The opinion
REVISED - March 5, 1998
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 96-60872
____________________
RICHARD HARE, Natural Father and next friend
of Haley Hare, a minor;
RICHARD HARE, Individually and in his
official capacity as administrator of
the estate of Tina Hare,
Plaintiffs-Appellees,
versus
CITY OF CORINTH, MS; ET AL.,
Defendants,
FRED JOHNSON, Individually and
in his official capacity;
BILLY CLYDE BURNS, Captain, Individually and
in his official capacity;
JAMES DAMONS, Captain, Individually and
in his official capacity;
BRENDA MOORE, Individually and
in her official capacity,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_________________________________________________________________
February 12, 1998
Before JOLLY, DAVIS and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Concerning the suicide of pretrial detainee Tina Hare in July
1989, at issue in this interlocutory appeal on qualified immunity
is whether, by not preventing the suicide, Appellants acted
objectively unreasonably in the light of then clearly established
law. On remand from a similar interlocutory appeal, decided by our
en banc court, Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996)
(en banc), the district court again denied qualified immunity to
the individual defendants. We REVERSE.
I.
On remand, additional evidence was not presented. The parties
to this appeal agree that our en banc opinion accurately states the
facts in the light most favorable to the nonmovant, Richard Hare:
Shortly after midnight on the morning of
July [4], 1989, the Booneville [Mississippi]
Police Department notified the Corinth Police
Department that [Tina] Hare had been arrested
in Booneville on warrants for petty larceny
and forgery. Officer Larry Fuqua of the
Corinth Police Department immediately went to
Booneville to pick up Ms. Hare, at which time
the Booneville police informed Fuqua that Ms.
Hare was a “heavy drug user.” Fuqua took Ms.
Hare to the Corinth City Jail, where she was
jailed at approximately 1:45 a.m.
Ms. Hare’s husband, [Richard] Hare,
testified in his deposition that Ms. Hare
called him just after she was jailed. Mr.
Hare testified that his wife had never been in
jail before, and that she seemed scared and
frightened. Ms. Hare told her husband that
nothing could be done to secure her release
until after 8:00 a.m., so he went back to
sleep. Later that morning, at around 6:00
a.m., Mr. Hare contacted Ms. Hare’s divorced
parents, Guy Taylor and Patricia Morgan, to
inform them that their daughter was in the
Corinth jail and needed help. Shortly
thereafter, Mr. Hare met with Ms. Hare’s
parents; they decided that Ms. Hare’s parents
would go to the jail at 8:00 a.m. to seek
their daughter’s release, leaving Mr. Hare at
home to care for the Hares’ baby daughter.
When Ms. Hare’s parents went to the jail at
around 8:00 a.m., however, [Captain Billy
Clyde] Burns [of the Corinth Police
Department] told them that Ms. Hare was not
ready for release, and that it would take more
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time to complete the investigation of their
daughter. Accordingly, Burns told the parents
to return home and wait for his call.
In his deposition, Burns testified that
he was informed that Ms. Hare was a suspect in
a check forgery case, and that he first met
with Ms. Hare to interview her at
approximately 10:00 a.m. on July [4], 1989.
During this interview, Ms. Hare told Burns
that she had been forging checks and cashing
them to finance her dilaudid addiction.
According to Burns, Ms. Hare was depressed
about being in jail, and was sitting with both
feet in her chair in a defensive, “fetal-type”
position. Ms. Hare said that she was an unfit
mother and expressed concern about how her
husband would react to her predicament. Burns
observed that Ms. Hare was going through
withdrawal, which he understood to be a normal
reaction to her drug use; he also learned at
that time that Ms. Hare was scheduled to enter
a drug rehabilitation program the next day,
July [5], 1989, in Tupelo, Mississippi. Burns
indicated that Ms. Hare’s mood improved later
in the interview when she learned that her
bond amount would not be as high as she
initially had expected.
After the interview, Burns placed Ms.
Hare in a private cell and told the
dispatcher, Brenda Moore, to monitor Ms. Hare
in case her withdrawal symptoms required
medical attention. Ms. Hare was allowed to
call her parents to ask them to return to the
jail to assist with her bond so that she could
be released that afternoon. These plans never
materialized, apparently in part because of
Burns’ displeasure over Ms. Hare’s attempt to
destroy a videotape on which the interview had
been recorded. Also, in the meantime, the
Corinth police had received word of additional
charges on Ms. Hare. When Ms. Hare’s parents
arrived at the jail at around noon, Burns told
them that Ms. Hare could not go home at that
time.
