Opposition Brief — Payne v. Churchich

| Supreme Court, U.S,

‘ ah cE DR

No. 98-1645 WAY: 12 1999

paatoraceaneaiares ~~~ OTEK

IN THE

Supreme Court of the Anited States

MARTHA D. PAYNE, as mother for the minor child

CHRISTOPHER M. HICKS, and for ROBERT HICKS and

BILLY HICKS, all minor children of the deceased

STEVEN M. HICKS, by and personal representatives of the

ESTATE OF STEVEN M. HICKS,

Petitioners

-V-

BOB CHURCHICH, WILLIAM PAPA, and

COUNTY OF MADISON, ILLINOIS

Respondents

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

BRIEF OF RESPONDENTS

BOB CHURCHICH, WILLIAM PAPA, AND

COUNTY OF MADISON, ILLINOIS

IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

JOHN L. GILBERT

Counsel of Record

MIcHAEL T. NEWMAN

REED, ARMSTRONG, GORMAN, COFFEY,

GiLBert & Mupee, P.C.

125 N. Buchanan Street

P. O. Box 247

Edwardsville, IL 62025

(618) 656-2244

(618) 656-1307 (fax)

May 1999

St. Louis Law Printing, Inc. 14239 Manchester Rd. Manchester, MO 63011 314-231-4477

ee ee . Sci at ci icici acini cite iil cal ciliaris tassminO nie setclancxsbel ts

QUESTIONS PRESENTED

|. Is there a split among the circuits on the issue of the standard

of conduct to be applied in a pretrial detainee suicide case?

2. Did the Seventh Circuit correctly follow Supreme Court

recedent under 42 U.S.C. § 1983 by first determining the

Pp - §

specific constitutional rights allegedly infringed?

3. Did the Seventh Circuit correctly follow Supreme Court

orecedent under 42 U.S.C. § 1983 by considering only matters

[ ) & only

related to the decedent’s actual injury?

4. Did the Seventh Circuit correctly find on the merits that there

was no constitutional violation of the decedent’s rights by either

Defendant Papa or Defendant Madison County?

Pic" NSS

TABLE OF CONTENTS

Page

Crestiois PROCBIROG oasis: scicciccrtntaisiinvinascrssteeronssbaeans i

TeaRhe OF CRBIIG aes isocssnnsiesnscvbsinaconntbecicniaseeanhtlGletaslans ii

TROIS OF ARADIONIIIOS ..ncs0esscrcececercsndscscneaveciensrnasoeaate nants iV

OHIO TIBI oonca is seiccccsvcinsecenpvdnateatedensausestveipeuntinaeess I

FURURACTIOD: con svcvavteessssacvtcisdiptecaiveign baie | |

Constitutional Provisions and Statutes Involved ..........

Statement Of 16: CaSe ooivisccsssicsseussimmcdcamerienieneternie |

PS SUIOT ve sncnsesyasucceornescassbepnsmasbagainppeebesunsespadatiemiacaliten 5

I. There is no split among the Circuits on the issue of

the standard of conduct to be applied in a pretrial

GEtRINGE GALICUIE COKE eo snceseivescsvasnrnnnssesitiptnsenpeaneants 5

:

II. The Seventh Circuit followed Supreme Court pre-

cedent under 42 U.S.C. § 1983 by first determining

ae ‘ : , t

the specific constitutional right allegedly

ATS TINIE, scisnccecsisvesioneurees daiaetantdinhalcnedslaaineniilaaaes 9 |

Ill. The Seventh Circuit followed Supreme Court pre-

cedent under 42 U.S.C. § 1983 by considering only

matters related to Hicks' actual injury. ................. 10

|

AR oe

IV. The Seventh Circuit correctly found on the merits

that there was no constitutional violation of Hicks'

rights by either Defendant Papa _ or

Defendant Madison County ............::ccccccccceeeseeees 12

Feel ERE SAMNMENEE 3 WII socksssdvenbvsosenesshontnssccenenensens 12

B. Claim Against Madison County ................0008 14

SE Ne ES GSC aR Se eae ene N 16

—iv—

TABLE OF AUTHORITIES

Page(s)

