Hare v. City of Corinth, Miss.

United States Court of Appeals,

Fifth Circuit.

No. 93-7192.

Richard HARE, Natural Father and Next Friend of Haley Hare, a
Minor, et al., Plaintiffs-Appellees,

v.

CITY OF CORINTH, MS., a Municipal Corporation, et al.,
Defendants,

Fred Johnson, etc., Billy Burns, etc., James Damons, etc., and
Brenda Moore, etc., Defendants-Appellants.

June 10, 1994.

Appeal from the United States District Court for the Northern
District of Mississippi.

Before POLITZ, Chief Judge, KING and DAVIS, Circuit Judges.

POLITZ, Chief Judge:

On appeal is the claim of qualified immunity by Officer Billy

Clyde Burns, Police Chief Fred Johnson, and police dispatchers

Brenda Moore and James Damons, all members of the police department

of Corinth, Mississippi, in this 42 U.S.C. § 1983 action arising

out of the suicide of Tina Hare in that city's jail. Concluding

that summary judgment was inappropriate because of disputed

questions of law and, accordingly, that this appeal presents more

than a question of law, the appeal is dismissed.

Background

On the morning of July 4, 1989, Tina Hare was arrested for

petty larceny and forgery and was incarcerated in the city jail in

Corinth, Mississippi. Richard Hare spoke with his wife by

telephone shortly after her arrest. She sounded very frightened;

1
she had never before been in jail.

At 10:00 a.m. Officer Burns interviewed Tina Hare and learned

of her addiction to dilaudid which she had been funding by forging

checks. He observed that she was depressed and displayed signs of

withdrawal. Sitting in the fetal position she told Burns about her

thoughts of suicide the night before and her feelings of unfitness

as a mother. When Burns left the room briefly she attempted to

destroy the videotape being used to record the interview.

Around noon Tina Hare's parents arrived. She was frantic and

begged her mother to get her out of jail. Officer Burns was aware

of her emotional state and acknowledges that she told him that if

he put her back in the cell she would kill herself. He says that

he did not take her seriously. Her father did. Burns refused to

release Tina Hare ostensibly until he could get all the allegedly

forged checks and complete his investigation. In addition, Burns

was displeased with her attempt to destroy the videotape. Despite

the parents' pleas that their daughter be released on bond so that

they could take her to a scheduled appointment at a rehabilitation

center the next day, Burns decided that she would stay in jail that

night. Burns gave the parents his assurance of their daughter's

safety.

During oral argument counsel described pertinent aspects of

the Corinth city jail, its layout and operation. The sole means of

supervision of the interior of the cells was by an audio monitor.

There were camera monitors but they viewed only the hallway of the

jail, affording no visual observations inside the cells. The cells

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were located three floors above the dispatcher. Jail trustees

could go on each floor but they did not have keys to the cells.

Only the dispatcher had those keys but the dispatcher was not

allowed to leave the dispatcher's station while on duty.

Burns stated that Chief Johnson instructed him to put Tina

Hare in an isolated cell nearest the camera monitors and trustee

station. Chief Johnson denies that he designated the cell where

she was to be placed. She previously had been strip-searched, and

when Burns put her in a cell he took her shoes and checked for a

belt. Burns saw a blanket on the bunk and considered the

possibility of its fatal use but concluded that Tina Hare did not

have sufficient strength to tear it into strips.

Burns told Moore, the dispatcher on duty, about Tina Hare's

withdrawal symptoms and her suicide threat and he told Moore to

keep an eye on her. Burns mistakenly believed that Moore would be

on duty until 10:00 p.m. In fact, at 5:00 p.m. Moore was replaced

by dispatcher Damons. Moore says that she relayed to Damons the

information Burns had provided; Damons denies this.

Burns left the station sometime after 3:00 p.m. At 6:00 p.m.

he called from his home to check on Tina Hare's condition. Burns

told Damons to have the trustee check her every 45 minutes. Damons

sent a trustee to Tina Hare's cell. The trustee found her hanging

from the bars of her cell by a noose fashioned from strips of the

blanket. The trustee had no key for the cell; he immediately

notified Damons. Damons, in accordance with jail procedures, could

not leave his post. He called Burns. Tina Hare was left hanging.

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From the summary judgment record before us we cannot determine

whether she was alive or dead when first found by the trustee.

Informed by Damons that Tina Hare was hanging in her cell, Burns

instructed Damons to leave her there until the State Investigator

arrived.

Three and one-half months prior to Tina Hare's suicide another

prisoner had committed suicide in the Corinth city jail by hanging

himself with his belt.

