Converse v. Kemah The City Of

In the United States District Court May 26, 2022

Nathan Ochsner, Clerk

for the Southern District of Texas

GALVESTON DIVISION

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No. 3:15-cv-105

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RONALD LEE CONVERSE, ET AL., PLAINTIFFS,

v.

CITY OF KEMAH, TEXAS, ET AL., DEFENDANTS.

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MEMORANDUM OPINION AND ORDER

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JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE:

Before the court is the officer-defendants James Melton, Marcus Way,

Anna Marie Whelan, and Reuben Kimball’s motion for summary judgment.

Dkt. 109. Having considered the arguments, the summary-judgment

evidence, and the applicable law, the court grants in part and denies in part.

I. Background

This case arises out of the suicide of Chad Silvis while he was detained

in the City of Kemah jail. On April 11, 2014, shortly past midnight, a passerby

flagged down Kemah Police Sergeant Marcus Way to tell him that a man was

at the top of the Kemah Clear Creek bridge and appeared ready to jump. Dkt.

75 ¶ 16 (Second Amended Complaint). Way broadcasted on his police radio

that there was a possible “jumper” on the bridge. Id. Sergeant James Melton,

Officer Reuben Kimball, and Telecommunications Officer/Dispatcher Anne

Marie Whelan all heard the call. Id.

Way arrived at the top of the bridge to find Silvis sitting on the railing

with his feet over the edge. Id. ¶ 17. He appeared impaired and was drinking

from a pint bottle of whiskey. Dkt. 109-1 at 2. Way called dispatch for backup,

and Kimball and Melton soon joined him. Dkt. 75 ¶ 17. Eventually the three

officers succeeded in safely pulling Silvis off the railing. Id. ¶ 18. Silvis was

handcuffed and Kimball transported him to the Kemah jail. Id. After Silvis

was booked, processed, and taken to his cell, Way directed Kimball to take

Silvis’s shoes—a typical precaution with suicidal inmates. Id. ¶ 20–22.

Kimball had, however, given Silvis a blanket during his in-processing when

Silvis complained he was cold. Id. ¶ 21. Way was present when Silvis was

placed in the cell with the blanket. Id. Whelan and Melton also each came by

Silvis’ cell at different times while he possessed the blanket. Id.

At about 1:44 a.m., Silvis used the blanket Kimball had given him to

hang himself from the top bunk of the cell’s metal bedframe. Id. ¶ 25. Forty-

five minutes passed before the officers realized what had happened. Id. ¶ 26.

The decedent’s father, Ronald Converse, sued the City of Kemah and

the officers as representative of Silvis’s estate and in his individual capacity.

Id. ¶ 1. Converse’s suit was consolidated with that of Sara Monroe who sued

as next friend of Silvis’s minor child, B.S. Dkt. 109 at 9; see also Dkt. 46

(Order of Consolidation).

The plaintiffs allege three causes of action against Kemah and the

officers: (1) § 1983 claims against the officers for violating the Eighth and

Fourteenth Amendments; (2) supervisory liability under § 1983 against

Melton; and (3) municipal liability under § 1983 against Kemah. Dkt. 75 ¶¶

40–57.1 The plaintiffs seek wrongful-death and survival damages, costs to

repair damage to Silvis’s personal property, funeral expenses, and exemplary

damages. Id. ¶ 66.

II. Legal Standard

Summary judgment is proper when “there is no genuine dispute as to

any material fact and the movant is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(a). The court must view the evidence in the light most

favorable to the nonmovant. Coleman v. Hous. Indep. Sch. Dist., 113 F.3d

528, 533 (5th Cir. 1997). The movant bears the burden of presenting the basis

1 The court dismissed the plaintiffs’ claims against Kemah under the Texas

Tort Claims Act at the motion-to-dismiss stage. Dkt. 51 at 21.

for the motion and the elements of the causes of action for which a genuine

dispute of material fact does not exist. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). The burden then shifts to the nonmovant to offer specific facts

showing a genuine dispute for trial. See Fed. R. Civ. P. 56(c); Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). “A

dispute about a material fact is ‘genuine’ if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993) (citation

omitted).

The court “may not make credibility determinations or weigh the

evidence” in ruling on a summary-judgment motion. Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). But when the nonmoving

party has failed “to address or respond to a fact raised by the moving party

and supported by evidence,” then the fact is undisputed. Broad. Music, Inc.

v. Bentley, No. SA-16-CV-394-XR, 2017 WL 782932, at *2 (W.D. Tex. Feb.

