Craven et al v. Perry County et al
Filing
61
******PLEASE DISREGARD THIS ENTRY. THIS ORDER WAS PREVIOUSLY ENTERED ON AUGUST 16, 2013. ******Memorandum Opinion and Order granting Defendants Jeremy McSwain and Jimmy Dale Smith's 52 MOTION for Summary Judgment. Said Defendants, McS wain and Smith, are entitled to summary judgment on Plaintiffs' federal claims asserted against them in their individual capacities. Also, McSwain will be dismissed from this lawsuit since he has only been sued in his individual capacity and th e Court previously dismissed Plaintiffs' state law claims against him. All individual capacity claims against Jimmy Dale Smith and Jeremy McSwain under 42 U.S.C. Section 1983 are dismissed from this cause with prejudice. Additionally, McSwain is dismissed with prejudice. Counsel for the parties are to contact Magistrate Judge Michael T. Parker within seven (7) days of the entry of this Order to schedule a case management conference. Signed by District Judge Keith Starrett on August 19, 2013 (dsl) Modified on 8/19/2013 (dsl).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
HERSHALL CRAVEN, Beneficiary of Michael Craven;
SHANE CRAVEN, Beneficiary of Michael Craven;
BRIAN CRAVEN, Beneficiary of Michael Craven; and
ROXANNE CRAVEN, Beneficiary of Michael Craven
V.
PLAINTIFFS
CIVIL ACTION NO.: 2:12-cv-99-KS-MTP
PERRY COUNTY, a political subdivision;
JEREMY MCSWAIN, Individually; and
JIMMY DALE SMITH, Individually and in his
official capacity as Sheriff of Perry County
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion for Summary Judgment [52] of the
Defendants Jeremy McSwain and Jimmy Dale Smith. Having considered the parties’
submissions, the record and the applicable law, the Court finds that the motion should
be granted.
I. FACTUAL AND PROCEDURAL HISTORY
This is an action for wrongful death brought by the siblings of Michael Craven
against Jeremy McSwain (a deputy sheriff with the Perry County Sheriff’s Department),
Jimmy Dale Smith (the Sheriff of Perry County), and Perry County, Mississippi. At
approximately 7:00 p.m. on February 8, 2011, Michael Craven arrived at the Crossroad
Grocery Quick Shop (the “Crossroad”) to purchase beer. (See Compl. [1] at p. 4.)
Joanna Hamby, an acquaintance of Mr. Craven, was hanging out at the Crossroad at
that time. (See Hamby Dep. [52-8] 12:7-13, 21:20-22:7.) Ms. Hamby observed Mr.
Craven purchase two cases of beer. (See Hamby Dep. [52-8] 27:13-16.) She also
noticed that Mr. Craven walked “really slow” on the way back to his truck, that he “held
onto the truck when he got in” it, and that “he was leaned over” while backing up his
truck. (Hamby Dep. [52-8] 36:19-25.) Before exiting the Crossroad parking lot, Mr.
Craven’s truck collided with another vehicle. (See Hamby Dep. [52-8] 31:8-32:20.)
This collision did not appear to result in any vehicular damage and neither Mr. Craven
nor the other driver left their respective vehicles. The other driver “stuck his head out
and told him [Mr. Craven] it was okay.” (Hamby Dep. [52-8] 32:16-20.)
Ms. Hamby was in her car in the Crossroad parking lot when she saw Mr. Craven
pull out and take a left onto Morriston Road. She observed Mr. Craven’s truck enter the
correct lane of traffic, but pull so far to the right that “half of his truck was in the ditch on
the right side.” (Hamby Dep. [52-8] 33:6-9.) Ms. Hamby followed Mr. Craven in her car
as he drove down Morriston Road with half of his truck in the ditch for approximately
three miles. (See Hamby Dep. [52-8] 34:10-35:16.) Eventually, Mr. Craven’s truck
became inoperable due to front-end damage and at least one of its tires blowing out.
Ms. Hamby had a cell phone, but did not call anyone for assistance while she followed
Mr. Craven. (See Hamby Dep. [52-8] 36:9-17.)
After Mr. Craven’s truck came to a stop, Ms. Hamby parked her car in the next
driveway and went back to check on him. Ms. Hamby provided the following testimony
at deposition regarding her subsequent interaction with Mr. Craven:
Walking up to the window and asking him if he was okay. And he told me
that his truck wouldn’t go. And I told him because he blew out a tire, and we
just talked for a few minutes. And he told me that he had had a heart attack
or stroke before. And I basically just talked to him and asked him if I could
call and get him a ride. And I called some lady, called his sister or
something. And she never answered the phone. So he asked me if I could
give him a ride. And I had kids in the back seat. So I told him I couldn’t. And
I tried his sister back, or daughter, a few times, but never got ahold of
anybody.
-2-
(Hamby Dep. [52-8] 38:1-12.) Ms. Hamby also testified that Mr. Craven kept telling her
“that he had had a stroke or a heart attack, like, six or nine months before.” (Hamby
Dep. [52-8] 46:19-47:1.) Ms. Hamby did not think that Mr. Craven told her he was
suffering from a heart attack or stroke at that time because she “would have called 911
if he had said that.” (Hamby Dep. [52-8] 46:19-47:6.) Mr. Craven never asked Ms.
Hamby to call an ambulance or the police. (See Hamby Dep. [52-8] 39:3-6, 40:19-25,
54:9-16.) Mr. Craven appeared “sick” in that he was “leaned over” and “real pale”.