Albright v. Oliver, 510 U.S. 266, 271 (1994) oc. 10

Anderson v. County of Kern, 45 F.3d 1310

COREE EAE, BIS cctaacccsxcsstneotabunn teckidcdacsisiataaenans 8

Anderson v. Creighton, 483 U.S. 635 (1987 ) .............. 13

Austin v. Hamilton, 945 F.2d 1155 (1991) 0.0... 6

Barrie v. Grand County, Utah, 119 F.3d 862

CTE SAE FID esaiveseisscscotecenstkntvcaicdsstacicasbaetnss 6,8

Belcher v. City of Foley, Ala., 30 F.3d 1390

CREEE Said 8 IEDs cchethnsicaad ttitnisdiectaccervem mainmenteninien 8

Board of County Com’ rs of Bryan County, Okl. v. Brown,

DAAe Mh ac EE CE PED nrtissininend cdneeraiinceseambbenbeae i4

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

(ROE Ce SIE sisvnieanciins cite creacskamouemacaad 7

City of Canton, Ohio v. Harris, 489 U.S. 378 (1989). . 14

City of Revere v. Massachusetts Gen. Hosp., 463 U.S.

FA ALS) (ORne eenmilmnmeinSosony a rte nese, OPE Ieee 7,16

Collignon v. Milwaukee County, 163 F.3d 982

ETRE, Te Gitlin Rasneehdssarndibapaidnanebeaiens 7

Estelle v. Gamble, 429 U.S. 97 (1976) .........c cece cece cece. 7,16

Farmer v. Brennan, 511 U.S. 825 (1994)... 12,14

Farrar v. Hobby, 506 U.S. 103 (1992) ..........cccecceeseneees 11

Graham v. Connor, 490 U.S. 386 (1989) oo... 5,10

Page(s)

Hare v. City of Corinth, Miss., 135 F.3d 320

RUE eM WIRD caicke nk ek backs seletcai nag congue an whceaendess 7

Hill vy. Nicodemus, 979 F.2d 987 (4th Cir. 1992) ......... 7

Leatherman vy. Tarrant County Narcotics Intelligence

and Coordination Unit, 507 U.S. 163 (1993)....... 15

Liebe v. Norton, 157 F.3d 574 (8th Cir. 1998) ........... Tscko

Payne for Hicks v. Churchich, 161 F.3d 1030

(FETE Aiis 5 PTE <conssivcanancightnateinalstasiancckanaaatec 7,10,12,14

Powell v. Gardner, 891 F.2d 1039 (2nd Cir. 1989) ..... 8

Roberts v. City of Troy, 773 F.2d 720 (6th Cir. 1985).. 7

Simmons v. City of Philadelphia, 947 F.2d 1042

(3rd Cir. 1991), cert denied, 503 U.S. 985 (1992) 7

Taylor v. McDuffie, 155 F.3d 479 (4th Cir. 1998),

cert denied, 119 S.Ct. 1121 (1999)....................... 6

C.D. WV. Ceeaeeere, GIF 85: SES CF oasis ccdicsds hbkowe, 15

OPINIONS BELOW

The statement of reference to the official and unofficial

reports of opinions delivered in the case by other courts or

administrative agencies in the Petition for a Writ of Certiorari is

satisfactory.

JURISDICTION

The statement of jurisdiction in the Petition for a Writ of

Certiorari is satisfactory.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The statement of constitutional provisions and statutes in-

volved in the Petition for a Writ of Certiorari is satisfactory.

STATEMENT OF THE CASE

It is necessary to supplement Petitioner’s Statement of the

Case as follows:

On June 27, 1995, Defendants filed in the Circuit Court of the

Third Judicial Circuit, Madison County, Illinois, a motion for

summary judgment in response to Plaintiffs’ seventh amended

complaint. (Mot. Summ. J.). Defendants’ June 27, 1995 motion

for summary judgment recites and establishes the following

undisputed facts:

a. On August 3, 1991 at 12:02 a.m. Deputy Sheriff William

Papa, Jr. (Papa) was dispatched to the Two Brothers

Motel in Cottage Hills, Illinois in reference to a report of

a subject sleeping under the motel owner’s vehicle. (Mot.