28, 2017). “Such undisputed facts may form the basis for summary

judgment.” Id. The court may grant summary judgment on any ground

supported by the record, even if the ground is not raised by the movant.

United States v. Houston Pipeline Co., 37 F.3d 224, 227 (5th Cir. 1994).

III. Analysis

A. The Law of Qualified Immunity

“Qualified immunity shields government officials from liability when

they are acting within their discretionary authority and their conduct does

not violate clearly established statutory or constitutional law of which a

reasonable person would have known.” Gates v. Tex. Dep’t of Protective &

Reg. Servs., 537 F.3d 404, 418 (5th Cir. 2008). It “balances two important

interests—the need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties

reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). And “it provides

ample protection to all but the plainly incompetent or those who knowingly

violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

“Qualified immunity is an immunity from suit rather than a mere

defense to liability.” Pearson, 555 U.S. at 237 (internal quotation marks

omitted). Even more, it alters the usual summary-judgment burden of proof:

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. The plaintiff bears the burden of

negating qualified immunity, but all inferences are drawn in his

favor.

Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).

The qualified-immunity analysis is a two-pronged inquiry: “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.” Id. The court

may rely on either prong in its analysis, id., and has the “discretion to decide

which prong to consider first.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir.

2013) (citing Pearson, 555 U.S. at 236).

“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.’” Id.

(quoting Collins v. Ainsworth, 382 F.3d 529, 537 (5th Cir. 2004)). “Whether

an official's conduct was objectively reasonable is a question of law for the

court, not a matter of fact for the jury.” Id.

“Since at least 1989, it has been clearly established that officials may

be held liable for their acts or omissions that result in a detainee’s suicide if

they ‘had subjective knowledge of a substantial risk of harm to a pretrial

detainee but responded with deliberate indifference to that risk.’” Converse

v. City of Kemah, 961 F.3d 771, 775 (5th Cir. 2020) (quoting Jacobs v. W.

Feliciana Sheriff's Dep’t, 228 F.3d 388, 394 (5th Cir. 2000)); see also Flores

v. Cnty. of Hardeman, 124 F.3d 736, 738 (5th Cir. 1997) (“A detainee's right

to adequate protection from known suicidal tendencies was clearly

established when Flores committed suicide in January 1990.”).

Because there was clearly established law at the time of Silvis’s suicide,

the sole remaining question for this court is whether each officer’s conduct

violated Silvis’s rights.

The sometimes confusing relationship between these two

standards—qualified immunity’s “objective reasonableness”

standard and the Fourteenth Amendment’s ‘subjective deliberate

indifference’ standard—has been distilled as follows: “[W]e are

to determine whether, in light of the facts as viewed in the light

most favorable to the plaintiffs, the conduct of the individual

defendants was objectively unreasonable when applied against

the deliberate indifference standard.”

Converse, 961 F.3d at 775 (quoting Jacobs, 228 F.3d at 394).

A prison official will not be held liable if he merely ‘should have

known’ of a risk; instead, to satisfy this high standard, a prison

official “must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and

he must also draw the inference.”

Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). An official shows

a deliberate indifference to that risk “by failing to take reasonable measures

to abate it.” Hare v. City of Corinth, 74 F.3d 633, 648 (5th Cir. 1996) (en

banc).

The Fourteenth Amendment’s protections for pretrial detainees

include requiring detention officers to take reasonable, prophylactic steps to

prevent suicide when a detainee is an actual suicide risk. See Flores, 124 F.3d

at 738. Federal law does not support a claim for general failure to prevent a

detainee from committing suicide, or general failure to implement suicide-

prevention procedures. Taylor v. Barkes, 575 U.S. 822, 826 (2015) (per

curiam). “[T]he proper inquiry is whether the jail official had a culpable state

of mind in acting or failing to act.” Hare, 74 F.3d at 643 (emphasis added).

The “inquiry begins with the fundamental rule that negligent inaction

by a jail officer does not violate the rights of a person lawfully held in custody

by the State.” Id. at 645. Liability for inaction by detention personnel

attaches only when an officer’s failure to act amounts to deliberate

indifference to a detainee's rights. Id. at 639. “Deliberate indifference, i.e.,

the subjective intent to cause harm, cannot be inferred from [an officer's]

failure to act reasonably.” Hare, 74 F.3d at 649. “[E]ven if an officer responds

without the due care a reasonable person would use–such that the officer is

only negligent–there will be no liability.” Hyatt v. Thomas, 843 F.3d 172, 178

(5th Cir. 2016) (citing Davidson v. Cannon, 474 U.S. 344, 347 (1986)).