Richard Hare sued Burns, Johnson, Moore, and Damons in their

official and individual capacities as well as the City of Corinth,

Mayor Edward S. Bishop, former Mayor Jack Holt, and the City of

Corinth Board of Aldermen, alleging that the defendants' deliberate

indifference to his wife's psychiatric needs violated 42 U.S.C. §

1983 and Mississippi's wrongful death statute. After completion of

discovery both parties filed motions for summary judgment. The

district court granted defendants' motion with regard to the state

law claim but refused to grant Johnson, Burns, Moore, and Damons

summary judgment based on qualified immunity in their individual

capacities, 814 F.Supp. 1312.

Analysis

Burns, Johnson, Moore, and Damons maintain that the district

court erred in not granting them summary judgment in their

individual capacities.1 When addressing the qualified immunity

issue we must first consider whether the asserted constitutional

1
See Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86
L.Ed.2d 411 (1985) (recognizing defendants' right to file an
interlocutory appeal upon denial of qualified immunity).

4
injury involved a clearly established right at the time of the

unfortunate event.2 Thereafter we consider whether the defendants

acquitted their duty to detainee Tina Hare and are entitled to

summary judgment on the grounds of qualified immunity.

A. Clearly Established Constitutional Injury

In reviewing the denial of a summary judgment motion based on

a claim of qualified immunity, the Supreme Court has taught that

the first inquiry is whether the plaintiff has asserted a violation

of a constitutional right. If so, we must then determine whether

that right was clearly established at the time the events took

place.3 Hare asserts that the defendants knew or should have known

from a previous suicide the danger of placing his wife in an

isolated cell where she could not be reached or rescued timely

because of the jail configuration and procedures. He further

asserts that by detaining his wife under these conditions, the

defendants acted with deliberate indifference to the possibility

that she would take her own life. Hare has asserted a violation of

a constitutional right.

2
Johnston v. City of Houston, 14 F.3d 1056 (5th Cir.1994).
3
Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793,
114 L.Ed.2d 277 (1991) ("A necessary concomitant to the
determination of whether the constitutional right asserted by a
plaintiff is "clearly established' at the time the defendant
acted is the determination of whether the plaintiff has asserted
a violation of a constitutional right at all."). Accord Samaad
v. City of Dallas, 940 F.2d 925, 940 (5th Cir.1991) ("In Siegert,
the Court holds that a court addressing a claim of qualified
immunity should first consider "whether the plaintiff asserted a
violation of a constitutional right at all' before reaching the
possibly unnecessary question of whether the plaintiff asserted a
violation of a "clearly established' right.").

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 To be clearly established, the contours of the constitutional

right "must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right."4 It is not

necessary that there be a case which is factually identical or

which holds the specific action at bar unlawful. Rather, the

unlawfulness of the action must be apparent in light of the

existing law.

In Estelle v. Gamble 5 the Supreme Court held that the eighth

amendment proscription against cruel and unusual punishment is

violated by deliberate indifference to serious medical needs of

prisoners. That rationale was extended in Bell v. Wolfish6 to

pretrial detainees via the fourteenth amendment due process clause.

In Partridge v. Two Unknown Police Officers of Houston,7 we applied

Wolfish to an action seeking to recover against jail officials for

the wrongful death of a pretrial detainee who committed suicide in

the jail. We held that

[p]retrial detainees are often entitled to greater protection
than convicted persons. (Citation omitted.) Although "[t]he
standard by which to measure the medical attention that must
be afforded pretrial detainees has never been spelled out,
both this Circuit and other circuits have held that pretrial
detainees are entitled to at least the level of medical care

4
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,
3039, 97 L.Ed.2d 523 (1987).
5
429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).
6
441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). See
also City of Revere v. Massachusetts General Hosp., 463 U.S. 239,
103 S.Ct. 2979, 77 L.Ed.2d 605 (1983) (failure to provide medical
care to a prisoner being apprehended by the police can rise to
the level of a fourteenth amendment due process violation).
7
791 F.2d 1182 (5th Cir.1986).

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 set forth in Estelle."8

Thus, when Ms. Hare committed suicide in 1989, the jail officials

were under a clearly established constitutional duty to respond to

a pretrial detainee's serious medical needs, including suicidal

tendencies and attempts to commit suicide, with at least more than

deliberate indifference. In the case at bar there is both the

placing of Tina Hare in an isolated cell in her allegedly unstable

and agitated condition and the failure to respond immediately when

she was discovered hanging. If the facts alleged by Hare are

proven, a jury is entitled to find that the actions taken by

defendants, both commission and omission, equal or exceed

deliberate indifference to serious medical needs and violate the

decedent's due process rights.