Summ. J., Exs. A, C).

b. After awakening the sleeping subject, Deputy Papa ran

the subject’s name through the L.E.A.D.S. computer,

and it was determined that the subject was wanted on a

warrant for failure to appear, disorderly conduct, issued

by the City of Madison, Illinois. The subject, Plaintiffs’

decedent Hicks, was placed under arrest and transported

by Deputy Papa to the City of Madison Police Depart-

ment which confirmed the warrant. (Mot. Summ. J.,

Exs. A, C).

c. At approximately 1:00 a.m. on August 3, 1991, Deputy

Papa transferred custody of the subject, Steven M. Hicks

(Hicks), to the City of Madison Police Department and

resumed his normal patrol. (Mot. Summ. J., Exs. A, C, E).

d. Atthe time of his arrest, Hicks appeared intoxicated but

was awake, able to stand without assistance, and able to

recall and recite his name and date of birth. (Mot. Summ.

J., Exs. A, C).

e. At no time while being placed under arrest or being

transported to the City of Madison Police Department

did Hicks state or manifest conduct to suggest he was

suicidal or that he had any intention of harming himself.

(Mot. Summ. J., Ex. A).

f. Atnotime while in the custody of Deputy Papa did Hicks

State that he was in need of medical treatment nor did he

exhibit signs of trauma or any condition suggesting need

for medical treatment. (Mot. Summ. J., Ex. A).

g. Whileen route tothe City of Madison, Hicks was cursing

about being arrested and saying that it was all Deputy

Papa’s fault that he was arrested. Steven Hicks appeared

intoxicated and smelled strongly of alcohol. His com-

ments were directed toward Deputy Papa including name

calling and general cursing. Deputy Papa testified that

the fact that the subject was awake and talking is indica-

tive of the fact that the subject was not in distress or that

he was doing okay. At no time did Hicks give any

|

Ra ea aa a ee a

indication of injury, need of treatment, intent to harm

himself or that he was suicidal or suffering acrisis. Hicks

made no expression concerning any deaths in his family,

and Deputy Papa had no knowledge of any deaths in

Hicks’ family. (Mot. Summ. J., Ex. A).

h. Hicks was able to stand on his own and was able to

identify himself and give his date of birth. Hicks also was

able to walk to the police car without assistance, and he

was able to exit the police car and walk into the City of

Madison Police station under his own power. (Mot.

Summ. J., Ex. A).

i. Sometime between the hours of 1:00 a.m. and 4:04 am.

while in the exclusive custody and control of the City of

Madison Police Department, Steven Hicks died by suf-

focation after hanging himself with a blanket while

locked in the City of Madison, Illinois holding (Mot.

Summ. J., Ex. E).

j. Itis the policy of the Madison County Sheriff's Depart-

ment to transport all misdemeanor and ordinance viola-

tors to the police agency which holds the warrant. This

policy was promulgated by the Chief Judge of Madison

County. (Mot. Summ. J., Exs. B, D).

Petitioner’ s Statement of the Case contains numerous conclu-

sions disguised as background facts. (Pet., pp. 2-7). Respondents

respectfully request the Court to disregard those conclusions.

However, some of these conclusory statements require response.

Petitioner's Statement alleges argumentatively that

“[c]ompelling evidence of Hicks’ possible ‘mental disorder’

was available to Papa.” (Pet., p. 3). However, at no time while

being placed under arrest or being transported to the City of

Madison Police Department did Hicks state or manifest conduct

to suggest he was suicidal or that he had any intention of harming

himself. (Mot. Summ. J., Ex. A). Hicks was awake, talkative, and

gave no indication that he was in any kind of distress requiring

special treatment for any medical or mental condition (including

depression or a suicidal inclination). (Mot. Summ. J., Ex. A).

Petitioner’s Statement alleges that the county sheriff “has the

duty to report to the County regarding the jail’s sufficiency.”

(Pet., p. 6). However, the county sheriff only has this duty with

regard to the Madison County Jail and not the jail of the City of

Madison. Furthermore, Petitioner's Statement contains only

conclusory allegations in this regard with no supporting facts

which supports the Seventh Circuit’s conclusion that Petitioner’s

count against the County was missing “a significant factual

predicate.” (Pet., p. 6).

ea dese

ARGUMENT

I. THERE IS NO SPLIT AMONG THE CIRCUITS ON THE

ISSUE OF THE STANDARD OF CONDUCT TO BE AP-

PLIED IN A PRETRIAL DETAINEE SUICIDE CASE

In her first Question Presented, Plaintiff Payne for Christo-

pher Hicks, Robert Hicks and Billy Hicks (Payne) asks “Does the

Fourth Amendment govern the standard of conduct in the con-

text of maltreatment occurring after arrest ends and pretrial

detention begins?” (Pet., p. i). In answering this question, Payne

states that “[t]he circuits are irreconcilably split on whether the

Fourth Amendment applies after arrest ends and pretrial deten-

tion begins.” (Pet., p. 7). Payne states that “the conflict not only

affects this case, but numerous medical-attention, personal-

security and excessive-force pretrial-detainee cases nationwide.”

