Estate of Michael Mark Pollard, et al v. Hood County, Texas, et al

Filing

UNPUBLISHED OPINION FILED. [13-11060 Affirmed ] Judge: PEH , Judge: JLD , Judge: JEG. Mandate pull date is 09/15/2014 [13-11060]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 13-11060
Summary Calendar

FILED
August 25, 2014
Lyle W. Cayce
Clerk

ESTATE OF MICHAEL MARK POLLARD; JENNIFER BUTLER, On behalf
of the Estate of Michael Pollard and as Next Friend of S.P., a minor; REBECCA
DEBRA BRYANT-MOORE, As Next Friend of A.B., a minor,
Plaintiffs - Appellants
v.
HOOD COUNTY, TEXAS; ROGER DEEDS, Sheriff, Individually and in His
Official Capacity as Hood County Sheriff; ANN BROWN, Captain, Individually
and in her Official Capacity as Hood County Jail Administrator; NORMA
HANSON, Deputy, Individually and in her Official Capacity as a Hood county
Deputy/Jailer; TRAVIS BARINA, Deputy, Individually and in his Official
Capacity as a Hood County Deputy/Jailer,
Defendants - Appellees
_________________________
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CV-163
_________________________
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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Plaintiffs-Appellants, the Estate of Michael Mark Pollard, Jennifer
Butler, and Rebecca Bryant-Moore, appeal from the summary judgment
dismissal of their 42 U.S.C. § 1983 complaint against individual defendants
Sheriff Roger Deeds, Captain Ann Brown, and correction officers Norma
Hanson and Travis Barina, and from the dismissal following judgment on the
pleadings of their § 1983 complaint against Hood County, Texas. Plaintiffs
argue on appeal that (1) the individual defendants violated decedent Michael
Mark Pollard’s Fourteenth Amendment right as a pretrial detainee by acting
with deliberate indifference to his known risk of suicide; and (2) Hood County,
Texas is liable as a municipality under Monell v. New York Department of
Social Services, 436 U.S. 658 (1978), for promulgating unconstitutional
customs, practices, policies, or procedures. For the reasons that follow, we
AFFIRM both the district court’s summary judgment dismissal of plaintiffs’
claim against the individual defendants and the district court’s dismissal
following judgment on the pleadings of Plaintiffs’ claim against Hood County.
I.
In March 2010, charges were brought against decedent Michael Mark
Pollard for aggravated sexual assault of a child.

After learning of the

impending charges, but before his arrest, Pollard twice attempted suicide.
First, in March of 2010, he slit his wrist and was hospitalized for four days.
On April 10, 2010, he attempted suicide again, this time cutting his arm
“vertically to the bone and slit[ting] his neck with a box cutter.” Pollard was
taken to the hospital, where he received emergency surgery. Thereafter, he
was admitted to the inpatient psychiatric ward of the hospital for treatment.
Immediately after his discharge from the hospital, Pollard was arrested on the
aggravated sexual assault charges and taken to Hood County Jail.

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At booking, Pollard was assessed and deemed to be a high risk for
suicide. Pollard was strip searched and dressed in paper clothing. He was
placed in a single occupancy cell containing only a mattress and, for his
protection, was not provided with any other items in his cell. Pollard was
placed on 15-minute watch, meaning that jailers would visually check on him
every fifteen minutes. Up until Pollard’s death, the 15-minute watch remained
in effect but was not meticulously implemented: some checks were a few
minutes late and some a few minutes early. Despite these precautions, on
April 26, 2010, Pollard committed suicide by hanging himself from a laundry
bag tied to an air vent in his cell. The individual defendants each testified that
they were unaware of the presence of the laundry bag in Pollard’s cell until it
was used to effectuate his suicide.
On April 25, 2010, the night preceding Pollard’s death, correction officers
Barina and Hanson were working the evening shift at the jail. Barina began
his shift elsewhere, but, at 8:25 p.m., he rotated to the area in which Pollard
was housed. Barina remained as the jailer in this area until 12:20 a.m., when
Hanson took over. The length of time between the checks Barina performed
on Pollard between 8:29 p.m. and 12:20 a.m. ranged from nine to nineteen
minutes. Hanson performed her first check at 12:20 a.m., her second nine
minutes later at 12:29 a.m., and her third eleven minutes after that at 12:40
a.m. Hanson reports that, at all of these checks, Pollard appeared to be lying
or sitting in his cell in an ordinary manner.
At 12:58 a.m., eighteen minutes after her last check, Hanson discovered
Pollard hanging from the air vent by a laundry bag.

