Case: 09-10843 Document: 00511257073 Page: 1 Date Filed: 10/07/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 7, 2010
No. 09-10843
Lyle W. Cayce
Clerk
JANIS L. BROWN, Individually, and as Personal Representative of the Estate
of Jason Ray Brown, Deceased; BILLY RAY BROWN,
Plaintiffs - Appellees
v.
THOMAS J. CALLAHAN, Sheriff of Wichita County, Texas, in his Individual
and Official Capacity,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before JONES, Chief Judge, PRADO, Circuit Judge, and OZERDEN, District
Judge. *
EDITH H. JONES, Chief Judge:
Jason Brown died tragically while detained in the Wichita County Jail.
His estate sued Sheriff Thomas Callahan for failure to train and supervise the
jail’s medical employees and for maintaining an unconstitutional policy of
deliberate indifference to detainees’ serious medical needs. The district court
denied Sheriff Callahan’s motion for summary judgment based on qualified
*
District Judge of the Southern District of Mississippi, sitting by designation.
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immunity, and he appeals. Because there is insufficient evidence of deliberate
indifference or objective unreasonableness by the Sheriff, we reverse.
I. BACKGROUND
The underlying facts are not in dispute. Jason Brown died of a
gastrointestinal hemorrhage while in pretrial custody in the Wichita County
Jail. During the 55 hours between Brown’s book-in and his death, he informed
the intake nurse of multiple serious medical problems, repeatedly vomited what
appeared to be blood, complained of feeling unwell, requested to be sent to the
emergency room, and ultimately was non-responsive for extended periods of
time. During his confinement, Brown lacked access to his prescription
medications. An attending jail nurse, Nurse Krajca, treated Brown’s symptoms
by giving him liquid antacid, placing him in a medical solitary cell, and
administering an anti-nausea suppository. Brown was neither transferred to a
hospital ER, nor was he seen by the jail’s supervising physician, Dr. Bolin. In
fact, no one from the jail ever contacted Dr. Bolin for his advice on Jason Brown.
The jail’s deputies, however, periodically checked Brown’s condition from outside
the medical solitary cell. When the deputies checked on him the next evening,
Brown was dead.
Brown’s parents, Janis and Billy Ray Brown, filed suit individually and as
representatives of the estate of Jason Brown against Sheriff Callahan and
others. Relevant to this appeal, the Appellees contend that Sheriff Callahan is
liable for Brown’s death in his individual capacity under 42 U.S.C. § 1983 under
two possible theories. First, they argue that Callahan is personally responsible
for training staff and supervising the medical treatment of individuals in the
custody of the jail. More specifically, the Appellees allege that Sheriff Callahan
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failed to supervise properly the jail staff and Dr. Bolin, who intimidated the
nurses, discouraging them from contacting the doctor or referring patients to the
ER for further medical treatment. Second, the Browns allege that the Sheriff
ratified as custom or policy Dr. Bolin’s intimidation of the nursing staff that
caused their son’s death.
Sheriff Callahan moved for summary judgment, asserting qualified
immunity. The district court denied his motion. It found that the Appellees
offered sufficient evidence to create material fact issues whether (a) Sheriff
Callahan failed adequately to supervise the jail’s medical personnel, and
(b) approved or ratified “Defendant Bolin’s pattern and practice of harassing and
intimidating jail nurses when they would call him with questions regarding
nursing care, discouraging sending inmates to the hospital causing Brown’s
death.” The same evidence persuaded the court that Sheriff Callahan’s actions
may have been objectively unreasonable and therefore not protected by qualified
immunity. Sheriff Callahan appeals.
II. STANDARD OF REVIEW
This court reviews a denial of a public official’s motion for summary
judgment on the issue of qualified immunity by determining “whether the
district court erred in assessing the legal significance of the conduct that the
district court deemed sufficiently supported for purposes of summary judgment.”
Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc). The court reviews
de novo the district court’s legal determination of the materiality of the identified
fact issues. Lemoine v. New Horizons Ranch & Ctr., Inc., 174 F.3d 629, 634 (5th
Cir. 1999). Summary judgment is required if the movant establishes that there
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are no genuine issues of material fact and the movant is entitled to judgment as
a matter of law. F ED . R. C IV . P. 56(c).
A qualified immunity defense alters the usual summary judgment burden
of proof. See Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005). Once an
official pleads the defense, the burden then shifts to the plaintiff, who must
rebut the defense by establishing a genuine fact issue as to whether the official’s
allegedly wrongful conduct violated clearly established law. Id. The plaintiff
bears the burden of negating qualified immunity, id., but all inferences are
drawn in his favor.
