Opposition Brief — Ellis v. Washington County

Supreme Court, U.S.

— FELED

eS

No. 99-1420 MAR 29 ore)

7

IN THE CLERK |

Supreme Court of the United States

NANCY LANTHORN ELLIS, et ai.,

Petitioners,

V.

WASHINGTON COUNTY, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

K. ERICKSON HERRIN RONALD S. RANGE, JR.

HERRIN, Booze & RAMBO Counsel of Record

515 East Unaka Avenue JENNIFER P. KELLER

Johnson City, TN 37601 BAKER, DONELSON, BEARMAN

(423) 929-7113 & CALDWELL

207 Mockingbird Lane, Suite 300

Attorneys for Respondents

Johnson City, Tennessee;

Ron Street, Chief of Police, in his or ne : ay 37002

Official Capacity; Sam Garland,

in his Official Capacity Attorneys for Respondent

Russell D. Jamerson, in his

Individual Capacity

P.O. Box 3038

(Additional Counsel List On Signature Page)

158772 @J Counsel Press LLC

(800) 274-3321 +» (800) 359-6859

i

TABLE OF CONTENTS

Table of Cited Authorities ....................

ONE OF Ue CNR ook oi hi, Pe

l.

The Petition misrepresents the medical

attention received by Craig Lanthorn in the

ROME iccye tice er inte dy

The Petition misrepresents that City jailers

were inadequately trained on the topic of

suicide prevention and further misrepresents

that the City falsified its training records to

obtain jail certification. .................

The Petition improperly treats each individual

Respondent as if he had knowledge of all

factual allegations supporting Petitioners’

WRC tke CALE Ee

The Petition misrepresents the evidence that

Lanthorn was kicked or abused by Jailer

| URE LR eh ie Ree ten en chee Cg

The Petition misrepresents how the decision

to place Lanthorn in cell block B-4 was

vice rags te EE Oe RE Ee ee eR

The Petition misrepresents that competent

evidence exists suggesting that Sergeant

Jamerson observed Lanthorn placing his head

in a noose and did not react. .............

12

13

13

14

li

Contents

The Petition misrepresents that Washington

County’s jailers were untrained or

inexperienced in suicide prevention and

misrepresents that any action or inaction by

Washington County jailers was causally

connected to Lanthorn’s death. ..........

Reasons for Denying the Writ .................

I.

Il.

Standard for Deliberate Indifference in Jail

Suboihie CONG ooo ak i kk os ee

A. Farmer GRRE is ses a ons 8 nase es

B. Novel Standard Advanced by Petitioners

C. Analysis Of Cases Cited By Petitioners

D. Analysis of Sixth Circuit Precedent ...

Response to Petitioners’ Questions Presented

for ROVIGW oo 605.2480 bis ee eae RRs

A. Deliberate Indifference in Light of

Jatler’s Rmowneadge 2... icisewess.

B. Deliberate Indifference and the Failure

to THOM 6k <cdvet era eee eis

C. Excessive Force by Jailer Garland .....

ComehessOR 2a ccc ccdekskieet eee

Page

16

18

ei iets aaa

ill

TABLE OF CITED AUTHORITIES

Page

Cases:

Barber v. City of Salem, 953 F.2d 232 (6" Cir.

coma’ dll ad Sa i aoe er ai eae 23

Barrie v. Grand County, 119 F.3d 862 (10" Cir.

SENS rege ce er ei eo ee Ee Po 22

Beraha v. Baxter Health Care Corp., 956 F.2d 1436

DN UE oe ge oo a te 27

Bowen v. City of Manchester, 966 F.2d 13 cr

MPS lee ce ge ra gee, fue ON 21

Cheffer v. Reno, 55 F.3d 1517 (11 Cir. oo) eee 27

City of Canton, Ohio v. Harris, 489 U.S. 378

re torr ee) es ee 9, 26

Colburn v. Upper Darby Township, 946 F.2d 1017

gts TE | ae rae ope e nae 21

Danese v. Asman, 875 F.2d 1239 (6" Cir. 1989) .. 23

Estelle v. Gamble, 429 U.S. 97 ‘12. > Spee 19, 20, 21

Farmer v. Brennan, 511 U.S. 825 Ot: eae

pamaa iis 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30

Flores v. County of Hardeman, Tex., 124 F.3d 736

I I i ioe ee ces couse cs. 22

iv

Cited Authorities

Page

Hare v. City of Corinth, 74 F.3d 633 (5" Cir. 1996)

ad anak sk AES eee Eee a eee ween 22

Lambert v. City of Dumas, 187 F.3d 931 (8" Cir.

EDPON . Ss hued Ck ba ae eRe Rew adee ae ees 21

Oklahoma v. Brown, 117 S. Ct. 1382 (1997) ..... 17

Owens v. City of Philadelphia, 6 F. Supp. 2d 373

CE. Pe. PROE is isvanstusnccrananss ee: ft Mee

Payne v. Churchich, 161 F.3d 1030 (7" Cir. 1998)

5a Rik: aba acids PORT aia Apa a hashes alae ies 21

Payne ex rel. Hicks yv. Chuchich, 119 S. Ct. 2339

CR st wk ee wa ek ee te ee eee 21

Williams v. Lee Co., Ala.,78 F.3d 491 (11" Cir.

PRED: ca.ud0s Nak £4 aes <A tea keee 22

Rules:

POG. Te Te ee a ss cE we 28

Pe. Bes a, ee sss oh ea eon eens ke 28

United States Supreme Court Rule 14 ........ 26, 27, 30

l

STATEMENT OF THE CASE

This case is fact intensive. In the interest of brevity, the

respondents submit the following outline of significant

circumstances and events:!

August 2, 1994

* At 12:04 p.m., Johnson City public safety officers

responded to a 911 call initiated by a young woman

reporting that a person was breaking into her home.

