimant to state specific facts, not merely conclusory allegations." Elliott at 1479. While this Court believes that the claimant in the case at bar has failed to state specific facts to support her claims against Sheriff Smith and Deputy Pigg, we will nevertheless address each of her arguments.
A. Claims Against Sheriff Smith
Defendant Darin Smith has been sued individually and in his official capacity as Sheriff of Childress County, Texas. Plaintiff alleges that Sheriff Smith was deliberately indifferent to the rights of the decedent by failing to adequately train and supervise his jail employees and for implementing or failing to implement certain jail policies, thus contributing to Freeman's death. As a defense to this section 1983 action, Defendant Smith has pled that he is qualifiedly immune from suit.
In the case at bar, the Plaintiff has alleged that Sheriff Smith is liable because of his personal involvement in the acts that allegedly led to the deprivation of decedent's constitutional rights as well as because of his status as supervisor of the Childress County jail and the employees who worked there.
I. Supervisor Liability
The pleadings show that Sheriff Smith, as Sheriff of Childress County, was a supervisor of the employees that worked at the Childress County jail as well as supervisor of the jail itself. Sheriff Smith admits that he was in fact charged with supervising and training the employees and agents of the jail as well as implementing policies concerning administration of the Childress County jail, as required by state law. In this capacity, Plaintiff alleges that Sheriff Smith acted with deliberate indifference toward the due process rights of decedent by failing to train and supervise the employees of the jail and further by implementing policies that manifest their deliberate indifference toward the due process rights of those in lawful custody of the Childress County jail.
The Fifth Circuit has held that under section 1983, supervisory officials are not liable for the actions of subordinates on any theory of vicarious liability. See Thompson v. Upshur County, 245 F.3d 447, 454 (5th Cir.2001) (citing Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). Therefore, a sheriff not personally involved in the acts that deprived decedent of his constitutional right is liable under section 1983 if: 1) the sheriff failed to train or supervise the officers involvement; 2) there is a causal connection between the alleged failure to supervise or train and the alleged violation of constitutional rights; and 3) the failure to train or supervise constituted deliberate indifference to the decedent's constitutional rights. See Thompson at 454 (citing Smith v. Brenoettsy, 158 F.3d 908, 911-12 (5th Cir. 1998); Doe v. Taylor Independent School Dist., 15 F.3d 443, 452-54 (5th Cir. 1994) (en banc)).
However, because Sheriff Smith, as a government official, has pled qualified immunity as a defense to this suit, the first step of the summary judgment analysis is to decide whether the Plaintiff has alleged a violation of a clearly established right. See Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997); Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1982).
Unlike convicted prisoners, whose rights to constitutional essentials like medical care and safety are guaranteed by the Eighth Amendment, pretrial detainees, such as Dedrick Freeman, look to the procedural and substantive due process guarantees of the Fourteenth Amendment to ensure provision of these same basic needs. See Jacobs v. West Feliciana Sheriff's Department, 228 F.3d 388, 393 (5th Cir.2000) (citing Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)).
A pretrial detainee's due process rights are "at least as great as the Eighth Amendment protections available to a convicted prisoner." See Jacobs at 393 (quoting Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir.l996) (en banc)). In Hare, the Fifth Circuit observed that the state owes the same duty under the Due Process Clause and the Eighth Amendment to provide both pretrial detainees and convicted inmates with basic human needs, including medical care and protection from harm, during their confinement. See Jacobs at 393 (citing Hare, 74 F.3d at 650).
In the case at bar, the Plaintiff has alleged that Sheriff Smith was deliberately indifferent to Freeman's obvious need for protection from harm, including self-inflicted harm. By alleging deliberate indifference to Freeman's clearly established Fourteenth Amendment rights, the plaintiff has, at a high level of generality, cleared the first hurdle in defeating the defendant's qualified immunity defense. See Thompson, 245 F.3d at 455; Jacobs, 228 F.3d at 393.