The qualified immunity defense has two prongs: whether an official’s
conduct violated a constitutional right of the plaintiff; and whether the right was
clearly established at the time of the violation. Manis v. Lawson, 585 F.3d 839,
843 (5th Cir. 2009). A court may rely on either prong of the defense in its
analysis. Id.
If the defendant’s actions violated a clearly established constitutional
right, the court then asks whether qualified immunity is still appropriate
because the defendant’s actions were “objectively reasonable” in light of “law
which was clearly established at the time of the disputed action.” Collins v.
Ainsworth, 382 F.3d 529, 537 (5th Cir. 2004) (citations omitted). Whether an
official’s conduct was objectively reasonable is a question of law for the court, not
a matter of fact for the jury. Williams v. Bramer, 180 F.3d 699, 703 (5th Cir.
1999). To be clearly established for purposes of qualified immunity, the contours
of the right must be sufficiently clear that a reasonable official would understand
that what he is doing violates that right. Brown v. Miller, 519 F.3d 231, 236 (5th
Cir. 2008). The unlawfulness of the defendant’s actions must have been readily
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apparent from sufficiently similar situations, but it is not necessary that the
defendant’s exact act have been illegal. Id. at 236-37. An official’s actions must
be judged in light of the circumstances that confronted him, without the benefit
of hindsight. Graham v. Connor, 490 U.S. 386, 396-97 (1989). In essence, a
plaintiff must allege facts sufficient to demonstrate that no reasonable officer
could have believed his actions were proper. Babb v. Dorman, 33 F.3d 472, 477
(5th Cir. 1994).
III. DISCUSSION
As a pretrial detainee, Jason Brown had a clearly established Fourteenth
Amendment right not to be denied, by deliberate indifference, attention to his
serious medical needs. Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996)
(en banc). Whether Dr. Bolin, jail nurses, or other staff violated Brown’s rights
is not before us; the Browns’ case against Dr. Bolin and Nurse Kracja, awaits
trial pending the outcome of this appeal, and we express no opinion on its merits.
Sheriff Callahan had no knowledge of and did not participate in the events
surrounding Brown’s fatal period of detention. Thus, the Sheriff can only be held
liable in his capacity as a supervisor of the jail for his own unconstitutional
conduct. City of Canton v. Harris, 489 U.S. 378, 385 (1978) (no respondeat
superior liability of supervisors).
The Browns have alleged two theories of supervisory liability, which, being
founded on the same facts, may be discussed together. Mirroring the
requirements in this circuit, they contend first that Callahan failed to train or
supervise Dr. Bolin and the jail staff; that a causal link exists between the
failure to train or supervise and the unconstitutional denial of medical care to
Jason; and his failure to train or supervise amounts to deliberate indifference.
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Estate of Davis v. City of N. Richland Hills, 406 F.3d 375, 381-82 (5th Cir.
2005).1 Their second theory of liability is that the Sheriff ratified or condoned
Dr. Bolin’s custom or policy of intimidating nurses from providing needed
medical care, and the custom or policy was “so deficient that the policy itself is
a repudiation of constitutional rights and is the moving force of the
constitutional violation.” Cozzo v. Tangipahoa Parish, 279 F.3d 273, 289 (5th
Cir. 2002) (citing Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987).
For purposes of analysis, we assume arguendo that Jason Brown
experienced an unconstitutional denial of medical care while a pretrial detainee,
and that the denial of care enabled his gastrointestinal hemorrhage to become
fatal.
The facts relevant to the Browns’ theories, developed in discovery,
demonstrate that the Sheriff is legally responsible for operating the county jail.
T EX. L OC. G OVT. C ODE A NN. § 351.041(a). In the mid 1990's the County executed
a contract with Dr. Bolin explicitly requiring the doctor to supervise the
professional work of the jail’s medical staff, six Licensed Vocational Nurses
(LVNs), while the Sheriff supervised their employment. During the period in
question, the jail’s formal medical care plan complied with state standards. The
Browns have offered no evidence that any detainee before Jason Brown
experienced allegedly substandard medical care or any denial of his
constitutional right to receive medical care at the Wichita County jail.
1
A supervisor may be held liable under § 1983 for failure to train or supervise
subordinates if (1) the supervisor failed to train or supervise; (2) a causal link exists between
the failure and violation of plaintiff’s rights; and (3) the failure to train or supervise amounts
to deliberate indifference. Estate of Davis, 406 F.3d at 381.