She and the other

individual defendants believe that the laundry bag was left in the cell by a
previous inmate and overlooked when the cell was cleaned. Upon discovering
Pollard hanging in his cell, Hanson immediately called for help, and several
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other jailers arrived within about twenty seconds. A jailer lifted Pollard to
release the tension, and another checked for a pulse, but found none.
According to the jailers who responded to Hanson’s call for help, because
Pollard lacked a pulse, he was not cut down, but was left in the position in
which he was discovered, until the investigator could arrive. 1
On March 20, 2012, Plaintiffs filed their original complaint alleging
liability in three ways: individual liability with respect to individual
defendants Barina and Hanson, supervisory liability with respect to individual
defendants Brown and Deeds, and municipal liability with respect to Hood
County.

On June 29, 2012, the individual defendants filed a motion for

summary judgment. After limited discovery, plaintiffs filed their response in
opposition to defendants’ motion for summary judgment on January 18, 2013.
The district court granted summary judgment on plaintiffs’ claims
against the individual defendants on the basis of qualified immunity on March
14, 2013, but found that such ruling should not have preclusive effect on
plaintiffs’ claims against Hood County. On September 3, 2013, the district

In their response to the Defendants’ motion for summary judgment and on appeal,
Plaintiffs allege facts that Barina and Hanson, along with other jailers who responded to the
scene, failed to cut Pollard down once he was discovered hanging in his cell, in violation of
Hood County Jail’s policy. In its order granting the defendants’ motion for summary
judgment, the district court concluded that Plaintiffs’ claim that the jailers were deliberately
indifferent based on their failure to cut Pollard down was not raised until their response to
the Defendants’ summary judgment motion and, therefore, had been waived. Rather than
address the propriety of the district court’s conclusion that this argument had been waived,
or adequately address the legal bases for such a theory of liability, on appeal the Plaintiffs
merely allege facts regarding the failure to cut Pollard down. Plaintiffs do not expressly
argue how this behavior amounts to deliberate indifference, nor do they cite any case law to
support such a claim. Moreover, even after the Defendants-Appellees argued that this
argument was waived, the Plaintiffs have not filed a reply brief or made any argument
regarding the issue of waiver. By neglecting to challenge the district court’s conclusion that
this theory of liability has been waived and may not be considered, Plaintiffs have abandoned
the issue on appeal. See, e.g., Myers v. CitiMortgage, Inc., 557 F. App’x 296, 298 (5th Cir.
2014) (citing Davis v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983)).
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court entered an order granting Hood County’s motion for judgment on the
pleadings. Plaintiffs timely filed their notice of appeal.
II.
This court reviews a district court’s grant of summary judgment de novo,
applying the same standard as the district court. Haase v. Countrywide Home
Loans, Inc., 748 F.3d 624, 629 (5th Cir. 2014); Haire v. Bd. of Sup’rs of
Louisiana State Univ. Agric. & Mech. Coll., 719 F.3d 356, 362 (5th Cir. 2013).
Summary judgment is proper when the evidence shows that there is no
genuine issue of material fact, and the moving party is entitled to judgment as
a matter of law. See Fed. R. Civ. P. 56(c); Celotex v. Catrett, 477 U.S. 317, 322
(1986). On a motion for summary judgment, a court must review the facts in
the light most favorable to the non-movant, and all inferences must be drawn
in favor of the non-movant. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 135 (2000); Haire, 719 F.3d at 362.
Generally, in summary judgment proceedings, “[t]he moving party bears
the burden of establishing that there are no genuine issues of material fact.”
Norwegian Bulk Transp. A/S v. Int’l Marine Terminals P’ship, 520 F.3d 409,
412 (5th Cir. 2008). When, however, a defendant’s summary judgment motion
is premised upon qualified immunity, the burden shifts to the Plaintiff to raise
facts that dispute the Defendant’s assertion of qualified immunity. See
Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir.2005); Poole v. City of
Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). Thus, to prevail, a plaintiff must
produce evidence that presents a genuine issue of material fact that (1) the
defendants’ conduct amounts to a violation of the plaintiff’s constitutional
right; and (2) the defendants’ actions were “objectively unreasonable in light of
clearly established law at the time of the conduct in question.” Cantrell v. City
of Murphy, 666 F.3d 911, 922 (5th Cir. 2012) cert. denied, 133 S. Ct. 119,
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(quoting Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007)). Although a
summary judgment motion premised upon qualified immunity shifts the
burden to the Plaintiff, this does not alter the requirement that courts view all
facts and make all reasonable inferences in the light most favorable to the
plaintiff. Brown, 623 F.3d at 253 (“The plaintiff bears the burden of negating
qualified immunity, but all inferences are drawn in his favor.”) (internal
citation omitted).
Additionally, we review de novo a district court’s grant of judgment on
the pleadings, subject to the same standard as a motion to dismiss under
Federal Rule of Civil Procedure 12(b), and ask whether, when viewed “in the
light most favorable to the plaintiff, the complaint states a valid claim for
relief.” Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008).
III.
As noted, to defeat a defendant’s summary judgment motion premised
upon qualified immunity, a plaintiff must produce evidence that presents a
genuine issue of material fact that (1) the defendants’ conduct amounts to a
violation of the plaintiff’s constitutional right; and (2) the defendants’ actions
were “objectively unreasonable in light of clearly established law at the time of
the conduct in question.” Cantrell v. City of Murphy, 666 F.3d 911, 922 (5th
Cir. 2012) cert. denied, 133 S. Ct. 119, (quoting Freeman v. Gore, 483 F.3d 404,
411 (5th Cir. 2007)). A conclusion that Plaintiff has failed to establish either
prong may resolve the inquiry. See Pearson v. Callahan, 555 U.S. 223, 236
(2009). Here, because we find that Plaintiff has not established a genuine issue
of material fact that the defendants’ violated Pollard’s constitutional rights, we
do not address the defendants’ objective reasonableness in light of clearly
established law.