[App. 100, 299, 341]

* At 12:35 p.m., following his arrest for public

intoxication and criminal trespassing, Craig Lanthorn

(deceased) was booked into the Johnson City Jail by

Laura Bolton. [App. 103-104] When asked if he was

in need of medical treatment, Lanthorn responded

“No.” [App. 103-104, 147]

¢ At2:00 p.m., a kicking noise was heard in the vicinity

of Lanthorn’s cell and Jailer Sam Garland

investigated the disturbance. [App. 254-255]

Lanthorn told Garland he was having a seizure and

wanted to go to the hospital. [App. 256, 258] In accord

with protocol, Garland had Emergency Medical

Services (EMS) summoned, and medical personnel

Doug Green and Johnny Miller arrived within a matter

of minutes. [App. 254-258, 269, 667] During the brief

interim before EMS arrived, Garland returned to

Lanthorn’s cell, opened the door and was kicked by

1. All references are to the Joint Appendix page number

“[App. __].”

2

Lanthorn who was barefooted and lying on the floor.

[App. 259] Wearing a black tennis shoe, Garland put

his foot on Lanthorn’s shin or ankle to prevent the

kicking, applied very little force and told Lanthorn

emergency aid was on the way. [App. 668-669]

Lanthorn’s medical examination at 2:05 p.m. resulted

in a finding that he was not having a seizure.

[App. 270, 276] Medical records reflect that Lanthorn

was anxious, nervous, communicative and making

sense; oriented to person, place and time; wanted

medication; pulse regular, blood pressure normal,

respiration regular and non-labored; pupils equal and

reactive; skin dry, warm and normal in color.

[App. 268, 271, 273-274, 284-286] EMT Green

developed a rapport with Lanthorn during this

medical examination and saw no evidence of suicidal

tendencies in Lanthorn. [App. 288, 291] EMT Green

testified that if he thought Lanthorn had needed a

physician or that he was medically deteriorating he

would have transported him to the hospital,

involuntarily if necessary. [App. 291] Toward the end

of Lanthorn’s medical examination, he told EMT

Green that he had been “kicked by the police” and

identified his upper torso as being the location where

he had been kicked or injured. [App. 275, 277-278]

Green had Lanthorn remove his shirt and found no

evidence of bruising or any signs of injury. [App. 275]

EMT Green advised Jailers Garland and Bolton

that Lanthorn was “okay to serve his time,” and this

was contemporaneously noted on the jail log.

[App. 60, 66-67, 110, 260-261] EMT Green testified

that Lanthorn told him he wanted his anxiety

3

medication. EMT Green says he told Jailer Garland

“he might want to check with [Lanthorn’s] doctor and

see if he needs his medications.” [App. 274, 280]

Although this testimony must be assumed to be true

for purposes of summary judgment, Jailer Garland

denies this statement was made and consequently, no

contact was made.

EMT Green asked Jailer Garland to sign the EMS

trip report on a line reflecting “refused transport.”

[App. 282] EMT Green testified that he was simply

asking Jailer Garland to sign on behalf of Lanthorn

reflecting Lanthorn’s declining of EMT Green’s offer

to transport him to the hospital. [App. 282-283] EMT

Green has testified that Jailer Garland did not in any

way refuse or prevent Lanthorn from being

transported. [App. 289]

After approximately four (4) hours in the “drunk

tank”, Lanthorn was transferred to a regular cell block

where he had unrestricted access to a telephone. He

used this telephone extensively — calling his mother

on at least four (4) occasions, his father, aunt, uncle,

grandmother, mother’s fiancé and family friends.

[App. 152, 216, 239-240, 249, 252-253, 295, 298,

328-329]

At approximately 7:00 p.m., during the evening shift,

a local attorney and his wife (who is also an attorney

and pro se prisoner law clerk working within the

Northeast Division of Tennessee’s Federal District

Court) arrived at the City Jail seeking a visit with

Lanthorn. [App. 180, 197] The jailer on duty initially

thought this was an attorney/client visit, but he soon

4

learned that the attorneys were Lanthorn’s aunt and

uncle. [App. 196-197] Even though personal

visitation is permitted only on scheduled days and

times, the visitation was allowed. [App. 744]

The aunt and uncle testified that during their visit

with their nephew he was speaking slowly and

deliberately, but he was sensible, rational and not

anxious. [App. 166, 172] According to the aunt and

uncle, Lanthorn was not apathetic, despondent or

withdrawn, and there was no observation by them of

his being compulsive, agitated, hostile or delusional.

He did not have trouble communicating with his aunt

or uncle, and to the extent of their abilities, they saw

nothing leading them to think he might be suicidal.

[App. 158-160, 163-166, 167-169, 172] They had no

reservations about Lanthorn’s emotional stability.

[App. 171, 176, 178] Lanthorn did “tear up” but did

not cry when his aunt hugged him and told him she

loved him as she was leaving. [App. 161-162]

During the evening shift (4:00 p.m. to midnight),

Lanthorn talked by telephone to his mother, a

practicing clinical psychologist, on at least four (4)

occasions, speaking with her for a total of about forty

(40) minutes. [App. 239-240] Lanthorn talked to his

father, also a practicing clinical psychologist, on

several occasions by telephone while in the City Jail.

[App. 326-327] Dr. Lanthorn testified about his

experience treating and assessing suicidal patients and

candidly acknowledged that he did not develop

concerns about suicide or self-harm during any of his

conversations with his son. [App. 326-329, 330-334]

Dr. Lanthorn is not a party to this litigation, it being

brought only by Lanthorn’s mother, Dr. Ellis.

eR ee ee

5

During one of Dr. Ellis’s telephone conversations

with her son and because of her knowledge of a past

suicidal episode by him, she asked him if he was

thinking about hurting himself. He replied, “No,” and

she was satisfied with that. [App. 237-238] Lanthorn

also had five (5) separate telephone conversations

with his grandmother. She did not detect any suicidal

notions and described Lanthorn as articulate and

rational even though his speech seemed slurred.

[App. 295-296, 298]

August 3, 1994

From midnight to 8:00 a.m., Lanthorn slept through

the night without disturbance or difficulties.

[App. 811]

Even though Lanthorn’s troubled past was well

known to his parents and, in large measure, to other

family members who had contact with Lanthorn while

in the City Jail, no information about his medical or

psychiatric history was provided to the City Jail staff.

[App. 151, 169, 178, 218, 224, 226, 231, 234-235]

Lanthorn’s history included the use of hard drugs,

cult participation, a rape never reported to police, a

near death experience brought about by intravenous

drug usage and an involuntary commitment to a

psychiatric hospital about which he was very bitter.

