IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 90-4484
ANN RHYNE, Plaintiff-Appellant,
versus
HENDERSON COUNTY, ET AL., Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of Texas
( September 14, 1992 )
Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Ann Rhyne brings this action against Henderson County and its
sheriff, Charlie Fields, in his official capacity, under 42 U.S.C.
§ 1983, alleging that the County's failure to provide her son, Paul
Morrow, with reasonable medical care resulted in his suicide.1
Rhyne appeals a directed verdict and dismissal of state-law claims.
We find no substantial evidence that Henderson County failed to
provide the medical care required by the United States Constitution
1 The other defendants, the City of Athens, David Harris, police chief of the City of Athens, Lakeland Medical Center, have been dismissed from the case, and Ann Rhyne does not appeal their dismissal. and affirm. We also affirm the dismissal of Rhyne's state-law
claims.
I.
On Friday afternoon, May 30, 1986, Henderson County deputy
sheriff Jim Ellis arrested Paul Morrow and took him to Henderson
County jail. At 3:30 a.m., the deputy jailer on duty, Kevin
Harris, found Morrow hanging semi-conscious from the cell bars by
a make-shift rope that he had fashioned from a jail blanket in his
cell.
Morrow was taken to Lakeland Medical Center in Athens, Texas
by ambulance. While Morrow was at Lakeland, he telephoned his
mother and told her that he had attempted to commit suicide and
would try to kill himself again. Morrow was also examined by Dr.
David Callanan, who concluded that Morrow was a suicide risk.
Lakeland, however, lacked psychiatric facilities and Athens police
returned Morrow to Henderson County jail at about 5:30 a.m.
After Morrow returned to jail, Harris removed Morrow's clothes
except for his underwear and cuffed his hands to a waistband belt
to prevent further suicide attempts. Harris also placed Morrow in
a "book-in" cell close to the front of the jail where he could be
carefully watched and removed all blankets and mattresses from the
At 6:00 a.m., after Harris had been relieved by Deputy Jailer
DeWitt Loven, Chief Jailer Dennis Benton arrived at the jail.
Benton transferred Morrow to the misdemeanor tank and placed him in
a strait jacket. At about 7:25 a.m., Benton and Loven heard an
2 inmate yell that Morrow was trying to kill himself. Morrow had
removed his strait jacket and had attempted to hang himself with
the jacket.
On the advice of Chief Sheriff's Deputy Maureen Padgitt,
Benton called Henderson County Mental Health and Mental Retardation
to conduct a mental evaluation of Morrow and try to send him to a
hospital. Thomas Tinsley, the director of mental health at MHMR,
visited the jail at 8:30 a.m. and, after examining Morrow,
concluded that he should be committed to Rusk State Hospital on an
"emergency warrant" for psychological evaluation. Tinsley
possessed signed emergency warrants authorizing the emergency
detention of convicts at Rusk State Hospital for 24 hours on a
weekday and 72 hours on a weekend. Tinsley testified that the
County Court supplied him with such warrants, because it had
delegated to him the power of transferring convicts to Rusk in a
temporary emergency.
However, after talking to Deputy Sheriff Ellis, Tinsley
learned that Morrow had charges pending against him. The warrants
in Tinsley's possession, according to Tinsley's testimony at trial,
could not be used to commit pre-trial detainees. Morrow could not
be committed without a warrant, because Rusk State Hospital "could
not confine someone without some formal court order telling them
to." According to both Tinsley and Deputy Sheriff Padgitt, the
Sheriff's office could not transfer Morrow without a court order,
because the Sheriff's Office lacked authority to drop the charges
against Morrow.
3 Therefore, Tinsley advised Benton to maintain Morrow in
custody until Monday and then obtain a court order through the
District Attorney's office authorizing Morrow's transfer to the
maximum security unit at Rusk State Hospital. He apparently
believed that Morrow could be transferred for an evaluation of his
competence to stand trial. Tinsley also advised that Morrow be
watched carefully until Monday. Morrow promised Tinsley that he
would not attempt to take his life again, but Tinsley left the jail
with misgivings, fearing further attempts at suicide.