The second part of the qualified immunity analysis is to determine whether Sheriff Smith's conduct was objectively unreasonable in light of clearly established law at the time of Freeman's suicide in May 1999. As the Fifth Circuit has held on more than one occasion, at least since 1989 it has been clearly established that officials will only be liable if they had subjective knowledge of a substantial risk of serious harm to a pretrial detainee but responded to that risk with deliberate indifference. See Jacobs at 393-394; also Hare, 74 F.3d at 650; Flores v. County of Hardeman, 124 F.3d 736, 738 (5th Cir. 1997) ("A detainee's right to adequate protection from known suicidal tendencies was clearly established when Flores committed suicide in January 1990").
In making the determination of objective reasonableness, the court is to determine whether, in light of the facts as viewed in light most favorable to the plaintiff, the conduct of the individual defendant was subjectively deliberately indifferent. See Jacobs at 394; Hare at 329. It is well-settled, however, that negligent inaction by a jail officer does not violate the due process rights of a person lawfully held in the custody of the state. See Jacobs at 395 (citing Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 671, 88 L.Ed.2d 677 (1986)). Accordingly, to be considered deliberately indifferent to a known suicidal risk, an officer's acts must constitute at least more than a mere "oversight." See Id.
The factual allegations made by the Plaintiff, even taken in a light most favorable to her, fail to show that, as a supervisor, Sheriff Smith's actions were objectively unreasonable and thus deliberately indifferent. At the most, this Court finds Sheriff Smith's actions, as supervisor, negligent or mere oversight.
Plaintiff's first allegation of deliberate indifference against Sheriff Smith is that he failed to train all jail staff to recognize, identify, supervise, handle, or intervene with potentially suicidal inmates. While the Plaintiff has failed to give specific examples to support this allegation, the Court notes that other courts have addressed the failure to train officers in detecting suicidal tendencies. The courts have said that the failure to recognize and identify potentially suicidal tendencies may rise to the level of a constitutional deprivation only if the right to adequate medical care includes an absolute right to psychological screening. See Burns v. City of Galveston, 905 F.2d 100, 104 (5th Cir. 1990); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Collectively, the courts have said no such right exists. See Burns at 104.
Courts in this circuit, as well as other circuits, have said that to require officers to be trained to medically screen each pretrial detainee so that the officers will unerringly detect suicidal tendencies is not required by the due process clause and that such a requirement is not a constitutional minimum for training of officers. See Burns at 104; see also Danese v. Asman, 875 F.2d 1239 (6th Cir. 1989), cert. denied, 494 U.S. 1027, 110 S.Ct. 1473, 108 L.Ed.2d 610 (1990); Belcher v. Oliver, 898 F.2d 32 (4th Cir. 1990).
Although Sheriff Smith had no constitutional duty to train his officers in detection and identification of potentially suicidal inmates, this Court finds that Sheriff Smith, his deputies, and jailers were trained in these areas, in addition to supervising, handling, and intervention with potentially suicidal detainees. The sworn affidavits of Sheriff Smith, Deputy Pigg, and Jailer Bill Tribble all state that they, along with all jail personnel are trained and certified in these areas, as required by state law.
Based on the foregoing, this Court finds that Sheriff Smith was not deliberately indifferent to the rights of decedent regarding the training of his employees with respect to detection of potentially suicidal detainees.
Plaintiff's second supervisory allegation against Sheriff Smith is that he failed to supervise the officers in their dealings with decedent and that failure constituted deliberate indifference to the constitutional rights of the decedent. Again, the Plaintiff gives no specific examples of how or when Sheriff Smith unreasonably failed to supervise his officers.
As an aside, this Court recognizes that although Sheriff Smith is supervisor of the officers and jailers of the Childress County jail, there is no mandate that he be present at the jail to oversee the every move of all jail employees. As a sheriff, supervision of the county's jail and its employees is but one of many of his jobs and responsibilities. No prudent or capable sheriff would attempt to provide around-the-clock supervision to the detriment of his other duties.