[App. 218, 220-221, 223, 225-231, 234-235, 240,

318-325, 335-338, 347, 873, 875-877] The physician

listed on Lanthorn’s jail intake form had actually

terminated the doctor/patient relationship due to

Lanthorn’s excessive consumption of prescribed

drugs and angry demands for more. [App. 103-104,

6

810, 832-840] Another psychiatrist who had treated

Lanthorn for panic attacks and anxiety testified that

Lanthorn would not be sleeping through the night in

the City Jail if he were having such an episode, as

the plaintiffs in this case originally claimed.

[App. 505, 853-859, 863-865, 872]

At approximately 8:30 a.m., Lanthorn was arraigned

before Judge William Mooney. [App. 267] Following

his arraignment, Lanthorn continued to use the

telephone located in his cell. A family friend, whom

Lanthorn called, described him as upset but rational.

[App. 247] This family friend was familiar with

Lanthorn’s long-standing drug problems and past

suicidal episode. When Lanthorn told her she was his

“last chance,” she developed a concern about him.

This concern was relayed to Lanthorn’s mother, Dr.

Ellis, but no one contacted the jail to report any

concern. [App. 243-245, 247-253]

At 10:30 a.m., Lanthorn was transferred from the City

Jail to the Washington County Jail, along with a copy

of the City Jail’s intake form which reflected he had

been checked by the rescue squad for a seizure and

that he was “okay”. [App. 103-104, 131, 313, 373-

374]

At 10:45 a.m., Lanthorn arrived at the County Jail

and was promptly placed in a holding cell on the

second floor across from the front desk. [App. 460]

A short time later, Lanthorn was interviewed by

booking Jailer Wanda Robertson. [App. 471-472]

Lanthorn related to her that he was not suicidal, that

he loved life, and wanted to be where he could smoke

cigarettes. [App. 472-473]

7

* At approximately 11:00 a.m., Jailer Billy Mitchell

came on duty. Upon hearing other jailers discussing

the various inmates who had arrived from the City

Jail that morning, he recognized Lanthorn’s name

because he had transported Lanthorn to a psychiatric

hospital about a month previously, and he informed

his supervisor Sergeant R. D. Jamerson. [App. 377,

379] When informed of this fact, Sergeant Jamerson

instructed Jailer Mitchell to check on Lanthorn and

to determine whether Lanthorn needed to be on

suicide watch or whether he could be placed in cell

block B-4, the least crowded cell block. [App. 379-

381]

* Jailer Mitchell went to the second floor to check on

Lanthorn and found him engaged in another telephone

conversation with his mother, Dr. Ellis. [App. 381]

Eventually, Jailer Mitchell spoke with Lanthorn and

addressed such topics as what had occurred to bring

about his arrest, the likely disposition of his charges

when he appeared in court and, ultimately, the issue

of whether he was suicidal. [App. 382-383] Lanthorn

responded, “Hell, no. I love life. I’ve got a baby on

the way. You know, I’ve got to support my child.”

[App. 382] Following this conversation, which

included Lanthorn’s repeated requests to be placed

where he could smoke cigarettes, Jailer Mitchell told

Jailer John Cline that Lanthorn could be assigned to

cell block B-4 and then assisted in Lanthorn’s

procurement of some cigarettes from these inmates.

[App. 382-383] The cell block to which Lanthorn was

assigned was not a suicide watch cell, but it did have

a camera on one end that transmitted from the cell

block to a monitor in a manned downstairs office.

8

[App. 453, 469] The monitors were not continuously

watched, but rather had been installed as a security

measure. [App. 450-451, 453]

* Lanthor was placed in cell block B-4 at about 11:45

a.m. [App. 383] During a walk around between 12:15

or 12:30, Lanthorn was observed lying on a mat, and he

asked for a television. Approximately one hour after

that, he appeared to be asleep. [ App. 383-384]

* At approximately 1:55 p.m., kicking and yelling were

heard from cell block B-4, and two jailers immediately

ran to the cell block where they observed Lanthorn

hanging from the cell bars by a noose fashioned from a

sheet. [App. 385] Lanthorn was unconscious, CPR was

immediately instituted, rescue personnel were

summoned, and Lanthorn was transferred to a medical

center where he died the following day when life support

systems were withdrawn. [App. 385, 470]

* Based on the telephone conversation Dr. Nancy Ellis

had shortly before Lanthorn was placed in cell block B-

4, Dr. Ellis expressed in a letter her written opinion that

her son was nor suicidal at the time she spoke with him.

[App. 4° 1-462, 474}

1. The Petition misrepresents the medical attention

received by Craig Lanthorn in the City Jail.

Petitioners assert on page 3 that when Jailer Garland first

discovered that Lanthorn was claiming to have had a seizure,

“Lanthorn’s pleas were ignored. APP. at 13a.” However, if one

looks at page 13a of the Petitioners’ appendix, what one finds

is that Jailer Garland summoned emergency medical personnel.

9

The Petition overlooks the undisputed facts that the

medical personnel determined that Lanthorn was not

having-a seizure and that he did not need to go to the

hospital. [App. 260-261, 270, 276] Petitioners also overlook

the undisputed proof that EMT Green testified that,

notwithstanding his professional opinion that Lanthorn did

not need to be transported to the hospital, he offered to

transport Lanthorn anyway and Lanthorn declined.

[App. 281-282, 293-294] Furthermore, it is undisputed that

Jailer Garland signed the refusal to transport line on the EMS

form on behalf of Lanthorn at the instruction of EMT Green.

[App. 282]

2. The Petition misrepresents that City jailers were

inadequately trained on the topic of suicide prevention

and further misrepresents that the City falsified its

training records to obtain jail certification.

To advance a “failure to train” claim, the proper inquiry

is whether the municipality’s established program/curriculum

is deficient and ifa policymaker was aware of the deficiency

such that it can be said the municipality was “deliberately

indifferent” to critical training needs. City of Canton, Ohio

v. Harris, 489 U.S. 378 (1989). In Canton, this Court

anticipated the ease with which a failure to train argument

could be advanced for any injury befalling those in the

custody of law enforcement officers and expressly limited

its use to protect the core concept that it is abusive

government conduct the constitution seeks to prevent.