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The constitutional violation alleged here stems from the Due Process
clause

of

the

Fourteenth

Amendment,

under

which

a

“pretrial

detainee . . . ha[s] a clearly established . . . right not to be denied, by deliberate
indifference, attention to his serious medical needs.”

This right includes

protection from known suicidal tendencies. See Flores v. Cnty. of Hardeman,
Tex., 124 F.3d 736, 738 (5th Cir. 1997).
In Farmer v. Brennan, the Supreme Court announced that in order to
establish deliberate indifference, the plaintiff must show that “the official
knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the
inference.” 511 U.S. 825, 837 (1994). The Farmer Court explained that this
“subjective recklessness” standard does not require the plaintiff to “show that
a prison official acted or failed to act believing that harm actually would befall
an inmate; it is enough that the official acted or failed to act despite his
knowledge of a substantial risk of serious harm.” Id. at 842; see also Domino
v. Texas Dept. of Criminal Justice, 239 F.3d 752, 755 (5th Cir. 2001).
Interpreting this standard, we have explained that, “[d]eliberate indifference
is an extremely high standard to meet,” and requires a plaintiff to establish
more than mere negligence, unreasonable response, or medical malpractice.
Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006); see also Thompson v.
Upshur Cnty., Tex., 245 F.3d 447, 459 (5th Cir. 2001).
For the reasons that follow, we conclude that the Plaintiffs failed to
establish that the defendants acted with deliberate indifference and therefore,
we AFFIRM the district court’s summary judgment order in favor of the
individual defendants and AFFIRM its dismissal of the pleadings against Hood
County.
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A.
First, we consider the liability of the individual defendants Barina and
Hanson, two of the jailers on duty the night of Pollard’s suicide. Plaintiffs
argue on appeal that Barina and Hanson were deliberately indifferent for
failing to strictly comply with the fifteen-minute observation orders and
neglecting to view and remove the laundry bag from Pollard’s cell. The district
court concluded that the actions of defendants Barina and Hanson, although
possibly negligent, did not reflect deliberate indifference to Pollard’s known
suicide risk. We agree.
Barina and Hanson do not dispute that they knew of Pollard’s suicidal
nature or his recent suicide attempt. Additionally, both Barina and Hanson
acknowledge that they neglected to perform their 15-minute checks with strict
regularity. We agree with the district court that the deviations from the
fifteen-minute observation periods under these circumstances do not raise a
genuine issue of material fact that Barina or Hanson deliberately ignored an
excessive risk of harm to Pollard’s safety. Although in some cases, failure to
execute a plan to prevent against a detainee’s suicide may amount to deliberate
indifference, here, Plaintiffs have not raised a material fact from which a
reasonable juror could conclude that the jailers’ failure to strictly comply with
the fifteen-minute checks reflect anything but negligent implementation of a
plan meant to protect Pollard’s safety. “[N]egligent inaction by a jail officer
does not violate the due process rights of a person lawfully held in custody of
the State.” Hare, 74 F.3d at 645. Accordingly, neither Barina nor Hanson’s
conduct violated Pollard’s constitutional rights.
Further, there is no record evidence to dispute Barina and Hanson’s
testimony that they had no knowledge of the laundry bag that Pollard used to
hang himself. Therefore, at most, their failure to view and retrieve the bag
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was negligent, and does not amount to a knowing disregard of a serious health
risk. See, e.g., Lemoine v. New Horizons Ranch & Ctr., Inc., 174 F.3d 629, 635
(5th Cir. 1999) (noting “oversight” in administration at juvenile facility where
detainee died of heatstroke was insufficient to show anything more than
negligence, mandating application of qualified immunity).

