IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 3, 2008
No. 07-60653 Charles R. Fulbruge III
Clerk
Summary Calendar
ANTHONY JARED BRANTON, Anthony Jared Branton, Individually, and on
behalf of the wrongful death beneficiaries of Jerry Branton, deceased
Plaintiff-Appellee
v.
CITY OF MOSS POINT; BRANDON ASHLEY; MARK MEISELBACH
Defendants-Appellants
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:05-CV-338
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Brandon Ashley and Mark Meiselbach (collectively, “Appellants”) appeal
the district court’s denial of their motion for summary judgment on the basis of
qualified immunity. Appellants are police officers in the City of Moss Point
(“City”), who worked at the Moss Point, Mississippi Jail on the night that Jerry
Branton (“Branton”), a detainee, committed suicide. Anthony Branton
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-60653
(“Appellee”), Branton’s son, filed suit against Appellants, the City of Moss Point,
and other police officers, asserting Eighth and Fourteenth Amendment claims
along with various state law claims. For the reasons below, we REVERSE the
district court’s denial and direct the district court to enter summary judgment
in Appellants’ favor.
I.
On June 10, 2004, Officer Scott Renfro arrested Branton on suspicion of
drunk driving and transported Branton to the Moss Point Police Department.
When Branton arrived at the police department, he was given an Intoxilyzer
test, which showed that Branton’s breath alcohol content was 0.203, more
than twice the legal limit. Branton was issued citations for driving under the
influence (“DUI”) and careless driving. When booking Branton, Renfro asked
him questions on the police department’s computer-based Booking Medical
Sheet. One of these questions was whether Branton had ever attempted
suicide or was thinking about committing suicide. Branton answered, “No,”
which Renfro recorded on the form.
Soon after learning that he would be issued a citation for DUI, Branton
became violent. Branton told Renfro that “he would lose his job, home, and
everything.” Branton then proceeded to punch a hole in a wall and started a
fight with Renfro. A radio dispatch requested that available officers go to the
jail to assist restraining Branton. Ashley arrived at the jail shortly afterward
and helped Renfro handcuff Branton. Meiselbach also responded to the call,
but, when he arrived, he found that other officers had already subdued
Branton. While Branton was handcuffed in the hall of the police department,
he cried that “his life was going to be over and that [the officer] might as well
shoot him.”
Appellants subsequently escorted Branton to the designated cell for
intoxicated and combative prisoners at the Moss Point Jail. Appellants left
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No. 07-60653
Branton alone in the cell. No one conducted a jail check on Branton until
more than two hours later when Ashley discovered that Branton had hung
himself using a bed sheet.
In 2005, Appellee brought this case against the City, Michael Ricks, the
chief of police, and unnamed officers. In 2006, Appellee amended his
complaint and included Renfro and Appellants as defendants. Appellee,
however, failed to serve both Renfro and Ricks. In 2007, Appellants and the
City moved for summary judgment. One of Appellants’ arguments was that
they were entitled to qualified immunity because there was no constitutional
violation. The district court granted the City and Appellants’ motion as to
Appellee’s Eight Amendment claim and state claims. Branton v. City of Moss
Point, 503 F. Supp. 2d 809, 813 (S.D. Miss. 2007). The district court,
however, denied the motion as to Appellee’s Fourteenth Amendment claim.
Id. at 811-12.
II.
“Appeals from district court orders denying summary judgment on the
basis of qualified immunity are immediately appealable under the collateral
order doctrine, when based on an issue of law.” Cantu v. Rocha, 77 F.3d 795,
802 (5th Cir. 1996). But courts of appeals do not have jurisdiction to review a
district court’s order denying qualified immunity if the basis of the order is
that there was a genuine dispute as to whether a particular fact occurred. Id.
at 803. Therefore, here, we must accept the plaintiff’s version of the facts as
true and “review de novo only the purely legal question of whether ‘the
district court erred in concluding as a matter of law that officials are not
entitled to qualified immunity on [that] given set of facts.’” Gobert v.
Caldwell, 463 F.3d 339, 345 (5th Cir. 2006) (quoting Kinney v. Weaver, 367
F.3d 337, 347 (5th Cir. 2004) (en banc)).
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No. 07-60653
III.