Petitioners assert on pages 6 and 16 of their brief that

Johnson City “failed to make any reasonable effort to train

their jailers” and “went to the trouble of falsifying its training

records to create the appearance that such training had been

10

given.” Petitioners’ assertions are reckless, unsupported by

the record, beyond the bounds of advocacy and overstatement

to the point of misrepresentation. The following facts are

undisputed:

¢ Johnson City has a written policy directed to the

detection and proper handling of suicidal inmates.

[App. 112-126] All City jailers were provided a copy

of this policy and testified to their familiarity with it.

[App. 199, 200]

¢ The Tennessee Corrections Institute, (T.C.1.), a state

agency, conducts a basic jail school designed to train

local government jail employees shortly after

employment. [App. 198-200] The basic jail school

curriculum includes the topic of custodial suicides.

[App. 188-199, 694] Every Johnson City jailer

attended this forty (40) hour T.C.I. conducted training

program. [App. 134-146, 185-186, 198-200, 672, 674-

675]

* Until 1992, T.C.I. sponsored a forty (40) hour annual

training program to which local government jailers

could be sent. Participation in the program served as

one criteria for the facility in which they were

employed to be certified by the State of Tennessee.

[App. 898] All Johnson City jailers participated in

this pre-1992 annual training program. [App. 890-

896]

* Starting in 1992, T.C.1. reduced the number of annual

instructional hours to sixteen (16) that it could provide

to jail employees whose governmental entity

employer desired to maintain a certified facility. [App.

1]

201-205] In 1992, 1993 and 1994, T.C.I. provided

training on the topic of suicide, medical and

psychological identification, during the sixteen (16) hour

T.C.I. sponsored training sessions. All Johnson City

jailers participated in this training program. [App. 132-

146, 150, 185-189, 198-200, 672, 674-675, 812-813]

* After 1992, to be designated by the State of Tennessee

as a “certified jail”, an additional twenty-four (24) hours

of annual training for jail staff had to be coordinated or

taught locally by a designated “field training officer”

(F.T.O.) [App. 201-202] Johnson City designated Ken

Hall as its F.T.O. to perform this function.

Petitioners’ assertion that the City of Johnson City falsified

its training records stems from bootstrapping the testimony of

two (2) Johnson City jailers that, in their opinions, Field Training

Officer Hall did a less than adequate job in 1992 and 1993

in providing the twenty-four (24) hours of local training.

[App. 672-675] Even if F.T.O. Hall’s training efforts were

inadequate, exaggerated by him, or the training he did provide

is disregarded entirely for the sake of argument, a claim against

Johnson City on a failure to train theory fails for three (3)

reasons:

(A) All Johnson City jailers received custodial suicide

prevention training from T.C.I. sponsored courses;

(B) Hallis nota policymaker for the City of Johnson City,

and his actions are not attributable to the City;

(C) Lanthorn did not die in Johnson City’s jail, and the

conduct of the City’s jailers was not a proximate cause

of his death.

12

3. The Petition improperly treats each individual

Respondent as if he had knowledge of all factual

allegations supporting Petitioners’ claim.

For example, there is no evidence in the record that Jailer

Garland had any knowledge of what occurred at the scene of

the arrest. See Petitioners’ Brief at page 2. In fact, the

undisputed proof is that Jailer Garland was not at the Johnson

City Jail at the time of Lanthorn’s booking, and his first

knowledge or contact with Lanthorn was at the time he first

heard Lanthorn creating a disturbance in his cell.

The best example of this misrepresentation is contained

in the Questions Presented for Review in the Petition. The

first question reads as follows:

Whether jailers are deliberately indifferent when

they know of a detainee’s disorientation,

despondency, history of psychiatric care, recent

involuntary commitment for suicide, and multiple

requests for medical care, but refused to provide

either medical care or protection from self-injury.

With respect to Jailer Garland, the Petitioners set forth

no facts that he had knowledge that Lanthorn was

despondent, had a history of psychiatric care, had a recent

involuntary commitment for suicide or made any requests

for medical care to any person after the EMS arrived. The

undisputed testimony is that Lanthorn claimed (and acted

like) he was having a seizure. Lanthorn asked to go to the

hospital and Jailer Garland immediately had the EMS

summoned. Petitioners similarly treat each individual

Respondent and, thus, misrepresent the knowledge each had

as to Lanthorn’s condition and history.

13

4. The Petition misrepresents the evidence that

Lanthorn was kicked or abused by Jailer Garland.

Jailer. Garland’s undisputed testimony is that, upon

returning to Lanthorn’s cell (while waiting for the emergency

medical personnel to arrive), Lanthorn kicked Jailer Garland,

and Jailer Garland placed his foot on Lanthorn’s leg (between

the foot and knee). [App. 668-669] Doctor Blake’s testimony

was that the autopsy revealed a bruise in the buttocks area

consistent with a shoe print or stomp. However, Dr. Blake

could not offer that opinion to a reasonable degree of medical

certainty. [App. 496-497] Furthermore, as the District Court

found, based upon the age of the bruise, it could have

occurred while Lanthorn was in the Johnson City Jail, but it

also could have occurred before he arrived. [Petition 70a-

71a] Finally, the District Court held that an alleged statement

by Lanthorn identifying Jailer Garland as his assailant was

inadmissible hearsay, and this ruling was not contested in

the Sixth Circuit. [Petition 71a-72a]

5. The Petition misrepresents how the decision to

place Lanthorn in cell block B-4 was made.

Petitioners assert that Jailer Mitchell made a decision

about Lanthorn’s placement in B-4 “without reviewing the

booking card or discussing Lanthorn’s condition with [Jailer]

Robertson.” [Petition 5] Jailer Mitchell had been told by his

supervisor, Sergeant Jamerson, to go and speak to Lanthorn

and determine whether he needed to be placed on suicide

watch or whether he could be placed in cell block B-4, the

least crowded of the cell blocks that day. [App. 381] Mitchell

spoke with Lanthorn and asked him if he was suicidal.

Lanthorn responded, “Hell, no. I love life. I’ve got a baby

on the way. You know, I’ve got to support my child.”

