Janis Brown, et al v. Wichita County

Filing

PUBLISHED OPINION FILED. [09-10843 Reversed] Judge: EHJ , Judge: ECP , Judge: HSO. Mandate pull date is 10/28/2010 [09-10843]

Janis Brown, et al v. Wichita County

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-10843 October 7, 2010 Lyle W. Cayce Clerk J A N I S L. BROWN, Individually, and as Personal Representative of the Estate o f Jason Ray Brown, Deceased; BILLY RAY BROWN, P la in t iffs - Appellees v. T H O M A S J. CALLAHAN, Sheriff of Wichita County, Texas, in his Individual a n d Official Capacity, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Northern District of Texas

B e fo r e JONES, Chief Judge, PRADO, Circuit Judge, and OZERDEN, District Judge. * E D I T H H. JONES, Chief Judge: J a s o n Brown died tragically while detained in the Wichita County Jail. His estate sued Sheriff Thomas Callahan for failure to train and supervise the ja il's medical employees and for maintaining an unconstitutional policy of d e lib e r a t e indifference to detainees' serious medical needs. The district court d e n ie d Sheriff Callahan's motion for summary judgment based on qualified

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District Judge of the Southern District of Mississippi, sitting by designation.

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No. 09-10843 im m u n it y , and he appeals. Because there is insufficient evidence of deliberate in d iffe r e n c e or objective unreasonableness by the Sheriff, we reverse. I. BACKGROUND T h e underlying facts are not in dispute. Jason Brown died of a

g a s t r o in t e s t in a l hemorrhage while in pretrial custody in the Wichita County J a il. During the 55 hours between Brown's book-in and his death, he informed t h e intake nurse of multiple serious medical problems, repeatedly vomited what a p p e a r e d to be blood, complained of feeling unwell, requested to be sent to the e m e r g e n c y room, and ultimately was non-responsive for extended periods of tim e . During his confinement, Brown lacked access to his prescription

m e d ic a t io n s . An attending jail nurse, Nurse Krajca, treated Brown's symptoms b y giving him liquid antacid, placing him in a medical solitary cell, and a d m in is t e r in g an anti-nausea suppository. Brown was neither transferred to a h o s p it a l ER, nor was he seen by the jail's supervising physician, Dr. Bolin. In fa c t , no one from the jail ever contacted Dr. Bolin for his advice on Jason Brown. The jail's deputies, however, periodically checked Brown's condition from outside t h e medical solitary cell. When the deputies checked on him the next evening, B r o w n was dead. Brown's parents, Janis and Billy Ray Brown, filed suit individually and as r e p r e s e n t a t iv e s of the estate of Jason Brown against Sheriff Callahan and o t h e r s . Relevant to this appeal, the Appellees contend that Sheriff Callahan is lia b le for Brown's death in his individual capacity under 42 U.S.C. § 1983 under t w o possible theories. First, they argue that Callahan is personally responsible fo r training staff and supervising the medical treatment of individuals in the c u s t o d y of the jail. More specifically, the Appellees allege that Sheriff Callahan

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No. 09-10843 fa ile d to supervise properly the jail staff and Dr. Bolin, who intimidated the n u r s e s , discouraging them from contacting the doctor or referring patients to the E R for further medical treatment. Second, the Browns allege that the Sheriff r a t ifie d as custom or policy Dr. Bolin's intimidation of the nursing staff that c a u s e d their son's death. S h e r iff Callahan moved for summary judgment, asserting qualified im m u n it y . The district court denied his motion. It found that the Appellees o ffe r e d sufficient evidence to create material fact issues whether (a) Sheriff C a lla h a n failed adequately to supervise the jail's medical personnel, and (b ) approved or ratified "Defendant Bolin's pattern and practice of harassing and in t im id a t in g jail nurses when they would call him with questions regarding n u r s in g care, discouraging sending inmates to the hospital causing Brown's d e a th ." The same evidence persuaded the court that Sheriff Callahan's actions m a y have been objectively unreasonable and therefore not protected by qualified im m u n it y . Sheriff Callahan appeals. II. STANDARD OF REVIEW T h is court reviews a denial of a public official's motion for summary j u d g m e n t on the issue of qualified immunity by determining "whether the d is t r ic t court erred in assessing the legal significance of the conduct that the d is t r ic t court deemed sufficiently supported for purposes of summary judgment." Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc). The court reviews d e novo the district court's legal determination of the materiality of the identified fa c t issues. Lemoine v. New Horizons Ranch & Ctr., Inc., 174 F.3d 629, 634 (5th C ir . 1999). Summary judgment is required if the movant establishes that there