(Hamby Dep. [52-8] 42:17-43:2.) Ms. Hamby did not observe any open container of
beer in the front of Mr. Craven’s truck or smell alcohol on him. (See Hamby Dep. [52-8]
42:1-43:4.) Approximately fifteen to twenty minutes after Ms. Hamby pulled over to
check on Mr. Craven, Deputy McSwain arrived on the scene. At no time prior to Deputy
McSwain’s arrival (or at any other time on February 8) did Ms. Hamby call 911, an
ambulance or the Sheriff. (Hamby Dep. [52-8] 40:13-14, 54:9-16, 74:4-9.)
The Perry County Emergency Dispatch received a call from an unidentified
individual at approximately 7:34 p.m. on February 8, indicating that a man had just left
the Crossroad, hit a car and was in a roadside ditch. Deputy McSwain was dispatched
“to a wreck, possible drunk driver”. (McSwain Dep. [52-1] 11:6-7.) Upon his arrival at
the accident scene, Deputy McSwain observed Mr. Craven’s truck parked partially off
the roadway. Deputy McSwain then approached the truck and saw Mr. Craven sitting in
the driver’s seat and Ms. Hamby standing outside the vehicle.
Deputy McSwain testified at deposition to the following particulars regarding his
subsequent interactions with Ms. Hamby and Mr. Craven. Ms. Hamby told Deputy
McSwain that Mr. Craven bought some beer at the Crossroad and bumped into a
-3-
vehicle while leaving the store. Ms. Hamby also said that Mr. Craven had “a stroke in
the past about a year ago.” (McSwain Dep. [52-1] 11:21-12:8.) Deputy McSwain
smelled alcohol on Mr. Craven’s breath and observed one open container of beer in the
cab of the truck. (See McSwain Dep. [52-1] 12:9-15, 35:14-36:5.) Deputy McSwain
asked Mr. Craven if he had been drinking and Mr. Craven said, “Yeah, I’ve been
drinking all day.” (McSwain Dep. [52-1] 12:10-15.) Deputy McSwain also asked Mr.
Craven if he was sick and if he needed medical attention. Mr. Craven’s response was,
“No,” he just wanted “to go home.” (McSwain Dep. [52-1] 13:9-23.) Deputy McSwain
requested that Mr. Craven exit the truck, helped Mr. Craven get to the back of the
truck,1 and asked Mr. Craven to blow on a portable intoxilyzer. Mr. Craven “blew over
the limit.” (McSwain Dep. [52-1] 12:16-21.)
The following portion of Ms. Hamby’s deposition somewhat conflicts with the
preceding testimony of Deputy McSwain:
Q.
So it’s your testimony that Mr. Craven told Deputy McSwain he had
not been drinking alcohol?
A.
I’m pretty sure that’s what he said. He asked him if he had been
drinking, and I’m pretty sure he told him no. And then he had – the
cop talked to me, and I told him that he had had a heart attack or
something before, and I told him how he was leaning over and I
thought that’s what was wrong, he was having a stroke or something.
And I can’t remember what all they talked about, but he talked to me
and him.
(Hamby Dep. [52-8] 44:3-12.) Ms. Hamby also stated that she told Deputy McSwain
that Mr. Craven “had a stroke in the past, and . . . [she] believed he might be having
1
Deputy McSwain assisted Mr. Craven at this point because he was “[k]ind of
like slumped over” and had a “leaned walk.” (McSwain Dep. [52-1] 39:15-40:1.) Deputy
McSwain attributed Mr. Craven’s difficulty walking to a prior stroke.
-4-
another one.” (Hamby Dep. [52-8] 67:1-22; Hamby Aff. [55-7] at p. 2.) According to Ms.
Hamby, Deputy McSwain’s response was, “no, he’s just drunk and we’re going to arrest
him for DUI.” (Hamby Aff. [55-7] at p. 2.) Ms. Hamby did not remember if Mr. Craven
“did a breathalyzer or not.” (Hamby Dep. [52-8] 45:16-25.)
Deputy McSwain testified that he called Sheriff Smith for input after Mr. Craven
blew over the limit on the portable intoxilyzer. (See McSwain Dep. [52-1] 13:9-23.)
Sheriff Smith provided the following testimony at deposition regarding this telephone
communication:
Basically he [Deputy McSwain] related to me that the gentleman [Mr. Craven]
had been drinking, and he had left the road and had blown out the right front
tire, I believe it was, of the vehicle. He informed me that he had had a stroke
a year earlier. I asked him did he need medical help now. He said, no, the
man said he didn’t need any medical help. I said, Well, if he’s been drinking,
carry him on down to the jail, run him on the Intoxilyzer, and then call me
back and we’ll – you know, if it goes DUI we’ll do what we’ve got to do.
(Smith Dep. [52-10] 7:11-21.) Deputy McSwain complied with the Sheriff’s directives
and transported Mr. Craven to the Perry County Jail (the “Jail”) in his patrol car.
On the way to the Jail, Deputy McSwain called another Perry County Deputy,
Billy Anglin, to come in and run the Intoxilyzer 8000 machine. (See McSwain Dep. [521] 14:10-12.) Deputy McSwain was certified to operate the machine, but he had not yet
received his operator’s card. (See Anglin Dep. [52-11] 16:14-23.) Also during the ride
to the Jail, Deputy McSwain asked Mr. Craven if he was okay and if he needed medical
attention. Mr. Craven stated that he was okay and that he just wanted to go home.
(See McSwain Dep. [52-1] 14:18-15:1.)
Mr. Craven was in the booking room when Deputy Anglin arrived at the Jail.
While Deputy Anglin waited for the Intoxilyzer 8000 to start up, he asked Mr. Craven
-5-
whether he needed any medical attention. Mr. Craven replied, “No. I just had a little bit
too much to drink.” (Anglin Dep. [52-11] 9:4-24.) After Deputy Anglin advised Mr.