14

[App. 382] Jailer Robertson, the jailer who had booked

Lanthorn and was in charge of the third floor of the jail that

day, was present during Jailer Mitchell’s conversation with

Lanthorn and when Jailer Mitchell subsequently told Jailer

Cline, the officer in charge of the second floor of the jail

where B-4 was located, that he thought Lanthorn could go

in B-4. [App. 381-382, 393] Jailer Mitchell and Jailer Cline

discussed what Sergeant Jamerson had said about placing

Lanthorn in B-4 and agreed it was fine to put him in there.

[App. 392] Jailer Mitchell believed he was putting Lanthorn

where he wanted to be because Lanthorn had indicated he

wanted to smoke and could smoke in B-4. [App. 382-383]

6. The Petition misrepresents that competent

evidence exists suggesting that Sergeant Jamerson

observed Lanthorn placing his head in a noose and did

not react.

Presumably in an effort to garner this Court’s attention,

Petitioners also assert that Sergeant Jamerson saw Lanthorn

putting his head in a noose on a video monitor, but failed to

alert anyone until at least ten minutes later. [Petition 6] This

statement is both irrelevant and unsupported in the record

by any admissible evidence.

The statement is irrelevant because Petitioners’ claim

against Sergeant Jamerson based upon this allegation is not

before this Court, but remains in the district court. The district

court granted all of Defendants’ motions for summary

judgment with respect to Petitioners’ section 1983 claims,

with the exception of one claim against Jamerson. [Petition

42a] That claim is based solely upon Sergeant Jamerson’s

alleged delay in summoning help after allegedly observing

Lanthorn in the process of committing suicide, allegations

iia daca

15

that are in turn based solely upon certain statements former

Sheriff Ron England made to the media concerning what

Sergeant Jamerson saw. [Petition 65a] In essence, England’s

statements suggested that Sergeant Jamerson saw Lanthorn

committing suicide, while Sergeant Jamerson always has

maintained that he saw Lanthorn hanging motionless.

[App. 432, 1033-34]

At the time Petitioners appealed the district court’s

dismissal of all the other section 1983 claims to the United

States Court of Appeals for the Sixth Circuit, Sergeant

Jamerson appealed the district court’s denial of his motion

for summary judgment. Jamerson’s cross-appeal was based

upon the ground that the statements of Sheriff England

(who was not at the jail and had no personal knowledge

concerning the incident) were inadmissible hearsay, and no

other evidence suggests that Sergeant Jamerson either

observed Lanthorn in the act of committing suicide or

delayed summoning help once he saw Lanthorn hanging on

the video monitor. As the record reflects, the Sixth Circuit

affirmed the district court’s dismissal of Petitioners’ section

1983 claims based upon everything other than the allegation

against Sergeant Jamerson, and dismissed Sergeant

Jamerson’s appeal on the ground that the Court of Appeals

had no appellate jurisdiction over Sergeant Jamerson’s appeal

given the posture of the case. [Petition 10a] The Sixth Circuit

also observed, however, that Petitioners’ claim against

Sergeant Jamerson was based upon “the rankest type of

inadmissible hearsay” that was “unreliable and inadmissible

in evidence.” [Petition 10a] Thus, Petitioners’ claim based

upon the allegation that Sergeant Jamerson observed

Lanthorn in the act of committing suicide and delayed

reporting it remains in the district court, supported only by

the inadmissible hearsay uttered by Sheriff England to the

press, and is irrelevant to this Petition.

16

7. The Petition misrepresents that Washington

County’s jailers were untrained or inexperienced in

suicide prevention and misrepresents that any action or

inaction by Washington County jailers was causally

connected to Lanthorn’s death.

Washington County had a written policy for

preliminarily screening those inmates who may have had a

physical or mental condition that could be a threat to the

health of the inmate or to the health of other inmates.

[ App. 477] After Lanthorn was transferred from the Johnson

City Jail to the Washington County Jail in Jonesborough,

Tennessee, he was seen by Sergeant Castle, Sergeant

Jamerson, Jailer Cline, Jailer Robertson, and Jailer Mitchell.

All of these individuals had successfully completed the forty

(40) hours of basic jail school conducted by the Tennessee

Corrections Institute, [App. 577-580] which included

instruction on screening jail inmates who represented

potential suicide risks. [App. 468] Indeed, Lanthorn was

detained in a holding cell for observation and assessment

before he was assigned to a cell with members of the jail

population. [App. 380] While he was in the holding cell,

Jailer Mitchell conducted an extensive assessment of

Lanthorn which included personal observation and an

exchange of oral communication, all of which convinced

Jailer Mitchell that Lanthorn did not appear to be suicidal

before he advised Jailer Cline that Lanthorn should be

assigned to cell block B-4 with other members of the jail

population. [App. 382-383] Lanthorn was then physically

placed in cell block B-4 at about 11:45 a.m. [App. 383]

Interestingly, at around 11:30 a.m. Lanthorn’s mother, Dr.

Nancy Ellis, a clinical psychologist whose clinical practice

included providing therapy to individuals who had suicidal

ideations and tendencies, [App. 461] had a telephone

eS

17

conversation with her son at the Washington County Jail.

Based on that conversation with her son, Dr. Ellis later

expressed her opinion that Lanthorn was not suicidal

[App. 474]

While Petitioners criticize the training policy of the City

of Johnson City and Washington County, the record fails to

point or direct us to any evidence that either Johnson City or

Washington County had training programs that were

deficient in any way. Neither do Petitioners direct us to any

evidence of how a better training program on the part of

Johnson City and Washington County could have prevented

Craig Lanthorn’s death. While it is true that proximate cause

is generally a question for the jury, the burden remains with

Petitioners, as in all civil cases, to establish by some evidence

the issue of proximate causation. The Courts are not required

to guess or infer the question of proximate cause. Oklahoma

v. Brown, 117 S. Ct. 1382 (1997).

Throughout this extensive and voluminous record there

is not one shred of evidence from which even an inference

could be drawn that Johnson City or Washington County

had policies, customs or long-standing practices in their

training and supervision programs that were in any way

causally linked to Craig Lanthorn’s unfortunate death.

