Nancy Wever v. James Carman

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-3633

___________

Nancy Wever, as Personal *

Representative of the Estate of Dennis *

Wever, Deceased, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Lincoln County, Nebraska, *

*

Defendant, *

*

James Carman, Individually and as *

Lincoln County Sheriff, *

*

Appellant, *

*

Martin Gutschenritter, Individually and *

as North Platte Chief of Police; City of *

North Platte, Nebraska; John Does *

1-10; John Does 11-20, *

*

Defendants. *

___________

Submitted: April 15, 2004

Filed: November 4, 2004

___________

Before MORRIS SHEPPARD ARNOLD, MAGILL, and MURPHY, Circuit Judges.

___________

MAGILL, Circuit Judge.

This case arises from the following tragic facts. On December 8, 2001, Lincoln

County officers responded to a 911 call from an emotionally despondent Dennis

Wever. Though Wever threatened to kill himself if jailed, the officers arrested

Wever, brought him to jail, placed him in an isolation cell, and gave him a blanket

upon his request. Less than half an hour after making the threat, Wever hung himself

with the blanket. He was the third person in five years to commit suicide in the

Lincoln County jail.

Wever's mother, acting as his personal representative, brought a § 1983 claim

against James Carmen, the sheriff of Lincoln County, and various officers, alleging

that his deficient training and supervision of the officers involved in the arrest and

incarceration deprived her son of rights under the Fourteenth Amendment. Carmen

moved for summary judgment based on qualified immunity and for dismissal for

failure to state a claim. The district court denied the motion, holding that the

complaint stated a violation of the Fourteenth Amendment and that Carmen had not

established he was due qualified immunity. We have jurisdiction to review the

district court's denial of qualified immunity pursuant to 28 U.S.C. § 1291, and we

affirm. As we discuss below, we lack jurisdiction to review the district court's

determination that Wever's complaint states a claim.

Wever called 911 on December 8, 2001 at approximately 3:30 p.m. The 911

call log reveals he was depressed and crying. A number of Lincoln County police

officers were dispatched to the home of Wever's father. Upon their arrival, Wever

emerged from the home and engaged in a discussion with the officers. The officers

were concerned that he was suicidal because of the 911 call and his demeanor upon

their arrival. During this discussion, Wever's father returned home and attempted to

aid the officers in calming Wever. Various officers' reports reflect that several times

during the initial discussion, Wever stated that he was not going to kill himself.

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Wever eventually consented to go to a hospital and speak with a doctor.

However, for reasons not made clear by the various officers' reports and Carmen's

brief, the officers decided instead to arrest him. Carmen alleges only that Wever was

arrested "because of his combative and volatile state." Br. of Defendant-Appellant

at 8.1 One of the officers in charge during the arrest, Sergeant Tolle, was similarly

vague as to the justification for the arrest, suggesting little more than that Wever was

arrested for speech the officers found offensive: "Due to Dennis's yelling obscenities

and derogatory remarks and his lack of cooperation and the feeling that without

taking action of some sort the problem would only continue I also felt that Dennis

needed to be taken into custody." J.A. at 57-58.2

Wever offered to go with the police peacefully on the condition that he not be

handcuffed. The officers refused, and instead wrestled Wever to the ground and

forcibly handcuffed him. During this process, Wever suffered an abrasion to his left

cheek. Over the course of the confrontation, he yelled obscenities and threatened the

officers.

Upon being arrested and placed in a squad car, Wever kicked out the back

window. He was then removed from the car, thrown to the ground, physically

subdued, and put in leg chains. Wever's mother alleges that after they had subdued

1

Carmen does not state which Nebraska law this violates.

2

The arrest form indicates that Wever was arrested for criminal mischief,

resisting arrest, and disturbing the peace. J.A. at 66. The first two alleged crimes

occurred only after the officers decided to arrest Wever—he resisted their attempt to

handcuff him and kicked out the window of the police cruiser. Thus, they cannot

possibly be the reason for the arrest. It is unclear whether the allegation of disturbing

the peace refers to Wever yelling obscenities at the throng of police officers gathering

in his father's yard, or the scuffle that ensued when the officers decided to handcuff

him. Regardless, reading the record in the light most favorable to Wever, the decision

to arrest him was rather thinly supported.