Though Ms. Hare was not released, she was
allowed to visit with her parents from around
2:00 p.m. to 3:00 p.m. During this private
meeting, Ms. Hare’s mother described Ms. Hare
as “emotionally distraught.” Burns likewise
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described Ms. Hare’s mood as “hyper” and
“frantic” while her parents were at the jail.
Ms. Hare attempted to convince Burns not to
hold her in jail another night and threatened
to commit suicide if he did. While Burns did
not consider the threat serious, Ms. Hare’s
father testified that he believed that she was
serious, observing that she had made the
suicide threat in a serious, believable tone
of voice. Burns acknowledged that it was
possible that Ms. Hare said to him that “her
life was in his hands,” but said that he could
not specifically remember whether she said
those words to him. In any event, Ms. Hare’s
threat prompted her father to seek assurance
from Burns that Ms. Hare would be safe. Burns
acknowledges telling Ms. Hare’s father that
the police would do “everything within [their]
power to make sure that nothing did happen to
her.”
After Ms. Hare’s parents left the jail,
Burns returned Ms. Hare to her original cell.
Burns subsequently moved her to an isolated
cell nearest the camera monitors and trusty
station, claiming that Police Chief Fred
Johnson instructed him to do so. Johnson
denies that he ever gave Burns such an
instruction. Since Ms. Hare had been strip-
searched previously, Burns searched her cell,
took her shoes, and made sure that she did not
have a belt. Burns saw a blanket on the bunk
and considered the possibility that Ms. Hare
might use it to harm herself, but left it
there believing that she was not strong enough
to tear it. Burns instructed dispatcher Moore
to keep a close check on Ms. Hare and to have
the trusties check on her. Accordingly to
Burns, his primary concern was Ms. Hare’s
“withdrawal syndrome,” not her suicide threat.
Moore confirms that Burns told her to
keep an eye on Ms. Hare, and that he also
apprised her of Ms. Hare’s threat to harm
herself. Burns, however, believed that Moore
would be on duty until 10:00 p.m., when in
fact she was off duty at 5:00 p.m. Moore thus
went home at 5:00 p.m., at which time Captain
James Damons took over her dispatching duties.
Moore claims that she informed Damons that
Burns had left instructions to keep an eye on
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Ms. Hare, though Damons denies receiving such
information.
Burns left the station some time after
3:00 p.m. At around 6:00 p.m., Burns called
the jail from his home and told Damons to have
the two trusties check on Ms. Hare at least
every forty-five minutes. Damons promptly
sent a trusty to check on Ms. Hare. When the
trusty arrived at Ms. Hare’s cell, he found
her hanging from the bars of her cell with a
noose that she had fashioned from strips of
the blanket. As the trusty did not have a key
to Ms. Hare’s cell, he immediately notified
Damons. Damons, in accordance with jail
procedures, could not leave his post, so he
called Burns. Ms. Hare was left there
hanging, though the summary judgment evidence
does not establish whether she was alive or
dead when the trusty first found her. Burns
told Damons to leave Ms. Hare undisturbed
until the State Investigator arrived.
Hare, 74 F.3d at 636-38.
Pursuant to 42 U.S.C. § 1983, Richard Hare sued the City of
Corinth, as well as the individual defendants bringing this appeal,
alleging that, inter alia, they were deliberately indifferent to
the risk of Tina Hare’s suicide. The district court denied summary
judgment, Hare v. City of Corinth, 814 F. Supp. 1312, 1314 (N.D.
Miss. 1993), and the individual defendants appealed, asserting
qualified immunity.
Our court’s original panel opinion held that Richard Hare had
alleged a violation of the clearly established right to medical
attention for suicidal tendencies, and that material fact issues
remained as to whether the individual defendants were deliberately
indifferent. Hare v. City of Corinth, 22 F.3d 612 (5th Cir. 1994),
withdrawn and superseded on rehearing by 36 F.3d 412 (5th Cir.