18

REASONS FOR DENYING THE WRIT

I. Standard for Deliberate Indifference in Jail Suicide

Cases

Petitioners’ main argument in support of their Petition

for Certiorari is that the lower courts in this case, and the

circuit courts of appeal in general, have misinterpreted

Farmer v. Brennan, 511 U.S. 825 (1994).

In this Argument section, Respondents will set forth the

Farmer standard and then explain why it is Petitioners who

are misinterpreting Farmer as opposed to either the lower

courts in this case or the circuit courts of appeal in general.

A. Farmer Standard

This Court in Farmer defined “deliberate indifference”

as follows:

For aclaim... based on a failure to prevent harm,

the inmate must show that he is incarcerated under

conditions posing a substantial risk of serious

harm. ... and that the state of mind [of the state

actor] is one of “deliberate indifference” to inmate

health or safety. Farmer, 511 U.S. at 834.

In fact, this Court in Farmer equated deliberate

indifference with “criminal recklessness”:

We reject petitioner’s invitation to adopt an

objective test for deliberate indifference. We hold

instead that a prison official cannot be found liable

under the Eighth Amendment ... unless the

19

official knows of and disregards an excessive risk

to inmate health or safety; the official must both

be aware of the facts from which the inference

could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.

Farmer, 511 U.S. at 837.

B. Novel Standard Advanced by Petitioners

Petitioners want to sue for the failure to prevent suicide

without having to show any subjective knowledge of a

substantial risk of suicide or self-harm. Petitioners argue that

any other standard is too outcome specific. In other words,

if a person has a medical need, there is a duty to provide the

care regardless of whether the state actor recognizes a

substantial risk of harm.

Petitioners clearly state their position on page 11 of their

brief:

If the red flags of risk are present and known to

the jailer or are so obvious that a jailer’s

knowledge would properly be presumed, the duty

to provide care is triggered whether or not the

jailer is competent to differentially diagnose

between a heart attack and indigestion or an

aneurysm and a headache.

But this standard announced by Petitioners is simply not

consistent with either Estelle v. Gamble, 429 U.S. 97 (1976)

or Farmer v. Brennan, 511 U.S. 825 (1994).

For example, let’s assume an inmate tells his jailer that

his chest hurts. The jailer gives him two Alka-Seltzer for

20

indigestion and tells the inmate he will check with him in a

couple of hours. In a couple of hours, the inmate is dead

from a heart attack. While these facts might or might not

support a state law negligence action (and in fact the

Petitioners in this case have a state law negligence action

presently pending against each of these respondents), the

conduct of the jailer simply does not rise to the level of

“deliberate indifference to a serious medical need.”

Likewise, !et’s assume that an inmate is depressed. Just

because the inmate might benefit from several counseling

sessions with a mental health provider at some point in the

future does not mean that he has a “serious medical need” or

that there is a “substantial risk of serious harm.” It is only

when the jailer is criminally reckless with respect to the

potential for self-harm that the conduct of the jailer can be

said to be deliberately indifferent to a substantial risk of

serious harm. Estelle uses the language of a “serious medical

need” because it is a medical needs case. Farmer uses

analogous language of “serious harm.” No constitutional duty

is violated for being deliberately indifferent to indigestion

or deliberately indifferent to someone who 1s depressed and

might need some counseling.

Therefore, what Petitioners are trying to do is sue for

serious harm without having to establish subjective

knowledge of a substantial risk of serious harm.

C. Analysis Of Cases Cited By Petitioners

On pages 11 and 12 of the Petition, the Petitioners cite

various decisions in jail suicide cases for the proposition

that courts have adopted a variety of widely inconsistent

approaches to the problem of jail suicide — which has

21

resulted in a distortion of the principles set forth in Estelle y.

Gamble, 429 U.S. 97 (1976) and Farmer vy. Brennan, 511 U.S.

825 (1994).

But some of the cases are pre-Farmer decisions,

e.g., Bowen v. City of Manchester, 966 F.2d 13 (1* Cir. 1992);

Colburn v. Upper Darby Township, 946 F.2d 1017 (3" Cir.

1991), and therefore, cannot be distortions of the principles of

Farmer (which provided guidance to the lower courts on the

definition of deliberate indifference).

Furthermore, the other cases cited by Petitioners are all

consistent with Farmer's requirement that in order to be liable

for a constitutional violation a state actor must be deliberately

indifferent to a substantial risk of serious harm.

In Payne v. Churchich, 161 F.3d 1030 (7" Cir. 1998), the

court required a showing that the defendant foresaw a substantial

risk of suicide. The court even noted that “knowledge of the

substantial risk of suicide can be inferred from the obviousness

of the risk.” Payne, supra, at 1042. This holding tracks Farmer

which requires subjective knowledge of the substantial risk of

serious harm — but which also allows that subjective knowiedge

to be established by showing that the risk was so obvious.

Farmer, 511 U.S. at 842. Furthermore, this court denied the

petition for certiorari in Payne. See Payne ex rel. Hicks y.

Chuchich, 119 §. Ct. 2339 (1999).

In Lambert v. City of Dumas, 187 F.3d 931, 937 (8" Cir.

1999), the court reviews Farmer and holds: “(T]he deliberate

standard is met only if there were a ‘strong likelihood, rather

than a mere possibility,’ that self-infliction of harm would

result.” The “strong likelihood” test equates with Farmer's

criminal recklessness/substantial risk of serious harm

requirements.

22

In Barrie v. Grand County, 119 F.3d 862, 869 (10" Cir.

1997), the court held: “. . . the custodian must be ‘deliberately

indifferent’ to a substantial risk of suicide.” This test is

consistent with Farmer.

In Williams v. Lee Co., Ala.,78 F.3d 491, 493 (11 Cir.

1996), the court held: “. . . to establish deliberate indifference

to a suicide risk in this circuit, the official must have notice

of a ‘strong likelihood, rather than a mere possibility,’ of

the particular decedent’s suicidal tendencies.” (emphasis in

original) This test is also consistent with Farmer.

in Flores v. County of Hardeman, Tex., 124 F.3d 736,

738 (5® Cir. 1997), the court cited with approval Hare v.

City of Corinth, 74 F.3d 633 (5® Cir. 1996). Hare was a jail

suicide case in which the court of appeals remanded to the

district court the question of whether the defendants had

actual knowledge of the substantial risk of suicide and

whether the defendants responded to that substantial risk with

deliberate indifference. Once again, this standard is

consistent with Farmer.