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him, the officers continued to beat and kick him while he was on the ground.3

Officers then placed Wever in another car and took him to a hospital. After being

advised of his combative behavior, the responding nurse opted to treat Wever in the

squad car. She opined that the injury to his face was merely a scratch and signed a

Medical Clearance Report, checking a box accompanied by the following typed, pre-

printed text: "I have examined the prisoner and find him/her acceptable for admission

to the jail. I have no specific suggestions regarding care of this prisoner for the

condition for which I have examined him/her." J.A. at 28 (emphasis added). Carmen

does not assert that the treating nurse was advised of suicidal threats Wever made at

the hospital. More importantly, the record indicates the medical clearance the nurse

gave Wever was specifically for the scratch on his cheek.

Until the time he was arrested, Wever told the officers that though he was

depressed, he did not intend to kill himself.4 However, once the officers decided to

arrest him, Wever made it clear that he would kill himself if jailed. While waiting in

the car at the hospital, Wever stated several times that he would hang or otherwise kill

himself if he was taken to jail. According to officer Dowhower, who drove the car,

Wever was emphatic in stating that he would kill himself if jailed. Nevertheless, after

Wever's cut was examined, Dowhower took Wever to the county jail, where the jailer

was advised of Wever's threats. When Wever arrived at the jail, he "made a comment

to the [e]ffect of 'now it's time.'" J.A. at 54.

Despite the fact that he had repeatedly threatened suicide, Wever was placed

in an isolation unit at about 5:00 p.m. He asked to make a call at approximately 5:08,

and was allowed to do so. He was unable to reach the party and asked officer

3

Carmen disputes this allegation.

4

The 911 call log states that previous to his arrest, Wever told the dispatcher

that he was not suicidal. This is supported by the reports of officers Foote and Toelle.

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Klingsporn if he could try later. Klingsporn agreed, and returned Wever to the

isolation cell, whereupon Wever requested a blanket. Though Klingsporn had been

advised by one of the arresting officers only minutes earlier that Wever had

threatened suicide, he brought Wever a blanket at approximately 5:14. In a report

written after the incident, Klingsporn stated: "I asked him if he promised not to do

anything with it except cover himself up. He said he wasn't going to do anything with

the blanket. He also joked about there not being anywhere in Iso to hang himself

. . . ." J.A. at 61. At approximately 5:30, officer Wilson went to check on Wever and

discovered him hanging in his cell by the blanket Klingsporn had provided. Wever

had been in the county jail only half an hour after threatening suicide. He was

brought to a hospital and pronounced dead.

It is undisputed that Sheriff Carmen took no personal part in the arrest, nor was

he present at the jail during the suicide.

Wever's representative sued Carmen in his individual capacity for deliberate

indifference to Wever's serious medical needs as a pretrial detainee known to be

suicidal. Carmen filed a motion for summary judgment accompanied by only two

exhibits spanning a mere three pages: a two-page affidavit signed by Carmen, and a

one-page medical form signed by the nurse who examined Wever. His summary

judgment motion argued that Wever failed to state a claim and that Carmen was due

qualified immunity for the sole reason that he had no personal involvement in the

arrest. Absent from Carmen's affidavit is mention of any training given to Lincoln

County officers concerning treatment of suicidal inmates; nor does it relate any policy

for dealing with suicidal inmates, or when any such policy was implemented. Finally,

it omits two prior suicides which occurred at the jail and what, if any, preventive steps

may have been taken following those suicides. Carmen's motion and accompanying

brief similarly omitted any discussion of liability he may have as a supervisor for

inadequate training or supervision of the numerous Lincoln County officers who

interacted with Wever shortly before his death.

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The district court denied Carmen's meagerly supported motion, construing the

complaint to adequately allege a Fourteenth Amendment violation by Carmen, and

holding that Carmen was not due summary judgment in large part because he "did not

present any evidence showing what training procedures, if any, were in place for

handling potentially suicidal detainees or inmates, nor did he present any evidence

showing what steps, if any, were taken following" an earlier suicide that had occurred

during his tenure as sheriff. Wever v. Lincoln County, Neb., No. 7:02CV05016, 5 (D.

