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that this opinion should not be published and is not precedent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).
13