All of these post-Farmer cases follow the Farmer

standard. Petitioners cite no court of appeals decision

supportive of their proposition that one can recover for the

decedent’s suicide without establishing a subjective

knowledge of a substantial risk of self-harm.

The only case Petitioners cite for their proposition is

Owens v. City of Philadelphia, 6 F. Supp. 2d 373 (E.D. Pa.

1998). The main issue addressed in Owens (but not resolved

by the district court) is whether the standard of criminal

recklessness or civil recklessness applies to the evaluation

of the conduct of a state actor where the plaintiff is a pre-

23

trial detainee as opposed to a person who has been convicted

of a crime. This is an issue not raised by the Petitioners in

our Case.

Although the Owens court does not resolve that issue, it

does enunciate a criminal recklessness standard that is

consistent with all of the court of appeals decisions cited by

Petitioners. The Owens court held as follows at page 381:

As the Court in Farmer pointed out: an Eighth

Amendment claimant need not show that a prison

official acted or failed to act believing that harm

would actually befall an inmate; it is enough that

the official acted or failed to act despite his

knowledge of a substantial risk of serious harm.

D. Analysis of Sixth Circuit Precedent

The Petitioners’ main criticism of the district court

(and consequently, the Sixth Circuit) in this case is that the

court applied a “strong likelihood or near certainty” test. But

a review of the district court’s decision reveals that the

standard relied upon was consistent with Farmer and the

circuit court of appeals’ decisions previously addressed in

this brief.

Danese v. Asman, 875 F.2d 1239 (6" Cir. 1989), and its

progeny, simply define what constitutes “deliberate

indifference” in a jail suicide case — and it was defined as

follows in Barber v. City of Salem, 953 F.2d 232, 240

(6" Cir. 1992):

[T]he proper inquiry is. . . : whether the decedent

showed a strong likelihood that he would attempt

to take his own life in such a manner that failure

24

to take adequate precautions amounted to

deliberate indifference to the decedent’s serious

medical needs.

The biggest difference between Sixth Circuit precedent

and Farmer is that Farmer makes it clear that the state of

mind requirement must be proved using a subjective test.

This arguably makes Farmer a more difficult standard for a

plaintiff to hurdle, and this was recognized by the district

court in its Memorandum of August 4, 1998 at page 6:

“This clear recognition of a subjective component certainly

did not ease the burden of proving deliberate indifference

and arguably made the test more stringent.” [Petition 24a,

App. 43]

Il. Response to Petitioners’ Questions Presented for

Review

Petitioners present three questions for the Court’s review

on page 1 of their Petition. However, those questions are never

directly addressed in the Petition. As Respondents

acknowledge that this Court can choose to accept any of

Petitioners’ questions for review, Respondents will address

each question in turn with an explanation of why the question

is inappropriate for this Court’s review.

A. Deliberate Indifference in Light of Jailer’s Knowledge

The first question presented by Petitioners is the

following: “Whether jailers are deliberately indifferent when

they know a detainee’s disorientation, despondency, history

of psychiatric care, recent involuntary commitment for

suicide, and multiple requests for medical care, but refuse

to provide either medical care or protection from self-injury.”

[Petition i] -

25

Of the three questions presented for review, this is the

only one that involves the application of Farmer v. Brennan,

511 U.S. 825 (1994). With respect to the law, and as

discussed in the previous section, the standard relied upon

by the lower courts in this case is entirely consistent with

Farmer. |

With respect to the facts, the individual jailers have a

few comments. First, throughout this litigation, Petitioners

have attempted to use all factual allegations against all jailers,

regardless of whether a particular jailer had any knowledge

of an alleged fact or not. For example, Jailer Garland had no

knowledge of a history of psychiatric care or a recent

involuntary commitment for suicide. Sergeant Jamerson and

Jailer Mitchell had no knowledge of “requests for medical

care.”

Second, some of the “facts” are designed to mislead this

Court. The allegation of “multiple requests for medical care”

is an example of such a “fact.” When Jailer Garland first

saw Lanthorn, Lanthorn requested medical care several times

in a matter of minutes. The EMS was summoned and arrived

within a couple of minutes of Lanthorn’s first request. After

the EMS advised Jailer Garland that Lanthorn was okay to

serve his time, there is no evidence that Lanthorn asked any

person for medical care prior to his hanging twenty-two hours

later. Of course, after the EMS left and before his hanging,

he had interaction with jailers at the City Jail, a City Judge,

an aunt and uncle, numerous other family members via

telephone, a City transport officer and jailers at the County

Jail.

Because the standard applied by the lower courts is

consistent with Farmer and because there is not, as

26

Petitioners suggest, a “variety of widely inconsistent

approaches,” it is respectfully submitted that this Court

should not grant certiorari on this question.

B. Deliberate Indifference and the Failure to Train

Petitioners also presented, but did not further discuss,

the issue of “whether a city and county are deliberately

indifferent when they fail to provide needed, readily-

available training to address a known, pervasive risk of

serious injury to the least culpable inmates — pretrial

detainees with little or no criminal history.” [Petition i]

Supreme Court Rule 14 states in pertinent part as

follows:

1. A petition for writ for certiorari shall contain,

in the order indicated:

(h) A direct and concise argument amplifying the

reasons relied on for allowance of the writ. See

Rule 10.

While Petitioners mention the failure to train issue in

the Argument section of their brief, they make no effort to

explain why this Court should grant certiorari on a failure to

train issue. Furthermore, the failure to train issue 1s governed

by City of Canton, Ohio v. Harris, 489 U.S. 378 (1989) —

not Farmer, supra. Because Petitioners make no effort in

their opening brief to comply with Rule 14, they should not

ee -

27

be permitted to make arguments in support of the grant of

certiorari in their reply brief because this would put the

goveriimental entity respondents at the disadvantage of being

unable to respond to those arguments. See Cheffer v. Reno,

55 F.3d 1517, 1519 (11" Cir. 1995) (standing for the

proposition that an issue listed in the Statement of issues,

but not addressed in the brief, is abandoned); see also Beraha

v. Baxter Health Care Corp., 956 F.2d 1436. 144] (7" Cir.