(Pet., p. 7).

Payne is correct that there has been some divergence in the

circuits on the question of how long Fourth Amendment protec-

tion applies to an arrestee. In Graham v. Connor, 490 U.S, 386

(1989), the Supreme Court left this issue open: “Our cases have

not resolved the question whether the Fourth Amendment con-

tinues to provide individuals with protection against the deliber-

ate use of excessive physical force beyond the point at which

urrest ends and pretrial detention begins, and we do not attempt

to answer that question today.”” Graham vy, Connor, 490 U.S,

386, 395 n, 10 (1989), Since that time, the circuits have diverged

to some degree on the issue of whether a Fourth Amendment

“objective reasonableness” or a Due Process Clause “deliberate

indifference” standard should be applied to cases claiming

excessive physical force against pretrial detainee.

The divergence on this issue was recently acknowledged by

the Fourth Circuit in Taylor v. McDuffie:

Although the Second, Sixth, and Ninth Circuits analyze

similar claims under the Fourth Amendment, we recently

joined the Fifth, Seventh, and Eleventh Circuits in holding

that the Fourth Amendment “does not extend to the alleged

mistreatment of arrestees or pretrial detainees in custody.”

Instead, “we conclud[ed] that the excessive force claims of

pretrial detainees are governed by the Due Process Clause

of the Fourteenth Amendment.”

(citations omitted) Taylor v. McDuffie, 155 F.3d 479, 482-83

(4th Cir. 1998), cert denied, 119 S.Ct. 1121 (1999).

However, the divergence on this issue has absolutely no

bearing on the present case. In this lawsuit, Payne has not made

a constitutional claim that excessive force was used against

pretrial detainee Hicks. (Pet., pp. 2-4). Rather Payne’s allegation

is that inadequate custodial care led to Hicks’ suicide. (Pet.,

pp. 4-7).

The circuits do not apply the same analysis to pretrial detainee

suicide cases as they do to pretrial detainee excessive force cases.

For example, in Austin v. Hamilton, 945 F.2d 1155 (1991), the

10th Circuit held that a pretrial detainee being held without a

warrant is still protected by the Fourth Amendment prior to a

probable cause hearing. Austin vy. Hamilton, 945 F.2d 1155,

1159-60 (1991). However, in a later case when a plaintiff tried

to apply the Austin holding to a pretrial detainee suicide situa-

tion, Barrie v. Grand County, Utah, 119 F.3d 862, (10th Cir.,,

1997), the Court held that Austin was inapplicable and that in a

pretrial detainee suicide case the “deliberate indifference” stan-

dard must be applied regardless of whether or not there has been

a probable cause determination. Barrie v. Grand County, Utah,

119 F.3d 862, 868-69 (10th Cir., 1997). Since failure to prevent

a suicide is essentially a failure to provide adequate medical

treatment and the standard of care in failure to provide medical

treatment pretrial detainee cases is deliberate indifference, the

court followed Supreme Court precedent and held that the

deliberate indifference standard should be applied in pretrial

detainee suicide cases. /d. (citing Estelle v. Gamble, 429 U.S. 97,

104 (1976) and City of Revere v. Massachusetts Gen. Hosp., 463

U.S. 239, 244 (1983)). In the present case, the Seventh Circuit

recognized that a § 1983 pretrial detainee suicide case calls for

applying the same standard as an inadequate medical detention

situation. Payne for Hicks v. Churchich, 161 F.3d 1030, 1041

(7th Cir. 1998).

Every circuit which has addressed this constitutional issue has

applied a standard of “deliberate indifference” rather than Fourth

Amendment “objective reasonableness” to the treatment of

pretrial detainees who committed suicide. Bowen v. City of

Manchester 966 F.2d 13, 17 (lst Cir. 1992) (applying the

standard that there must have been “deliberate indifference” to

the unusually strong risk that a detainee will commit suicide);

Simmons v. City of Philadelphia, 947 F.2d 1042, 1067 (3rd Cir.