After Tinsley left, Benton gave Morrow a blanket because
Morrow, still wearing nothing but his underwear, seemed cold. The
officers did not put the strait jacket back on Morrow, and he was
not put into the "book-in" cell in the front of the jail. Rather,
he was put into the misdemeanor tank, which was not clearly visible
from the front desk. Saturday morning passed uneventfully at the
jail. At some time during the morning, County Court Judge Winston
Reagan called the jail and spoke with Loven, the deputy jailer on
duty. Loven could not recall what was said during this call.
However, Loven did not mention Morrow's two suicide attempts to the
County Court judge.
Saturday morning was not so tranquil for Rhyne. Distraught
from her conversation with her son when he was at Lakeland, she
consulted with an attorney at 11:00 a.m. in an effort to have
Morrow committed to an institution where he could receive proper
psychiatric care. When visiting hours began at 1:00 p.m., Rhyne
visited Morrow in jail with her daughter, Ann Griffin. Morrow
4 cried during their interview and declared once more that he would
try to kill himself again. There is a factual dispute as to
whether either Griffin or Rhyne informed any jail employee that
Morrow had repeated his threat to kill himself.
Rhyne also called the Henderson County jail and asked Deputy
Jailer Loven for advice as to how Morrow could be transferred from
the jail to a hospital. Loven advised her to call Judge Winston
Reagan with whom he had spoken earlier that morning. Rhyne
explained that she had called the Judge at his home but that the
Judge's wife informed her that he was at the courthouse. Rhyne
asked Loven to help her reach Judge Reagan, but Loven declined.
Loven testified at trial that
"I could not take a stand [because] not being a psychologist, I could not say the boy was mentally disturbed or not. There was just nothing for me that I could legally do other than point her in the right direction on how to go through the legal steps to get it done."
Loven's notes recording his conversation with Rhyne stated that he
told her that "if I took any stand in the matter Paul could sue
me." After failing to obtain any assistance from Loven, Rhyne
decided to wait at her home until 9:00 p.m. when Judge Reagan was
due to arrive back at his house.
Events on Saturday evening, however, made Judge Reagan's
arrival moot. At about 7:15 p.m., Deputy Jailer Kluth heard an
inmate yell "he's doing it again." Kluth discovered Morrow once
more hanging from the prison bars by a strip of the jail's blanket
given to Morrow by Benton. Morrow was unconscious. Rhyne was
5 informed of this suicide attempt at 8:00 p.m. Morrow died in a
Tyler hospital nine days later, having never revived from his coma.
II.
The County contends that Rhyne cannot recover for her son's
wrongful death under § 1983 unless she proves that the County acted
with specific intent to deprive her of a familial relationship.
Otherwise, the argument continues, Rhyne would lack standing,
because she would have suffered no personal injury in her own right
as a result of the County's alleged violation of her son's
constitutional rights.
Rhyne does not seek to recover as a representative of her
son's estate for the injuries that her son incurred. There has
been no administration of her son's estate, and she has not brought
this action in her representative capacity. Rather, Rhyne seeks to
recover for her own injuries arising out of the wrongful death of
her son. The right to such recovery under § 1983 has "generated
considerable confusion and disagreement," Crumpton v. Gates, 947
F.2d 1418, 1420 (9th Cir. 1991), over which the circuits have
divided. Compare Jaco v. Bloechle, 739 F.2d 239, 243 (6th Cir.
1984) and Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984).
The Supreme Court has yet to decide this question. See Steven H.
Steinglass, Wrongful Death Actions and Section 1983, 60 Ind. L. J.
559, 565 (1985).