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Viewed in the light most favorable to the Browns, however, there was
conflicting testimony from Callahan, Dr. Bolin, and present and former nurses
concerning the extent and quality of Callahan’s supervision of Dr. Bolin and the
nurses. Two former jail nurses attested to two incidents in which each consulted
Dr. Bolin about an inmate’s medical condition and was instructed not to send the
patient to the emergency room for treatment. The nurses did so anyway. Their
affidavits state that Dr. Bolin was rude to nurses and intimidated them, and he
disliked being called for advice at nighttime. Each nurse complained to the
Sheriff about the two specific confrontations with Dr. Bolin over sending a
patient to the ER. These nurses also claim to have witnessed Dr. Bolin’s
mistreatment of other nurses on the jail staff. Additionally, Nurse Kracja, who
oversaw Jason Brown’s treatment, expressed reluctance to send Brown to the ER
because she did not want an “ass-chewing” from the doctor.2
Sheriff Callahan did not deny that he was aware of Dr. Bolin’s unpleasant
behavior during a ten-year stint as the jail’s contract physician. He admitted
that Bolin “gripes all the time” at employees. The Sheriff’s response was two-
fold. He testified that he advised the doctor on several occasions to “sweeten up”
toward the nurses. The Sheriff also instructed the nurses to continue calling the
doctor at any time, irrespective of Dr. Bolin’s grumpiness, if they felt it
appropriate.3
2
Specifically, Nurse Kracja told Detention Officer Sours during a cigarette break (after
she had ordered Brown transferred to a medical solitary cell): “[d]o you know what kind of
ass-chewing I would get from Dr. Bolin if I sent [Brown] to the hospital in the good health that
he is in?” We interpret this ambiguous remark in the light most favorable to the Browns.
3
In their briefing, the Browns emphasize a contention that the nurses were asked to
perform medical duties, e.g. assessment and treatment of patients and administration of
medication, beyond their training as LVNs. The district court cited a lack of evidence of any
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These last two paragraphs summarize the evidence found sufficient by the
district court to raise genuine and material fact issues not only on each prong of
the Browns’ theories of unconstitutional supervision and an unconstitutional
policy, but also on whether Callahan’s conduct was so objectively unreasonable,
i.e. plainly incompetent or a knowing violation of law, that a jury could deny him
qualified immunity. Despite our sympathy for Jason’s plight and our respect for
the district court’s conscientious effort, we must disagree. Even if we assume
arguendo that the sheriff’s supervision of Dr. Bolin or the nursing staff was
inadequate and that there was a causal link between his failure and Brown’s
death, we cannot conclude that there is a genuine material fact issue as to
Callahan’s deliberate indifference to constitutional rights. Evidence is also
lacking to prove the objective unreasonableness, for immunity purposes, of
Sheriff Callahan’s management of the jail’s medical care.
Deliberate indifference is “a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence of his
action.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997).
Deliberate indifference implies an official’s actual knowledge of facts showing
that a risk of serious harm exists as well as the official’s having actually drawn
specific training deficiencies although the court viewed this contention as also related to a
failure to supervise the nurses. Even if, as a hypothetical matter, LVNs were insufficiently
trained for the duties they actually performed at the Wichita County Jail, nothing about the
history of jail medical operations made it “obviously likely that a constitutional violation of
this sort would result.” The record does not show past incidents when a detainee died or
suffered grievous harm because nursing staff failed to properly assess the severity of the
detainee’s symptoms. The record does not show instances where LVNs were obviously
inadequately trained, leading to gross misdiagnoses or harms resulting from the prescription
and administration of improper drugs. In these circumstances, the district court properly
focused on the failure to supervise theory rather than failure to train.
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that inference. Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir. 1998) (internal
quotation marks and citations omitted). Deliberate indifference is more than
mere negligence or even gross negligence. City of Canton, 489 U.S. at 388. Proof
of deliberate indifference normally requires a plaintiff to show a pattern of
violations and that the inadequate training or supervision is “obvious and
obviously likely to result in a constitutional violation.” Estate of Davis, 406 F.3d
at 381 (citations omitted).
Here, evidence of Sheriff Callahan’s failure to supervise Dr. Bolin and the
nursing staff is simply too attenuated to permit the inference that the Sheriff
was deliberately indifferent, i.e., that he ignored a known or obvious risk of
unconstitutionally deficient medical care. The complaints are that he condoned
or ratified Dr. Bolin’s harassing and intimidation of the nursing staff, failed to
supervise Dr. Bolin’s actions that discouraged the nurses from calling the doctor
or sending patients to the ER, and failed to supervise the nurses to work with
Dr. Bolin for the inmates’ best care. A jury would be asked to infer from
Dr. Bolin’s unpleasant attitude not only that the nurses would be unhappy but
that they would be so intimidated as not to respond to the inmates’ serious
medical needs.
Yet apart from Nurse Kracja’s expressed fear of an “ass-chewing,” there
is no allegation of unconstitutionally deficient medical care attributable to fear
of Dr. Bolin’s response before Jason Brown died. That two nurses decided to
send inmates to the ER over Dr. Bolin’s objections proves the opposite of
intimidation. The Appellees do not even allege that nurses had been disciplined
or terminated in the past for seeking Dr. Bolin’s assistance. A doctor’s bad
temper is nothing for his employing organization to be proud of, but standing
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alone, it does not create a known or obvious risk of inadequate medical care.
