Romero v. Donley County Tx

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-10971 Summary Calendar _____________________

DEANA ROMERO, Individually and as Legal Representative of the Estate of Conrad James Romero,

Plaintiff-Appellee,

versus

DONLEY COUNTY, TEXAS; TONI LYNN BOHLAR, Deputy, Individually and in her official capacity,

Defendants,

and

WILLIAM J. THOMPSON, Individually and in his official capacity as the Donley County Sheriff; CHARLES EDWARD BLACKBURN, Deputy, Individually and in his official capacity,

Defendants-Appellants.

_______________________________________________________

Appeal from the United States District Court for the Northern District of Texas (2:94-CV-22) _______________________________________________________

May 14, 1996

Before REAVLEY, DUHÉ and WIENER, Circuit Judges.

PER CURIAM:*

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. William Thompson and Charles Blackburn, claiming qualified

immunity from suit, bring this interlocutory appeal of a district

court order denying their motion for summary judgment. We

dismiss the appeal as to Thompson and Blackburn in their official

capacities, and reverse the summary judgment as to Thompson and

Blackburn individually.

BACKGROUND

Defendant Thompson is the Sheriff of Donley County, Texas.

He arrested Conrad Romero on burglary charges on February 13,

1992, and transported Romero to the Donley County jail, arriving

at the jail at about 1:00 a.m. on February 14, 1992. Defendant

Blackburn, a deputy sheriff, was at the jail at the time of

Romero’s arrival. Blackburn filled out certain jail intake

forms, including one where he indicated that the inmate did not

exhibit behavior suggesting the risk of suicide. Thompson

directed Blackburn to place Romero in the jail’s day room.

The day room contained a 40-foot long orange extension cord

attached to a television set. The toilet area of the day room

was screened, and over the toilet was a metal bar or pipe.

Deputy sheriff Toni Bohlar was the only jailer on duty at the

time of Romero’s suicide.1 Pursuant to Sheriff Thompson’s policy

the day room was off-limits to female officers. The evidence is

disputed as to whether Bohlar made inmate checks every thirty

minutes, as she claimed. She admitted that she could not see

1 Bohlar was also sued in this case, but the district court granted summary judgment in her favor.

2 Romero when she made her checks. An inmate trustee found Romero

hanging from the bar over the toilet at 5:55 a.m. Romero had

used the extension cord to hang himself.

Fifteen months earlier, another pretrial detainee, Juan

Silva, had committed suicide by hanging himself in one of the

cells at the jail.2 Plaintiff in our case claims that even after

this suicide the training of jail personnel in suicide detection

and prevention was woefully inadequate, as was the level of

staffing.

Romero’s widow brought this suit individually and on behalf

of the estate of Romero, asserting violation of Romero’s civil

rights under 42 U.S.C. § 1983 and state law claims. Defendants

Thompson and Blackburn appeal the district court’s order denying

their motion for summary judgment.

DISCUSSION

An interlocutory order denying a motion for summary judgment

by defendants claiming qualified immunity is immediately

appealable, unless the order resolved a fact-related dispute

about “whether or not the evidence in the pretrial record was

2 Silva’s suicide also led to a civil rights suit. As in our case, the district court denied a summary judgment motion wherein the defendants claimed qualified immunity. We dismissed the appeal of the order denying summary judgment as to Sheriff Thompson and another defendant. Silva v. Donley County, No. 93- 1308 (5th Cir. July 28, 1994). While unpublished opinions prior to January 1, 1996 are precedent in our circuit, Fifth Circuit Rule 47.5.3, we conclude that a new rule applies in our case because of our intervening en banc decision in Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996), discussed below.

3 sufficient to show a genuine issue of fact for trial.”3 The

Supreme Court more recently explained, however, that jurisdiction

over an interlocutory appeal in this context is not lacking

simply because “[m]aterial issues of fact remain,” since “[e]very

denial of summary judgment ultimately rests upon a determination

that there are controverted issues of material fact . . . .”4

Instead, the order is not appealable if the district court’s

“sufficiency determination is nothing more than whether the

evidence could support a finding that particular conduct occurred

. . . .”5 In this case, we believe that we have jurisdiction

because, deferring completely to plaintiff’s factual claims of

alleged conduct, her § 1983 claim cannot stand.