This court first addressed the issue of wrongful death
recovery under § 1983 in Brazier v. Cherry, 293 F.2d 401, 409 (5th
Cir. 1961). In Brazier, a widow sued for the wrongful death of her
6 husband, allegedly beaten to death by a County Sheriff and other
police officers. The widow sought damages to compensate the estate
for injuries incurred by her husband. She also sought compensation
for the pecuniary loss that she suffered from her husband's death.
Brazier, 293 F.2d at 402 n.1. This court held that 42 U.S.C.
§ 1988 incorporated both Georgia's survival statute and Georgia's
wrongful death statute to provide full remedies for violations of
constitutional rights. Id. at 409.
The Brazier court reasoned that, unless the decedent's cause
of action survived his death, the remedies provided by § 1983 would
fail when the injury is death. Id. at 407-09. The court
concluded that such an anomalous result indicated that the remedies
under § 1983 were deficient without the support of state law. The
court held that § 1983 incorporated Georgia's wrongful death and
survival statutes as remedies under § 1983. Id.
Much of Brazier's discussion concerned the survival of the
decedent's claim, as opposed to the widow's right to recover for
her own injuries arising out of her husband's death. However, the
court held that both Georgia's wrongful death and survival statutes
were incorporated into federal law under § 1988, stating
"Since Georgia now provides both for survival of the claims which the decedent had for damages sustained during his lifetime as well as a right of recovery to his surviving widow and others for homicide, . . . we need not differentiate between the two types of actions. To make the policy of the Civil Rights Statutes fully effectual, regard has to be taken of both classes of victims. Section 1988 declares that this need may be fulfilled if state law is available. Georgia has supplied the law."
Brazier, 293 F.2d at 409.
7 In Grandstaff v. City of Borger, 767 F.2d 161, 172 (5th Cir.
1985), this court allowed a father to recover for the loss of
society and companionship incurred by the wrongful death of his
son. In reaching this result, the Grandstaff court stated simply
that "[w]e look to Texas law for guidance on the damages
recoverable for [plaintiff's son's] death." Id. As Judge
Garwood's dissent in Grandstaff noted, the plaintiff in Grandstaff
was not recovering damages that were a "rough proxy for the
deceased's damages" but rather was recovering damages for an injury
that the parent suffered in his own right. Grandstaff, 767 F.2d at
173 n.* (Garwood, J., dissenting).
Under Brazier and Grandstaff, Rhyne has standing to recover
for her own injuries arising out of the wrongful death of her son.
There is no dispute that Rhyne is within the class of people
entitled to recover under Texas law for the wrongful death of a
child. See Tex. Civ. Prac. & Rem. § 71. Both Brazier and
Grandstaff hold that § 1988 incorporates this wrongful death
remedy into § 1983, allowing Rhyne to recover under § 1983 for her
own injuries resulting from the deprivation of her son's
Henderson County contends that Rhyne cannot have standing
unless she proves that the County intended to deprive her of her
familial association with her son in adopting those policies that
led to her son's death, pointing to Trujillo v. Bd. of County
Commissioners, 768 F.2d 1186 (10th Cir. 1985). The Trujillo court
held that the mother and sister of the decedent could not recover
8 under § 1983 for Trujillo's wrongful death unless they proved that
the defendants had been motivated by an intent to interfere with
the Trujillos' right of familial association in unconstitutionally
causing Richard Trujillo's death. Id. at 1190. The Trujillo court,
therefore, affirmed the district court's dismissal of the § 1983
action.
We recognize the strength of the argument that, unlike
survival statutes, wrongful death statutes arguably create new
causes of action and therefore ought not to be incorporated by
§ 1988. See Jaco, 739 F.2d at 242-43; Martin A. Schwartz & John E.