This Court does not find that Sheriff Smith's supervision of his employees in their dealings with decedent was objectively unreasonable. Under the supervision of Sheriff Smith, officers of the Childress County jail referred decedent to a hospital in Wichita Falls, Texas, for psychological evaluation because, upon initial arrival at the jail on March 7, 1999, decedent was violent and combative. Decedent was subsequently released from the state hospital on March 12, 1999. The act of referring decedent to a hospital for evaluation does not show deliberate indifference to the serious medical needs of the decedent.
When decedent returned to the Childress County jail on April 27, 1999, for felony charges, a standard suicide risk evaluation was attempted on decedent under the supervision of Sheriff Smith. According to the sworn affidavits of Sheriff Smith, Deputy Pigg, and Jailer Tribble, the form and evaluation were not completed due to the extreme violent and uncooperative nature of decedent. Because of decedent's continued acts of violence and property destruction throughout his incarceration, decedent was placed on a 15 minute watch by Sheriff Smith. Additionally, in place of full-time supervision of his employees, Sheriff Smith implemented policies for operation of the jail as well as policies for dealing with violent detainees such as Dedrick Freeman.
Because Sheriff Smith determined decedent to be an extreme threat to the jail and it's employees should he escape from his cell, he imposed specific orders on jail staff to the effect that decedent's cell door was not to be opened unless Sheriff Smith or a deputy were present to assist. Given the history of violence against the jail and the employees of the jail as known to Sheriff Smith, this Court does not find that Sheriff Smith's actions were objectively unreasonable in the supervision of his employees.
On the evening of decedent's suicide, May 14, 1999, decedent threatened suicide by snorting crushed tylenol. Under the supervision of Sheriff Smith, poison control was contacted at approximately 8:07 p.m. and it was determined that ingestion of tylenol in this method would cause only sneezing. After deputies learned that the tylenol was of no harm to decedent, he was returned to his cell and the 15 minute watch was resumed. It was approximately 18 minutes later, at 8:25 p.m. that jailers observed decedent hanging in his cell. Following the orders of Sheriff Smith, the jailers called for assistance before opening decedent's cell. Approximately four minutes later, the door was opened, decedent was cut down, and following attempted CPR, decedent was pronounced dead.
Plaintiff alleges that the failure of Sheriff Smith to supervise his employees on the evening of decedent's death amounts to deliberate indifference. This Court does not agree. When decedent was attempting suicide, proper procedures were followed to ensure the safety of decedent. After poison control was called, decedent was placed back in his observation cell on a 15 minute watch. Taken in light most favorable to plaintiff, the jailers did not notice decedent hanging in his cell for roughly 18 minutes after he was returned there following the tylenol incident. This was arguably 3 minutes later than he would have been found had the jailers strictly followed Sheriff Smith's mandate of 15 minute checks of his cell. As other courts have noted, this minute deviation from procedure may constitute negligence or gross negligence but does not rise to the level of deliberate indifference or objectively unreasonable to satisfy section 1983. See Rhyne v. Henderson County, 973 F.2d 386, 393 (5th Cir. 1990); Evans v. City of Marlin, Texas, 986 F.2d 104, 108 (5th Cir. 1990); Gagne v. City of Galveston, 805 F.2d 558, 559-60 (5th Cir. 1986), cert. denied, 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 76 (1987).
Plaintiff alleges, and Sheriff Smith agrees, that as sheriff, Darin Smith was charged with formulating policies by which decedent's incarceration was controlled. It is also in this respect that Plaintiff alleges Sheriff Smith was deliberately indifferent to the due process rights of decedent. Plaintiff lists four policies that Sheriff Smith formulated that allegedly contributed to the suicide of decedent.