1991), cert denied, 503 U.S. 985 (1992) (applying the standard

that government actors must not act with “deliberate indiffer-

ence” with regard to the serious medical needs of a suicidal

detainee); Hill v. Nicodemus, 979 F.2d 987, 990-91(4th Cir.

1992) (holding that in jail suicide cases prison officials violate

the civil rights of inmates when they display “deliberate indiffer-

ence to serious medical needs”); Hare v. City of Corinth, Miss.,

135 F.3d 320, 327 (Sth Cir, 1998) (applying “deliberate indiffer-

ence” test in failure to prevent pretrial detainee suicide); Roberts

v. City of Troy, 773 F.2d 720, 723-24 (6th Cir. 1985) (applying

“deliberate indifference” in failure to prevent pretrial detainee

suicide); Collignon v. Milwaukee County, 163 F.3d 982, 988-89,

(7th Cir. 1998) (holding in case where released pretrial detainee

committed suicide that deliberate indifference standard also

applies to the decisions of prison medical personnel as to what

medical care a prisoner requires); Liebe v. Norton 157 F.3d 574,

577 (8th Cir. 1998) (applying deliberate indifference test to

Pets, FM

pretrial detainee suicide case); Anderson v. County of Kern, 45

F.3d 1310, 1312-13 (9th Cir. 1995) (holding that duty owed to

pretrial detainees regarding suicide risk and prevention is not to

act with “deliberate indifference” to their needs); Barrie vy.

Grand County, Utah, 119 F.3d 862, 868-69 (10th Cir. 1997) (see

discussion above); Belcher v. City of Foley, Ala., 30 F.3d 1390,

1396 (11th Cir. 1994) (holding pretrial detainee’s constitutional

rights are violated if prison officials show deliberate indifference

to the serious medical and psychiatric needs or deliberate indif-

ference to a “strong likelihood” that a detainee will take his own

life).

In her brief, Payne states that “[t]he Second, Ninth, and Tenth

Circuits conclude the Fourth Amendment protects an individual

past the initial point of arrest.” (Pet., p. 8). However, as stated

above, the Tenth Circuit has held unequivocally that when the

case presents claims based on pretrial detainee suicide, the

“deliberate indifference” standard must be applied. Barrie, 119

F.3d at 868-69. The Ninth Circuit as well has recently applied the

“deliberate indifference” test to the duty owed regarding pretrial

detainee suicide prevention. Anderson v. County of Kern, 45

F.3d 1310, 1312-13 (9th Cir. 1995). Furthermore, the case Payne

cites from the Second Circuit to support her point, Powell v.

Gardner, 891 F.2d 1039, 1044 (2nd Cir. 1989), is one she

acknowledges is only applicable to an excessive force situation

(“applying Fourth Amendment to claim of excessive force after

transport to police custody and declaring its [sic] applicable to

pre-arraignment custody”). (Pet., p. 8). Payne presents no au-

thority (and there is none) for the proposition that the Second

Circuit applies any standard other than Due Process Clause

“deliberate indifference” to a pretrial detainee suicide case.

In her brief, Payne argues that the divergence in the circuits

observed with regard to excessive force pretrial cases applies to

the present case. (Pet., pp. 7-8). However, since the present case

Mo Sa oer Oe

does not involve excessive force, the divergence in the circuits

does not apply. The Payne lawsuit over the August 2, 199]

events surrounding Hicks’ arrest and later suicide is clearly

governed by those cases which hold that a § 1983 lawsuit based

on a pretrial detainee suicide requires application of the deliber-

ate indifference state of mind standard.

Il. THE SEVENTH CIRCUIT FOLLOWED SUPREME

COURT PRECEDENT UNDER 42 U.S.C. § 1983 BY FIRST

DETERMINING THE SPECIFIC CONSTITUTIONAL RIGHT

ALLEGEDLY INFRINGED.

In her second Question Presented, Payne asks “Do the liberty

interests at stake govern the standard of conduct after arrest ends

and pretrial detention begins, in the context of a maltreatment

claim, regardless of which amendment is applied?” (Pet., p. 1).