Kirklin, 1 Section 1983 Litigation: Claims, Defenses, and Fees,
730-31 (2nd ed. 1991). But see Berry v. City of Muskogee, 900 F.2d
1489, 1504-05 & n.21 (10th Cir. 1990) (noting that wrongful death
statutes "create new causes of action in the most technical sense"
but that they are essentially remedial, to enforce "substantive
right . . of decedent"); Steinglass, Wrongful Death Actions, 60
Ind. L.J. at 620-21 (suggesting that the "better view is that
courts should be able to use § 1988 to incorporate state wrongful
death actions in § 1983"). We also acknowledge that allowing suit
by the parent in her own right is not an inevitable companion of a
wrongful death statute. At the same time, Texas wrongful death law
provides Rhyne with the right to recover for her son's wrongful
death and she can recover for injury to herself caused by her son's
death. To be more precise, our decisions allow recovery by Rhyne
for her injury caused by the state's deprivation of her son's
constitutionally secured liberty interests. We need not say more
9 here because Rhyne was not entitled to go to the jury on the
question of whether there was a constitutional violation, as we
will explain.
III.
We apply Boeing v. Shipman, 411 F.2d 365, 374-75 (5th Cir.
1969) (en banc), viewing the directed verdict. We find no
substantial evidence of a deliberately indifferent policy of
Henderson County that deprived Morrow of reasonable medical care.
Rhyne alleges that Henderson County deprived her son of the
medical care required by the due process clause of the Fourteenth
Amendment. Pre-trial detainees are entitled to a greater degree of
medical care than convicted inmates. They must be provided with
"reasonable medical care, unless the failure to supply it is
reasonably related to a legitimate government objective." Cupit v.
Jones, 835 F.2d 82, 85 (5th Cir. 1987); Boston v. Lafayette County,
Mississippi, 744 F. Supp. 746, 752 (N.D. Miss. 1990).
The failure to provide pre-trial detainees with adequate
protection from their known suicidal impulses is actionable under
§ 1983 as a violation of the detainee's constitutional rights.
Burns v. City of Galveston, Texas, 905 F.2d at 104; Partridge v.
Two Unknown Police Officers of Houston, 791 F.2d 1182, 1188 (5th
Cir. 1986). There is no dispute about Morrow's suicidal
tendencies. He had attempted suicide twice and had been diagnosed
by Dr. Callanan as suicidal. Mr. Tinsley, the director of the
County MHMR, had recommended that Morrow be sent to Rusk State
Hospital because he was a high suicide risk.
10 There is also little question that a jury could find that the
jail staff was negligent in their care of Morrow. Despite Morrow's
obvious suicidal tendencies, the jail staff placed Morrow alone in
a cell where he could not be continuously observed. They also
unwittingly gave him the tool he used to hang himself.
Rhyne, however, cannot prevail by showing that the jail staff
failed to provide reasonable medical care. The suit is against
Henderson County.2 Rhyne must show that the County violated her
son's constitutional rights.
A municipality, of course, can act only through its human
agents, but it is not vicariously liable under § 1983. Oklahoma
City v. Tuttle, 471 U.S. 808, 817-18, 105 S.Ct. 2427, 2433 (1985)
(plurality); Monell v. Department of Social Services, 436 U.S. 658,
691 (1978); Benavides v. County of Wilson, Texas, 955 F.2d 968, 972
(5th Cir. 1992). Henderson County can be held liable for its non-
policy-making employees' acts only if its employees were carrying
out Henderson County's policies when they acted. City of Canton,
Ohio v. Harris, 109 S.Ct. 1197, 1205-06 (1989). Therefore, Rhyne
may recover under § 1983 only if she shows that some County custom
or policy caused the Henderson County jail staff to deprive her son
of reasonable medical protection from his own suicidal tendencies.
Burns v. City of Galveston, Texas, 905 F.2d 100, 102 (5th Cir.
1990).
2 The action against Sheriff Fields in his official capacity is an action against the County. Kentucky v. Graham, 473 U.S. 159 (1985).