“Deliberate indifference is an extremely high standard to meet.” Domino v.

Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001).

“The deliberate indifference standard is a subjective inquiry; the

plaintiff must establish that the jail officials were actually aware of the risk,

yet consciously disregarded it.” Lawson v. Dallas Cnty., 286 F.3d 257, 262

(5th Cir. 2002) (emphasis added). “[L]iability attaches only if [an officer]

actually knew—not merely should have known—about the risk.”

Olabisiomotosho v. City of Houston, 185 F.3d 521, 528 (5th Cir. 1999).

“Specifically in the pretrial-detainee-suicide context, ‘a plaintiff must

show that public officers were [1] aware of facts from which an inference of a

substantial risk of serious harm to an individual could be drawn; [2] that they

actually drew the inference; and [3] that their response indicates subjective

intention that the harm occur.’” Garza v. City of Donna, No. 7:16-CV-00558,

2017 WL 6498392, at *7 (S.D. Tex. Dec. 15, 2017) (internal citations

omitted); see also Tamez v. Manthey, 589 F.3d 764, 770 (5th Cir. 2009).

“Evidence of negligence, or even gross negligence, is not enough.” Id. (citing

Sanchez v. Young Cnty., Texas, 866 F.3d 274, 280 (5th Cir. 2017)).

Mere “evidence that an official was aware of a substantial risk to inmate

safety does not alone establish deliberate indifference.” Hyatt, 843 F.3d at

177. Officers “who actually knew of a substantial risk to inmate health or

safety may be found free from liability if they responded reasonably to the

risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 847.

Reasonableness in this context must be tempered by the conflicting demands

placed on officers charged with attempting to protect individuals who are

detained. See generally Kingsley v. Hendrickson, 576 U.S. 389, 399 (2015)

(recognizing that “[r]unning a prison is an inordinately difficult

undertaking” and that “safety and order at these institutions requires the

expertise of correctional officials, who must have substantial discretion to

devise reasonable solutions to the problems they face” (internal citations

omitted)).

The court applies these principles to assess the conduct of each

individual defendant in turn.

B. Application to Individual Defendants

1. Sergeant Melton

Melton argues that he is entitled to summary judgment because his

conduct was reasonable under the circumstances. In turn, to survive

summary judgment, the plaintiffs must show a genuine issue of material fact

as to Melton’s deliberate indifference to the risk of harm Silvis posed to

himself. Tamez, 589 F.3d at 770. To show subjective deliberate indifference,

the plaintiffs must present evidence (1) that Melton had subjective

knowledge of facts from which an inference of substantial risk of serious

harm could be drawn; (2) that Melton actually drew that inference; and (3)

that Melton’s response to the risk reflects that he subjectively intended that

harm to occur. Id.

Melton argues he did not violate the Fourteenth Amendment. To the

contrary, he argues that the uncontroverted evidence shows that he risked

his life to prevent Silvis from committing suicide on the bridge and took

reasonable steps to protect Silvis from harming himself at both the bridge

(after he was taken off the ledge) and again at the Kemah jail. Dkt. 109 at 17.

Because Melton did not believe it was safe for the paramedics to triage Silvis

on the bridge, as it would require them to remove Silvis from the police

vehicle he was detained in, the medical evaluation was conducted at the

Kemah jail. Dkt. 109-1 at 3 (Melton Declaration). The paramedics found no

reason to transport Silvis from the police station to the hospital for further

examination or treatment. Id.

Melton states he then contacted a mental-health professional trained

through the Texas Commission on Law Enforcement and employed by the

Galveston County Sheriff’s Office Mental Health Division about Silvis. Id.

The mental-health professional informed Melton it was necessary for Silvis

to sober up before his mental health could appropriately be assessed. Id. at

4. The mental-health professional directed Melton to detain Silvis overnight

based on his public intoxication and that a mental-healthcare deputy would

arrange for a provider to assess Silvis at the police station in the morning. Id.

Melton argues he deferred to the expertise of the paramedics and the

mental-health professional’s decision not to remove Silvis from the jail. Id.