In Hare v. City of Corinth,6 a summary judgment case

involving the suicide of a pretrial detainee, we addressed the

standard for determining qualified immunity. We held that the

defendant’s conduct must amount to more that mere negligence or

even gross negligence.7 Instead, liability attaches under § 1983

for the episodic act or omission of a state jail official only

where the official acted or failed to act with deliberate

indifference to the detainee’s needs.8 Deliberate indifference

3 Johnson v. Jones, 115 S. Ct. 2151, 2153 (1995). 4 Behrens v. Pelletier, 116 S. Ct. 834, 842 (1996). 5 Id. 6 74 F.3d 633 (5th Cir. 1996)(en banc). 7 Id. at 645-6. 8 Id. at 647-48.

4 means that the official “‘knows that the inmate faces a

substantial risk of serious harm and disregards that risk by

failing to take reasonable measures to abate it.’”9

A. The County

Deana Romero sued Thompson and Blackburn individually and in

their official capacities as the sheriff and deputy sheriff of

Donley County. Defendants appeal in their individual and

official capacities. A suit against county officials in their

official capacities is a suit against the county.10 We have no

jurisdiction to entertain an interlocutory appeal by the

county.11 Accordingly, the appeal by the county is dismissed.12

B. Individual Liability

Blackburn filled out the inmate screening form for Romero,

indicating that Romero was not a suicide risk. Blackburn swore

by affidavit that “Romero seemed liked a typical arrested

individual” and “Romero’s conduct did not show any signs that he

was going to commit suicide.” Like Blackburn, Thompson swore in

his affidavit that Romero was a typical arrestee who did not seem

to be suffering from any mental problems. Another deputy and

9 Id. at 648 (quoting Farmer v. Brennan, 114 S. Ct. 1970, 1984 (1994)). 10 Rhyne v. Henderson County, 973 F.2d 386, 392 n.2 (5th Cir. 1992). 11 Nicoletti v. City of Waco, 947 F.2d 190, 191-92 (5th Cir. 1991). 12 We note, however, that on this record there is no underlying constitutional violation on which to hold the county liable under § 1983, as discussed below.

5 Bohlar had personally observed Romero and gave sworn statements

to the same effect. Neither defendant believed that Romero had

been drinking, although Blackburn placed a question mark beside

the question on the booking form inquiring whether the inmate

appeared to be under the influence of barbiturates or other

drugs.

The district court, in discussing Blackburn’s conduct, noted

evidence that Blackburn did not completely fill out the screening

form and, at Thompson’s direction, placed Romero in the day room.

Plaintiff also relies on evidence that the cord had been in the

day room for a long enough period of time for Blackburn and

Thompson to have known that it was there.

The deliberate indifference standard compels the conclusion

that Thompson’s and Blackburn’s conduct or inaction could give

rise to liability only if they knew that Romero faced a

substantial risk of committing suicide. Placing an inmate in a

day room with an extension cord cannot amount to deliberate

indifference unless they had such knowledge.

Thompson’s and Blackburn’s sworn statements in the record,

based on their observations of Romero, indicate that Romero did

not display any suicidal tendencies. Plaintiff failed to raise a

genuine issue of material fact suggesting otherwise, i.e. that

these officers knew that Romero faced a substantial risk of

suicide. Plaintiff offered the affidavit of an expert stating

that “Romero was subject to tremendous trauma due to the probable

loss of his job and the resultant embarassment and shame

6 associated with the arrest,” and that as a young prisoner (Romero

was 36), he was a higher than usual risk for suicide according to

national surveys. The expert affidavit sheds no light on whether

Blackburn or Thompson personally and subjectively knew that

Romero was a substantial suicide risk. We have noted that

“[p]olice personnel are not required to ‘unerringly detect

suicidal tendencies;’ such an exacting standard ‘requires the

skill of an experienced medical professional with psychiatric

training. . . .’”13

Plaintiff also offered evidence that Romero was quiet after

his incarceration, hesitated in answering questions posed by

Blackburn, and did not exercise his right to make a phone call.