11 A municipal "policy" must be a deliberate and conscious choice
by a municipality's policy-maker. City of Canton, Ohio v. Harris,
109 S.Ct. 1197, 1205 (1989) (quoting Pembaur v. City of Cincinnati,
106 S.Ct. 1292, 1300 (1986) (plurality)). While the municipal
policy-maker's failure to adopt a precaution can be the basis for
§ 1983 liability, such omission must amount to an intentional
choice, not merely an unintentionally negligent oversight. City of
Canton, 109 S.Ct. at 1204; Manarite v. City of Springfield, 957
F.2d 953, 959 (1st Cir. 1992).
The Supreme Court has held that municipal failure to adopt a
policy does not constitute such an intentional choice unless it can
be said to have been "deliberately indifferent." City of Canton,
109 S.Ct. at 1205. A failure to adopt a policy can be deliberately
indifferent when it is obvious that the likely consequences of not
adopting a policy will be a deprivation of constitutional rights.
Id. Consider, for example, a municipality that arms its officers
with firearms, knowing to a moral certainty that the armed officers
will arrest fleeing felons. The municipality would be
deliberately indifferent in failing to train the officers properly
in the use of deadly force, because the likelihood of
unconstitutional consequences of the municipality's omission is
obvious. Id. at 1205 n.10.
With these principles in mind, we examine the policies accused
by Rhyne. We find the evidence insufficient to create a jury
question concerning whether Henderson County acted with deliberate
indifference in adopting policies regarding care of inmates known
12 to be suicidal. Put another way, a reasonable juror could not find
that Henderson County adopted policies creating an obvious risk
that pre-trial detainees' constitutional rights would be violated.
Rhyne describes four County policies that caused the jail
staff to fail to provide her son with reasonable medical care.
First, she contends that the Sheriff failed to adopt a policy of
continuously observing suicidal inmates, making their suicide more
likely. Second, Rhyne argues that the County did not adequately
train the jail staff to provide reasonable medical care for
detainees. Third, she argues that the County had a policy of
relying on the County MHMR or detainees' relatives to obtain the
necessary paperwork. Finally, Rhyne argues that the County acted
with deliberate indifference in relying exclusively on Rusk State
Hospital to provide psychiatric care for inmates.
The record is insufficient to support a jury question as to
the existence of a policy of inadequate training for the jail
staff. Admittedly, the staff's behavior on the weekend of Morrow's
suicide did not reflect skill and good judgment: the staff failed
to place Morrow in a cell where he would be readily visible, and
Chief Jailer Benton provided Morrow with the blanket with which
Morrow eventually hanged himself. However, there was no evidence
presented at trial concerning the level of training that the staff
possessed, the additional training they lacked, or why it would be
obvious that a constitutional violation would result from the
absence of the latter. There was also no evidence that any
incompetence was the result of inadequate training. Absent such
13 evidence, we cannot find a genuine fact question concerning the
existence of a policy of inadequate training. Benavides v. County
of Wilson, 955 F.2d 968, 972 (5th Cir. 1992).
We also cannot find evidence sufficient to create a jury
question that the County's failure to provide continuous
observation of known suicidal inmates constituted a deliberately
indifferent method of conducting suicide watches. We assume
arguendo that the jury could find from the evidence that Henderson
County's policy was not to place known suicidal inmates under
continuous observation but rather to check up on them every five to
ten minutes.
However, even if the jury could conclude that Henderson
County's policy did not involve continuous observation of suicidal
inmates, there is no evidence that such a policy was deliberately
indifferent. The County was not indifferent in the literal sense
of the word to the known risk of suicide: its policy, according
to testimony on which Rhyne relies, was to check on suicidal
inmates every ten minutes--about six times as often as non-suicidal
inmates were checked. This effort indicates not apathy, but
concern. Rellergert v. Cape Girardeau County, Missouri, 924 F.2d
794, 797 (8th Cir. 1991).
The periodic checks may have been inadequate. See Lindsay M.
Hayes, And Darkness Closes In: A National Study of Jail Suicides,
10 Crim. Just. & Behav. 461, 482 (1983) ("Inmates exhibiting
suicidal behavior should be placed in the general population of the
jail and/or kept under 24-hour 'eye contact' supervision").