The first policy that Plaintiff feels manifests deliberate indifference to the due process rights of decedent is an alleged policy of Sheriff Smith to not train jailers to recognize, identify, supervise, handle, or intervene with potentially suicidal inmates. This alleged policy was discussed above in the context of Sheriff Smith's failure to train his staff. In the context of failure to train his staff, the Court found that this alleged policy did not constitute a failure to train because Sheriff Smith is under no constitutional mandate to train his employees to spot potentially suicidal inmates or implement policies for the training of such. See Burns v. City of Galveston, 905 F.2d 100, 104 (5th Cir. 1990); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); see also Danese v. Asman, 875 F.2d 1239 (6th Cir. 1989), cert. denied, 494 U.S. 1027, 110 S.Ct. 1473, 108 L.Ed.2d 610 (1990); Belcher v. Oliver, 898 F.2d 32 (4th Cir. 1990).
Because there is no due process requirement requiring officers to be trained to medically screen each pretrial detainee so that the officers will unerringly detect potential suicidal tendencies, a policy, even if it did exist, to not train in such areas can not be said to be a cause of decedent's death. However, as discussed above, this Court found, based on the facts contained in the affidavits of Sheriff Smith, Deputy Pigg, and Jailer Tribble, that these officers and jail staff were, in fact, trained in these areas as well as how to supervise and handle potentially suicidal inmates.
The second policy that allegedly manifests deliberate indifference to the due process rights of decedent is Sheriff Smith's policy of not requiring annual refresher training in recognizing, supervising, and handling potentially suicidal inmates. Assuming arguendo that Sheriff Smith maintained such a policy, it can not be said to be a cause of decedent's death in this case. Again, the sworn affidavits of Sheriff Smith, Deputy Pigg, and Jailer Tribble all state that they were, at the time of the suicide in May 1999, trained and certified in these areas. The affidavits also state that basic corrections courses relating to suicide recognition and prevention had been completed by all officers who came in contact with decedent. The facts show that at the time of the suicide, the jail staff was certified in handling potentially suicidal inmates.
Plaintiff has failed to put forth any evidence of additional training that the jail employees lacked or why a constitutional violation resulted due to the failure to supplement or refresh their training. See Rhyne, 973 F.2d at 393; Benavides v. County of Wilson, 955 F.2d 968, 972 (5th Cir. 1992). This Court recognizes that had the suicide occurred at a time when the jail employees had been employed at the jail for five years with no refresher training, then it could be argued that the failure to refresh their skills contributed to decedent's death. Here, however, the staff had been on the job for roughly four months when decedent committed suicide. Plaintiff's allegation is insufficient to show deliberate indifference.
Thirdly, Plaintiff alleges that Sheriff Smith implemented policies that fail to recognize mental disabilities and impairments as a problem as required by state jail standards. Again, Plaintiff has failed to allege specific examples to support this allegation. Irrespective of an alleged policy to the contrary, the facts in this case show that Sheriff Smith, either directly or by training his employees, had sufficiently identified mental disabilities as a problem.
The facts in this case show that when decedent initially arrived at Childress County jail on March 7, 1999, he was acting in such a manner so as to lead jail officials to believe he was having psychological problems. It was the jail staff, acting under the control of Sheriff Smith, that initiated a civil commitment and psychological evaluation of decedent at the Wichita Falls State Hospital. Decedent was subsequently released from the hospital and allowed to return to society. This act shows recognition of the mental disabilities and impairments of detainees and without specific examples to the contrary, this Court is unable to find that Sheriff Smith maintained a policy that failed to recognize potential mental disabilities as a problem.
Fourth, Plaintiff alleges that Sheriff Smith had a policy not to maintain adequate lifesaving equipment for immediate use in suicide attempts. Viewed in a light most favorable to Plaintiff, the facts of this case reveal otherwise. Because Plaintiff has failed to allege a specific example of this failure, this Court will analyze the events surrounding the discovery of decedent hanging in his cell on May 14, 1999. On that evening, Plaintiff alleges that decedent threatened to commit suicide by snorting crushed tylenol. The allegations show that jail staff immediately placed a call to local poison control officials to determine the effect of snorting tylenol. Once it was deemed a harmless attempt, decedent was returned to his cell around 8:07 p.m. and the 15 minute watch of his cell was resumed.