Craven that his picture would be taken during booking, Mr. Craven said, “Well, you’re
going to have to help me up because I’ve had a stroke previous to – a year ago . . . .”
(Anglin Dep. [52-11] 10:9-15.) Deputy Anglin then asked Mr. Craven if he was taking
any medication. Mr. Craven said that he was and that the medication was at his home.
Deputy Anglin asked Mr. Craven if there was anyone that could bring him the
medication, and Mr. Craven replied, “No, there ain’t nobody around to bring it to me.”
(Anglin Dep. [52-11] 10:16-23.) Deputy Anglin subsequently told Deputy McSwain to
call Sheriff Smith and see if Mr. Craven could be released on his own recognizance in
the event he failed the Intoxilyzer 8000 test, so that he could have access to his
medication. (See Anglin Dep. [52-11] 10:24-11:3.) Mr. Craven registered a .08% test
result on the Intoxilyzer 8000, which is the minimum level of intoxication for DUI. (See
Anglin Dep. [52-11] 17:14-18.) Deputy Anglin attributed Mr. Craven’s “slurred speech”
and “difficulty walking” to alcohol consumption, as opposed to any medical issue.
(Anglin Dep. [52-11] 30:23-31:15, 41:11-42:11.)
Mr. Craven’s photograph was taken for booking purposes by Jailer Kevin Ryan
O’Neal. (See O’Neal Dep. [52-14] 56:10-16.) At certain times during the booking
process, Mr. Craven needed assistance walking and standing. (See O’Neal Dep. [5214] 57:9-58:14.) Mr. Craven “appear[ed] to be under the influence of alcohol”, and not
sick or in need of medical care. (O’Neal Dep. [52-14] 77:18-79:7.) Mr. Craven never
asked for a medical provider while he was in Jailer O’Neal’s presence. Also, Mr.
Craven “shook his head he was okay”, when Jailer O’Neal asked him if he was ill or
-6-
sick. (O’Neal Dep. [52-14] 79:8-12.)
Deputy McSwain had several telephone conversations with Sheriff Smith during
the time that Mr. Craven was at the Jail. Initially, Deputy McSwain advised Sheriff
Smith that Mr. Craven was charged with DUI due to his Intoxilyzer 8000 test result.
(See McSwain Dep. [52-1] 15:6-10.) Deputy McSwain also informed Sheriff Smith that
Mr. Craven had medication at home. (See McSwain Dep. [52-1] 57:11-15; Smith Dep.
[52-10] 8:9-10.) Sheriff Smith told Deputy McSwain to see if Mr. Craven’s relatives
could bring him his medication. (See Smith Dep. [52-10] 8:12-13.) Over the course of
one or more additional telephone communications, Deputy McSwain told Sheriff Smith
that no one was available to bring Mr. Craven’s medication to the Jail; that Mr. Craven
did not have any money to post bond; and that Mr. Craven did not have anyone who
could drive him home. (See Smith Dep. [52-10] 8:16-10:6.) Ultimately, Sheriff Smith
authorized the release of Mr. Craven on his own recognizance and directed Deputy
McSwain to take him home. Deputy McSwain never informed Sheriff Smith that Mr.
Craven needed medical attention. (See Smith Dep. [52-10] 7:15-17, 8:4-6, 27:19-28:8.)
Also, Sheriff Smith only spoke to Deputy McSwain, as opposed to any other deputies,
about Mr. Craven on February 8. (See Smith Dep. [52-10] 33:2-21.)
Mr. Craven was released from the Jail at approximately 9:57 p.m. on February 8.
A medical questionnaire for Mr. Craven was not completed even though “[o]ne is to be
filled out on every inmate that comes into the Perry County jail . . . .” (Smith Dep. [5210] 19:4-12.) Jailer O’Neal would have been the individual to complete the
questionnaire form. At that time, Jailer O’Neal was under the impression that a medical
questionnaire only had to be completed if an inmate was being kept overnight. (See
-7-
O’Neal Dep. [52-14] 41:19-23.) Sheriff Smith subsequently advised Jailer O’Neal that
he would need to complete the form “from now on to all inmates coming in.” (O’Neal
Dep. [52-14] 66:25-67:7.)
Deputy McSwain testified as follows regarding the transportation of Mr. Craven to
his home:
I loaded him back in my car; took him home, you know. And he was
sitting in the back. And I was just wanting to make sure he was okay.
Steady having a conversation with him. And I – I said, Mr. Craven, you going
to be okay? He said, Yes, sir. He said, I sure appreciate what you’re doing
for me. And I carried him on home. Arrived at his house. Walked him –
walked him into his house and he went over and sit on the couch. And I
asked him again, I said, Now, are you okay, Mr. Craven? He said, Yes, sir.
He said, Mr. Officer, I appreciate you bringing me home. And I said, You’re
welcome. And I turned around and went to walk out. And I asked him, I said,
Do you want me to lock your door? He said, No, just leave it unlocked. He
said, Just close it behind you. And I went back out on patrol.
(McSwain Dep. [52-1] 16:1-17.) Mr. Craven “was kind of leaning to one side” or
“slumped over” as he walked from the patrol car into his house. (McSwain Dep. [52-1]
20:19-21:2.) Deputy McSwain attributed this to Mr. Craven’s prior stroke. (See
McSwain Dep. [52-1] 21:3-5.) At no time during Deputy McSwain’s various interactions
with Mr. Craven did Mr. Craven request medical care or appear to be in need of medical
attention. (See McSwain Dep. [52-1] 63:1-64:1.)