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No. 09-10843 a r e no genuine issues of material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). A qualified immunity defense alters the usual summary judgment burden o f proof. See Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005). Once an o ffic ia l pleads the defense, the burden then shifts to the plaintiff, who must r e b u t the defense by establishing a genuine fact issue as to whether the official's a lle g e d ly wrongful conduct violated clearly established law. Id. The plaintiff b e a r s the burden of negating qualified immunity, id., but all inferences are d r a w n in his favor. T h e qualified immunity defense has two prongs: whether an official's c o n d u c t violated a constitutional right of the plaintiff; and whether the right was c le a r ly established at the time of the violation. Manis v. Lawson, 585 F.3d 839, 8 4 3 (5th Cir. 2009). A court may rely on either prong of the defense in its a n a ly s is . Id. If the defendant's actions violated a clearly established constitutional r ig h t , the court then asks whether qualified immunity is still appropriate b e c a u s e the defendant's actions were "objectively reasonable" in light of "law w h i c h was clearly established at the time of the disputed action." Collins v. A in s w o r th , 382 F.3d 529, 537 (5th Cir. 2004) (citations omitted). Whether an o ffic ia l's conduct was objectively reasonable is a question of law for the court, not a matter of fact for the jury. Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1 9 9 9 ). To be clearly established for purposes of qualified immunity, the contours of the right must be sufficiently clear that a reasonable official would understand t h a t what he is doing violates that right. Brown v. Miller, 519 F.3d 231, 236 (5th C ir . 2008). The unlawfulness of the defendant's actions must have been readily

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No. 09-10843 a p p a r e n t from sufficiently similar situations, but it is not necessary that the d e fe n d a n t 's exact act have been illegal. Id. at 236-37. An official's actions must b e judged in light of the circumstances that confronted him, without the benefit o f hindsight. Graham v. Connor, 490 U.S. 386, 396-97 (1989). In essence, a p la in t iff must allege facts sufficient to demonstrate that no reasonable officer c o u ld have believed his actions were proper. Babb v. Dorman, 33 F.3d 472, 477 (5 t h Cir. 1994). III. DISCUSSION A s a pretrial detainee, Jason Brown had a clearly established Fourteenth A m e n d m e n t right not to be denied, by deliberate indifference, attention to his s e r io u s medical needs. Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996) (e n banc). Whether Dr. Bolin, jail nurses, or other staff violated Brown's rights is not before us; the Browns' case against Dr. Bolin and Nurse Kracja, awaits t r ia l pending the outcome of this appeal, and we express no opinion on its merits. Sheriff Callahan had no knowledge of and did not participate in the events s u r r o u n d in g Brown's fatal period of detention. Thus, the Sheriff can only be held lia b le in his capacity as a supervisor of the jail for his own unconstitutional c o n d u c t . City of Canton v. Harris, 489 U.S. 378, 385 (1978) (no respondeat s u p e r io r liability of supervisors). The Browns have alleged two theories of supervisory liability, which, being fo u n d e d on the same facts, may be discussed together. Mirroring the

r e q u ir e m e n t s in this circuit, they contend first that Callahan failed to train or s u p e r v is e Dr. Bolin and the jail staff; that a causal link exists between the fa ilu r e to train or supervise and the unconstitutional denial of medical care to J a s o n ; and his failure to train or supervise amounts to deliberate indifference.