It is alleged that around 8:25 p.m., decedent was found hanging in his cell. Because of decedent's past violence and propensity to assault jail employees, Sheriff Smith had instructed that decedent's cell was not to be opened unless the sheriff or a deputy was present. Following this order, the employee summoned a deputy before entering the cell. As explained above, this procedure was not objectively unreasonable given the past violent history of the decedent.
Plaintiff admits that a policy was in place that required immediate assistance to inmates committing suicide but argues that such was policy was unclear as it related to decedent. This Court does not agree that the policy was unclear. Upon being cut down from his cell, CPR was attempted on decedent but because the first mask was either broken or did not fit, a new mask had to be retrieved. The fact that the jail had a CPR mask near decedent's cell evidences a policy to maintain lifesaving equipment in the jail. It is unfortunate that the first mask was either broken or not working but, at the most, this constitutes an oversight or negligence on the part of the defendants, not deliberate indifference.
Plaintiff's fifth and sixth allegations are that Sheriff Smith's policies prevented jai employees from immediate intervention and response to a suicide attempt by decedent. It i Plaintiff's contention that requiring the presence of the sheriff or a deputy before opening decedent' cell was unreasonable and contributed to decedent's death. Sheriff Smith's policy of requiring either he or a deputy be present before opening decedent's cell was not unreasonable given decedent'; history of extreme violence toward the jail and its employees. Sheriff Smith's affidavit states that in all his years around inmates, decedent was the most violent and dangerous that he had been ii contact with. Plaintiff's complaint supports this statement. For example, the facts state that during his incarceration, decedent destroyed cells, he assaulted employees, he broke out of restraining chairs, he threatened to kill jailers, and he threw feces on employees. Given these facts, Sheriff Smith's requirement was not unreasonable. While it may have lengthened the response time of jailers to decedent's suicide, it does not show deliberate indifference to the due process rights of the decedent.
In light of the foregoing, this Court concludes that Sheriff Smith, in his supervisory capacity, conducted himself in an objectively reasonable manner with respect to his duty to not act wit] subjective deliberate indifference to the known risk that Freeman might have attempted suicide, and as a result, Sheriff Smith is entitled to summary judgment on grounds of qualified immunity for hi supervisory acts.
II. Personal Involvement
Plaintiff alleges that Sheriff Smith's personal involvement with decedent is a basis for section 1983 liability. Plaintiff alleges that Sheriff Smith's monitoring and evaluation of decedent deprived decedent of his due process rights, specifically the right to be free from excessive force.
In Rankin v. Klevenhagen, 5 F.3d 103 (5th Cir. 1993), the Fifth Circuit laid the groundwork for evaluating a section 1983 excessive force claim by a pretrial detainee against jail employees who claim qualified immunity as a defense to suit.
Generally, pretrial detainees look to the procedural and substantive due process guarantees of the Fourteenth Amendment to ensure provision of their basis needs. See Jacobs v. West Feliciana Sheriffs Department, 228 F.3d 388, 393 (5th Cir.2000) (citing Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). However, in the context of protection from excessive force, the Fifth Circuit has said that the Eight Amendment is the proper benchmark against which a detainee's claim should be analyzed. See Rankin at 106; Valencia v. Wiggins, 981 F.2d 1440, 1446 (5th Cir. 1993), cert. denied, 509 U.S. 905, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993) (quoting Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 998, 117 L.Ed.2d 156 (1992)).
Because Sheriff Smith, as a government official, has pled qualified immunity as a defense to this suit, the first step of the summary judgment analysis is to decide whether Plaintiff has alleged a violation of a clearly established law. See Rankin at 105; see also Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997); Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1982).
