Tanner et al v. City of Sullivan et al

Filing 172

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment is GRANTED in part and DENIED in part. [Doc. 84]. IT IS FURTHER ORDERED that summary judgment is GRANTED in favor of all Defendants on Count I of Plaintiffs Second Amended Complaint. IT IS FURTHER ORDERED that summary judgment is GRANTED in favor of Defendant Darrin M. Jones regarding Count II of Plaintiffs Second Amended Complaint related to the failure to remove plastic utensils from Palmers cell. IT IS FURTH ER ORDERED that summary judgment is GRANTED in favor of the City of Sullivan regarding Count II of Plaintiffs Second Amended Complaint. IT IS FURTHER ORDERED that summary judgment is DENIED regarding all other matters presented in Defendants motion f or summary judgment. IT IS FURTHER ORDERED that Plaintiffs Motion for Leave of Court for Permission to Supplement the Record on Summary Judgment in Light of Newly Discovered Evidence Pursuant to Rule 60(b) is DENIED as untimely. [Doc. 168] A separate Judgment will accompany this Memorandum and Order. 168 84 Signed by Magistrate Judge Nannette A. Baker on 1/9/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DEBORA D. TANNER, et al.,

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Plaintiffs,
v.
CITY OF SULLIVAN, et al.,
Defendants.

Case No. 4:11-CV-1361 NAB

MEMORANDUM AND ORDER
The matter before this Court1 is a Motion for Summary Judgment filed by Defendants
City of Sullivan, Chief George Counts, Darrin Jones, Jeff Rohrer, Don Reed, Kevin Halbert and
Shaun Hinson. [Doc. #84].
I.

PROCEDURAL BACKGROUND
Debora Tanner, Danny Palmer and C.B. by and through next friend Debora Tanner

(collectively, “Plaintiffs”) brought this action individually, and on behalf of Karen Palmer,
deceased.

2

In their Second Amended Complaint, Plaintiffs allege that Defendants violated

Karen Palmer’s constitutional rights during her confinement at the Sullivan Police Department
Jail. Plaintiffs also bring Missouri state law wrongful death causes of action against the City of
Sullivan as well as Defendants Counts, Reed, Jones, Halbert, Rohrer, Hinson and David Roche3
in their individual and official capacities.

1

All matters are pending before the undersigned United States Magistrate Judge, with consent of
the parties, pursuant to 28 U.S.C. ' 636(c).
2
Debora Tanner and Danny Palmer are the biological parents of Karen Palmer, C.B. is a minor
and the biological daughter of Karen Palmer.
3
David Roche died while this matter was pending. This Court granted Plaintiffs’ motion to
substitute Doyla Roche on the individual capacity claims. George Counts was substituted for David
Roche on the official capacity claims.

II.

FACTUAL BACKGROUND4
Karen Palmer was arrested by Sullivan Police Officer Jeff Rohrer on October 16, 2009 on

an outstanding warrant. However, Rohrer was also investigating Palmer for felony stealing. She
was alleged to have stolen a bottle of a generic version of Percocet. After her arrest, Rohrer took
Palmer to the City of Sullivan Police Department, where he began the booking process. He also
informed her of her Miranda rights and along with Detective David Roche, he interrogated
Palmer for stealing the pills. Roche testified that when he met with Palmer she was not cuffed.
After he explained the charges, Palmer became upset and was on the verge of tears. He testified
that Palmer explained that she doesn’t need to get into this kind of trouble, she had a new
prospect on a job, and loves her baby girl. Palmer never expressed a desire to commit suicide.
Roche testified that he did not believe that Palmer was going to harm herself.
During the interrogation, Palmer completed a written statement confessing to stealing the
bottle of pills. In the statement she also stated that felt like a horrible person and that she was
scared and did not want to go back to prison. Rohrer testified that Palmer was upset at the time
of the interview, but she did not appear to be under the influence of drugs or alcohol. Rohrer
admitted that while he knew Palmer had stolen pills, he did not ask her if she had taken any of
the medication.
Rohrer did not finish booking Palmer. Instead, after the interrogation, Rohrer and Officer
Don Reed escorted Palmer back to her house to get the stolen pill bottle. When the officers
brought Palmer back to the house, her boyfriend Andrew Baker and his mother Donna Baker
were at the house. Donna Baker testified that while Karen never said she was suicidal, it was
obvious to her that Karen was in danger. Baker said she told the officers that Karen was not in
4