14 Arguably the jury might conclude that the Sheriff was negligent in
not requiring more continuous observation, but that, of course, is
not enough under § 1983. Absent evidence that frequent periodic
checks were obviously inadequate, we cannot find a jury question as
to deliberate indifference.
There was no such evidence. Rhyne produced no evidence of
suicide attempts at the Henderson County jail that would have
alerted the Sheriff to the need for more frequent suicide checks.
There was also no evidence of objective jail standards requiring
continuous watches as opposed to checks every ten minutes. The
difference between frequent periodic checks and "continuous
observation" is one of degree. Without evidence showing that the
higher level of care was obviously necessary, we cannot see how the
jury could conclude that the lower level of surveillance was
deliberately indifferent.
We find no jury question as to whether Henderson County's
failure to obtain commitment orders for pre-trial detainees is
deliberately indifferent. We assume arguendo that the jury could
find that Henderson County had a policy of refraining from
obtaining such orders, instead relying on the County MHMR or the
inmates' parents to deliver the needed emergency warrant for
commitment. However, there was no substantial evidence that such
a policy would obviously lead to the violation of pre-trial
detainees' constitutional right to reasonable medical care.
It is significant that Sheriff Field's policy was not simply
to ignore the needs of suicidal inmates. On the contrary, the
15 undisputed evidence shows that the Sheriff had a policy of taking
affirmative steps to obtain psychiatric care for jail inmates. He
arranged to have the County MHMR examine suicidal inmates, make
recommendations about their treatment, and obtain court orders for
inmates in need of commitment. Unfortunately, on the weekend of
Morrow's suicide, Mr. Tinsley had access only to court orders for
the commitment of convicts, not pre-trial detainees. The reliance
on the County MHMR in this particular case, therefore, had the
apparently unforeseen consequence of impeding Morrow's access to
Rusk State Hospital.
The reliance on MHMR to commit suicidal inmates, by itself,
raises no question of deliberate indifference. Commitment to
mental institutions may deprive inmates of constitutionally
protected liberty interests. Vitek v. Jones, 445 U.S. 480, 491-94
(1980). Jail staff lacking psychiatric training might
understandably be wary of applying to the courts directly to place
an inmate in a mental institution--even an obviously suicidal
inmate like Paul Morrow. Benavides, 955 F.2d at 975 (Sheriff is
not deliberately indifferent in relying on doctors' certification
of jailers' fitness for police work).
After Tinsley informed the deputies that he lacked the court
orders needed for commitment of pre-trial detainees, the deputies
arguably should have taken the initiative in contacting a judge to
commit Morrow. Their failure to do so may have been the result of
Sheriff Fields' failure to install a back-up mechanism for
obtaining court commitment orders. Arguably, Sheriff Fields was
16 negligent in failing to anticipate that MHMR might be unable to
obtain warrants for the emergency commitment of pre-trial
detainees.
However, absent some evidence--past experience with suicidal
inmates, past failure of MHMR, objective jail standards, etc.--that
MHMR would obviously be unable to deliver the required court orders
on request, the Sheriff's failure to provide such a back-up process
cannot be described as a deliberate policy choice. Rhyne failed to
provide such evidence. There was no evidence that MHMR had ever
failed to deliver commitment orders when needed in the past. There
was also no evidence that any prisoner had ever committed suicide
at the Henderson County jail because he could not be moved promptly
to Rusk State Hospital. At most, Rhyne's evidence raises a fact
question as to whether the Sheriff had been guilty of a negligent
oversight. Such negligence cannot be the basis for § 1983
liability.