B. Summary Judgment

We next examine whether the summary judgment evidence

entitled appellants to claim qualified immunity.9 Summary judgment

is proper only if the movant demonstrates that there is an absence

of genuine issues of material fact.10 If disputed factual issues

material to qualified immunity exist summary judgment is not

appropriate.11 The record before us reflects genuine issues of

material fact. The district court properly denied defendants'

8
Id. at 1186 (internal quotation omitted).
9
Johnston v. City of Houston, 14 F.3d 1056 (5th Cir.1994).
10
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986).
11
Feagley v. Waddill, 868 F.2d 1437 (5th Cir.1989).

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motion for summary judgment.

1. Knowledge

The summary judgment record is replete with evidence that the

custodial officers knew or should have known of Tina Hare's

vulnerability to suicide. Her father heard and considered deadly

serious the same threat Burns heard and dismissed. Burns actually

heard additional threatening statements. Burns stated that Chief

Johnson instructed him to place the young woman in the cell nearest

the monitors and trustee station. The chief denies this. Burns

placed her in the cell and checked to see if she had a belt. He

saw the blanket on the bed, realized its potential deadly use, but

opted not to remove it based on his assessment of her lack of

strength to tear it into strips. He shared his concerns with

dispatcher Moore and instructed her to keep an eye on Tina Hare and

to alert the trustees to do likewise. These actions would be

consistent with a real and valid concern that the detainee might

attempt suicide, as was Burns' call to the station to inquire about

her condition shortly after arriving home. Burns was under the

impression, when he left the jail just after 3:00 p.m., that Moore

would be the dispatcher until 10:00 p.m. He was in error; Damons

relieved Moore at 5:00 p.m. As noted, Moore says she relayed

Burns' concerns and instructions; Damons denies receipt of same.

Gagne v. City of Galveston12 and Burns v. City of Galveston,13

12
805 F.2d 558 (5th Cir.1986), cert. denied, 483 U.S. 1021,
107 S.Ct. 3266, 97 L.Ed.2d 764 (1987).
13
905 F.2d 100 (5th Cir.1990).

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cited by the defendants, are not dispositive of today's appeal. In

neither did the custodian have knowledge of the suicidal tendencies

harbored by the intoxicated detainees.14 The summary judgment

record before us reflects a dispute about that knowledge, making

summary judgment disposition inappropriate.

2. Deliberate Indifference

Hare alleges that the individual defendants acted with

deliberate indifference in placing his wife, who was potentially

suicidal, in an isolated cell which was not visually monitored and

which could not be reached by the trustee or dispatcher on duty.

Because of the suicide three and one-half months before, the

custodial officers arguably knew that if Tina Hare attempted

suicide they could not meaningfully respond to her needs, giving

due consideration to the jail layout and the practices and

procedures in place.15 Nevertheless Tina Hare was placed in the

isolated cell and, after being discovered, she was left hanging for

14
But see Lewis v. Parish of Terrebonne, 894 F.2d 142 (5th
Cir.1990) (where defense of qualified immunity was denied because
detainee's suicidal tendencies were known to defendants).
15
During oral argument counsel for the defendants argued
that these claims cannot be lodged against the defendants in
their individual capacities because they were following orders
and procedures. Whether the steps taken by the individual
defendants were pursuant to established policy is yet to be
determined. The Eighth Circuit addressed the argument posed by
counsel in Villanueva v. George, 659 F.2d 851 (8th Cir.1981) (en
banc), holding that while officers may assert qualified immunity
if they were following orders, "if they knew or should have known
that their [failure to act was] violating the plaintiff's
constitutional rights, ... they may not hide behind the cloak of
institutional loyalty." Id. at 855. We agree with our Eighth
Circuit colleagues. It is for the jury to determine whether
these officers knowingly failed to remedy unconstitutional
conditions of confinement.

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an indeterminate time. It is for the trier-of-fact to determine

whether these facts constitute deliberate indifference.16 At the

very least there is a genuine factual dispute rendering summary

judgment inappropriate. Because this appeal presents more than a

pure question of law the denial of summary judgment is not

appealable and this appeal is, accordingly, DISMISSED.17

16
See, e.g., Heflin v. Stewart County, Tenn., 958 F.2d 709
(6th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 598, 121
L.Ed.2d 535 (1992) (denying qualified immunity to defendants who
failed to cut detainee down when he was discovered hanging in his
cell).
17
Mitchell; Johnston; Feagley.

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