Mr. Craven’s body was discovered by Charlene McMillen sometime between
2:00 p.m. and 3:00 p.m. on February 9, 2011, at his home. (See McMillen Dep. [52-7]
66:17-18.) Ms. McMillen “was a personal friend and relative” of Mr. Craven. (McMillen
Dep. [52-7] 5:25.)2 Ms. McMillen testified at deposition that Mr. Craven had a stroke
2
Ms. McMillen’s sister is married to one of Mr. Craven’s brothers, Shane Craven.
(See McMillen Dep. [52-7] 8:19-24.)
-8-
either one or two years prior to his death, and that she took care of him by cleaning his
home and preparing his meals. (See McMillen Dep. [52-7] 14:7-12, 16:23-17:9.) Ms.
McMillen also testified that Mr. Craven called her at approximately 10:30 p.m. on
February 8 and told her, inter alia, that he totaled his truck; that he had been arrested
and released from jail; and that he did not know if he was going to be okay. (See
McMillen Dep. [52-7] 52:11-58:12.) According to Ms. McMillen, Mr. Craven was upset
and did not sound like himself. (See McMillen Dep. [52-7] 53:5-55:12.) Also, Mr.
Craven was generally unresponsive and, at times, gasped and breathed deeply. (See
McMillen Dep. [52-7] 56:17-57:5.) Mr. Craven did not ask Ms. McMillen to call for any
medical assistance. (See McMillen Dep. [52-7] 56:17-20, 60:12-14.) Ms. McMillen told
Mr. Craven that “we’ll take care of things in the morning” before hanging up. (See
McMillen Dep. [52-7] 57:12-15.) Ms. McMillen did not call the Sheriff’s Department, 911
or an ambulance after getting off the phone with Mr. Craven on February 8. (See
McMillen Dep. [52-7] 59:20-60:11.)3
Ms. McMillen arrived at Mr. Craven’s residence at approximately 10:45 a.m. on
February 9. (See McMillen Dep. [52-7] 63:19-20.) She looked for Mr. Craven in various
rooms of the house, but was unsuccessful in finding him. (See McMillen Dep. [52-7]
64:20-65:10.) Ms. McMillen then laid down in Mr. Craven’s bed and napped for
approximately three hours. (See McMillen Dep. [52-7] 66:1-16.) Shortly after waking
3
Ms. McMillen also provided testimony regarding a telephone conversation with
Ms. Hamby and various telephone communications with a bail bondsman. These
telephone communications need not be detailed here because they constitute
inadmissible hearsay and/or because they fail to shed light on the central issue of
whether Deputy McSwain and Sheriff Smith were deliberately indifferent to Mr. Craven’s
serious medical needs.
-9-
from her nap, Ms. McMillen found Mr. Craven’s body lying face down in the bathroom
with his feet in the hall. (See McMillen Dep. [52-7] 74:17-75:6.) Ms. McMillen then
called Mr. Craven’s brother, Shane Craven, and 911. (See McMillen Dep. [52-7] 75:1477:7.)
Mr. Craven was pronounced dead at his residence by emergency medical
personnel at 3:00 p.m. on February 9. (See Death Cert. [52-17].) The Death Certificate
lists the hour of death as approximately 11:00 p.m. on February 8. Probable myocardial
infarction due to probable coronary artery disease is indicated as the cause of death.
High blood pressure and alcohol consumption are listed as other significant conditions
contributing to Mr. Craven’s death. William Burl Hall, a deputy medical examiner for
Jones County, placed the preceding information on the Death Certificate. (See Hall
Dep. [52-16] 7:14-16, 16:25-17:16.) Mr. Hall is not a licensed physician. (See Hall Dep.
[52-16] 6:16-17.) An autopsy was not performed on Mr. Craven’s body. (See Hall Dep.
[52-16] 22:4-5.) Mr. Hall primarily relied on oral statements from Mr. Craven’s family
members regarding his medical history in determining the cause of death. (See Hall
Dep. [52-16] 22:12-24:8.)
On June 7, 2012, Plaintiffs filed their Complaint [1] in this Court. Subject matter
jurisdiction is asserted under Title 28 U.S.C. §§ 1331 and 1367. Plaintiffs allege that
Defendants’ failure to provide Mr. Craven with medical assistance violated his rights
under the Eighth and Fourteenth Amendments of the U.S. Constitution, entitling them to
relief under 42 U.S.C. § 1983. Damages are also sought under Title II of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794(a). Plaintiffs further seek relief under the Mississippi Tort
-10-
Claims Act (“MTCA”), Miss. Code Ann. §§ 11-46-1 to -23, and assert a general
negligence claim against Deputy McSwain and Sheriff Smith.
On July 5, 2012, Deputy McSwain and Sheriff Smith moved for the dismissal of
all state law claims asserted against them in their individual capacities. (See Mot. to
Dismiss [4].) On August 14, 2012, the Court granted this request for dismissal. (See
Mem. Op. & Order [16].) Currently pending is McSwain and Smith’s request for
summary judgment on the federal claims asserted against them in their individual
capacities. (See Mot. for SJ [52].) This request for summary judgment has been fully
briefed and the Court is ready to rule.
II. DISCUSSION
A. Standard of Review
Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Initially, the movant has “the burden of demonstrating the absence of a genuine issue of
material fact.” Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986)). If the movant meets this burden, the nonmovant must go beyond the pleadings
and point out specific facts showing the existence of a genuine issue for trial. Id. “‘An
issue is material if its resolution could affect the outcome of the action.’” Sierra Club,
Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting
Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). “An issue is
‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict for the
-11-
nonmoving party.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir.
2010) (citation omitted).
The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inferences to
be drawn therefrom in the light most favorable to the nonmoving party.” Sierra Club,
Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and legalistic argumentation do not
adequately substitute for specific facts showing a genuine issue for trial.” Oliver v.
Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citation omitted). Summary Judgment is
mandatory “‘against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.’” Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d
759, 766 (5th Cir. 2011) (quoting Celotex Corp., 477 U.S. at 322), cert. denied, 132 S.