Moreover,

Plaintiffs have not argued or presented any evidence that these individual
defendants had an affirmative duty to visually or physically inspect the cell on
the night of Pollard’s suicide to determine whether it contained any
contraband.

Thus, any potential argument that these officers were

deliberately indifferent by failing to act to ensure Pollard’s cell was emptied of
any hazardous objects despite his known suicide risk, has been abandoned.
Plaintiffs have not established that Barina or Hanson acted with
deliberate indifference and thus we AFFIRM the district court’s grant of
summary judgment to the individual defendants Barina and Hanson.
B.
Next, we consider the claims for supervisory liability against Deeds and
Brown.

Plaintiffs argue that Deeds, as the sheriff of the county and

policymaker for the Hood County Jail, and Brown, as the jail administrator,
failed to adequately supervise their subordinates (including Barina and
Hanson) by creating the impression that 15-minute suicide checks were
acceptable if they were performed a few minutes late. Plaintiffs contend that
this inadequate supervision constitutes deliberate indifference to Pollard’s
constitutional rights on the part of Brown and Deeds.
A supervisor not personally involved in the acts that allegedly deprived
the plaintiff of his constitutional rights is liable under § 1983 only if (1) the
supervisor failed to train or supervise the officers involved; (2) there is a causal
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connection between the alleged failure to supervise or train and the alleged
violation of the detainee’s rights; and (3) the failure to train or supervise
constituted deliberate indifference to the detainee’s constitutional rights. See
Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 381
(5th Cir. 2005).
We agree with the district court’s conclusion that Deeds and Brown were
entitled to qualified immunity and summary judgment on plaintiffs’
supervisory-liability claims.

Brown and Deeds cannot be held liable for

constitutional violations committed by their subordinates because, as
discussed supra, Plaintiffs have not established that any constitutional
violations were committed by their subordinates. See Porter v. Epps, 659 F.3d
440, 446 (5th Cir. 2011) (quoting Gates v. Texas Dep’t of Prot. & Reg. Servs.,
537 F.3d 404, 435 (5th Cir. 2008)) (“‘In order to establish supervisor liability
for constitutional violations committed by subordinate employees, plaintiffs
must show that the supervisor act[ed], or fail[ed] to act, with deliberate
indifference to violations of others’ constitutional rights committed by their
subordinates.’”) (emphasis added); Doe v. Taylor ISD, 15 F.3d 443, 454 (5th Cir.
1994) (en banc) (supervisor’s deliberate indifference to subordinate’s
wrongdoing must have “caused a constitutional injury to the” plaintiff).
Plaintiffs have neither shown that the training or supervision by Brown
and Deeds was inadequate, nor that Brown or Deeds acted with deliberate
indifference to their subordinates’ violations of Pollard’s constitutional rights.
Accordingly, we find that the district court properly granted summary
judgment in favor of Brown and Deeds.
C.
Finally, we consider whether the district court erred in its grant of
judgment on the pleadings in favor of Hood County on the grounds that the
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municipality could not be held liable because none of the individual defendants
acted with deliberate indifference.

We agree with the district court that,

because none of the individual defendants acted with deliberate indifference,
the Plaintiffs did not state a claim of a constitutional violation for which Hood
County may be held municipally liable.
To impose liability on a municipality under § 1983, plaintiffs must first
show that a municipal employee committed a constitutional violation—here,
deliberate indifference to Pollard’s known suicide risk. See Scott v. Moore, 114
F.3d 51, 54 (5th Cir. 1997) (en banc). Once this underlying constitutional
violation is established, liability can be extended to the county if plaintiffs can
show that the violation “resulted from a Hood County policy or custom adopted
or maintained with objective deliberate indifference to the detainee’s
constitutional rights.” Id. “If a plaintiff is unable to show that a county
employee acted with subjective deliberate indifference, the county cannot be
held liable for an episodic act or omission.” Anderson v. Dallas Cnty., Tex., 286
Fed. App’x. 850, 860 (5th Cir. 2008); see also Olabisiomotosho v. City of
Houston, 185 F.3d 521, 529 (5th Cir. 1999).
As discussed supra, we agree with the district court’s determination that
the individual defendants’ actions were, at most, negligent and therefore did
not rise to the level of deliberate indifference. Plaintiffs have failed to establish
that any Hood County employee has violated Pollard’s Fourteenth Amendment
rights and, therefore, we find that the district court was correct in holding that
Hood County cannot be held municipally liable under Monell and that Hood
County is entitled to judgment as a matter of law on the pleadings.
CONCLUSION
Because the Plaintiffs have failed to establish that any of the individual
defendants acted with deliberate indifference, we AFFIRM the district court’s
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grant of summary judgment in favor of the individual defendants. Likewise,
we AFFIRM the district court’s grant of judgment on the pleadings in favor of
Hood County.

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