The Court’s recitation of the facts is taken from the summary judgment record and are either
uncontroverted or viewed in the light most favorable to Plaintiffs’ case
2

her right frame of mind and should not be left alone. She also told officers to be sure Palmer took
her medication. Palmer was wearing a hooded sweatshirt with a string in the hood at the time of
her arrest.
After the pill bottle was recovered and a search of the home was completed, officers took
Palmer back to the jail. Rohrer and Reed then continued the booking process. The officers filled
out a portion of the booking report regarding Palmer’s personal property. Rohrer testified that he
patted Palmer down, but he did not remove the string from her hooded sweatshirt because he did
not see one. Reed did not search Palmer because Rohrer had done so. Reed testified that he was
trained to determine if an inmate had a ligature on them. Reed says he did not see a string in
Palmer’s hood, but Kayla Shuler, Andrew Baker’s sister, testified the strings were on the hood of
the sweatshirt Palmer was wearing.
As part of the booking process, Reed filled out the computerized booking form and
Palmer’s Inmate Medical Record with answers that Palmer provided. He stated that Palmer did
not report any injuries. Reed was aware that Palmer’s medications included Gabapentin and
Venlafaxine, however he was not sure what those medications were prescribed for. He was
aware that the medication Effexor is an antidepressant. Rohrer testified that he was aware that
Palmer was on prescription medication, but he did not know that she was bipolar.
As part of the booking process, Officer Shaun Hinson took Palmer’s fingerprints and
allowed her to make a telephone call. He testified that when he first encountered Palmer she was
upset and crying. He says she continued to cry during the phone call, where he overheard her
asking her mother to post bond for her. Hinson placed Palmer into a cell, but did not search her.
Hinson acknowledged that there was an inventory of property policy that stated “all personal
property, including jewelry, belts, shoelaces, etc. shall be taken from the prisoner and entered on

3

the inmate’s booking report.”

Hinson stated that the purpose of that procedure was “to make

sure that they’re safe inside the cell and remove all items that we—to account for them so that
they’re able to be returned back to them whenever they leave our facility.” He stated that
because he thought Officer Reed had searched Palmer and removed her personal property, he did
not remove any personal property from Palmer. Hinson did not see a string on Palmer’s hooded
sweatshirt.
Deputy Matthew Hines worked the midnight shift on October 16th.

He provided

medication to Palmer at 12:40 a.m. on October 17th. Later that morning, Deputy Darrin Jones
fed Palmer breakfast and at around 7:50 a.m., he gave her access to her medicine. Jones testified
that Palmer did not do anything out of the ordinary when he spoke with her. Jones testified that
he was trained to screen for suicidal inmates by evaluating their actions that consisted of if the
inmate says something or shows behavior then they take them over to the hospital. When he
went to Palmer’s cell to deliver her lunch, Jones found Palmer dead. He testified that she had a
pink string around her neck, she was leaning against the cell and her feet were on the ground. He
called for assistance and Officer Reed responded. Reed cut the string and lowered Palmer to the
ground. She was pronounced dead by paramedics at the scene.
In October 2009, the Sullivan Jail relied on a closed circuit TV system to watch inmates
in their cells. There was a policy in place that required the communications officer to conduct
surveillance of the inmates in ten-minute intervals.