Rhyne contends that the County irrationally distinguished
between pre-trial detainees and convicts. According to Rhyne, the
County had a policy of obtaining emergency warrants for convicts
but not for pre-trial detainees. However, this inference is
unwarranted, because there is no evidence that Sheriff Fields or
any other jail personnel were aware, prior to the weekend of
Morrow's suicide, that MHMR could obtain emergency warrants only
for convicts and not for pre-trial detainees. The evidence shows,
at most, that Henderson County deliberately relied on MHMR to
obtain the needed paperwork without providing a back-up system for
17 obtaining the needed process and that this reliance misfired in the
individual case of Paul Morrow.
Rhyne finally argues that Henderson County was deliberately
indifferent to pre-trial detainees' reasonable medical needs
because it relied exclusively on Rusk State Hospital for inmate
psychiatric care. Rhyne argues that reliance on Rusk State
Hospital was deliberately indifferent because Rusk State Hospital
required commitment orders before it would accept jail inmates for
psychiatric treatment. This argument is essentially a restatement
of her argument that Henderson's County's failure to obtain
commitment orders was deliberately indifferent. Given that there
was no deliberate indifference in failing to obtain the court
order, ipso facto there can be no deliberate indifference in
relying on a hospital that required the court order.
IV.
In addition to her § 1983 claim, Rhyne brought what was then
a pendent state-law claim against the County under the Texas Tort
Claims Act, Tex. Civ. Prac. & Rem. Code § 101.001 et seq., alleging
that Henderson County was responsible for the wrongful death of her
son because of their negligent use of County property--the sheet,
blanket, and jail facilities used by Morrow in his suicide. The
district court dismissed Rhyne's pendent state-law claims without
prejudice, giving as a reason only that "[t]he Court exercises its
discretion in declining to consider the pendent state law claims."
Federal court jurisdiction over pendent state-law claims is
now governed by 28 U.S.C. § 1367, which provides that
18 "in any civil action in which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution."
28 U.S.C. § 1367(a) (West Supp. 1992). Under § 1367(c)(3), "the
district court may decline to exercise supplemental jurisdiction
over a claim under subsection (a) if--. . . (3) the district court
has dismissed all claims over which it has original jurisdiction."
The district court has properly dismissed all of the federal
questions that gave it original jurisdiction in this case.
Therefore, we find that the district court's dismissal of the
state-law claims was proper under 28 U.S.C. § 1367(c)(3).
AFFIRMED.
GOLDBERG, Circuit Judge, concurring specially:
"Experience is the name everyone gives to their mistakes."3
I concur in Judge Higginbotham's well-written, well-reasoned,
opinion because I too agree that the plaintiff's case suffered from
critical evidentiary deficiencies. Plaintiff did not sustain her
burden of proving that this defendant-municipality acted with
deliberate indifference towards the mental health needs of pretrial
detainees. These jail officials undertook commendable efforts to
provide, what they believed to be, reasonable mental health care.
3 Oscar Wilde, Lady Windmere's Fan, Act III (1892).
19 Their efforts fell short, and, as a result, a man in their custody
succeeded in taking his own life.