Payne makes the assertion that “[w]hether “deliberate indiffer-

ence” or “objective reasonableness” applies should depend as

much upon the liberty interests at stake, as upon the amendment

involved.” (Pet., p.13).

Payne claims that the Seventh Circuit has not followed the

reasoning in Graham vy. Connor, 490 U.S. 386 (1989), in this

regard. (Pet., p. 14). However, it is Graham which provides the

answer, albeit in the negative, to Payne’s second Question

Presented. Graham reiterated the rule that § 1983 provides no

rights of its own but rather derives relief from other sources:

Indeed, many courts have seemed to assume, as did the

courts below in this case, that there is a generic “right” to be

free from excessive force, grounded not in any particular

constitutional provision but rather in “basic principles of

§ 1983 jurisprudence.”

We reject this notion that all excessive force claims brought

under § 1983 are governed by a single generic standard. As

we have said many times, § 1983 “is not itself a source of

TT I 5 5 IS PRR iio en ie nora eam

et 10a

substantive rights,” but merely provides “a method for

vindicating federal rights elsewhere conferred.” Baker v.

McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 2694,

n. 3, 61 L.Ed.2d 433 (1979). In addressing an excessive

force claim brought under § 1983, analysis begins by

identifying the specific constitutional right allegedly in-

fringed by the challenged application of force. See id., at

140,99 S.Ct., at 2692 (“The first inquiry in any § 1983 suit”

is “to isolate the precise constitutional violation with which

[the defendant] is charged”).

Graham vy. Connor, 490 U.S. 386, 393-94 (1989). See also

Albright v. Oliver, 510 U.S. 266, 271 (1994),

Payne argues that the Seventh Circuit should have given more

weight to the “liberty interests at stake” and applied an “objec-

tive reasonableness” standard rather than a “deliberate indiffer-

ence” standard. (Pet., p.13). However, as the Graham decision

makes clear, the proper procedure in a § 1983 suit is to first

determine the precise constitutional violation involved. The

Seventh Circuit followed the Supreme Court’s direction. Payne,

161 F.3d at 1039 (7th Cir. 1998). Thus, contrary to Payne’s

claim, the standard to be applied in a § 1983 lawsuit does depend

upon which constitutional provision is being invoked regardless

of the characterization of the treatment or the “liberty interest”

involved. Furthermore, it should be noted that regardless of

whether Payne’s argument has merit, Payne fails to state why the

Supreme Court should grant certiorari per the guidelines set out

in Supreme Court Rule 10.

Il. THE SEVENTH CIRCUIT FOLLOWED SUPREME

COURT PRECEDENT UNDER 42 U.S.C. § 1983 BY

CONSIDERING ONLY MATTERS RELATED TO HICKS'

ACTUAL INJURY.

In Payne’s third Question Presented, Payne asks “[i]s the

standard of conduct after arrest ends and pretrial begins, in the

SAA i mk ci a a

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saint i nied

context of a maltreatment claim, heightened when the injury is

suicide?” (Pet., p. i). Payne answers this Stating that the Seventh

Circuit “arbitrarily heightened” the standard of conduct because

the injury in this case was suicide. (Pet. p. 14).

Payne claims that the Seventh Circuit has heightened the

standard of conduct required for liability in a detainee suicide

case because “[t]he Court does not acknowledge that Papa’s

failures of duty may foreseeably cause a myriad of harms—not

just suicide.” (Pet., p. 14). In support of this argument, Payne

quotes the Seventh Circuit’s statement that “[t]here is no allega-

tion of Mr. Hicks’ suicidal tendencies, no claim or evidence of

past suicide attempts or warnings from family members of a

mental disturbance and suicidal condition.” (Pet., p. 14).

