Hare v. City of Corinth, Miss. ( 1994 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-7192
RICHARD HARE, Natural Father and
Next Friend of Haley Hare, a Minor,
ET AL.,
Plaintiffs-Appellees,
versus
CITY OF CORINTH, MS., a Municipal
Corporation, ET AL.,
Defendants,
FRED JOHNSON, ETC., BILLY BURNS, ETC.,
JAMES DAMONS, ETC., BRENDA MOORE, ETC.,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Mississippi
( October 13, 1994 )
ON REHEARING
Before POLITZ, Chief Judge, KING and DAVIS, Circuit Judges.
POLITZ, Chief Judge:
The opinion of the court issued on June 10, 1994 is withdrawn
and the following is substituted.
On appeal is the claim of qualified immunity by Officer Billy
Clyde Burns, Police Chief Fred Johnson, and police dispatchers
Brenda Moore and James Damons, all members of the police department
of Corinth, Mississippi, in this 42 U.S.C. § 1983 action arising
out of the suicide of Tina Hare in that city's jail. Concluding
that summary judgment was inappropriate because of disputed
questions of fact and, accordingly, that this appeal presents more
than a question of law, the appeal is dismissed.
Background
On the morning of July 4, 1989, Tina Hare was arrested for
petty larceny and forgery and was incarcerated in the city jail in
Corinth, Mississippi. Richard Hare spoke with his wife by
telephone shortly after her arrest. She sounded very frightened;
she had never before been in jail.
At 10:00 a.m. Officer Burns interviewed Tina Hare and learned
of her addiction to dilaudid which she had been funding by forging
checks. He observed that she was depressed and displayed signs of
withdrawal. Sitting in the fetal position she told Burns about her
thoughts of suicide the night before and her feelings of unfitness
as a mother. When Burns left the room briefly she attempted to
destroy the videotape being used to record the interview.
Around noon Tina Hare's parents arrived. She was frantic and
begged her mother to get her out of jail. Officer Burns was aware
of her emotional state and acknowledges that she told him that if
he put her back in the cell she would kill herself. He says that
he did not take her seriously. Her father did. Burns refused to
2
release Tina Hare ostensibly until he could get all the allegedly
forged checks and complete his investigation. In addition, Burns
was displeased with her attempt to destroy the videotape. Despite
the parents' pleas that their daughter be released on bond so that
they could take her to a scheduled appointment at a rehabilitation
center the next day, Burns decided that she would stay in jail that
night. Burns gave the parents his assurance of their daughter's
safety.
During oral argument counsel described pertinent aspects of
the Corinth city jail, its layout and operation. The sole means of
supervision of the interior of the cells was by an audio monitor.
There were camera monitors but they viewed only the hallway of the
jail, affording no visual observations inside the cells. The cells
were located three floors above the dispatcher. Jail trusties
could go on each floor but they did not have keys to the cells.
Only the dispatcher had those keys but the dispatcher was not
allowed to leave the dispatcher's station while on duty.
Burns stated that Chief Johnson instructed him to put Tina
Hare in an isolated cell nearest the camera monitors and trusty
station. Chief Johnson denies that he designated the cell where
she was to be placed. She previously had been strip-searched, and
when Burns put her in a cell he took her shoes and checked for a
belt. Burns saw a blanket on the bunk and considered the
possibility of its fatal use but concluded that Tina Hare did not
have sufficient strength to tear it into strips.
3
Burns told Moore, the dispatcher on duty, about Tina Hare's
withdrawal symptoms and her suicide threat and he told Moore to
keep an eye on her. Burns mistakenly believed that Moore would be
on duty until 10:00 p.m. In fact, at 5:00 p.m. Moore was replaced
by dispatcher Damons. Moore says that she relayed to Damons the
information Burns had provided; Damons denies this.
Burns left the station sometime after 3:00 p.m. At 6:00 p.m.
he called from his home to check on Tina Hare's condition. Burns
told Damons to have the trusty check her every 45 minutes. Damons
sent a trusty to Tina Hare's cell. The trusty found her hanging
from the bars of her cell by a noose fashioned from strips of the
blanket. The trusty had no key for the cell; he immediately
notified Damons. Damons, in accordance with jail procedures, could
not leave his post. He called Burns. Tina Hare was left hanging.
From the summary judgment record before us we cannot determine
whether she was alive or dead when first found by the trusty.
Informed by Damons that Tina Hare was hanging in her cell, Burns
instructed Damons to leave her there until the State Investigator
arrived.
Three and one-half months prior to Tina Hare's suicide another
prisoner had committed suicide in the Corinth city jail by hanging
himself with his belt.
Richard Hare sued Burns, Johnson, Moore, and Damons in their
official and individual capacities as well as the City of Corinth,
Mayor Edward S. Bishop, former Mayor Jack Holt, and the City of
Corinth Board of Aldermen, alleging that the defendants' deliberate
4
indifference to his wife's psychiatric needs violated 42 U.S.C.