Fortunately, the policymakers in charge can learn from their
mistakes and take the necessary additional steps to insure the
safety of pretrial detainees in need of mental health care. Other
municipalities should also take heed of the tragic consequences
which are likely to ensue in the absence of adequate safety
measures to deal with detainees displaying suicidal tendencies.4
What we learn from the experiences of Henderson County is that
when jailers know a detainee is prone to committing suicide, a
policy of observing such a detainee on a periodic, rather than on
a continuous, basis, will not suffice;5 that vesting discretion in
4 Ours is not the first case involving a detainee suicide. See, e.g., Bowen v. City of Manchester, --- F.2d ---, 1992 WL 119837 (1st Cir. June 5, 1992); Barber v. City of Salem, 953 F.2d 232 (6th Cir. 1992); Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir. 1991); Colburn v. Upper Darby Township, 946 F.2d 1017, 1022, 1030 (3d Cir. 1991); Rellergert v. Cape Girardeau County, 924 F.2d 794, 797 (8th Cir. 1991) Buffington v. Baltimore County, 913 F.2d 113 (4th Cir. 1990); Popham v. City of Talladega, 908 F.2d 1561 (11th Cir. 1990); Lewis v. Parish of Terrebonne, 894 F.2d 142 (5th Cir. 1990); Cabrales v. County of Los Angeles, 846 F.2d 1454 (9th Cir. 1988), reinstated, 886 F.2d 235 (9th Cir. 1989), cert. denied, 110 S.Ct. 1838 (1990); Partridge v. Two Unknown Police Officers of Houston, 791 F.2d 1182 (5th Cir. 1986). 5 See Simmons, 947 F.2d 1042, 1071 n.28 (3d Cir. 1991) (opinion of Becker, J.) ("[T]he City's police directives concerning the fifteen minute checks, the double celling of detainees, and the removal of personal articles do not, in and of themselves, preclude the City's constitutional liability for a policy or custom tainted by deliberate indifference."); Lewis, 894 F.2d at 145 (evidence was sufficient to support jury verdict that warden was deliberately indifferent when he placed detainee in solitary confinement knowing that detainee had suicidal tendencies and should not be left alone); cf. Colburn v. Upper untrained jail personnel to assess the need for, and administer,
mental health care, will not be responsive to the medical needs of
mentally ill detainees;6 and that delegating the task of providing
mental health care to an agency that is incapable of dispensing it
on the weekends will endanger the well-being of its emotionally
disturbed detainees.7 We need not remind jailers and
municipalities that the Constitution works day and night, weekends
and holidays -- it takes no coffee breaks, no winter recess, and no
summer vacation.
So the plaintiff in this case did not prove that Henderson
County adopted its policy of handling suicidal detainees with
deliberate indifference to their medical needs. But that does not
Darby Township, 946 F.2d 1017, 1022, 1030 (3d Cir. 1991) (no deliberate indifference where detainees monitored continuously by means of a video camera and a closed circuit television); Rellergert v. Cape Girardeau County, 924 F.2d 794, 797 (8th Cir. 1991) (no deliberate indifference where "policy used by the Sheriff's office ... represent[ed] affirmative and deliberate steps to prevent suicides by subjecting suicidal inmates to nearly constant watch."). 6 Cf. Colburn, 946 F.2d at 1022, 1030 (municipal policy not deliberately indifferent because detainees were provided with any necessary medical attention, and a crisis intervention officer, trained to handle emergency situations including suicides, was on call during each shift); Cabrales v. County of Los Angeles, 846 F.2d 1454, 1461 (9th Cir. 1988) (medical understaffing at the jail amounted to a policy of deliberate indifference), reinstated, 886 F.2d 235 (9th Cir. 1989), cert. denied, 110 S.Ct. 1838 (1990). 7 See Cabrales, 846 F.2d 1454 at 1461 ("Access to medical staff has no meaning if the medical staff is not competent to deal with the prisoners' problems."); cf. Colburn, 946 F.2d at 1022, 1030 (no deliberate indifference where trained personnel were on call during every shift).
21 insulate Henderson County, or any other municipality, from
liability in future cases. Jailers and municipalities beware!
Suicide is a real threat in the custodial environment. Showing
some concern for those in custody, by taking limited steps to
protect them, will not pass muster unless the strides taken to deal
with the risk are calculated to work: Employing only "meager
measures that [jailers and municipalities] know or should know to
be ineffectual" amounts to deliberate indifference.8 To sit idly
by now and await another, or even the first, fatality, in the face
of the Henderson County tragedy, would surely amount to deliberate
indifference.
Comforted somewhat, and certainly hopeful, that jailers and
municipalities everywhere can learn from the mistakes of Henderson
County, I concur.
8 See Simmons, 947 F.2d at 1071 n.28 (rejecting the dissent's position that "the implementation of some measures intended to reduce the risk of suicides in the City's lockups negates the possibility that the City policymakers could be found to have been anything more than negligent in addressing the medical needs of ... suicidal detainees.").