Government officials who have violated a plaintiff’s constitutional
rights are nonetheless entitled to qualified immunity if their conduct is
objectively reasonable. Zarnow v. City of Wichita Falls, 500 F.3d 401, 408
(5th Cir. 2007). “To determine whether an official is entitled to qualified
immunity, we must determine: (1) whether the plaintiff has alleged a
violation of a clearly established constitutional right; and (2) if so, whether
the defendant’s conduct was objectively unreasonable in light of clearly
established law at the time of the incident.” Jacobs v. W. Feliciana Sheriff’s
Dep’t, 228 F.3d 388, 393 (5th Cir. 2000). “Qualified immunity protects ‘all but
the plainly incompetent or those who knowingly violate the law.’” Anderson
v. Creighton, 483 U.S. 635, 638 (1987) (quoting Malley v. Briggs, 475 U.S.
335, 341 (1986)).
Appellee contends that Appellants violated Branton’s Fourteenth
Amendment rights. Under the Fourteenth Amendment, jail officials must
adequately protect pre-trial detainees from their known suicidal impulses.
See Hare v. City of Corinth, 74 F.2d 633, 650 (5th Cir. 1996) (en banc). Jail
officials violate this constitutional right if “they had actual knowledge of the
substantial risk of suicide and responded with deliberate indifference.” Id.
(emphasis added).
We find that Appellee has not presented sufficient evidence
demonstrating that Appellants violated Branton’s Fourteenth Amendment
rights. In asserting that Appellants had actual knowledge of a substantial
risk that Branton would commit suicide, Appellee points to the following
facts: (1) Branton’s fight with the police officers; (2) Branton’s comment that
his arrest would cause him to “lose his job, home, and everything”; and (3)
Branton’s comment that “his life was going to be over and that [the officer]
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No. 07-60653
might as well shoot him.”1 But even accepting these facts as true, we
conclude that this evidence does not demonstrate that Appellants had actual
knowledge of a substantial risk of suicide. People who are violent to others
often are not violent to themselves. Therefore, unsurprisingly, courts have
not considered a detainee fighting with police officers as evidence that the
detainee was suicidal. See, e.g., Lambert v. City of Dumas, 187 F.3d 931, 934,
937-38 (8th Cir. 1999). While Branton also made comments indicating that
he was exasperated with living, we do not believe that these off-hand, cavalier
comments made by someone who was intoxicated so significantly alters the
calculus that a reasonable jury could infer that Appellants had actual
knowledge that there was a substantial risk that Branton would kill himself.2
Accordingly, we find that the district court erred when it denied Appellants’
motion for summary judgment.
1
Appellee also argues that Meiselbach admitted that he was aware on the night that
Branton committed suicide that Branton posed a threat to himself. When deposing
Meiselbach, Appellee’s attorney asked Meiselbach, “Was Mr. Branton that night a threat to
himself or others?” Meiselbach answered, “I would have to say, yes, sir, since they already had
to fight with him before he got back into the cell–or struggle with him. I can’t say fight.” In
an affidavit attached to Appellants’ rebuttal brief supporting their motion for summary
judgment, Meiselbach stated that he was confused by the compound question and clarified that
his answer was directed only to the part of the question of whether Branton posed a threat to
others. Moreover, Meiselbach asserted that he did not know that Branton also posed a threat
to himself. In light of this affidavit and the fact that his deposition answer comports with this
clarification, we do not consider Meiselbach’s testimony as an admission that he was aware of
a substantial risk of suicide. While Appellee contends that we cannot consider Meiselbach’s
affidavit because its production was untimely, we do not reach this issue because we find that
Appellee waived this argument by failing to raise it before the district court. See McCloud
River R.R. v. Sabine River Forest Prods., Inc., 735 F.2d 879, 882 (5th Cir. 1984).
2
Appellants urge us to also consider the fact that Branton told Renfro that he had never
attempted committing suicide and was not thinking about committing suicide. The evidence
is unclear, however, whether Renfro related this information to Appellants before Branton
killed himself. Because of the procedural posture of the case, we must view the facts in the
light most favorable to Appellee. Therefore, we do not consider this evidence here.
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No. 07-60653
IV.
For the reasons above, we REVERSE the district court’s denial of
Appellants’ motion for summary judgment and direct the district court to
enter summary judgment in Appellants’ favor.
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