§ 1983 and Mississippi's wrongful death statute. After completion
of discovery both parties filed motions for summary judgment. The
district court granted defendants' motion with regard to the state
law claim but refused to grant Johnson, Burns, Moore, and Damons
summary judgment based on qualified immunity in their individual
capacities.1
Analysis
Burns, Johnson, Moore, and Damons maintain that the district
court erred in not granting them summary judgment in their
individual capacities.2 When addressing the qualified immunity
issue we must first consider whether the asserted constitutional
injury involved a clearly established right at the time of the
unfortunate event.3 Thereafter we consider whether the defendants
acquitted their duty to detainee Tina Hare and are entitled to
summary judgment on the grounds of qualified immunity.
A. Clearly Established Constitutional Injury
In reviewing the denial of a summary judgment motion based on
a claim of qualified immunity, the Supreme Court has taught that
the first inquiry is whether the plaintiff has asserted a violation
of a constitutional right. If so, we must then determine whether
1
814 F. Supp. 1312.
2
See Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 86
L. Ed. 2d 411 (1985) (recognizing defendants' right to file an
interlocutory appeal upon denial of qualified immunity).
3
Johnston v. City of Houston, 14 F.3d 1056 (5th Cir. 1994).
5
that right was clearly established at the time the events took
place.4 Hare asserts that the defendants knew or should have known
from a previous suicide the danger of placing his wife in an
isolated cell where she could not be reached or rescued timely
because of the jail configuration and procedures. He further
asserts that by detaining his wife under these conditions, the
defendants acted with deliberate indifference to the possibility
that she would take her own life. Although, as discussed later,
the contours of the right are somewhat different from that
described by Hare, Hare has asserted a violation of a
constitutional right.
To be clearly established, the contours of the constitutional
right "must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right."5 It is not
necessary that there be a case which is factually identical or
which holds the specific action at bar unlawful. Rather, the
unlawfulness of the action must be apparent in light of the
existing law.
4
Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789, 1793,
114 L. Ed. 2d 277 (1991) ("A necessary concomitant to the
determination of whether the constitutional right asserted by a
plaintiff is 'clearly established' at the time the defendant acted
is the determination of whether the plaintiff has asserted a
violation of a constitutional right at all."). Accord Samaad v.
City of Dallas, 940 F.2d 925, 940 (5th Cir.1991) ("In Siegert, the
Court holds that a court addressing a claim of qualified immunity
should first consider 'whether the plaintiff asserted a violation
of a constitutional right at all' before reaching the possibly
unnecessary question of whether the plaintiff asserted a violation
of a 'clearly established' right.").
5
Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034,
3039, 97 L. Ed. 2d 523 (1987).
6
In Estelle v. Gamble6 the Supreme Court held that the eighth
amendment prohibition against cruel and unusual punishment protects
convicted inmates against prison officials who act with deliberate
indifference to their serious medical needs. However, in Bell v.
Wolfish7 the Court made clear that pretrial detainees are shielded
by a broader fourteenth amendment due process right to be free of
punishment. Under Wolfish, a condition of pretrial detainment does
not constitute punishment if it is reasonably related to a
legitimate governmental objective.8
In Partridge v. Two Unknown Police Officers of Houston,9 we
applied Wolfish to an action seeking to recover against jail
officials for the wrongful death of a pretrial detainee who
committed suicide in the jail. Noting that "[p]retrial detainees
are often entitled to greater protection than convicted persons,"
we held that "pretrial detainees are entitled to at least the level
of medical care set forth in Estelle."10 Because the plaintiff had
alleged conduct constituting deliberate indifference, we did not
consider whether breach of a lower standard would visit liability
on the defendants.
6
429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976).
7
441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). See also
City of Revere v. Massachusetts General Hosp., 463 U.S. 239, 103
S. Ct. 2979, 77 L. Ed. 2d 605 (1983) (failure to provide medical care
to a prisoner being apprehended by the police can rise to the level
of a fourteenth amendment due process violation).
8
441 U.S. at 539, 99 S. Ct. 1874, 60 L.Ed.2d at 468.
9
791 F.2d 1182 (5th Cir. 1986).
10
Id. at 1186 (internal quotation omitted).
7
In Cupit v. Jones,11 we considered the question left open in
Partridge -- precisely what duty the jail officials owe a pretrial
detainee in need of medical care. We concluded that
pretrial detainees are entitled to reasonable medical
care unless the failure to supply that care is reasonably
related to a legitimate governmental objective . . .