Melton states had “no reason to suspect Silvis would likely harm himself

inside the cell, and [he] knew of no need for more or different monitoring of

Silvis than [he] understood would be done.” Id. Melton believed Silvis had

been searched before he was placed in the cell, so he had “no reason to believe

he possessed any weapon, or even blanket, to harm himself.” Id. Melton

“never saw a blanket inside Silvis’s cell and [] did not know he had one.” Id.

Additionally, Melton “knew officers periodically check[ed] on Silvis’s

condition inside the cell,” and that there was also video monitoring of the

cell’s interior. Id. While Silvis was in the cell and before his death, Melton

had some interactions with him about noise and Silvis’s desire to smoke a

cigarette, but Melton could not see the blanket from his vantage point. Dkt.

109 at 5.

The plaintiffs respond that each defendant knew that Silvis was

suicidal and actively trying to harm himself; that it was against jail policy to

provide a suicidal inmate with items such as a blanket; that Silvis had been

provided with a blanket; and yet each defendant chose to do nothing. Dkt.

118 at 5. The plaintiffs argue that Melton was aware of the policy that suicidal

detainees were not to be issued a blanket; that jail suicides were a “problem”;

that one method of committing suicide was with bedding; and that detainees

had their shoelaces taken in order to prevent suicide. Id. The plaintiffs also

argue because Melton interacted with Silvis on the bridge, he knew Silvis was

serious about committing suicide, and knew that Silvis’s intention to commit

suicide had not changed during his detention. Id. at 5–6. The plaintiffs point

out that Melton can be seen on video footage interacting with Silvis, Way,

and Kimball while Silvis is holding the blanket, and that Melton looked into

the cell where the blanket was clearly visible. Dkt. 118 at 6.

The video evidence the plaintiffs cite to for this proposition, however,

shows only Way, Kimball, and an unidentified Seabrook Police Department

officer interacting with Silvis in the jail hallway as Silvis is holding a jail-

issued orange blanket. Def. Ex. 6 at 1:00-2:30; see also Dkt. 119 at 8. Melton

is not seen in that video until about the 16-minute mark, at which point he is

looking in on Silvis in his cell. Def. Ex. 6 at 16:00-18:00. In-cell video reveals

that at the two discrete points in time Melton is checking on Silvis, no blanket

is clearly visible. The blanket is first on the floor, partially underneath the

lower bunk-bed mattress (at the 24:30-mark on the video) during Melton’s

first visit and then placed out of view of the in-cell camera, at the 25-minute

mark, by Silvis before Melton’s extended, second visit. Def. Ex. 8.

The plaintiffs present no other evidence that Melton was aware of the

presence of the blanket and thus cannot satisfy the requirement to show

Melton had “subjective knowledge of facts from which an inference of serious

harm could be drawn.” Tamez, 589 F.3d at 770. While the plaintiffs discredit

as self-serving Melton’s declaration that he did not know Silvis had a blanket,

Dkt. 109-1 at 4, the plaintiffs’ own deposition of Melton elicited no testimony

to the contrary, Dkt. 118-1. Because the plaintiffs, as the nonmoving parties,

have failed to show the existence of an element essential to their case and on

which they will bear the burden of proof at trial, Celotex Corp., 477 U.S. at

322–23, Melton is entitled to summary judgment on the § 1983 claims

against him.2

2. Sergeant Way

Sergeant Way argues he is entitled to summary judgment because he

acted with objective reasonableness when he helped Melton prevent Silvis

from completing suicide and directed Kimball to remove Silvis’s shoes before

Kimball placed Silvis in the cell. Dkt. 109 at 18. Way believed Silvis had no

means available to harm himself in the cell because he observed several

officers and Melton interact with Silvis and that he also knew the dispatch

2 The plaintiffs have abandoned their § 1983 supervisory-liability claim

against Melton by failing to pursue it beyond the amended complaint. See Black v.

N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (finding failure to

pursue a claim beyond the complaint constituted abandonment).

office had video monitors available to observe Silvis in his cell. Id. Finally,

Way states he was already off-duty and at home when Silvis committed

suicide. Id.

The plaintiffs argue, however, that a fact question exists as to whether

Way knew Silvis had a blanket. They point to evidence showing that Way

interacted with Silvis while Silvis was holding the blanket. Dkts. 118 at 6; 118-

2 at 2–3. Because Way was “aware of the facts” from which an inference

could be drawn that Silvis posed a substantial risk of harm to himself, the

plaintiffs argue that summary judgment for Way is improper.