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No. 09-10843 E s ta te of Davis v. City of N. Richland Hills, 406 F.3d 375, 381-82 (5th Cir. 2 0 0 5 ).1 Their second theory of liability is that the Sheriff ratified or condoned D r . Bolin's custom or policy of intimidating nurses from providing needed m e d ic a l care, and the custom or policy was "so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the c o n s t it u t i o n a l violation." Cozzo v. Tangipahoa Parish, 279 F.3d 273, 289 (5th C ir . 2002) (citing Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987). F o r purposes of analysis, we assume arguendo that Jason Brown e x p e r ie n c e d an unconstitutional denial of medical care while a pretrial detainee, a n d that the denial of care enabled his gastrointestinal hemorrhage to become fa ta l. The facts relevant to the Browns' theories, developed in discovery, d e m o n s t r a t e that the Sheriff is legally responsible for operating the county jail. TEX. LOC. GOVT. CODE ANN. § 351.041(a). In the mid 1990's the County executed a contract with Dr. Bolin explicitly requiring the doctor to supervise the p r o fe s s io n a l work of the jail's medical staff, six Licensed Vocational Nurses (L V N s ), while the Sheriff supervised their employment. During the period in q u e s t io n , the jail's formal medical care plan complied with state standards. The B r o w n s have offered no evidence that any detainee before Jason Brown e x p e r ie n c e d allegedly substandard medical care or any denial of his c o n s t it u t io n a l right to receive medical care at the Wichita County jail.

A supervisor may be held liable under § 1983 for failure to train or supervise subordinates if (1) the supervisor failed to train or supervise; (2) a causal link exists between the failure and violation of plaintiff's rights; and (3) the failure to train or supervise amounts to deliberate indifference. Estate of Davis, 406 F.3d at 381.

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No. 09-10843 V ie w e d in the light most favorable to the Browns, however, there was c o n flic tin g testimony from Callahan, Dr. Bolin, and present and former nurses c o n c e r n in g the extent and quality of Callahan's supervision of Dr. Bolin and the n u r s e s . Two former jail nurses attested to two incidents in which each consulted D r . Bolin about an inmate's medical condition and was instructed not to send the p a t ie n t to the emergency room for treatment. The nurses did so anyway. Their a ffid a v it s state that Dr. Bolin was rude to nurses and intimidated them, and he d i s li k e d being called for advice at nighttime. Each nurse complained to the S h e r iff about the two specific confrontations with Dr. Bolin over sending a p a t ie n t to the ER. These nurses also claim to have witnessed Dr. Bolin's

m is t r e a t m e n t of other nurses on the jail staff. Additionally, Nurse Kracja, who o v e r s a w Jason Brown's treatment, expressed reluctance to send Brown to the ER b e c a u s e she did not want an "ass-chewing" from the doctor.2 S h e r iff Callahan did not deny that he was aware of Dr. Bolin's unpleasant b e h a v io r during a ten-year stint as the jail's contract physician. He admitted t h a t Bolin "gripes all the time" at employees. The Sheriff's response was twofo ld . He testified that he advised the doctor on several occasions to "sweeten up" t o w a r d the nurses. The Sheriff also instructed the nurses to continue calling the d o c t o r at any time, irrespective of Dr. Bolin's grumpiness, if they felt it a p p r o p r ia te .3

Specifically, Nurse Kracja told Detention Officer Sours during a cigarette break (after she had ordered Brown transferred to a medical solitary cell): "[d]o you know what kind of ass-chewing I would get from Dr. Bolin if I sent [Brown] to the hospital in the good health that he is in?" We interpret this ambiguous remark in the light most favorable to the Browns. In their briefing, the Browns emphasize a contention that the nurses were asked to perform medical duties, e.g. assessment and treatment of patients and administration of medication, beyond their training as LVNs. The district court cited a lack of evidence of any
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No. 09-10843 T h e s e last two paragraphs summarize the evidence found sufficient by the d is t r ic t court to raise genuine and material fact issues not only on each prong of t h e Browns' theories of unconstitutional supervision and an unconstitutional p o lic y , but also on whether Callahan's conduct was so objectively unreasonable, i.e . plainly incompetent or a knowing violation of law, that a jury could deny him q u a lifie d immunity. Despite our sympathy for Jason's plight and our respect for t h e district court's conscientious effort, we must disagree. Even if we assume a r g u e n d o that the sheriff's supervision of Dr. Bolin or the nursing staff was in a d e q u a t e and that there was a causal link between his failure and Brown's d e a th , we cannot conclude that there is a genuine material fact issue as to C a lla h a n 's deliberate indifference to constitutional rights. Evidence is also la c k in g to prove the objective unreasonableness, for immunity purposes, of S h e r iff Callahan's management of the jail's medical care. D e lib e r a t e indifference is "a stringent standard of fault, requiring proof t h a t a municipal actor disregarded a known or obvious consequence of his a c t io n ." Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997). Deliberate indifference implies an official's actual knowledge of facts showing t h a t a risk of serious harm exists as well as the official's having actually drawn