They relied on the video surveillance

because they did not have a regular jailer on duty. On October 17th, Kevin Halbert was the
communications officer on duty. He was familiar with the policy that required that surveillance
monitors should be checked every 10 minutes. He was responsible for monitoring Palmer.

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Halbert stated that he did not see Palmer tie the string to the cell and hang herself because he was
busy with other duties.
III.

SUMMARY JUDGMENT STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for

summary judgment only of all of the information before the court shows “there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.
Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The United States
Supreme Court has noted that “[s]ummary judgment procedure is properly regarded not as a
disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole,
which are designed to ‘secure the just, speedy and inexpensive determination of every action.’”
Id. at 327 (quoting Fed. R. Civ. P. 1). “By its very terms, [Rule 56(c)(1)] provides that the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material
facts are those “that might affect the outcome of the suit under the governing law,” and a genuine
material fact is one “such that a reasonable jury could return a verdict for the nonmoving party.”
Id. at 248. Further, if the non-moving party has failed to “make a showing sufficient to establish
the existence of an element essential to that party’s case, . . . there can be ‘no genuine issue as to
any material fact,’ since a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at
322-23.
The initial burden of proof in a motion for summary judgment is placed on the moving
party to establish “the non-existence of any genuine issue of fact that is material to a judgment in

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his favor.” City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th
Cir. 1988). Once this burden is discharged, if the record does in fact bear out that no genuine
dispute exists, the burden then shifts to the non-moving party who must set forth affirmative
evidence and specific facts showing there is a genuine dispute on that issue. Anderson, 477 U.S.
at 256-57. When the burden shifts, the non-moving party may not rest on the allegations in its
pleadings, but by affidavit and other evidence must set forth specific facts showing that a
genuine issue of material fact exists. Fed. R. Civ. P. 56(e); Stone Motor Co. v. Gen. Motors
Corp., 293F.3d 456, 465 (8th Cir. 2002). To meet its burden, the non-moving party must “do
more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In fact, the nonmoving party must show there is sufficient evidence favoring the non-moving party which would
enable a jury to return a verdict for it. Anderson, 477 U.S. at 249; Celotex, 477 U.S. at 334. “If
the non-moving party fails to produce such evidence, summary judgment is proper.” Olson v.
Pennzoil Co., 943 F.2d 881, 883 (8th Cir. 1991).
The Court may not “weigh the evidence in the summary judgment record, decide
credibility questions, or determine the truth of any factual issue.” Kampouris v. St. Louis
Symphony Soc., 210 F.3d 845, 847 (8th Cir. 2000). The Court instead “perform[s] only a
gatekeeper function of determining whether there is evidence in the summary judgment record
generating a genuine issue of material fact for trial on each essential element of a claim.” Id.
IV.

PLAINTIFFS’ CLAIMS UNDER FEDERAL LAW: 42 U.S.C. § 1983
In Count I of their Second Amended Complaint, plaintiffs seek to recover under 42

U.S.C. § 1983 for the violation of Palmer’s constitutional rights. Plaintiffs allege that the
defendants were deliberately indifferent to the known and/or obvious risk of suicide and

6

Palmer’s serious medical needs. Plaintiffs allege that the City of Sullivan is liable for failure to
train officers and dispatchers in suicide prevention. They also allege the individual officers and
dispatchers failed to adequately implement in-take procedures. Defendants claim that summary
judgment is appropriate because they are entitled to qualified immunity from suit.
A.

Deliberate indifference to a known risk of suicide

Qualified immunity protects government officials from suit under 42 U.S.C. § 1983 when
their conduct does not violate “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Hope v. Pelzer, 536 U.S. 730, 739 (2002); Nance v.
Sammis, 586 F.3d 604, 608-09 (8th Cir. 2009). To overcome qualified immunity, the plaintiff
must “assert a violation of a constitutional or statutory right; that right must have been clearly
established at the time of the violation; and given the facts most favorable to the plaintiff, there
must be no genuine issues of material fact as to whether a reasonable official would have known
that the alleged action indeed violated that right.” Gregoire v. Class, 236 F.3d 413, 417 (8th Cir.
2000).
In this case, the plaintiffs have asserted a constitutional violation.