To establish a violation of clearly established law and thus satisfy the first prong of the qualified immunity analysis, the plaintiff must show that force was applied "not in a good faith effort to maintain or restore discipline," but rather that the force complained of was administered "maliciously and sadistically to cause harm." See Rankin at 107; Hudson, 112 S.Ct. at 999 (citing Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). Although the plaintiff is no longer required to show a serious injury resulted from the defendant's actions, certainly some injury is still required. See Rankin at 108; Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir. 1993).
In assessing whether force was applied "in good faith," as opposed to "maliciously or sadistically to cause harm," the Hudson court cited several factors which are relevant to the inquiry: 1) the extent of the injury suffered; 2) the need for the application of force; 3) the relationship between the need and the amount of force used; 4) the threat reasonably perceived by the responsible officials; and 5) any efforts made to temper the severity of the response. See Rankin at 107 fn.6 (citing Hudson, 112 S.Ct. at 999).
Assuming arguendo that Plaintiff has showed some injury, there is no showing that defendant's actions were objectively unreasonable in light of all the facts that were presented at the time of the alleged excessive use of force.
Plaintiff alleges that during decedent's incarceration, defendants used physical force to control decedent's behavior and to force decedent to follow their instructions. As a result, Plaintiff alleges the use of force injured decedent and left marks on his body. While Plaintiffs allegation of excessive force and resulting injury are broad generalizations and conclusions, this Court will view them as satisfying the requirement of showing some injury and will now analyze Defendant's actions to determine if they were objectively unreasonable.
Taken in a light most favorable to the Plaintiff, the factual allegations contained in Plaintiff's complaint show that on March 7, 1999, decedent appeared at the Childress County jail for the first time. The allegations further state that during that initial appearance, which resulted from a domestic dispute with the Plaintiff, decedent announced to jail employees an intent to harm himself or take his own life. Plaintiff's allegations state that at such time, defendants restrained decedent both physically and by the use of chemical injections. The factors outlined by the court in Hudson lead to the conclusion that in this instance, the defendants' actions were not objectively unreasonable. First, Plaintiff has failed to show this Court what injury, if any, decedent suffered during this alleged use of excessive force. Secondly, the need to restrain decedent in this instance was great given decedent's threat to take his own lift. Third, Plaintiff has not shown that the force used was more than the need called for; defendants responded to decedent's threat to take his own life by physically and chemically restraining him. Fourth, the threat, as perceived by the jail staff was great. Decedent was brought to the jail following a fight with the Plaintiff. Upon arrival, decedent was combative and threatened to take his own life. This Court can think of few words that would constitute a more significant threat.
A review of the factual allegations contained in Plaintiff's complaint shows no other specific claims of excessive use of force. The allegations state only that during decedent's incarceration, defendants used force to control decedent's actions. This Court concludes that the factual allegations do not show that Sheriff Smith's actions constituted the excessive use of force.
The allegations against Sheriff Smith in his official capacity is an action against Childress County and will be discussed below. See Rhyne v, Henderson County, 973 F.2d 386, 392 (5th Cir.) (citing Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)).
B. Claims Against Childress County
Because this Court has found that Sheriff Smith, in his capacity as supervisor as well as in his personal dealings with the decedent, did not violate the constitutional rights of the decedent, Dedrick Freeman, the claims against Childress County will not be specifically addressed.
C. Claims Against Mike Pigg
Plaintiff alleges that Defendant Pigg's monitoring and evaluation of the decedent violated decedent's right to be free from excessive force. Plaintiff further alleges that Defendant Pigg is liable because he was charged with formulating policies of the jail, training, and supervising the employees of the Childress County jail. These claims are identical to the claims made against Sheriff Smith, which this Court discussed above.