1994), on rehearing en banc, 74 F.3d 633 (5th Cir. 1996), on
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remand, 949 F. Supp. 456 (N.D. Miss. 1996). However, that panel
revised its opinion, holding: (1) that “the jail officials were
under a clearly established constitutional duty to provide pretrial
detainees with reasonable care for serious medical needs, unless
the deficiency reasonably served a legitimate governmental
objective”; and (2) that a material fact issue existed as to
whether the jail officials “knew or should have known of Tina
Hare’s vulnerability to suicide”. Hare, 36 F.3d at 415-17, on
rehearing en banc, 74 F.3d 633, on remand, 949 F. Supp. 456.
Our court took this case en banc, for the following reasons
stated in the resulting opinion, and held:
As our cases suggest, we have traveled a
peripatetic route in invoking different
measures of the constitutional rights of
pretrial detainees to medical care and
protection from harm. Close analysis,
however, discloses much consistency in our
treatment of the underlying constitutional
claims. Our goal in deciding this case today
is to clarify our case law and to articulate
the proper legal measure of a State’s duty to
tend to a pretrial detainee posing a risk of
suicide.
* * *
[W]e conclude that a state jail official’s
constitutional liability to pretrial detainees
for episodic acts or omissions should be
measured by a standard of subjective
deliberate indifference as enunciated by the
Supreme Court in Farmer [v. Brennan, 511 U.S.
825 (1994)].
Hare, 74 F.3d at 643. This holding is restated at the conclusion
of the opinion:
In sum, we hold (1) that the State owes
the same duty under the Due Process Clause and
the Eighth Amendment to provide both pretrial
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detainees and convicted inmates with basic
human needs, including medical care and
protection from harm, during their
confinement; and (2) that a state jail
official’s liability for episodic acts or
omissions cannot attach unless the official
had subjective knowledge of a substantial risk
of serious harm to a pretrial detainee but
responded with deliberate indifference to that
risk.
Id. at 650 (emphasis added).
Accordingly, this case was remanded to the district court with
the following instructions:
Richard Hare alleges that the defendants
violated the Due Process Clause of the
Fourteenth Amendment by causing Tina Hare to
be deprived of her right to reasonable care.
The district court found that there was a
genuine issue of material fact as to whether
the defendants knew or should have known of
Ms. Hare’s suicide risk. As we have
explained, however, the correct legal standard
is not whether the jail officers “knew or
should have known,” but whether they had
gained actual knowledge of the substantial
risk of suicide and responded with deliberate
indifference. This appeal comes from a denial
of summary judgment rejecting qualified
immunity. We remand for application of the
standard announced today. See Rankin v.
Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993).
We express no opinion regarding the outcome of
such further proceedings in the trial court.
Id. (Emphasis added).
As noted, additional evidence was not presented on remand.
The district court again denied summary judgment, both on the
merits and on qualified immunity, holding that material fact issues
remained as to whether the individual defendants had subjective
knowledge of the risk of Tina Hare’s suicide and whether they acted
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with deliberate indifference to that risk. Hare, 949 F. Supp. at
460-66.
II.
The denial of summary judgment on qualified immunity is, of
course, immediately appealable, even when a genuine issue of
material fact exists, when the order determines a question of law.
E.g., Wren v. Towe, No. 96-11388, slip op. at 1193 (5th Cir. Dec.
30, 1997) (“A district court’s denial of summary judgment is not
immune from interlocutory appeal simply because the denial rested
on the fact that a dispute over material issues of fact exists.”)
(citation omitted); Coleman v. Houston Indep. Sch. Dist., 113 F.3d
528, 531 (5th Cir. 1997) (discussing Behrens v. Pelletier, 516 U.S.
299 (1996)).
Along this line, Richard Hare moved to dismiss this appeal.
In an unpublished opinion, our court held:
We conclude that these [individual] defendants
have a right to an interlocutory appeal to
assert their qualified-immunity defense
because they are challenging the district
court’s legal reasoning rather than merely its
factual findings.
* * *
They are not arguing, for example, that there
was insufficient summary judgment evidence for
the district court to permit a jury to
conclude that they left Ms. Hare with the
blanket that she used to hang herself. They
claim not that they didn’t do it, but that
even if they did it, it didn’t violate a
clearly established constitutional right and
thus doesn’t defeat their immunity.
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Hare v. City of Corinth, No. 96-60872, at 2, 6 (5th Cir. filed Mar.
31, 1997) (unpublished).
It bears repeating that this appeal is brought only by the
individual officers, not the City of Corinth, concerning only
qualified immunity, not the merits. And, it is well to remember
that qualified immunity serves a number of quite important goals.