specific training deficiencies although the court viewed this contention as also related to a failure to supervise the nurses. Even if, as a hypothetical matter, LVNs were insufficiently trained for the duties they actually performed at the Wichita County Jail, nothing about the history of jail medical operations made it "obviously likely that a constitutional violation of this sort would result." The record does not show past incidents when a detainee died or suffered grievous harm because nursing staff failed to properly assess the severity of the detainee's symptoms. The record does not show instances where LVNs were obviously inadequately trained, leading to gross misdiagnoses or harms resulting from the prescription and administration of improper drugs. In these circumstances, the district court properly focused on the failure to supervise theory rather than failure to train.

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No. 09-10843 t h a t inference. Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir. 1998) (internal q u o t a t io n marks and citations omitted). Deliberate indifference is more than m e r e negligence or even gross negligence. City of Canton, 489 U.S. at 388. Proof o f deliberate indifference normally requires a plaintiff to show a pattern of v io la t io n s and that the inadequate training or supervision is "obvious and o b v io u s ly likely to result in a constitutional violation." Estate of Davis, 406 F.3d a t 381 (citations omitted). H e r e , evidence of Sheriff Callahan's failure to supervise Dr. Bolin and the n u r s in g staff is simply too attenuated to permit the inference that the Sheriff w a s deliberately indifferent, i.e., that he ignored a known or obvious risk of u n c o n s t it u t io n a lly deficient medical care. The complaints are that he condoned o r ratified Dr. Bolin's harassing and intimidation of the nursing staff, failed to s u p e r v is e Dr. Bolin's actions that discouraged the nurses from calling the doctor o r sending patients to the ER, and failed to supervise the nurses to work with D r . Bolin for the inmates' best care. A jury would be asked to infer from

D r . Bolin's unpleasant attitude not only that the nurses would be unhappy but t h a t they would be so intimidated as not to respond to the inmates' serious m e d ic a l needs. Y e t apart from Nurse Kracja's expressed fear of an "ass-chewing," there is no allegation of unconstitutionally deficient medical care attributable to fear o f Dr. Bolin's response before Jason Brown died. That two nurses decided to s e n d inmates to the ER over Dr. Bolin's objections proves the opposite of in t im id a t io n . The Appellees do not even allege that nurses had been disciplined o r terminated in the past for seeking Dr. Bolin's assistance. A doctor's bad t e m p e r is nothing for his employing organization to be proud of, but standing

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No. 09-10843 a lo n e , it does not create a known or obvious risk of inadequate medical care. Further, the fact that the nurses and Dr. Bolin disagreed in two instances on w h e t h e r particular inmates should be sent to the ER does not, without more p r o o f, raise an inference that those other inmates were subjected to c o n s t it u t io n a lly inadequate care. Appellees do not allege that Dr. Bolin refused t o consult with nurses when presented with symptoms resembling those of B r o w n , or when any detainee exhibited other similarly severe symptoms like v o m i t i n g blood. They do not allege that nurses had tried in the past to refer s im ila r ly ailing inmates to the ER but were denied, either because of Dr. Bolin o r otherwise. The Browns, in sum, fail to establish a factual connection between D r . Bolin's demeanor and any actual adverse consequences to the nursing staff o r any prior instance in which the quality of the inmates' medical care was d im in is h e d because of Dr. Bolin's communication problems with them. In light o f these deficiencies, the risk arising from Dr. Bolin's behavior was not clearly r e la t e d to constitutionally inadequate medical care. No reasonable jury could fin d that Sheriff Callahan knew of, much less disregarded or ignored an obvious r is k . Indeed, he counseled Dr. Bolin and ordered the nurses to act appropriately n o tw it h s t a n d in g Bolin's distemper, and the Browns have shown no prior in s t a n c e in which the Sheriff's instruction to the nurses was not followed.4 The u lt im a te question is not whether a jury, in hindsight, could conclude that the S h e r iff could have engaged in better supervision of the jail's medical care but