Ct. 2103 (2012).
B. Analysis
1. Claims Under 42 U.S.C. § 1983
Deputy McSwain and Sheriff Smith assert the defense of qualified immunity in
response to Plaintiffs’ constitutional claims brought under 42 U.S.C. § 1983. “Qualified
immunity protects public officers from suit if their conduct does not violate any ‘clearly
established statutory or constitutional rights of which a reasonable person would have
-12-
known.’” Prison Legal News v. Livingston, 683 F.3d 201, 224 (5th Cir. 2012) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)).
“‘Although nominally an affirmative defense, the plaintiff has the burden to negate the
defense once properly raised.’” Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir.
2012) (quoting Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008)). In order to
overcome the defense of qualified immunity, the plaintiff must show: “(1) the official
violated a statutory or constitutional right; and (2) the right was clearly established at the
time of the challenged conduct.” Khan v. Normand, 683 F.3d 192, 194 (5th Cir. 2012)
(citing Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080, 179 L. Ed. 2d 1149 (2011)), cert.
denied, 133 S. Ct. 840 (2013). A constitutional right is clearly established when it is
“sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Id. Courts have discretion to address the objective reasonableness
inquiry first. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 172 L. Ed. 2d
565 (2009).
The defense of qualified immunity, “even on summary judgment, gives ample
room for mistaken judgments by protecting all but the plainly incompetent or those who
knowingly violate the law.” Poole, 691 F.3d at 627. In addition, the defense alters the
summary judgment burden of proof by requiring the plaintiff to evidence a genuine issue
of material fact. See Tolan v. Cotton, 713 F.3d 299, 304 (5th Cir. 2013) (citing Michalik
v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005)).
The Court first addresses whether the Plaintiffs have adduced sufficient evidence
for a reasonable jury to conclude that Deputy McSwain and Sheriff Smith violated Mr.
Craven’s constitutional rights. Plaintiffs allege that Sheriff Smith and Deputy McSwain
-13-
“denied appropriate medical treatment to Michael Craven in deprivation of his Eighth
and Fourteenth Amendment constitutional rights.” (Compl. [1] at ¶ 30.) A pretrial
detainee’s right to medical care arises from the Fourteenth Amendment’s guarantee of
due process. See Mace v. City of Palestine, 333 F.3d 621, 625 (5th Cir. 2003) (citation
omitted). The Eighth Amendment’s prohibition of cruel and unusual punishment affords
convicted inmates constitutional rights in connection with their medical care and safety.
See Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976).
The Fifth Circuit “has recognized that there is no significant distinction between pretrial
detainees and convicted inmates concerning basic human needs such as medical care.”
Gibbs v. Grimmette, 254 F.3d 545, 548 (5th Cir. 2001) (citing Hare v. City of Corinth, 74
F.3d 633, 643 (5th Cir. 1996)). “When the alleged unconstitutional conduct involves an
episodic act or omission,[4] the question is whether the state official acted with
deliberate indifference to the inmate’s constitutional rights, regardless of whether the
individual is a pretrial detainee or state inmate.” Gibbs, 254 F.3d at 548 (emphasis
added).
4
In an “episodic act or omission” claim, an official is usually interposed between
the prisoner and the governmental entity, such that the prisoner first complains of a
particular act or omission of the official and secondarily to a policy, custom, or
procedure that caused or allowed the act or omission. Scott v. Moore, 114 F.3d 51, 53
(5th Cir. 1997). Conversely, a “conditions of confinement” action focuses upon
allegedly unconstitutional “conditions, practices, rules, or restrictions of . . .
confinement.” Hare, 74 F.3d at 644. Plaintiffs’ deprivation of medical care allegations in
this case fall into the former category since they center upon the purported acts or
omissions of individuals, Sheriff Smith and Deputy McSwain. Cf. Tamez v. Manthey,
589 F.3d 764, 769-70 (5th Cir. 2009) (finding the complaint that police detectives and
jailers failed to provide a detainee with immediate medical care to qualify “as an
‘episodic act or omission’”).
-14-
“Deliberate indifference is an extremely high standard to meet.” Domino v. Tex.
Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). Neither negligence nor
gross negligence will suffice. See Brown v. Callahan, 623 F.3d 249, 255 (5th Cir. 2010)
(citing City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 103 L. Ed. 2d 412
(1989)); see also Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (“Unsuccessful
medical treatment, acts of negligence, or medical malpractice do not constitute
deliberate indifference”; a prisoner must show that officers “refused to treat him, ignored
his complaints, intentionally treated him incorrectly, or engaged in any similar conduct
that would clearly evince a wanton disregard for any serious medical needs.”) (citations
omitted). The deliberate indifference inquiry focuses on the defendant’s subjective state
of mind: “an official’s failure to alleviate a significant risk that he should have perceived
but did not, while no cause for commendation, cannot under our cases be condemned
as the infliction of punishment.” Farmer v. Brennan, 511 U.S. 825, 838, 114 S. Ct.
1970, 128 L. Ed. 2d 811 (1994).
A prison official cannot be found liable for failure to provide access to medical
care “unless 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 that inference.” Id.
at 837. In “exceptional circumstances”, the official’s knowledge of a substantial risk of
harm to an inmate may be inferred from the obviousness of the risk. Brewster v.