Neb. Sept. 24, 2003). Carmen appeals. We affirm the district court.

We review a denial of a summary judgment motion claiming qualified

immunity de novo, considering it only to the extent it turns on an issue of law.

Bankhead v. Knickrehm, 360 F.3d 839, 842-43 (8th Cir. 2004).

In order to determine whether Carmen is due qualified immunity, "we must

perform two inquiries in 'proper sequence.'" Coleman v. Parkman, 349 F.3d 534, 537

(8th Cir. 2003) (citation omitted). First, we "must ask whether, when viewed in the

light most favorable to the plaintiff, the alleged facts show the official's conduct

violates a constitutional right." Id. at 538. If the answer to this question is "yes," then

we ask a second question: "'whether the right was clearly established.'" Id. (quoting

Saucier v. Katz, 533 U.S. 194, 201 (2001)). Only the first inquiry is at issue in this

case. As a pretrial detainee, Wever had a clearly established Fourteenth Amendment

right to be protected from the known risks of suicide.5 Yellow Horse v. Pennington

5

Carmen contends on appeal that the district court erred in interpreting Wever’s

complaint. Essentially, Carmen argues that the district court erred in interpreting

Wever’s broadly worded complaint to “adequately set forth a Fourteenth Amendment

claim against Sheriff Carmen for failure to provide Wever, a pretrial detainee, mental

health care.” Wever, No. 7:02CV05016 at 2. Though neither party has so argued, we

lack jurisdiction to review the district court’s interlocutory interpretation of Wever’s

complaint. This court has jurisdiction over “final decisions” of district courts. 28

U.S.C. § 1291. The district court’s decision denying Carmen’s motion based on the

sufficiency of the pleadings is not final—the claim goes forward. This court does

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County, 225 F.3d 923, 927 (8th Cir. 2000).6

As the party moving for summary judgment based on qualified immunity,

Carmen bears the burden of demonstrating that "no material issues of fact remain as

to whether [his] actions were objectively reasonable in light of the law and the

information [he] possessed at the time of his actions." Cross v. Des Moines, 965 F.2d

629, 632 (8th Cir. 1992).

In his motion for summary judgment, Carmen argued only that he was due

qualified immunity as a matter of law because he had no personal involvement in

Wever's arrest. Wever’s brief in opposition and Carmen’s reply brief, however,

addressed supervisory liability. Despite the fact that Carmen did not initially raise

have jurisdiction to hear interlocutory appeals from the denial of summary judgment

based on qualified immunity. Beck v. Wilson, 377 F.3d 884, 888-89 (8th Cir. 2004).

Jurisdiction based on the denial of qualified immunity does not extend to matters that

are not “final” unless the two are inextricably intertwined. See Kincade v. City of

Blue Springs, 64 F.3d 389, 394-95 (8th Cir. 1995). The district court’s construction

of the complaint to adequately allege a claim is not inextricably intertwined with the

district court’s ruling on qualified immunity. See Hafley v. Lohman, 90 F.3d 264,

266 (8th Cir. 1996). We therefore lack jurisdiction to review the district court’s

construction of the complaint. Because we cannot review the district court’s decision,

we use its conclusion that Wever adequately set forth a complaint for failure to

provide mental health care to a pretrial detainee in our qualified immunity analysis.

6

While Yellow Horse involved an Eighth Amendment claim, it is well

established that pretrial detainees such as Wever are "accorded the due process

protections of the Fourteenth Amendment, protections 'at least as great' as those the

Eighth Amendment affords a convicted prisoner." Boswell v. Sherburne County, 849

F.2d 1117, 1121 (8th Cir. 1988). We have previously suggested that the burden of

showing a constitutional violation is lighter for a pretrial detainee under the

Fourteenth Amendment than for a post-conviction prisoner under the Eighth

Amendment. Smith v. Copeland, 87 F.3d 265, 268 n.4 (8th Cir. 1996).

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any issues of supervisory liability, the district court considered Carmen's liability as

a supervisor and held that he was not entitled to qualified immunity as a matter of

law.

As for the issue raised by Carmen, it is plain that he cannot be held liable on

a theory of respondeat superior for any constitutional violations committed by the

officers who arrested and jailed Wever. Boyd v. Knox, 47 F.3d 966, 968 (8th Cir.