Courts have expressed a concern over “the deterrent effect that
civil liability may have on the willingness of public officials to
fully discharge their professional duties”. Sanchez v. Swyden, No.
96-40557, slip op. at 1390-91 (5th Cir. Jan. 13, 1998) (citing
Pierson v. Ray, 386 U.S. 547, 555 (1967); Anderson v. Creighton,
483 U.S. 635, 638 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 814
(1982); and Scheuer v. Rhodes, 416 U.S. 232, 239-41 (1974)).
Moreover, we seek to “avoid excessive disruption of government”.
Malley v. Briggs, 475 U.S. 335, 341 (1986). To this end, qualified
immunity serves to terminate a claim against a public official as
soon as possible in a judicial proceeding, even before discovery.
See Siegert v. Gilley, 500 U.S. 226, 232 (1991) (“‘Until this
threshold [qualified] immunity question is resolved, discovery
should not be allowed.’”) (quoting Harlow, 457 U.S. at 818).
“Decision of this purely legal question [of qualified
immunity] permits courts expeditiously to weed out suits which fail
the test without requiring a defendant who rightly claims qualified
immunity to engage in expensive and time consuming preparation to
defend the suit on its merits.” Siegert, 500 U.S. at 232 (emphasis
added). “One of the purposes of immunity, absolute or qualified,
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is to spare a defendant not only unwarranted liability, but
unwarranted demands customarily imposed upon those defending a long
drawn out lawsuit.” Id. Accordingly, the doctrine of qualified
immunity “provides ample protection to all but the plainly
incompetent or those who knowingly violate the law”. Malley, 475
U.S. at 335. Needless to say, some of these goals are not
reflected in the instant case; the issue of qualified immunity is
still unresolved more than six years after the complaint was filed.
The bifurcated test for qualified immunity is quite familiar:
(1) whether the plaintiff has alleged a violation of a clearly
established constitutional right; and, (2) if so, whether the
defendant’s conduct was objectively unreasonable in the light of
the clearly established law at the time of the incident. E.g.,
Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir. 1997). It goes
without saying that we review a summary judgment de novo, viewing
the evidence in the light most favorable to the nonmovant. E.g.,
Abbott v. Equity Group, Inc., 2 F.3d 613, 618-19 (5th Cir. 1993).
A.
Again, the first step is to determine whether the plaintiff
has alleged “violation of a clearly established constitutional
right”. Siegert, 500 U.S. at 231. E.g., White v. Taylor, 959 F.2d
539, 545 n.4 (5th Cir. 1992) (“We have interpreted Siegert to
require that we examine whether the plaintiff has stated a claim
for a constitutional violation before reaching the issue of
qualified immunity.”); Connelly v. Comptroller of the Currency, 876
F.2d 1209, 1212 (5th Cir. 1989) (“It is a common failing in
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qualified immunity decisions that courts avoid deciding exactly
what constitutional violation might have occurred if the facts are
as a plaintiff alleged.... The purpose of requiring careful
characterization of plaintiff’s claim at the outset of a qualified
immunity analysis is to effectuate the goal of that defense”).
This analysis is made under the “currently applicable
constitutional standards”. Rankin v. Klevenhagen, 5 F.3d 103, 106
(5th Cir. 1993).
Richard Hare claims that the individual defendants “violated
the Due Process Clause of the Fourteenth Amendment by causing Tina
Hare to be deprived of her right to reasonable care”. Hare, 74
F.3d at 650. Appellants counter that there is no duty to diagnose
her with a mental illness that would trigger a duty to protect her
from suicide. And, again, our en banc opinion stated:
We hold that the episodic act or omission of a
state jail official does not violate a
pretrial detainee’s constitutional right to be
secure in his basic human needs, such as
medical care and safety, unless the detainee
demonstrates that the official acted or failed
to act with deliberate indifference to the
detainee’s needs.
Id. at 647-48.
Richard Hare has consistently alleged that the individual
defendants knew, or should have known, that Tina Hare was
exhibiting suicidal tendencies, and that the defendant’s actions,
and inactions, by, inter alia, placing Tina Hare in an isolated
cell, without removing the blanket, constituted deliberate
indifference to Tina Hare’s serious medical/psychiatric needs.
Therefore, pursuant to the standard established by our en banc
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opinion, Richard Hare has alleged the violation of a clearly
established constitutional right.
B.