Dretke, 587 F.3d 764, 770 n.4 (5th Cir. 2009) (citing Reeves v. Collins, 27 F.3d 174,
-15-
176 (5th Cir. 1994)).5
The Court presumes, solely for purposes of this motion, that Michael Craven
suffered from serious medical needs during the course of his interactions with members
of the Perry County Sheriff’s Department on February 8, 2011. However, Plaintiffs have
failed to evidence any genuine issue of material fact showing that Sheriff Smith and
Deputy McSwain were subjectively aware of those needs and intentionally disregarded
them.
a. Sheriff Smith
The summary judgment record shows that Sheriff Smith neither communicated
with, nor personally observed Mr. Craven on February 8. (See Smith Aff. [52-19] at ¶
4.) All of the information Sheriff Smith had about Mr. Craven came from Deputy
McSwain. (See Smith Dep. [52-10] 32:21-33:21.) Deputy McSwain advised Sheriff
Smith of the following pertinent matters regarding Mr. Craven during the evening and
night of February 8: that Mr. Craven had been drinking; that he registered a .08% test
result on the Intoxilyzer 8000 and was charged with DUI; that he suffered a stroke a
year ago; that he had medication at home; that no one was available to bring Mr.
Craven’s medication to the Jail; that Mr. Craven denied needing medical attention; and
that Mr. Craven was fine. (See Smith Dep. [52-10] at pp. 6-10, 27-28; McSwain Dep.
[52-1] at pp. 13, 15, 26, 57-60.) After being advised of the preceding information,
5
For example, the Eighth Amendment is obviously violated when a prisoner is
tied to a hitching post in the sun for approximately seven hours, during which time he is
taunted by a prison guard, provided water only once or twice, and not given access to a
bathroom. See Hope v. Pelzer, 536 U.S. 730, 738, 122 S. Ct. 2508, 153 L. Ed. 2d 666
(2002).
-16-
Sheriff Smith decided to release Mr. Craven on his own recognizance and directed
Deputy McSwain to drive Mr. Craven home. (See Smith Dep. [52-10] at pp. 9-10.)
These circumstances, viewed in the Plaintiffs’ favor and as a whole, fall well short of
evincing: (1) that Sheriff Smith was aware “of facts from which an inference of
substantial risk of serious harm could be drawn, (2) that . . . [Sheriff Smith] actually drew
that inference; and (3) that . . . [Sheriff Smith’s] response to the risk indicates that . . .
[he] subjectively intended that harm occur.” Tamez, 589 F.3d at 770.
Plaintiffs’ arguments in support of Sheriff Smith’s culpability are not convincing.
Plaintiffs contend that Sheriff Smith’s knowledge “that something was medically wrong
with Michael” can be inferred from the violation of the following Jail policies: (1) an
intake medical sheet is to be filled out for each inmate; and (2) individuals charged with
DUI are to be held six to eight hours. (Pls.’ Mem. Brief in Supp. of Resp. to Mot. for SJ
[56] at p. 17.) As to the first policy, there is no indication that Sheriff Smith was aware
prior to Mr. Craven’s release that Jailer O’Neal failed to complete a medical
questionnaire for him. In fact, Jailer O’Neal testified that he discussed Mr. Craven’s
medical form with Sheriff Smith approximately one week after Mr. Craven was released
from the Jail. (See O’Neal Dep. [52-14] 66:5-67:7.) The absence of any evidence
showing that Sheriff Smith knew prior to Mr. Craven’s release that a medical
questionnaire had not been completed hardly leads to the conclusion that the Sheriff
was aware that something was seriously wrong with Mr. Craven at any time relevant to
the Complaint.
As to the second Jail policy, the summary judgment evidence supports the
inference that Mr. Craven was released early so that he could have access to his
-17-
regular medication,6 while only “speculation and conjecture” support the theory that
Sheriff Smith’s wanton disregard of Mr. Craven’s medical needs led to him not being
kept in the Jail overnight. Armour v. Knowles, 512 F.3d 147, 155-56 (5th Cir. 2007)
(rejecting plaintiff’s theory that required “too much ‘speculation and conjecture’” in
affirming summary judgment). In any event, a law enforcement officer’s violation of
department policy “is constitutionally irrelevant” for purposes of a claim brought under §
1983. Pasco v. Knoblauch, 566 F.3d 572, 579 (5th Cir. 2009) (“Violations of non-federal
laws cannot form a basis for liability under § 1983, and qualified immunity is not lost
because an officer violates department protocol.”) (citations omitted).
Plaintiffs also offer the following theory based on Sheriff Smith’s deposition
testimony that County funds are used to pay for medical services provided to individuals
booked into the Jail:7
If a reasonable jury were to determine that Deputy McSwain was aware of a
medical issue with Michael, that determination would expand to concluding
that Deputy McSwain relayed that information to Sheriff Smith who then
decided to send Michael home so the sheriff’s department would not have to
pay for Michael’s medical expenses.
(Pls.’ Mem. Brief in Supp. of Resp. to Mot. for SJ [56] at pp. 17-18.) Not surprisingly,
Sheriff Smith has executed an affidavit in response to this argument, stating that he
never considers the cost to the County in deciding whether an individual should be
released or whether an individual should receive medical care. (Smith Suppl. Aff. [59-2]
at ¶ 4.) Even overlooking Sheriff Smith’s affidavit, Plaintiffs’ unfounded hypothesis
6
(See McSwain Dep. [52-1] 57:3-15; Smith Dep. [52-10] 27:5-28:8; Smith Aff.
[52-19] at ¶¶ 6-7.)
7
(See Smith Dep. [52-10] 44:8-45:10.)
-18-
(requiring multiple levels of speculation) is precisely the type of assertion that is
“insufficient to avoid summary judgment.” Sanches v. Carrollton-Farmers Branch Indep.
Sch. Dist., 647 F.3d 156, 165 (5th Cir. 2011) (citation omitted); see also Gobert, 463
F.3d at 346-47 (agreeing with the defendant’s contention that the claimant
“impermissibly relies on conclusory statements and speculation, while unsuccessfully
meeting the stringent deliberate indifference standard”).
b. Deputy McSwain
Deputy McSwain’s alleged violation of Mr. Craven’s constitutional right to medical
care is a closer call. At various times on February 8, Deputy McSwain noticed that Mr.