It is the Plaintiff's allegation that, like Sheriff Smith, Deputy Pigg is charged with formulating policies by which decedent's incarceration was controlled. This Court does not agree. Plaintiff has failed to show this Court that Deputy Pigg has been expressly delegated the duty of formulating policies for the Childress County jail. Absent such an express grant of power, we note that under Texas law, it has long been recognized that the county sheriff, not his deputies, is the county's final policymaker in the area of law enforcement, by virtue of the sheriff's election to office. Colle v. Brazos County, 981 F.2d 237, 244 (5th Cir. 1993); Turner v. Upton County, 915 F.2d 133, 136 (5th Cir. 1990); Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980). This Court does not find that Deputy Pigg was charged with formulating policies for the Childress County jail and thus he is not liable in that respect.
Plaintiff has also alleged that as part of his duties as deputy, Defendant Pigg was charged with supervising the employees and agents of the Childress County jail. Plaintiff alleges that the failure of Deputy Pigg to supervise amounted to deliberate indifference to the rights of decedent. Plaintiff has failed to state specific facts that would show that Deputy Pigg had this responsibility.
Under Texas law, the sheriff is charged with supervision of the jail and its procedures. Article 5116, Tex.Rev.Civ.Stat.Ann., imposes on a Texas sheriff the duty of supervising his county's jail:
a) Each sheriff is the keeper of the jail of his county. He shall safely keep therein all prisoners committed thereto by lawful authority, subject to the order of the proper court, and shall be responsible for the safe keeping of such prisoners.
b) The sheriff may appoint a jailer to take charge of the jail, and supply the wants of those therein confined; but in all cases the sheriff shall exercise a supervision and control over the jail.
(Emphasis added). Plaintiff has not shown that, as a deputy, Defendant Pigg was given any responsibility by Sheriff Smith or the legislature to supervise the jail or the jail employees. This Court will not conclude that Defendant Pigg is liable for any alleged faulty supervision.
Plaintiff further alleges, by way of a bare conclusion, that Defendant Pigg, as deputy, was charged with training the employees of the Childress County jail and that such failure to train led to the deprivation of decedent's constitutional rights. Again, Plaintiff has failed to supply any facts that can support a conclusion that Defendant Pigg was responsible for the training of the jail employees. Furthermore, as was discussed above, with regard to the claims against Sheriff Smith, the law does not impose on the sheriff or the county the duty to train its employees to recognize and identify potentially suicidal detainees. See Burns v. City of Galveston, 905 F.2d 100, 104 (5th Cir. 1990); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); see also Danese v. Asman, 875 F.2d 1239 (6th Cir. 1989), cert. denied, 494 U.S. 1027, 110 S.Ct. 1473, 108 L.Ed.2d 610 (1990); Belcher v. Oliver, 898 F.2d 32 (4th Cir. 1990).
Despite the fact that there is no requirement for detection of potentially suicidal detainees, the affidavits of both defendants and Jailer Tribble state that they, and all jail employees, were trained to handle suicidal inmates. Plaintiff has failed to show that Defendant Pigg was responsible for the training of the employees of the Childress County jail.
CONCLUSION
Because the defendants' in this cause of action have pled the affirmative defense of immunity, the plaintiff must present sufficient summary judgment evidence to create a genuine issue of material fact as to any element of the affirmative defense, or summary judgment will be granted for the defendant. Because Plaintiff has failed to support her allegations with specific facts, Defendants' motions are granted as to Plaintiff's 42 U.S.C. § 1983 action alleging a violation of decedent's constitutional rights. Because summary judgment was granted on all claims brought against Sheriff Smith, the claims against Childress County are also dismissed by way of this Order.
Because this Court has dismissed all claims over which is has original jurisdiction, all of Plaintiff's pendent state law causes of action for negligence, negligence per se, personal injury, and wrongful death are dismissed, without prejudice, pursuant to 28 U.S.C. § 1367(a),(c)(3).
It is SO ORDERED.