1992) (standing for the proposition that ansargument not

raised in the appellant’s opening brief is waived).

C. Excessive Force by Jailer Garland

The final question listed by Petitioners for review is the

following: “Whether a 380 pound corrections officer may

have used excessive force against a pretrial detainee who

was lying on the floor of his cell when an autopsy revealed

bruising on the buttocks consistent with a shoe print or

stomp.” [Petition i]

Petitioners’ Petition barely mentions the excessive force

claim in their Argument section and makes no effort to

comply with Rule 14 by explaining why this Court should

grant certiorari. Furthermore, the analysis of the excessive

force claim does not even involve the application of Farmer.

Therefore, because Petitioners have made no effort in their

opening brief to explain why this Court should grant

certiorari on an excessive force claim, the petition for

certiorari should be denied on this issue. Moreover,

Petitioners should not be allowed to prejudice respondent

Jailer Sam Garland, in his individual capacity, by belatedly

making an effort to comply with Rule 14 ina reply brief —

which would put this respondent in the position of being

unable to respond.

28

Finally, if the Court decides to grant certiorari on this

question, Jailer Garland, in his individual capacity, asserts

that Petitioners have waived the right to introduce any

statements by Lanthorn allegedly identifying Jailer Garland

as his assailant. In the district court, Petitioners sought to

introduce a statement made by Lanthorn to his aunt and uncle

who visited him in the Johnson City Jail purportedly

identifying Jailer Garland as his assailant. The district court

ruled that the testimony was not admissible hearsay under

Fed. R. Evid. 804(b)(5) because the statement does not have

equivalent guarantees of trustworthiness based upon the

intoxicated condition of Lanthorn. [Petition 71a-72a]

On appeal, Petitioners made no effort to contest that

ruling. Instead, they proffered testimony of Jailer Garland

in which he said that in response to him [Sam Garland]

complaining to Lanthorn about Lanthorn kicking hin, that

Lanthorn replied: “You kicked me.” [App. 1289]

In Respondent Jailer Garland’s Sixth Circuit brief, he

pointed out that the hearsay problem associated with

Lanthorn’s statement had not been addressed and was

waived. [Garland Brief at p. 20]

In Petitioners’ reply brief, they argued that Jailer

Garland’s admission is nonhearsay. See Ellis Reply Brief at

p.17. But at oral argument, counsel for Jailer Garland pointed

out to the Sixth Circuit that Fed. R. Evid. 801(d)(2) was

inapplicable because the statement was not Jailer Garland’s

statement and Jailer Garland never manifested an adoption

or belief in the statement’s truth.

29

CONCLUSION

There is a surprising disconnect between the Petitioners’

“Questions Presented for Review” and their “Legal Argument”

section. The Legal Argument section asserts that this Court

should grant certiorari based upon the fact that lower courts

have distorted the principles of Farmer v. Brennan, 511 US.

825 (1994) when addressing jail suicide cases. But of the three

questions presented for review, only the first question involves

the application of Farmer. With respect to questions two and

three, the Petition contains no coherent argument as to why

this Court should grant certiorari.

On the issue of Farmer, a review of the cases cited by

Petitioners reveals that the lower courts have in fact applied a

consistent standard in jail suicide cases — including, and most

importantly, the lower courts in this case. Moreover, Petitioners

cite no authority for their novel argument that they should be

able to recover for a suicide without having to establish

subjective knowledge of a substantial risk of serious harm.

On the one hand, Petitioners recognize the difficulty in

foreseeing the risk of self-harm:

As Justice Stevens explained in Barefoot v. Estelle,

463 U.S. 880, 920-21 (1983) (concurrence),

addressing the use of expert testimony in the context

of sentencing hearings, “mental health

professionals. ... when predicting violence,

dangerousness and suicide. .. . are far more likely

to be wrong than right.” Citing Morse, Crazy

Behavior, Morals, and Science: An Analysis of

Mental Health Law, 51 S. Cal. L. Rev. 527, 600

(1978). [Petition 14]

30

But while Petitioners acknowledge the difficulty of

recognizing the likelihood of self-harm for someone who is

a professional, they would have this Court adopt a standard

for jailers that is closer to negligence than it is to deliberate

indifference which this Court has defined as criminal

recklessness.

It is respectfully submitted that this Court should deny

the Petition for Certiorari because there has been no

misapplication of the Farmer standard and because, with

respect to two out of the three questions presented for review,

Petitioners have made absolutely no effort to comply with

Supreme Court Rule 14. Finally, these Petitioners should

not be given an opportunity in a reply brief to advance

arguments for the first time that were not presented in the

opening brief.

Respectfully submitted,

- RONALD S. RANGE, JR.

Counsel of Record

JENNIFER P. KELLER

BAKER, DONELSON, BEARMAN

& CALDWELL

207 Mockingbird Lane, Suite 300

P.O. Box 3038

Johnson City, TN 37602

(423) 928-0181

Attorneys for Respondent

Russell D. Jamerson, in his

Individual Capacity

OLEN G. HAYNES

ARNOLD, HAYNES & SANDERS

P.O. Box 1879

Johnson City, TN 37605-1879

(423) 928-0165

Attorney for Respondents Washington

County, Tennessee; Fred Phillips,

Successor to Ron England as Sheriff

of Washington County, Tennessee,

in his Official Capacity; R.D.

Jamerson in his Official Capacity,

and Billy Mitchell, in his Official

Capacity

K. ERICKSON HERRIN

HERRIN, Booze & RAMBO

515 East Unaka Avenue

Johnson City, TN 37601

(423) 929-7113

Attorneys for Respondents

Johnson City, Tennessee;

Ron Street, Chief of Police, in his

Official Capacity; Sam Garland,

in his Official Capacity

THOMAS J. GARLAND, Jr.

MILLIGAN & COLEMAN

P.O. Box 1060

Greeneville, TN 37744-1060

(423) 639-6811

Attorney for Respondent

Sam Garland, in his

Individual Capacity

TIMOTHY R. WILKERSON

1370 Dewey Avenue

Kingsport, TN 37664-3655

(423) 246-8959

Attorney for Respondent

Billy Mitchell, in his

Individual Capacity