Further, the fact that the nurses and Dr. Bolin disagreed in two instances on
whether particular inmates should be sent to the ER does not, without more
proof, raise an inference that those other inmates were subjected to
constitutionally inadequate care. Appellees do not allege that Dr. Bolin refused
to consult with nurses when presented with symptoms resembling those of
Brown, or when any detainee exhibited other similarly severe symptoms like
vomiting blood. They do not allege that nurses had tried in the past to refer
similarly ailing inmates to the ER but were denied, either because of Dr. Bolin
or otherwise.
The Browns, in sum, fail to establish a factual connection between
Dr. Bolin’s demeanor and any actual adverse consequences to the nursing staff
or any prior instance in which the quality of the inmates’ medical care was
diminished because of Dr. Bolin’s communication problems with them. In light
of these deficiencies, the risk arising from Dr. Bolin’s behavior was not clearly
related to constitutionally inadequate medical care. No reasonable jury could
find that Sheriff Callahan knew of, much less disregarded or ignored an obvious
risk. Indeed, he counseled Dr. Bolin and ordered the nurses to act appropriately
notwithstanding Bolin’s distemper, and the Browns have shown no prior
instance in which the Sheriff’s instruction to the nurses was not followed.4 The
ultimate question is not whether a jury, in hindsight, could conclude that the
Sheriff could have engaged in better supervision of the jail’s medical care but
4
The Browns do not contend, nor is there a basis for finding, that the treatment
accorded Jason falls within the “single incident” exception to the usual requirement that to
prove deliberate indifference, a supervisor must be on notice of a pattern of similar
unconstitutional behavior. Estate of Davis, 406 F.3d at 382, 383.
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whether his supervision was so utterly heedless as to amount to deliberate
indifference. That stringent test is not met here.
The district court also held that a fact issue exists as to whether Sheriff
Callahan condoned or ratified a “policy” of nurse intimidation carried out by
Dr. Bolin that discouraged nurses from seeking emergency care for inmates with
serious medical needs. It is unlikely such a policy can be legitimately inferred
from the scant evidence above without disserving the principle that a “policy”
must be “persistent,” “widespread,” “common” and “well settled.” See Cozza,
279 F.3d at 289. Dr. Bolin’s “policy” may have been to mistreat the staff, but
whether the policy’s effect was to discourage inmates from receiving adequate
medical care is barely substantiated. Nonetheless, the Sheriff’s potential
liability for an unconstitutional policy runs afoul of the second prong of qualified
immunity analysis, where the dispositive inquiry is “whether it would be clear
to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). This court has
interpreted “clearly established law” on the subject of policy promulgation to
require “an intentional choice” and amount to subjective deliberate indifference.
Rhyne v. Henderson Cnty., 973 F.2d 386, 392 (5th Cir. 1992). It must be “obvious
that the likely consequences of not adopting a policy will be a deprivation of civil
rights.” Id., quoted in Brumfield v. Hollins, 551 F.3d 322, 328 (5th Cir. 2008).
Applied to this case, it would have had to be clear to the Sheriff that condoning
or ratifying Dr. Bolin’s practice of nurse intimidation would in fact discourage
nurses from seeking constitutionally adequate medical care for the detainees.
That he did not have the subjective knowledge required for deliberate
indifference and imputation of liability has been explained above.
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There is also insufficient evidence from which a reasonable jury could infer
that Callahan’s conduct did not deserve qualified immunity. The district court
relied on the same evidence related above that shows, at worst, the Sheriff’s
negligent supervision of Dr. Bolin and the doctor’s relationship with the nursing
staff. In the absence of any prior incidents that connoted inadequate medical
care at the jail, it is impossible to infer that the Sheriff was essentially callous
about inmate medical care or had any reason to suspect the level of care had
become or could become constitutionally inadequate. The Sheriff was neither
plainly incompetent nor knowingly violating the law, nor were his actions, in the
circumstances he faced, objectively unreasonable. He took some steps to curtail
Dr. Bolin’s intimidation and require the nurses to call the doctor as necessary.
A “pattern” of verbal nurse intimidation and harassment cannot alone place a
supervisor on notice that inmates are receiving medical care so deficient as to
violate the Constitution.
CONCLUSION
Jason Brown’s tragic, lonely death deserved investigation and a careful
review of the Wichita County Jail’s practices toward visibly ill inmates. Neither
the demanding test for supervisory § 1983 liability, however, nor the test for
official qualified immunity has been factually demonstrated against Sheriff
Callahan simply because he knew the jail doctor mistreated the nursing staff.
REVERSED.
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