[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 5, 2008
No. 07-12368 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00129-CV-JTC-3
BEVERLY GISH,
Administratrix for the Estate of
JESSE BRANDON GISH,
Plaintiff-Appellant,
versus
JIMMY THOMAS,
Individually and in his official capacity as
Sheriff of Pike County, Georgia,
WILLIAM WALLACE GILMER,
Individually and in his official capacity as
Deputy Sheriff of Pike County, Georgia,
PIKE COUNTY, GEORGIA,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 5, 2008)
Before HULL and PRYOR, Circuit Judges, and MOORE,* District Judge.
PRYOR, Circuit Judge:
This appeal about an unusual suicide by a prisoner presents a fact-intensive
issue: whether an officer responsible for transporting a pretrial detainee in a police
car and aware that the detainee is a strong suicide risk is deliberately indifferent to
that risk when the officer leaves a loaded firearm in the front seat of the car while
the detainee is in the rear seat in handcuffs and behind a security screen that the
officer erroneously believes is locked. Beverly Gish filed a complaint that alleged
that Sheriff Jimmy Thomas, Deputy Sheriff William Gilmer, and Pike County,
Georgia, violated the civil rights of her son, Brandon Gish, who committed suicide
in the backseat of Gilmer’s police car. The district court entered summary
judgment in favor of Thomas, Gilmer, and the County. Beverly Gish argues on
appeal that there are genuine issues of material fact about these matters: (1)
whether Gilmer was deliberately indifferent to Brandon Gish’s civil right to be
protected from self-inflicted injury; (2) whether Pike County Sheriff Jimmy
Thomas was deliberately indifferent to the need to train deputies on the transport
of suicidal detainees; and (3) whether a policy of Pike County caused the
*
Honorable K. Michael Moore, United States District Judge for the Southern District of
Florida, sitting by designation.
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constitutional violation. Because Beverly Gish failed to present evidence that
Deputy Gilmer was deliberately indifferent to a known risk that Brandon Gish was
able to obtain the firearm, we affirm the summary judgment in favor of Thomas,
Gilmer, and the County.
I. BACKGROUND
Brandon Gish was arrested on December 10, 2003, and was held at the Pike
County jail to await trial. He recorded on a jail form that he had previously
attempted suicide and had considered suicide as recently as December 8, 2003.
Brandon Gish’s grandmother called the jail three times to warn jail officials that
Brandon Gish might be suicidal. Because the Pike County jail did not have the
staff or resources to monitor suicidal detainees, Pike County Deputy Sheriff
William Gilmer transported Brandon Gish to the Clayton County jail. Gilmer
signed a transfer of custody form that stated that Brandon Gish had made
statements about suicide, was bipolar, and refused to take his medications.
On December 12, 2003, Gilmer transported Brandon Gish from the Clayton
County jail to the Pike County Magistrate Court for a hearing. The police car that
was used to transport Brandon Gish had a partition with a sliding plexiglass
security screen that separated the front compartment from the rear compartment.
When the security screen was unlocked, it ordinarily was open approximately one
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inch. After the hearing, Gilmer transported Brandon Gish back to the Clayton
County jail with his hands handcuffed in front of him.
Because the Clayton County jail did not allow guns inside the facility,
Gilmer left his gun on the front passenger seat when he left the vehicle. Gilmer
thought the screen was locked. Gilmer had not checked the screen for five or six
days, but the screen was locked when he last checked it. While Gilmer was
outside the car, Brandon Gish obtained the gun and committed suicide.
The Sheriff of Pike County requires his deputies to attend a training course
accredited by the Georgia Peace Officer Standards and Training Council. The
training course covers gun safety. When Brandon Gish committed suicide, there
were no Pike County policies about checking the security screen, handcuffing
inmates, or securing weapons.
Beverly Gish filed a complaint that alleged that Gilmer was deliberately
indifferent to Brandon Gish’s due process right to be protected from self-inflicted
injury, Sheriff Thomas was deliberately indifferent to the need to train deputies on
the transport of suicidal detainees, and a policy of Pike County caused the
constitutional violation. 42 U.S.C. § 1983. The district court granted summary
judgment against Beverly Gish’s complaint.
II. STANDARD OF REVIEW
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We review a grant of summary judgment by a district court de novo. Cruz
v. Publix Super Mkts., Inc., 428 F.3d 1379, 1382 (11th Cir. 2005). We apply the
same legal standards as the district court and view all facts and reasonable
inferences in the light most favorable to the nonmoving party. Id. (quoting
Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1203 (11th Cir. 2001)).
