Brown v. Callahan

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.

Case: 09-10843 Document: 00511257073 Page: 2 Date Filed: 10/07/2010

No. 09-10843

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

2

Case: 09-10843 Document: 00511257073 Page: 3 Date Filed: 10/07/2010

No. 09-10843

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

3

Case: 09-10843 Document: 00511257073 Page: 4 Date Filed: 10/07/2010

No. 09-10843

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

4

Case: 09-10843 Document: 00511257073 Page: 5 Date Filed: 10/07/2010

No. 09-10843

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.

5

Case: 09-10843 Document: 00511257073 Page: 6 Date Filed: 10/07/2010

No. 09-10843

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.

6

Case: 09-10843 Document: 00511257073 Page: 7 Date Filed: 10/07/2010

No. 09-10843

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

7

Case: 09-10843 Document: 00511257073 Page: 8 Date Filed: 10/07/2010

No. 09-10843

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.

8

Case: 09-10843 Document: 00511257073 Page: 9 Date Filed: 10/07/2010

No. 09-10843

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

9

Case: 09-10843 Document: 00511257073 Page: 10 Date Filed: 10/07/2010

No. 09-10843

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.

10

Case: 09-10843 Document: 00511257073 Page: 11 Date Filed: 10/07/2010

No. 09-10843

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.

11

Case: 09-10843 Document: 00511257073 Page: 12 Date Filed: 10/07/2010

No. 09-10843

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.

12