This argument is faulty in that it implicitly asserts that this

§ 1983 lawsuit is about the allegedly foreseeable “myriad of

harms” which could have befallen Hicks as a result of the alleged

breach of duty by Deputy Papa . However, a lawsuit under § 1983

can only be based on the actual harm caused. “[T]he basic

purpose of a § 1983 damages award should be to compensate

persons for injuries caused by the deprivation of constitutional

rights. For this reason, no compensatory damages may be awarded

in a § 1983 suit absent proof of actual injury.” Farrar vy. Hobby,

506 U.S. 103, 112 (1992) (internal citations omitted).

In the present case, the only alleged harm against Hicks was

failure to prevent his suicide. (Pet., pp. 2-4). Thus the Seventh

Circuit appropriately focused its inquiry on the standard of

conduct and duties owed Hicks to prevent his suicide. Payne,

161 F.3d at 1042. Whether or not an alleged failure of duty of

Deputy Papa could have resulted (although it did not) in some

other possible injury is of no relevance ina § 1983 lawsuit due

to the actual injury requirement stated in Farrar. Farrar, 506

U.S. at 112 (1992),

a

a oem ee

It also should be noted that Payne erroneously states that this

matter was “decided at the pleading stage.” (p. 15). This state-

ment is incorrect. The decision below as to Deputy Papa was

made in response to a motion for summary judgment. Payne, 161

F.3d at 1035-36. Furthermore, it again should be noted that

regardless of whether Payne’s argument has merit, Payne fails to

state why the Supreme Court should grant certiorari per guide-

lines set out in Supreme Court Rule 10.

IV. THE SEVENTH CIRCUIT CORRECTLY FOUND ON

THE MERITS THAT THERE WAS NO CONSTITUTIONAL

VIOLATION OF HICKS’ RIGHTS BY EITHER DEFEN-

DANT PAPA OR DEFENDANT MADISON COUNTY.

A. Claim Against Papa.

Payne alleges that the § 1983 claim against Deputy Papa was

sufficient to withstand the motion for summary judgment and

that its dismissal should not have been upheld by the Seventh

Circuit. (Pet., pp. 15 - 16). The Seventh Circuit upheld the

summary judgment in favor of Papa because the actions of Papa

failed to meet the “deliberate indifference” standard. Payne, 161

F.3d at 1041-42. To meet the deliberate indifference test it must

be shown that Deputy Papa knew that Hicks faced a substantial

risk of serious harm and disregarded that risk by failing to take

reasonable measures to abate it. See Farmer v. Brennan, 511

U.S. 825, 847 (1994).

Payne presents no persuasive argument that Papa should have

been aware of a substantial risk that Hicks would commit

suicide. The facts which Payne claims should have made Papa

aware of a substantial suicide risk—Hicks’ intoxication, curs-

ing, and his tattoo—are insufficient to raise the issue of whether

Papa was aware of a substantial suicide risk. Payne, 161 F.3d at

1042. Additionally, Defendants’ motion for summary judgment

contains affidavits from Deputy Papa and Sheriff Churchich, as

well as deposition testimony from motel owner Jim Bridges

supporting Defendants’ version of the facts in this case. (Mot.

Summ. J., Exs. A, B, F).

Furthermore, Deputy Papa is entitled to qualified immunity

for any and all actions taken as part of his official duties as a

deputy sheriff of Madison County:

To withstand the application of qualified immunity, a

plaintiff must assert a violation of a constitutional or statu-

tory right; that right must have been clearly established at

the time of the violation; and, given the facts most favorable

to the plaintiff, there must be no genuine issues of material

fact as to whether a reasonable official would have known

that the alleged action indeed violated that right.

Liebe v. Norton, 157 F.3d 574, 577 (8th Cir. 1998). See also

Anderson v. Creighton, 483 U.S. 635, 638 (1987).

Even if a court should now find that Hicks’ constitutional

rights were violated by the actions of Deputy Papa, the law was

not and is not clearly established that Deputy Papa committed

any conduct which would infringe upon those constitutional

rights. The facts of the record make clear that Deputy Papa

arrested Hicks on an outstanding warrant and transported the

arrestee to the agency which held the warrant and that there was

no evidence of a substantial risk of suicide. (Mot. Summ. J., Exs.

A, C). Also, Hicks comitted suicide after he was released from

Papa’s custody. For a plaintiff to defeat qualified immunity, she

must show that a reasonable official would have known that his

conduct violated a constitutional right which requires that the

officer acted with “deliberate indifference.” Liebe, 157 F.3d at

577. Since as discussed above, Deputy Papa did not act with

deliberate indifference with regard to Hicks’ suicide risk, Papa’s

qualified immunity must stand.

si AE ice

B. Claim Against Madison County.

Payne alleges that the § 1983 claim against Madison County

was sufficient to withstand the motion to dismiss and should not

have been dismissed by the Seventh Circuit. (Pet., pp. 15 - 16).