Romero told Blackburn that he was a first-time offender, Thompson

viewed him as a first-time offender, and Thompson knew his

employer would be notified about the arrest. At most this

evidence is “merely colorable” on the critical issue of whether

defendants knew that Romero faced a substantial risk of suicide,

and is not “such that a reasonable jury could return a verdict

for the nonmoving party.”14 Accordingly, summary judgment should

have been granted in favor of Thompson and Blackburn on the §

1983 claim, since “there is no issue for trial unless there is

13 Evans v. City of Marlin, 986 F.2d 104, 107 (5th Cir. 1993) (quoting Burns v. City of Galveston, 905 F.2d 100, 104 (5th Cir. 1990). 14 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

7 sufficient evidence favoring the nonmoving party for a jury to

return a verdict for that party.”15

The evidence presented here by plaintiff falls far short of

the evidence presented in other cases where we have held that

defendants might be found liable for the suicide of a pretrial

detainee. In Hare, we remanded for further proceedings in light

of our clarified standard for imposing liability, where summary

judgment evidence was offered that the police were informed that

the detainee was a heavy drug user, she gave an interview “in a

defensive, ‘fetal-type’ position,” admitted she was a drug

addict, was observed by the police going through drug withdrawal,

attempted to destroy the interview videotape, was described by

witnesses as emotionally distraught, “frantic,” and “hyper,” and

threatened to commit suicide in the presence of the police

captain and “in a serious, believable tone of voice.”16

15 Id. at 249. 16 Hare, 74 F.3d at 636-37. See also Lewis v. Parish of Terrebone, 894 F.2d 142, 145 (5th Cir. 1990) (affirming jury verdict in favor of plaintiffs where jury heard evidence “(1) that the deceased had expressed [to the jail nurse and warden] a death wish, (2) that the decedent alleged consuming an inordinate number of pills which required medical emergency treatment, (3) that the emergency room physician ordered a psychiatric examination, (4) that the deceased was transported to New Orleans from the jail for such an examination, (5) that the deceased was transported from New Orleans to the jail after the examination, (6) that the envelope [containing a medical opinion that the deceased was suicidal] given to the driver of the transporting vehicle was delivered to the jail, (7) that another jail employee believed the deceased to be suicidal and should not be left alone and (8) that the deceased was housed in a solitary confinement cell immediately prior to this death.”); Partridge v. Two Unknown Police Officers of the City of Houston, 791 F.2d 1182, 1184 (5th Cir. 1986) (reversing dismissal of complaint alleging that decedent became hysterical during questioning after arrest,

8 We also conclude that Thompson cannot be held liable for

failing to properly supervise or train other employees in his

charge. We held in Doe v. Taylor Indep. Sch. Dist.17 that the

standard for imposing liability on a municipality should apply to

an individual to whom a municipality had delegated responsibility

for the direct supervision of employees. That standard imposes

liability where “the official, by action or inaction,

demonstrates a deliberate indifference to [the plaintiff’s]

constitutional rights.”18 In Hare, we clarified that municipal

liability turns on objective deliberate indifference:

Our opinion in this case makes clear that to prove an underlying constitutional violation in an individual or episodic acts case, a pre-trial detainee must establish that an official acted with subjective deliberate indifference. Once the detainee has met this burden, she has proved a violation of her rights under the Due Process Clause. To succeed in holding a municipality accountable for that due process violation, however, the detainee must show that the municipal employee's act resulted from a municipal policy or custom adopted or maintained with objective deliberate indifference to the detainee's constitutional rights.19

arresting officer was told that decedent had suffered a nervous breakdown, decedent was wearing two medical alert bracelets, decedent became agitated and violent in police car, decedent deliberately struck his head against police car seat divider and attempted to kick out the doors and windows of the car, arresting officers did not call to anyone’s attention the aberrant behavior, police department knew decedent was a mental patient and had records that he had attempted suicide during an earlier confinement, defendant was booked as “heart and mental,” and decedent was placed in solitary confinement where he hung himself.) 17 15 F.3d 443, 453-54 (5th Cir.) (en banc), cert. denied, 115 S. Ct. 70 (!994). 18 Id. at 454. 19 Hare, 74 F.3d at 649 n.4.

9 Both Doe and Hare make clear, however, that imposing liability on

a supervisor or municipality requires proof that the plaintiff’s

constitutional rights were violated. Hare, in the passage quoted

above, requires an “underlying constitutional violation.”