Craven was “slumped over” and “leaned” as he walked. (McSwain Dep. [52-1] 20:1921:2, 39:15-40:1.) Also, accepting Plaintiffs’ version of the facts, Ms. Hamby told
Deputy McSwain that Mr. Craven “had a heart attack or something before”; that “he was
leaning over and . . . that’s what was wrong, he was having a stroke or something”;
and/or that Mr. Craven “had a stroke in the past, and . . . [she] believed he might be
having another one.” (Hamby Dep. [52-8] 44:3-12, 67:1-22; Hamby Aff. [55-7] at p. 2.)
The Supreme Court has provided that officers may avoid a finding of deliberate
indifference by showing “that they did not know of the underlying facts indicating a
sufficiently substantial danger and that they were therefore unaware of a danger, or that
they knew the underlying facts but believed (albeit unsoundly) that the risk to which the
facts gave rise was insubstantial or nonexistent.” Farmer, 511 U.S. at 844 (emphasis
added). Deputy McSwain’s observations of Mr. Craven’s difficulty walking, coupled with
Ms. Hamby’s statements to the effect that Mr. Craven might be having a stroke,
preclude the Court from holding as a matter of law that Deputy McSwain did not know of
-19-
any underlying facts indicating a substantial risk of serious harm. Yet, the following
circumstances dictate a summary judgment ruling in accordance with the latter situation
described in Farmer.
After Ms. Hamby told Deputy McSwain that Mr. Craven had a stroke in the past
and that he might be having another one, Deputy McSwain stated, “no, he’s just drunk
and we’re going to arrest him for DUI.” (Hamby Aff. [55-7] at p. 2; Hamby Dep. [52-8]
68:7-12.) Mr. Craven “blew over the limit” on a portable intoxilyzer and was charged
with DUI due to his .08% test result on the Intoxilyzer 8000. (McSwain Dep. [52-1]
12:16-21, 23:1-16.)8 The law enforcement officers observing Mr. Craven on February 8,
other than Deputy McSwain, testified that Mr. Craven appeared to be under the
influence of alcohol, rather than sick or otherwise requiring medical care. (Anglin Dep.
[52-11] 30:23-31:15, 41:11-42:11; O’Neal Dep. [52-14] 77:18-79:7.)9 Mr. Craven denied
needing medical attention in response to Deputy McSwain’s numerous inquiries
regarding his condition. (See McSwain Dep. [52-1] 13:9-23, 14:18-15:1, 16:1-17, 63:4-
8
The Court again accepts Plaintiffs’ version of the facts by crediting Ms. Hamby’s
testimony that there was no open container of beer in Mr. Craven’s truck and that Mr.
Craven did not smell of alcohol, (see Hamby Dep. [52-8] 42:1-43:4), over Deputy
McSwain’s conflicting testimony. (See McSwain Dep. [52-1] 12:9-15, 35:14-36:5.)
Nonetheless, Ms. Hamby neither recalled whether Deputy McSwain administered a
portable intoxilyzer, nor was present at the Jail where Mr. Craven was charged with
DUI. (See Hamby Dep. [52-8] 45:24-46:9.) The Court is unaware of any rule of law
requiring it to resolve unsupported inferences in the Plaintiffs’ favor.
9
Ms. Hamby, who has no medical or law enforcement training, testified that Mr.
Craven “appeared to be very sick and hurting” after his truck came to a stop near
Morriston Road. (Hamby Dep. [52-8] 10:1-4, 64:13-22.) However, this observation did
not lead Ms. Hamby to call an ambulance, 911 or the Sheriff during the approximate
fifteen to twenty minutes she stood by Mr. Craven before Deputy McSwain arrived on
the scene. (See Hamby Dep. [52-8] 43:5-11, 73:25-74:9.) The Court finds the maxim
that “actions speak louder than words” instructive here.
-20-
8.)10 Deputy McSwain “found Mr. Craven’s behavior to be consistent with someone who
had, had too much to drink, not someone incurring a medical emergency.” (McSwain
Aff. [52-18] at ¶ 6.)
Based on this record, the Court finds that Deputy McSwain, perhaps “unsoundly”,
attributed Mr. Craven’s impaired physical condition to alcohol consumption (or a past
stroke),11 as opposed to a serious medical issue requiring immediate care and attention.
Farmer, 511 U.S. at 844. Deputy McSwain’s “failure to alleviate a significant risk that he
should have perceived but did not, while no cause for commendation, cannot . . . be
condemned as the infliction of punishment.” Id. at 838.
Stated differently, the existence of fact issues as to whether Deputy McSwain
negligently failed to recognize that Mr. Craven was suffering from a serious medical
issue is not probative of any constitutional violation. It is well established in the Fifth
Circuit that an officer’s negligence, or failure to use due care, and actionable deliberate
10
Similarly, Deputy Anglin, Jailer O’Neal, Joanna Hamby and Charlene McMillen
each testified that Mr. Craven never requested medical assistance during their
respective interactions with him on February 8. (See Anglin Dep. [52-11] 9:17-24, 21:39, 41:25-42:2; O’Neal Dep. [52-14] 77:24-78:1; Hamby Dep. [52-8] 39:3-4, 40:19-25;
McMillen Dep. [52-7] 56:17-20, 60:12-14.) Had Mr. Craven requested medical attention
and Deputy McSwain ignored that request, the outcome on summary judgment would
almost certainly be different. Cf. Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006)
(finding that a nurse was deliberately indifferent to a prisoner’s medical needs when she
ignored his complaints of severe chest pain); Caston v. Harris, No. 4:12cv32, 2013 WL
2404013, at *4 (N.D. Miss. May 31, 2013) (denying summary judgment where the
plaintiff alleged that correctional officers ignored his oral and written requests for
medical care).