1995). However, this does not mean that Carmen, to be held liable, must have

personally participated in any constitutional deprivation committed by his officers,

or must have known about any violation at the time it occurred. Howard v. Adkison,

887 F.2d 134, 138 (8th Cir. 1989) ("Proof of actual knowledge of constitutional

violations is not, however, an absolute prerequisite for imposing supervisory

liability."). To the extent Carmen suggests otherwise in his motion to dismiss and his

brief before this court, he is in error. Rather, a supervisor

may be held individually liable under § 1983 . . . if a failure to properly

supervise and train the offending employee caused a deprivation of

constitutional rights. The plaintiff must demonstrate that the supervisor

was deliberately indifferent to or tacitly authorized the offending acts.

This requires a showing that the supervisor had notice that the training

procedures and supervision were inadequate and likely to result in a

constitutional violation.

Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996) (internal citations omitted).

Though Carmen did not contest supervisory liability in his motion for

summary judgment, Wever’s brief opposing summary judgment raised the issue and

Carmen addressed it in his reply brief. Carmen did not, however, include any

materials outside the pleadings regarding supervisory liability. The district court

considered whether, taking the facts as alleged by Wever, Carmen was immune from

supervisory liability as a matter of law. Because Carmen failed to adduce any

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evidence regarding supervisory liability, and put forward his motion before any

significant discovery had been undertaken, we will not penalize Wever for possible

deficiencies in evidence.7 See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)

(requiring “adequate time for discovery”); see also Iverson v. Johnson Gas Appliance

Co., 172 F.3d 524, 530 (8th Cir. 1999). Instead, just as the district court, we will only

consider whether, taking Wever's allegations as true, Carmen should be granted

qualified immunity as a matter of law. N. Ark. Med. Ctr. v. Barrett, 962 F.2d 780,

784 (8th Cir. 1992) (recognizing that a summary judgment motion based on the

pleadings is the “functional equivalent” of a motion to dismiss). Carmen raises two

arguments against supervisor liability in his brief before this court: First, he disputes

that he had the requisite notice that his training procedures and supervision were

inadequate; and second, he argues that he had a constitutionally sufficient policy in

place.

Wever's complaint alleges that Carmen was aware of two prior suicides in the

Lincoln County jail, one occurring in 1999 while he was sheriff, and one occurring

in 1996, prior to his tenure.8 Carmen argues that as a matter of law, one or two

suicides are insufficient to put a sheriff on notice that his training and supervision is

constitutionally inadequate. Under his proposed rule, a sheriff may sit idly by until

at least a third inmate known to be suicidal takes a blanket from an officer and hangs

himself, only then ordering his officers not to place a suicidal person in an isolation

cell and hand him a blanket. We decline to so hold.

7

The motion was timed before the completion of discovery, and it argued that

the plaintiff failed to state a claim and that, taking the allegations in the complaint as

true, the defendant was due qualified immunity as a matter of law. Dist. Ct. Docket

Entry 45 (staying discovery until resolution of another defendant's motion for

summary judgment).

8

Though Carmen was not sheriff during the 1996 suicide, Wever's complaint

alleges that Carmen was aware of both suicides. Carmen does not deny he was aware

of the 1996 suicide.

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We have previously stated that, in most circumstances, a single incident does

not provide a supervisor with notice of deficient training or supervision: "[A] single

incident, or a series of isolated incidents, usually provides an insufficient basis upon

which to assign supervisory liability." Howard v. Adkison, 887 F.2d 134, 138 (8th

Cir. 1989) (emphasis added). However, as indicated, this calculus is not rigid, and

must change depending on the seriousness of the incident and its likelihood of

discovery. In Howard, the alleged constitutional violation was caused by an

unsanitary cell. Id. at 136. A supervisor is not expected to be put on notice of

constitutionally deficient sanitation training by a single instance of a dirty cell. But

we cannot equate death with dirty cells. Our case law reflects this flexible calculus.