The Seventh Circuit held that Payne’s § 1983 count against

Madison County “does not allege a sufficient factual predicate

for the essential element that the County’s placement of

Mr. Hicks in the city jail was done pursuant to a policy that

evinces reckless disregard for his safety.” Payne for Hicks v.

Churchich, 161 F.3d 1030, 1043 (7th Cir. 1998).

In a § 1983 action, a municipality may only be held liable for

constitutional deprivations if the deprivation is the result of a

policy or custom of the municipality. Board of County Com'rs of

Bryan County, Okl. v. Brown, 520 U.S. 397 (1997); City of

Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). Since the

standard in a pretrial detainee suicide case is deliberate indiffer-

ence, it must be shown that the policy or custom is the result of

deliberate indifference toward the pretrial suicide risk. To show

deliberate indifference, it must be shown that those behind the

policy or custom had knowledge of the substantial risk of suicide

and disregarded that risk by failing to adjust the policy or custom.

See Farmer v. Brennan, 511 U.S. 825, 847 (1994).

As the Seventh Circuit stated, Payne’s complaint is insuffi-

cient to state a § 1983 claim against Madison County. Payne, 161

F.3d at 1043; (Pet., pp. 135a-140a). “Although the complaint

states that responsible officials knew that better protection

against self-inflicted injuries was available at the overcrowded

county facility, it does not allege that those officials knew that

placement in the city jail exposed Mr. Hicks to a substantial risk

of such injury.” Payne, 161 F.3d at 1043 (7th Cir. 1998).

Without the allegations that Madison County officials had knowl-

edge of the substantial risk of suicide and consciously disre-

FEMS |, Pee

garded that risk, the charge against Madison County was properly

dismissed. See e.g., Liebe, 157 F.3d at 578-80.

Payne alleges that the Seventh Circuit’s reasoning in dismiss-

ing the claims against Madison County violates the principle

stated in Leatherman vy. Tarrant County Narcotics Intelligence

and Coordination Unit. (Pet., pp. 15-16, citing Leatherman vy.

Tarrant County Narcotics Intelligence and Coordination Unit,

507 U.S. 163 (1993)). The holding of Leatherman was that the

Fifth Circuit was not permitted to create a heightened pleading

standard in § 1983 actions alleging municipal liability.

Leatherman v. Tarrant County Narcotics Intelligence and Coor-

dination Unit, 507 U.S. 163, 167 (1993). However, the

Leatherman holding was not that a federal court can never grant

a motion to dismiss in favor of a municipality. The standard

granting a motion to dismiss is whether accepting all of the

factual allegations in the complaint as true, the complaint still

fails to state a sufficient claim. U.S. v. Gaubert, 499 U.S. 315,

327 (1991). In this case, the Seventh Circuit has not placed a

heightened pleading standard on the plaintiff. Rather, the court

correctly concluded that even if all of the factual allegations

against Madison County were correct, the complaint still would

not sufficiently state a claim.

Furthermore, it again should be noted that regardless of

whether Payne’s arguments as to these substantive issues has

merit, Payne fails to state why the Supreme Court should grant

certiorari per its guidelines set out in Supreme Court Rule 10. In

fact, there are no “compelling reasons” as required by Rule 10 for

the granting of certiorari in this case at all. As discussed above,

there is no conflict among the circuits or a state court decision as

to the law to be applied to this case, and there is no departure

“from the accepted and usual course of judicial proceedings.”

Furthermore, although the Supreme Court has not issued its own

ruling on the question of Constitutional rights in pretrial detainee

— 16-

suicide cases, it has ruled quite clearly on the duty to provide for

the medical needs of pretrial detainees, and the circuit Cases on

the extent of the duty to prevent a detainee’s suicide fit squarely

within that precedent. See Estelle v. Gamble, 429 U.S. 97, 104

(1976); City of Revere v. Massachusetts Gen. Hosp., 463 U.S.

239, 244 (1983).

CONCLUSION

For the reasons set forth in this Brief, Respondents respect-

fully request this court deny Petitioner’s Petition for a Writ of

Certiorari.

JoHN L. GILBERT

Counsel of Record

MICHAEL T. NEWMAN

REED, ARMSTRONG, GORMAN, COFFEY,

GILBERT & Mupae, P.C.

125 N. Buchanan Street

P. O. Box 247

Edwardsville, [IL 62025

(618) 656-2244

(618) 656-1307 (fax)

May 1999