The second prong of the qualified immunity test is better
understood as two separate inquiries: whether the allegedly
violated constitutional rights were clearly established at the time
of the incident; and, if so, whether the conduct of the defendants
was objectively unreasonable in the light of that then clearly
established law. See Pierce v. Smith, 117 F.3d 866 (5th Cir.
1997); Rankin, 5 F.3d at 108 (“When evaluating whether a plaintiff
stated a constitutional violation, we looked to currently
applicable constitutional standards. However, the objective
reasonableness of an official’s conduct must be measured with
reference to the law as it existed at the time of the conduct in
question.”) (internal quotes and citations omitted) (emphasis
added).
1.
As discussed fully in our en banc opinion, review of the case
law as of the time of the incident, July 1989, reveals that the
standard of care owed to pretrial detainees, in protection of their
due process right to medical care or protection from harm, was
confused and often conflicting. See generally Hare, 74 F.3d at
639-43 (detailing the relevant case law on this issue prior to the
en banc opinion). We revisit it briefly.
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In Bell v. Wolfish, 441 U.S. 520, 539 (1979), the Court
provided the following standard to be applied in a case involving
a pretrial detainee’s due process rights:
[I]f a particular condition or restriction of
pretrial detention is reasonably related to a
legitimate governmental objective, it does
not, without more, amount to ‘punishment.’
Conversely, if a restriction or condition is
not reasonably related to a legitimate goal—if
it is arbitrary or purposeless—a court
permissibly may infer that the purpose of the
governmental action is punishment that may not
constitutionally be inflicted upon detainees
qua detainees.
This standard is contrasted with the requirement of
“deliberate indifference”, which has been employed in cases
involving prisoner claims of Eighth Amendment violations due to
denial or interference with medical needs. Estelle v. Gamble, 429
U.S. 97, 104-05 (1976). This was explained in our en banc opinion
in Hare:
When dealing with a pretrial detainee’s right
to medical care or protection from harm, it is
argued, we must apply the reasonable
relationship test of Bell, since that test was
designed specifically to define the scope of
due process rights of pretrial detainees.
With equal fervor it is urged that the
deliberate indifference standard applied in
the Court’s Eighth Amendment cases ought to be
the choice, since those cases have addressed
the specific type of right asserted in this
case—the right to medical care or protection
from harm.
74 F.3d at 640.
The case law in this circuit in the decade following Bell and
Estelle did little to clarify the proper standard in pretrial
detainee suicide cases. Johnston v. Lucas, 786 F.2d 1254 (5th Cir.
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1986), held that a prisoner must show that the jailers acted with
“conscious or callous indifference” to their duty to protect the
prisoner from others. Shortly after Lucas, we held that, in cases
involving claims by a pretrial detainee under the Eighth Amendment
right to be free from the constant threat of harm by fellow
inmates, “[t]he same conditions of violence and sexual abuse which
constitute cruel and unusual punishment may also render the
confinement of pretrial detainees punishment per se.” Alberti v.
Klevenhagen, 790 F.2d 1220, 1224 (5th Cir. 1986).
Finally, in Partridge v. Two Unknown Police Officers, 791 F.2d
1182 (5th Cir. 1986), our court was presented with a case involving
a pretrial detainee suicide. We held that, under Bell, “the
defendants had a duty, at a minimum, not to be deliberately
indifferent to [the pretrial detainee’s] serious medical needs”.
Id. at 1187 (emphasis added). This decision clearly held that
negligence is an insufficient basis on which to state a claim, and
pointed to a standard of deliberate indifference to a pretrial
detainee’s medical needs. However, the applicable standard was
again obfuscated by our decision in Cupit v. Jones, 835 F.2d 82, 85
(5th Cir. 1987), which signaled a return to the Bell test by
requiring that an official’s failure to provide reasonable medical
care must be “reasonably related to a legitimate governmental
objective”.
These cases show that the parameters of the law in 1989 were
far from clearly defined. But, on the other hand, they demonstrate
that it was clearly established that, at a minimum, the standard of
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care was as described in our 1996 en banc opinion in this case.
See Hare, 949 F. Supp. at 464 (“[T]he duty of law enforcement
officials not to be deliberately indifferent to serious medical
needs of pre-trial detainees has long since been the minimum duty
owed to a pre-trial detainee.”) (citing as authority Estelle, 429
U.S. 97; Bell, 441 U.S. at 535 n.16; City of Revere v.
Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983); Jones v.
Diamond, 636 F.2d 1364, 1378 (5th Cir. 1981), overruled on other
grounds by International Woodworkers of Am., AFL-CIO and its Local
No. 5-376 v. Champion Int’l. Corp., 790 F.2d 1174 (5th Cir. 1986);
and Partridge, 791 F.2d at 1187).
Therefore, the deliberate indifference test enunciated in our
1996 en banc opinion was a clearly established minimum standard of
conduct when the incident occurred in 1989. In other words, at the
very least, that standard was clearly established as of then.
Therefore, it is that standard to which we hold the individual
defendants in determining, objectively, the reasonableness of their
conduct. See Anderson, 483 U.S. at 640 (“[T]he ‘contours’ of the
right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”); Sanchez,
No.96-40557, slip op. at 1390 (“[T]he official’s knowledge of the
relevant law need not rise to the level of a ‘constitutional
scholar.’”) (citing Harlow, 457 U.S. at 815-17).
2.
Accordingly, we turn to whether the conduct of the individual
defendants was objectively reasonable in the light of the then
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clearly established law. E.g., Rankin, 5 F.3d at 108; Spann v.
Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993). “The stated purpose
underlying adoption of an objective test was to ‘permit the
resolution of many insubstantial claims on summary judgment’ and to
avoid ‘subject[ing] government officials either to the costs of
trial or to the burdens of broad-reaching discovery’ in cases in
which the legal norms the officials are alleged to have violated
were not clearly established at the time the events occurred.”
Lynch v. Cannatella, 810 F.2d 1363, 1374 (5th Cir. 1987) (citing
Harlow, 457 U.S. at 817-18) (emphasis added).
On this appeal, objective reasonableness has been confused
with the separate subjective standard of deliberate indifference.
This is understandable. As the district court recognized, other
courts have experienced difficulty determining the relationship
between these two standards in the context of qualified immunity.
See, e.g., Scott v. Abate, No. CV-93-4589, 1995 WL 591306, at *10
n.5 (E.D.N.Y. Sept. 27, 1995) (“It is ... difficult to imagine
factual circumstances in which a trier of fact could find
deliberate indifference as defined by Farmer and nevertheless
conclude that a reasonable person in [the] defendant’s position was
not chargeable with knowledge that his or her actions violated the
plaintiff’s clearly established constitutional rights.”) (quoting
Briecke v. Coughlin, No. 92-CV-1211, 1994 WL 705328, at *6
(N.D.N.Y. Dec. 16, 1994)).
Again, this appeal is brought only by the individual officers,
not the City of Corinth, contesting the qualified immunity denial,
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not the merits. And, again, in addressing qualified immunity, the
test is objective reasonableness. And, again, objective
reasonableness is a question of law for the court. E.g., Mangieri
v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994) (“[I]n evaluating a
claim of qualified immunity, the district court is to make a
determination of the objective reasonableness of the official’s act
as a matter of law.”)
Obviously, the analysis for objective reasonableness is
different from that for deliberate indifference (the subjective
test for addressing the merits). Otherwise, a successful claim of
qualified immunity in this context would require defendants to
demonstrate that they prevail on the merits, thus rendering
qualified immunity an empty doctrine. See Hart v. O’Brien, 127
F.3d 424, 454 (5th Cir. 1997) (“A public official who attacks a
plaintiff’s ability to prove her case is not raising a qualified
immunity defense, which is ‘conceptually distinct from the merits
of the plaintiff’s claim.’”) (quoting Johnson v. Jones, 515 U.S.
304, 314 (1995)).
Accordingly, for this appeal on qualified immunity, the
subjective deliberate indifference standard serves only to
demonstrate the clearly established law in effect at the time of
the incident, as discussed supra. And, under that standard — the
minimum standard not to be deliberately indifferent — the actions
of the individual defendants are examined to determine whether, as
a matter of law, they were objectively unreasonable.