In Andrews, the plaintiff sued a police chief for failing to supervise an officer who

ultimately raped two women. 98 F.3d at 1073-74. We held that the chief's

knowledge of two prior complaints against the officer for making inappropriate

sexual advances to women during traffic stops was sufficient to create an issue of

material fact as to notice, rendering summary judgment improper. Id. at 1078. In

some circumstances, one or two suicides may be sufficient to put a sheriff on notice

that his suicide prevention training needs revision. In the present case, Wever has

alleged that Carmen was placed on notice by two previous suicides, and we cannot

say this is insufficient as a matter of law.

In the alternative, Carmen asserts that "the jail had a good-faith policy in place

for dealing with those prisoners and pretrial detainees presenting suicidal risks.

Furthermore, after the September 1999 incident, the policy was implemented for

approximately two (2) years before the incident at issue occurred." Br. of Defendant-

Appellant at 24 (internal citation omitted). The implication of this statement is that

after the 1999 suicide, Carmen implemented a constitutionally adequate suicide

policy that was in effect at the time of Wever's suicide. However, this argument is not

properly before us. Carmen did not raise it before the district court, and unlike the

notice issue, the district court did not delve into it. Ordinarily, this court will not

consider arguments raised for the first time on appeal. Orr v. Wal-Mart Stores, Inc.,

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297 F.3d 720, 725 (8th Cir. 2002). Nor do the recognized exceptions apply here. Id.

("We consider a newly raised argument only if it is purely legal and requires no

additional factual development, or if a manifest injustice would otherwise result.").

Moreover, we note that the quoted assertion is entirely without support in the record.

The "policy" Carmen cites is a single page offered by Wever, and wholly without

context. One cannot tell when, how, or even whether it was adopted, why Carmen

believed it would adequately respond to the problem of inmate suicide,9 or how

officers were trained to implement it. His assertion that the "policy" was

implemented after the 1999 suicide is also unsubstantiated.10 One cannot discern

9

The alleged policy states:

For Self-Protection of Inmate. When an inmate's behavior indicates he

may injure himself, he will be placed in an isolation cell.

a. Restraints. If the inmate's behavior continues directed toward self

destructive behavior, the inmate will be placed in restraints. . . .

b. Observation. The jailer shall observe the inmate on a frequent

basis, AT LEAST EVERY FIFTEEN (15) MINUTES. . . .

c. Reporting. The jailer will report the placement of an inmate in

isolation and the use of restraints to the Jail Supervisor

immediately. The jailer will complete a Record of Restraint Form

and prepare an Incident and Discipline Report Form.

J.A. at 68. We note this "policy" would not have prevented the instant suicide, which

was not at all unexpected—Wever did exactly what he promised to do shortly after

swearing he would do it. The policy does not advise officers against giving suicidal

prisoners sheets, blankets, or even ropes should they ask. Moreover, Wever has

offered evidence tending to show that placement in isolation cells is overwhelmingly

disfavored as a means of monitoring and treating suicidal prisoners. Carmen has not

responded to this argument.

10

Carmen cites an answer to an interrogatory in which he gave no information

about the two suicides other than the names of the inmates and the dates on which

they occurred. No policy is mentioned. J.A. at 60.

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when the "policy" was adopted, and Carmen neglected to make any mention of it in

his affidavit in support of his motion for summary judgment. As the district court

stated, "Sheriff Carmen did not present any evidence showing what training

procedures, if any, were in place for handling potentially suicidal detainees or

inmates." Wever v. Lincoln County, Neb., No. 7:02CV05016, 5 (D. Neb. Sept. 24,

2003).11

We affirm the decision of the district court denying Carmen qualified

immunity.

______________________________

11

The fact that the district court considered no policy and held that Carmen had

not offered evidence of training serves to strip us of jurisdiction over the issue.

Because of the deficiency of evidence, the district court came to no legal conclusion

about the adequacy of any training. Our jurisdiction over this appeal extends only to

"purely legal determinations made by the district court." Wilson, 260 F.3d at 951. We

therefore express no view as to the sufficiency of any evidence that Carmen may be

able to present the district court regarding actual notice and adequacy of training in

a later motion for summary judgment. See, e.g., Whitford v. Boglino, 63 F.3d 527,

530 (7th Cir. 1995) (“Denial of summary judgment . . . does not establish res

judicata.”).

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