Similarly, Doe requires proof that the supervisor’s deliberate

indifference “caused a constitutional injury to the

[plaintiff].”20 Given that Blackburn and Thompson established

that they did not individually act or fail to act with deliberate

indifference to Romero’s needs, there is no underlying

constitutional tort on which to hold Thompson liable in his

capacity as a supervisor.

Further, we have held that “[a] municipality should be

required to provide its police officers with minimal training to

detect ‘obvious medical needs of detainees with known,

demonstrable, and serious mental disorders.’ . . . In the

absence of any manifest signs that the Decedent was a danger to

herself, the city’s failure to train police personnel to detect

potential suicidal impulses does not give rise to a deprivation

of constitutional rights.”21 Given the failure of proof that

Romero was an obvious and manifest suicide risk, liability

premised on Thompson’s alleged failure to train his staff in

suicide prevention and detection must also fail.

20 15 F.3d at 454. 21 Evans, 986 F.2d at 107-08 (quoting Burns, 905 F.2d at 104).

10 C. State Law Claims

Plaintiff also asserted state law claims against Blackburn

and Thompson for negligence, statutory wrongful death, and

statutory survival. The individual defendants claim qualified

immunity from suit under Texas law. We have jurisdiction to

address this issue.22

We have described Texas’ law of qualified immunity as

“substantially the same as federal immunity law.”23 Government

officials are immune from suits arising from performance of their

discretionary duties in good faith as long as they were acting

within the scope of their authority.24 Here there is no question

that Blackburn and Thompson were acting within the scope of their

authority and that all decisions regarding training and the

placement and observation of Romero in the day room were

discretionary in nature. Actions are discretionary unless “the

law prescribes and defines the duties to be performed with such

precision and certainty as to leave nothing to the exercise of

discretion or judgment. . . .”25

Thus the question is whether these defendants acted in good

faith. Both swore that they harbored no ill will toward Romero,

22 Cantu v. Rocha, 77 F.3d 795, 803-04 (5th Cir. 1996); Morin v. Caire, 77 F.3d 116, 119-20 (5th Cir. 1996). 23 Cantu, 77 F.3d at 808. 24 Id. 25 City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994)(quoting Rains v. Simpson, 50 Tex. 495, 501 (1878)).

11 and discharged their duties toward him in good faith and without

any intent to cause him harm.

Under Texas immunity law, “[a]n official acts in ‘good

faith’ if any reasonably prudent officer could have believed that

the conduct was consistent with the plaintiff’s rights.”26 “To

controvert the officer’s summary judgment proof on good faith . .

. the plaintiff must show that ‘no reasonable person in the

defendant’s position could have thought the facts were such that

they justified defendant’s acts,’” and “‘if officers of

reasonable competence could disagree on this issue, immunity

should be recognized.’”27 In adopting this test the Texas

Supreme Court stated that it is derived substantially from the

federal test for deciding immunity under § 1983.28 We have

recognized that federal constitutional standards do not require

such training of officers that they will “unerringly detect

suicidal tendencies.”29 Likewise, we conclude that Texas law

does not require every officer to possess such skills where the

detainee, as here, did not manifest “known, demonstrable, and

26 Cantu, 77 F.3d at 809 (emphasis added). 27 Chambers, 883 S.W.2d at 657 (emphasis added) (quoting Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993) and Malley v. Briggs, 106 S. Ct. 1092, 1096 (1986)). 28 Chambers, 883 S.W.2d at 656. 29 Burns, 905 F.2d at 104.

12 serious mental disorders.”30 Accordingly, Blackburn and Thompson

are entitled to immunity under state law.31

CONCLUSION

The appeal as to Thompson and Blackburn in their official

capacities is DISMISSED. The summary judgment as to Thompson and

Blackburn individually is REVERSED and REMANDED with instructions

to dismiss them as defendants.

30 Id. 31 We express no opinion as to whether summary judgment on state law claims against the county is appropriate, or whether such claims should proceed in federal court in the absence of any federal claims. See Evans, 986 F.2d at 108-09 (discussing municipal liability under state law for inmate suicide); Rhyne, 973 F.2d at 395 (discussing discretion of district court to dismiss state claims after dismissal of federal claims).