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Officer Burns was present at a meeting between Tina Hare and
her parents, at which Tina Hare threatened suicide. Officer Burns
placed her in the private cell closest to the monitor and the
trusty’s station, searched the cell, ensured that Tina Hare did not
have a belt, and removed her shoes because they had laces. Officer
Burns did not remove the blanket from the cell because he believed
that Tina Hare, who weighed only approximately 100 pounds, was not
strong enough to tear it. Officer Burns instructed Officer Moore
to keep a close check on Tina Hare. On the afternoon of the
suicide, Appellants, or the jail trusties, checked on Tina Hare
when she went to her cell at 3:00 p.m., when Officer Damons came on
duty at 4:00 p.m., when Tina Hare was fed at 5:00 p.m., and when
Officer Burns called at 6:00 p.m. Moreover, the only evidence in
the record concerning Tina Hare’s physical state when she was found
is Officer Burn’s report, which states that Officer Damons reported
that she was dead.1
1
Richard Hare contends that the failure to check Tina
Hare’s pulse or body temperature when she was found hanging in the
cell could, by itself, allow a reasonable juror to find that the
defendants were deliberately indifferent to Tina Hare’s medical
needs. This contention was not made in the pleadings. In fact,
the complaint alleges that Tina Hare was found hanging in her cell
at approximately 6:00 p.m. on 4 July 1989, but that she “died at
approximately 5:30 p.m. ... while in the custody of the
Defendants”. The only reference whatsoever in the record vis-a-vis
this argument is in the plaintiff’s motion to amend the pretrial
order to include a conflict of law as to “[w]hether the
Constitution requires a municipality or its employees to ensure
that inmates receive care for their serious medical needs,
specifically, emergency care for inmates discovered hanging in
their cells.” Because Richard Hare did not make this contention in
district court in response to the summary judgment motion, much
less present any supporting evidence, it is not properly presented
on appeal.
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Needless to say, in this context, the objective reasonableness
standard does not afford a simple bright-line test. See, e.g.,
Rellergert v. Cape Girardeau County, 924 F.2d 794, 797 (8th Cir.
1991) (“While we conclude that the law is clearly established that
jailers must take measures to prevent inmate suicides once they
know of the suicide risk, we cannot say that the law is established
with any clarity as to what those measures must be.”). However, we
conclude that, against the backdrop of the deliberate indifference
standard enunciated in the en banc opinion, which was the only
clearly established standard in 1989, the actions of the individual
defendants are within the parameters of objective reasonableness.
Cf. Rhyne v. Henderson County, 973 F.2d 386, 393 (5th Cir. 1992)
(holding that giving a blanket to an inmate who had twice attempted
suicide and was diagnosed as suicidal, and not placing the inmate
under continuous observation, is not a constitutional violation);
State Bank of St. Charles v. Camic, 712 F.2d 1140, 1146 (7th Cir.)
(removing belt and shoelaces were “reasonable precautions” even
though inmate was placed in a cell not visible from the booking
area and later hanged himself with his shirt), cert. denied, 464
U.S. 995 (1983); Popham v. City of Talladega, 908 F.2d 1561, 1564
(11th Cir. 1990) (holding that removing shoes and ensuring detainee
had no belt demonstrate a lack of deliberate indifference); Schmelz
v. Monroe County, 954 F.2d 1540, 1545 (11th Cir. 1992) (finding no
deliberate indifference when officers failed to remove a blanket as
part of a suicide watch, even though the detainee had previously
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requested to see the jail psychologist, because such conduct “can
be characterized at best as mere negligence”).
It is important to underline our narrow holding: we do not
address arguments concerning the material fact issues designated by
the district court. Instead, we hold that the undisputed facts,
viewed in the light most favorable to the nonmovant, do not
constitute objectively unreasonable conduct when applied against
the deliberate indifference standard.
In this regard, it should be noted that our holding does not
insulate all public officials from liability for suicides by
pretrial detainees. Based on evidence that an officer was
subjectively, deliberately indifferent, as described in our en banc
opinion, the objective reasonableness analysis may well result in
that officer not being entitled to qualified immunity. It goes
without saying that each case will turn on the evidence to which
the objective standard is applied. On the other hand, as
discussed, and where appropriate, qualified immunity serves
important purposes by terminating an action early in the
proceedings. E.g, Hunter v. Bryant, 502 U.S. 224, 227 (1991)
(“Immunity ordinarily should be decided by the court long before
trial.”).
III.
In sum, as a matter of law, the district court should have
granted summary judgment to Appellants on qualified immunity
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grounds.2 Accordingly, the denial of summary judgment is REVERSED
as to Appellants; judgment is RENDERED for them; and this matter is
REMANDED for further proceedings.
2
Obviously, the sanctions sought against Appellants for
claimed undue delay and frivolousness of the appeal are DENIED.
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