III. DISCUSSION
The Due Process Clause of the Fourteenth Amendment guarantees pretrial
detainees the right to basic necessities that the Eighth Amendment guarantees
convicted persons. Cook ex rel. Estate of Tessier v. Sheriff of Monroe County,
Fla., 402 F.3d 1092, 1115 (11th Cir. 2005) (quoting Belcher v. City of Foley, Ala.,
30 F.3d 1390, 1396 (11th Cir. 1994)). Pretrial detainees and other prisoners have
the right “to receive medical treatment for illness and injuries, which encompasses
a right to psychiatric and mental health care, and a right to be protected from
self-inflicted injuries, including suicide.” Id. (quoting Belcher, 30 F.3d at 1396
(citations omitted)) (internal quotation marks omitted). A prison official may be
held liable for failing to prevent harm to a prisoner if he is deliberately indifferent
to the prisoner’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.
Ct. 1970, 1977 (1994).
To establish liability for a prisoner’s suicide under section 1983, “the
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plaintiff must show that the jail official displayed ‘deliberate indifference’ to the
prisoner’s taking of his own life.” Cook, 402 F.3d at 1115 (quoting Cagle v.
Sutherland, 334 F.3d 980, 986 (11th Cir. 2003) (per curiam)) (internal quotation
mark omitted). The plaintiff must prove that the official had subjective knowledge
of a risk of serious harm and disregarded that risk by conduct that constituted more
than mere negligence. Snow ex rel. Snow v. City of Citronelle, Ala., 420 F.3d
1262, 1268 (11th Cir. 2005) (quoting Cook, 402 F.3d at 1115). “[D]eliberate
indifference requires that the defendant deliberately disregard ‘a strong likelihood
rather than a mere possibility that the self-infliction of harm will occur.’” Cook,
402 F.3d at 1115 (quoting Cagle, 334 F.3d at 986) (emphasis omitted). “[T]he
mere opportunity for suicide, without more, is clearly insufficient to impose
liability on those charged with the care of prisoners.” Tittle v. Jefferson County
Comm’n, 10 F.3d 1535, 1540 (11th Cir. 1994) (en banc).
Beverly Gish argues that Deputy Gilmer was deliberately indifferent to
Brandon Gish’s suicide because, regardless of whether Gilmer was aware that the
security screen might have been unlocked, Gilmer was aware of a strong
likelihood that Brandon Gish would try to commit suicide by any available means.
We disagree. To be deliberately indifferent to a strong likelihood that the prisoner
will commit suicide, the official must be subjectively aware that the combination
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of the prisoner’s suicidal tendencies and the feasibility of suicide in the context of
the prisoner’s surroundings creates a strong likelihood that the prisoner will
commit suicide. In Cagle v. Sutherland, we ruled, for example, that a jailer was
not deliberately indifferent to a detainee’s risk of suicide when the jailer observed
the detainee every 15 minutes and the detainee had been stripped of his belt,
shoelaces, the contents of his pockets, and all implements that could foreseeably
be used by him to commit suicide. 334 F.3d at 984, 989. If Beverly Gish cannot
establish that Gilmer was aware that the security screen might have been unlocked,
she cannot establish that Gilmer deliberately disregarded a strong likelihood that
Brandon Gish would commit suicide.
Although Gilmer was aware that Brandon Gish was suicidal, Gilmer was
entitled to summary judgment in his favor because Beverly Gish provided no
evidence that Gilmer was aware that the security screen might have been
unlocked. When the security screen was unlocked, it ordinarily was open
approximately one inch. Gilmer testified that, although he did not observe
whether the screen was open on the day of Brandon Gish’s suicide, he thought that
the security screen was locked. The screen was locked five or six days earlier
when Gilmer last checked it, and Gilmer had no reason to believe that someone
had opened the security screen since then. Beverly Gish offers no contrary
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evidence that Gilmer was subjectively aware that the security screen might have
been unlocked. She offers no more than evidence of Gilmer’s negligence. The
district court correctly concluded that Gilmer was not deliberately indifferent to a
known risk that Brandon Gish would commit suicide.
Sheriff Thomas and Pike County were also entitled to summary judgment.
There can be no supervisory liability for Brandon Gish’s suicide if there was no
underlying constitutional violation by Deputy Gilmer. See Hicks v. Moore, 422
F.3d 1246, 1253 (11th Cir. 2005). Without an underlying violation of Brandon
Gish’s constitutional rights, Thomas cannot be liable in his individual or official
capacity for a failure to train Gilmer and Pike County cannot be liable on the
ground that its policy caused a constitutional violation.
IV. CONCLUSION
The summary judgment against Beverly Gish’s complaint is AFFIRMED.
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