[W]e believe [the distinction between the medical care
owed to pretrial detainees and that owed to convicted
prisoners] must be firmly and clearly established to
guide district courts in their evaluation of future cases
involving the constitutionality of all conditions imposed
upon pretrial detainees.12
Thus, when Tina Hare committed suicide in 1989, the jail
officials were under a clearly established constitutional duty to
provide pretrial detainees with reasonable care for serious medical
needs, unless the deficiency reasonably served a legitimate
governmental objective.13 The defendants' reliance on Burns v. City
of Galveston14 to support their argument that they are entitled to
qualified immunity unless the plaintiff established deliberate
indifference is misplaced. Burns' suit was against a municipality,
not officers in their individual capacities. Municipalities are
11
835 F.2d 82 (5th Cir. 1987).
12
Id. at 85.
13
See Thomas v. Kipperman, 846 F.2d 1009 (5th Cir. 1988); Van
Cleave v. United States, 854 F.2d 82 (5th Cir. 1988); Simpson v.
Hines, 903 F.2d 400 (5th Cir. 1990) (Cupit clearly established
reasonable medical care standard). Other courts of appeals have
chosen to apply the Estelle standard in the context of pretrial
detainees, rather than the reasonable medical care standard. See,
e.g., Ervin v. Busby, 992 F.2d 147 (8th Cir.), cert. denied, 114
S. Ct. 220, 126 L. Ed. 2d 176 (1993). However, a principle that has
been clearly established within this circuit does not lose its
status simply because other circuits disagree. Boddie v. City of
Columbus, Miss., 989 F.2d 745 (5th Cir. 1993).
14
905 F.2d 100 (5th Cir. 1990).
8
only liable for the policies and customs consciously and
purposefully adopted.15
B. Summary Judgment
We next examine whether the appellants are entitled to
summary judgment on their qualified immunity defense.16 Summary
judgment is proper only if the movant demonstrates an absence of
genuine issues of material fact.17 If disputed factual issues
material to qualified immunity exist summary judgment is not
appropriate.18
The summary judgment record is replete with evidence that the
custodial officers knew or should have known of Tina Hare's
vulnerability to suicide. Her father heard and considered deadly
serious the same threat Burns heard and dismissed. Burns actually
heard additional threatening statements. Burns stated that Chief
Johnson instructed him to place the young woman in the cell nearest
the monitors and trusty station. The chief denies this. Burns
placed her in the cell and checked to see if she had a belt. He
saw the blanket on the bed, realized its potential deadly use, but
opted not to remove it based on his assessment of her lack of
strength to tear it into strips. He shared his concerns with
15
Id. at 103.
16
Johnston v. City of Houston, 14 F.3d 1056 (5th Cir. 1994).
17
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91
L. Ed. 2d 265 (1986).
18
Feagley v. Waddill, 868 F.2d 1437 (5th Cir. 1989).
9
dispatcher Moore and instructed her to keep an eye on Tina Hare and
to alert the trusties to do likewise. These actions would be
consistent with a real and valid concern that the detainee might
attempt suicide, as was Burns' call to the station to inquire about
her condition shortly after arriving home. Burns was under the
impression, when he left the jail just after 3:00 p.m., that Moore
would be the dispatcher until 10:00 p.m. He was in error; Damons
relieved Moore at 5:00 p.m. As noted, Moore says she relayed
Burns' concerns and instructions; Damons denies receipt of same.
Hare faults the individual defendants for placing his wife,
who the officers knew was potentially suicidal, in an isolated cell
which was not visually monitored and which could not be reached by
the trusty or dispatcher on duty. Because of the suicide three and
one-half months before, the custodial officers arguably knew that
if Tina Hare attempted suicide they could not meaningfully respond
to her needs, giving due consideration to the jail layout and the
practices and procedures in place.19 Nevertheless Tina Hare was
placed in the isolated cell and, after being discovered, she was
19
During oral argument counsel for the defendants argued that
these claims cannot be lodged against the defendants in their
individual capacities because they were following orders and
procedures. Whether the steps taken by the individual defendants
were pursuant to established policy is yet to be determined. The
Eighth Circuit addressed the argument posed by counsel in
Villanueva v. George, 659 F.2d 851 (8th Cir. 1981) (en banc),
holding that while officers may assert qualified immunity if they
were following orders, "if they knew or should have known that
their [failure to act was] violating the plaintiff's constitutional
rights, ... they may not hide behind the cloak of institutional
loyalty." Id. at 855. We agree with our Eighth Circuit
colleagues. It is for the jury to determine whether these officers
knowingly failed to remedy unconstitutional conditions of
confinement.
10
left hanging for an indeterminate time. It is for the
trier-of-fact to determine whether under these circumstances
appellants denied Tina Hare reasonable medical care and, if so,
whether a legitimate governmental objective justified this denial.
At the very least a genuine factual dispute is presented which
renders summary judgment inappropriate. Because this appeal
presents more than a pure question of law the denial of summary
judgment is not appealable and this appeal is, accordingly,
DISMISSED.20
20
Mitchell; Johnston; Feagley.
11