Video evidence of the hallway shows Kimball and the unidentified

Seabrook police officer escorting Silvis to his cell, uncuffing Silvis, and

putting him in the cell. Def. Ex. 6 at 00:49–2:30. Silvis is holding the jail-

issued orange blanket throughout his appearance on camera. Id. The back

and top of Way’s head is visible in the bottom of the video, and he can be seen

facing the jail cell and the other officers while Silvis is speaking with Kimball

and the unidentified officer. Id. At the 1:25-minute mark, Way comes on

camera to instruct Kimball to take Silvis’s shoes. Id. Shortly after, Way is seen

at the door of the cell while Kimball, who is inside the cell and not visible

from this camera angle, removes and tosses Silvis’s shoes out of the cell. Id.

The interior-cell video shows Silvis and Kimball inside the cell while

Silvis’s shoes are being removed. Def. Ex. 8 at 1:25–2:00. Way’s left hand can

be seen as he shakes Silvis’s hand, all while Silvis is still holding the jail issued

orange blanket. Id. at 1:53. Way testified at his deposition that his view of the

blanket was blocked by Kimball’s body when he was at the threshold of the

jail cell. Dkt. 118-2 at 9.

Way argues that the video evidence “proves that Officer Kimball’s body

obstructed [his] view of Silvis holding the blanket and proves that [he]

directed Officer Kimball to remove Silvis’ shoes.” Dkt. 119 at 8. The video

evidence does indeed prove that Way directed Kimball to remove Silvis’s

shoes. But it is not dispositive as to whether Way’s view of the blanket was

blocked throughout the hallway interaction among Kimball, the unidentified

officer, and Silvis. Nor is it clear that during the in-cell interaction among

Silvis, Kimball, and Way, that Way’s view of the orange blanket, sometimes

loosely held by Silvis, was completely out of sight. Indeed, the length of the

interaction and the movement of the individuals on camera cautions against

a dispositive conclusion.

As this case is at the summary-judgment stage, it is appropriate to view

the facts and draw reasonable inferences “in the light most favorable to the

party opposing the [summary-judgment] motion.” United States v. Diebold,

Inc., 369 U.S. 654, 655 (1962) (per curiam). Accordingly, the court finds a

fact issue remains as to whether Way knew Silvis had a blanket. Coupled with

the evidence the plaintiffs have presented establishing that Way knew Silvis

was suicidal and that it was against policy to give suicidal individuals

blankets, a genuine issue of material fact exists on whether Way was both

aware of the substantial risk of harm and that he drew such an inference

while on duty that night. Accordingly, the court denies Way’s motion for

summary judgment.

3. Officer Kimball

Officer Kimball, who was present with Silvis at the Kemah bridge and

escorted him throughout the booking process at the jail, argues that he is

entitled to summary judgment because Silvis’s change in demeanor led him

to mistakenly believe Silvis had regained control of his emotions and was no

longer a suicide threat. Dkt. 109 at 19. Kimball contends that because he

searched Silvis and removed his shoes, he subjectively believed Silvis did not

pose a threat to himself. Id. Kimball also explains that he gave Silvis a blanket

for warmth because Silvis was not wearing a shirt and said he was cold. Id.

Kimball admits to knowing Silvis possessed a blanket in the cell, but asserts

he did not perceive it as a safety risk because he believed Silvis had calmed

down, knew officers periodically checked on Silvis’s condition inside the cell,

and knew there was a camera inside the cell that the dispatcher could use to

continuously monitor Silvis. Id. at 20. Kimball believed dispatchers would

notice if Silvis tried to harm himself with anything, including the blanket. Id.

The plaintiffs respond that Kimball knew it was against Kemah policy

to give suicidal inmates blankets and that he was familiar with other, similar

jail policies and the reason for them. Dkts. 118 at 6; 118-4 at 3–4, 7, 9. The

plaintiffs argue Kimball knew Silvis was suicidal, with a “litany of reasons for

wanting to kill himself, none of which could have changed over the course of

his short detention.” Dkt. 118 at 7.

The plaintiffs have presented evidence establishing a material fact

issue as to whether Kimball had subjective knowledge of facts from which an

inference of substantial risk of serious harm to Silvis could be drawn. A fact

issue exists as to whether Kimball knew that Silvis remained a suicide threat

warranting prophylactic steps by the officers that night, such as denying

Silvis a blanket. Accordingly, Kimball’s motion for summary judgment is

denied and the plaintiffs’ claim against him survives.

