# Opposition Brief — Payne v. Churchich

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1590%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 1004

## Text

| 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
oe |

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1590%3A2. Public record. Not legal advice.