11
(See McSwain Dep. [52-1] 21:3-10, 40:2-6.)
-21-
indifference are separate concerns.12 Accordingly, no issue for trial exists as to Deputy
McSwain’s alleged violation of Mr. Craven’s constitutional right to medical care.
c. Summation
Plaintiffs have failed to establish that Deputy McSwain or Sheriff Smith violated
any constitutional right of Michael Craven. Therefore, the Court need not consider the
objective reasonableness of Deputy McSwain and Sheriff Smith’s conduct (the second
prong of the qualified immunity analysis), and summary judgment will be granted in
favor of these Defendants, in their individual capacities,13 on Plaintiffs’ § 1983 claims.
2. Claims Under the ADA and the Rehabilitation Act of 1973
12
See, e.g., Tamez, 589 F.3d at 766-67, 770-71 (finding no deliberate
indifference in a suit brought by the family members of a pretrial detainee who died as a
result of swallowing a bag of cocaine, despite a nurse advising the defendant detectives
that the detainee needed a medical clearance before he could be received by the
county jail since his pupils were maximally dilated, and suggesting that the detectives
take the detainee to a nearby hospital with an emergency room and physician on-call);
Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 883 (5th Cir.
2004) (“[A]ctions and decisions by officials that are merely inept, erroneous, ineffective,
or negligent do not amount to deliberate indifference and do not divest officials of
qualified immunity.”); Domino, 239 F.3d at 756 (finding that a prison psychiatrist’s
incorrect determination that an inmate was not a suicide risk failed to amount to
deliberate indifference); Olabisiomotosho v. City of Houston, 185 F.3d 521, 524, 527-28
(5th Cir. 1999) (affirming the trial court’s grant of summary judgment in favor of a jail
medical assistant due to an absence of subjective deliberate indifference even though
the assistant exhibited “unmistakably dangerous” behavior by leaving an asthmatic
detainee unattended); McClyde v. Jackson, No. H-07-4244, 2010 WL 519763, at *9
(S.D. Tex. Feb. 9, 2010) (granting summary judgment where an officer “was aware of
plaintiff’s nosebleed, but was of the impression that it did not warrant immediate medical
attention”), aff’d, 405 Fed. Appx. 891 (5th Cir. 2010).
13
The defense of qualified immunity is inapplicable to official capacity claims.
See Hunter v. Town of Edwards, 871 F. Supp. 2d 558, 562 (S.D. Miss. 2012) (citing
Keim v. City of El Paso, 1998 WL 792699, at *3 (5th Cir. Nov. 2, 1998)).
-22-
Plaintiffs allege that Deputy McSwain and Sheriff Smith disregarded Mr. Craven’s
disabilities and discriminated against him in violation of the Rehabilitation Act of 1973
(“RA”) and Title II of the ADA. (See Compl. [1] at ¶ 35.) Sheriff Smith and Deputy
McSwain seek dismissal of these claims on the basis that neither statute provides for
individual liability. The Court finds this request for dismissal well taken.
The Fifth Circuit has held that the text of the RA does not provide for suit against
a defendant in his or her individual capacity, and that § 1983 cannot be used as an
alternative method for vindicating rights granted by the RA. See Lollar v. Baker, 196
F.3d 603, 608-10 (5th Cir. 1999). The Court has been unable to identify any published
Fifth Circuit opinion addressing individual liability under the ADA. However, in a fairly
recent unpublished opinion, the Fifth Circuit noted that “the rights and remedies under
the ADA and the RA are the same,” and found that defendants could not be sued for
ADA violations in their individual capacities. Nottingham v. Richardson, 499 Fed. Appx.
368, 376 n.6 (5th Cir. 2012). Moreover, numerous district courts within the Fifth Circuit
have dismissed ADA claims asserted against defendants in their individual capacities
given the similarities between the ADA and RA. See, e.g., Pena v. Bexar County, Tex.,
726 F. Supp. 2d 675, 689-90 (W.D. Tex. 2010); Decker v. Dunbar, 633 F. Supp. 2d 317,
357 (E.D. Tex. 2008), aff’d, 358 Fed. Appx. 509 (5th Cir. 2009). Plaintiffs’ ADA and RA
claims against Sheriff Smith and Deputy McSwain, in their individual capacities, will be
dismissed under the weight of the preceding authorities.
III. CONCLUSION
Sheriff Smith and Deputy McSwain are entitled to summary judgment on
Plaintiffs’ federal claims asserted against them in their individual capacities. Also,
-23-
Deputy McSwain will be dismissed from this lawsuit since he has been sued only in his
individual capacity and the Court previously dismissed Plaintiffs’ state law claims
against him. (See Mem. Op. & Order [16].)
IT IS THEREFORE ORDERED AND ADJUDGED that Jeremy McSwain and
Jimmy Dale Smith’s Motion for Summary Judgment [52] is granted. All individual
capacity claims against Jimmy Dale Smith and Jeremy McSwain under 42 U.S.C. §
1983, the Americans with Disabilities Act, and the Rehabilitation Act of 1973 are
dismissed from this cause with prejudice. In addition, Jeremy McSwain is dismissed
from this cause with prejudice.
IT IS FURTHER ORDERED AND ADJUDGED that counsel for the parties are to
contact the chambers of the United States Magistrate Judge Michael T. Parker within
seven (7) days of the entry of this Order to schedule a case management conference.
SO ORDERED AND ADJUDGED this the 19th day of August, 2013.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
-24-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?