The Browns do not contend, nor is there a basis for finding, that the treatment accorded Jason falls within the "single incident" exception to the usual requirement that to prove deliberate indifference, a supervisor must be on notice of a pattern of similar unconstitutional behavior. Estate of Davis, 406 F.3d at 382, 383.

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No. 09-10843 w h e t h e r his supervision was so utterly heedless as to amount to deliberate in d iffe r e n c e . That stringent test is not met here. T h e district court also held that a fact issue exists as to whether Sheriff C a lla h a n condoned or ratified a "policy" of nurse intimidation carried out by D r . Bolin that discouraged nurses from seeking emergency care for inmates with s e r io u s medical needs. It is unlikely such a policy can be legitimately inferred fr o m the scant evidence above without disserving the principle that a "policy" m u s t be "persistent," "widespread," "common" and "well settled." See Cozza,

279 F.3d at 289. Dr. Bolin's "policy" may have been to mistreat the staff, but w h e t h e r the policy's effect was to discourage inmates from receiving adequate m e d ic a l care is barely substantiated. Nonetheless, the Sheriff's potential

lia b ilit y for an unconstitutional policy runs afoul of the second prong of qualified immunity analysis, where the dispositive inquiry is "whether it would be clear t o a reasonable officer that his conduct was unlawful in the situation he c o n f r o n te d ." Saucier v. Katz, 533 U.S. 194, 202 (2001). This court has

i n te r p r e t e d "clearly established law" on the subject of policy promulgation to r e q u ir e "an intentional choice" and amount to subjective deliberate indifference. Rhyne v. Henderson Cnty., 973 F.2d 386, 392 (5th Cir. 1992). It must be "obvious t h a t the likely consequences of not adopting a policy will be a deprivation of civil r ig h t s ." Id., quoted in Brumfield v. Hollins, 551 F.3d 322, 328 (5th Cir. 2008). Applied to this case, it would have had to be clear to the Sheriff that condoning o r ratifying Dr. Bolin's practice of nurse intimidation would in fact discourage n u r s e s from seeking constitutionally adequate medical care for the detainees. That he did not have the subjective knowledge required for deliberate in d iffe r e n c e and imputation of liability has been explained above.

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No. 09-10843 T h e r e is also insufficient evidence from which a reasonable jury could infer t h a t Callahan's conduct did not deserve qualified immunity. The district court r e lie d on the same evidence related above that shows, at worst, the Sheriff's n e g lig e n t supervision of Dr. Bolin and the doctor's relationship with the nursing s t a ff. In the absence of any prior incidents that connoted inadequate medical c a r e at the jail, it is impossible to infer that the Sheriff was essentially callous a b o u t inmate medical care or had any reason to suspect the level of care had b e c o m e or could become constitutionally inadequate. The Sheriff was neither p la in ly incompetent nor knowingly violating the law, nor were his actions, in the c ir c u m s t a n c e s he faced, objectively unreasonable. He took some steps to curtail D r . Bolin's intimidation and require the nurses to call the doctor as necessary. A "pattern" of verbal nurse intimidation and harassment cannot alone place a s u p e r v is o r on notice that inmates are receiving medical care so deficient as to v io la t e the Constitution. C O N C L U S IO N J a s o n Brown's tragic, lonely death deserved investigation and a careful r e v ie w of the Wichita County Jail's practices toward visibly ill inmates. Neither t h e demanding test for supervisory § 1983 liability, however, nor the test for o ffic ia l qualified immunity has been factually demonstrated against Sheriff C a lla h a n simply because he knew the jail doctor mistreated the nursing staff. REVERSED.

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