4. Officer Whelan

Officer Whelan argues that she is entitled to summary judgment

because her conduct does not rise to the level of deliberate indifference, but

can be characterized as mere negligence.

Whelan was working dispatch when the initial call of a jumper came in

and was the dispatcher who alerted Kemah law-enforcement units to Silvis’s

presence on the bridge. Dkt. 118-3 at 6. Whelan was aware EMS personnel

had examined Silvis at the police station and had visited Silvis in his cell, and

she was also able to see the activities that occurred inside Silvis’s cell via the

video monitor in the dispatch office. Dkt. 109 at 18. Whelan concedes she did

not perform her observations as diligently as required, but that mere

negligence does not amount to deliberate indifference. Id. Whelan states that

had she known that Silvis had a blanket in his cell, she may have observed

Silvis more closely. Id. at 18–19.

The plaintiffs argue that summary judgment is improper because a fact

issue exists as to whether Whelan knew Silvis had a blanket in his cell. The

plaintiffs offer evidence that Whelan knew it was against policy to give a

suicidal inmate a blanket, Dkts. 118 at 6; 118-3 at 6, 12, that she was able to

regularly check on Silvis’s status on the video monitor which clearly

displayed the bright orange jail blanket, Dkt. 118-3 at 8–9, and that she knew

Silvis was in fact suicidal and had attempted to jump off the Kemah bridge,

Dkt. 118-3 at 6. On the video footage, Whelan can be seen talking to Silvis in

person, through the meal-tray slot in his cell door. Def. Ex. 6 at 08:48–14:36.

The corresponding in-cell footage during this time-stamp range shows the

orange blanket laying on the floor of the cell. Def. Ex. 8 at 13:30–14:45.

Whether the blanket was visible from the meal-tray slot in the door and

whether Silvis’s body potentially blocked Whelan’s view of the blanket are

unclear. Not up for debate, however, is that the in-cell footage did capture

the blanket and that such footage was displayed in the dispatch office for all

of Silvis’s time in the jail cell, including the 45 minutes he spent tying the

blanket to the bed frame, positioning himself and the blanket to complete his

asphyxiation, and remaining there until discovered. Def. Ex. 8 at 41:30–

47:45.

Two issues complicate what would otherwise be a straightforward

analysis. The cameras that Whelan used to monitor the in-cell activity of

inmates were installed the day before Silvis committed suicide, so they were

new to her when she came to work that day.3 Dkt. 118-3 at 2. Additionally,

Whelan was a retired master peace officer,4 with over 25 years of law-

enforcement experience before retiring in 2007 and switching to dispatch

work as a telecommunications officer. Id. at 2–3, 6. The very recent

3 Only the cameras in the jail cells were new. The cameras monitoring the

booking area, where Kimball gave Silvis the blanket, were not new. Dkt. 118-3 at 5.

4 Texas peace-officer proficiency levels are basic, intermediate, advanced,

and master. Texas Commission on Law Enforcement, available at

https://www.tcole.texas.gov/content/proficiency-certificates.

introduction of the in-cell cameras and Whelan’s alleged unfamiliarity with

the monitors buttresses Whelan’s justification for her failure to properly

monitor Silvis. Her profound experience as a peace officer, however, cuts

against her argument that any omission on her part to monitor a clearly

unstable, emotionally volatile, and suicidal inmate was merely negligent, and

instead raises a fact question on her knowledge of the substantial risks

present that night.

Viewing the facts and drawing reasonable inferences “in the light most

favorable to the [non-moving party],” Diebold, 369 U.S. at 655, the plaintiffs

have presented sufficient evidence to create a material fact issue on whether

Whelan had subjective knowledge of facts from which an inference of

substantial risk of serious harm could be drawn, that she did in fact draw that

inference, and that her response to the risk reflected she subjectively

intended that harm to occur. The plaintiffs’ claim against Whelan survives

summary judgment.

* * *

For all of the above reasons, the court grants in part and denies in part

the officers’ motion for summary judgment. Dkt. 109. The plaintiffs’ claims

against Melton are dismissed; the claims against Way, Kimball, and Whelan

survive.

Signed on Galveston Island this 26th day of May, 2022.

JEFFREY VINCENT BROWN

UNITED STATES DISTRICT JUDGE

22/22