The Eighth

Amendment prohibits officials from acting with deliberate indifference towards an inmate’s
substantial suicide risk. Coleman v. Parkman, 349 F.3d 534, 538 (8th Cir. 2003). The Supreme
Court has held that under the due process clause of the Fourteenth Amendment, a pretrial
detainee holds at least the same level of constitutional protection that is enjoyed by prisoners
under the Eighth Amendment. Bell v. Wolfish, 441 U.S. 520, 545 (1979). To prevail on the
claim of deliberate indifference, Plaintiffs must show: (1) Defendants knew Palmer presented a
substantial suicide risk; and (2) Defendants failed to respond reasonably to that risk. Coleman,
349 F.3d at 538 (citing Olson v. Bloomberg, 339 F.3d 730, 735 (8th Cir. 2003)).

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1. Liability of Defendant Jailers
Plaintiffs claim the Defendant Jailers were deliberately indifferent to the known risk of
suicide because they failed to:
Adequately implement in-take procedure, adequately
identify and/or remove dangerous items from decedent’s
person and/or cell, adequately identify and/or monitor
decedent’s prescription medication, adequately identify
and/or monitor decedent’s depression condition and
obvious risk of harm to herself, and adequately monitor
decedent and decedent’s cell.
Pls’ Second Am. Compl. ¶ 10.
To prevail on a deliberate indifference claim, Plaintiffs must first show actual knowledge.
Coleman, 349 F.3d at 538. “It is not enough to show the risk was obvious. A prison official is
not liable under the Fourteenth Amendment unless the official knows of facts evidencing a
substantial suicide risk and the official actually infers the prisoner presents a substantial suicide
risk.”

Id. (emphasis in original).

However, a plaintiff can prove knowledge through

circumstantial evidence. Id.
Second, once an official knows of a risk, the Eighth Amendment requires the official take
reasonable measures to abate the risk. Id. “When determining the adequacy of an official’s
response to a known risk of inmate safety, ‘deliberate indifference includes something more that
negligence but less than actual intent to harm;’ it requires proof of a reckless disregard of a
known risk.” Id. at 538-539 (quoting Riley v. Olk-Long, 282 F.2d 592, 597 (8th Cir. 2002)).
Plaintiffs’ Second Amended Complaint states that Palmer was in obvious need of serious
medical care in that she suffered from a known depression condition and/ or was an obvious
substantial risk of harm to herself. Defendant Jailers deny having knowledge that there was a

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risk Palmer would commit suicide. While defendants cannot be charged with inferences that
they did not actually draw, “a factfinder may conclude that a prison official knew of a substantial
risk from the very fact that the risk was obvious.” Farmer, 511 U.S. 825, 842 (1994).
Therefore, this Court must determine whether the risk that Palmer would commit suicide
was obvious. Plaintiffs claim the jailers had notice because Donna Baker told officers Palmer
was not in her right frame of mind, that she was on medication and should not be left alone. In
addition, officers testified that Palmer was upset because she was arrested, that she was crying
and that she expressed that she was scared and did not want to go back to prison. Plaintiffs also
argue that Palmer had a large abrasion on her wrist after she was discovered dead in her cell and
that the Highway Patrol Investigator concluded that she had used a fork to cut her wrist for forty
minutes before she hung herself.

Plaintiffs contend that because Halbert was monitoring

Palmer’s cell during the time period before, during, and after her suicide, there is a disputed issue
of material fact as to whether Halbert had actual notice of Palmer’s suicide risk.
Defendant Jailers contend no one told them that Palmer was suicidal. Defendants Rohrer
and Reed acknowledge that Palmer was upset during the interview, but that her demeanor
improved after she was told that if she cooperated with law enforcement the charges might be
dropped. In addition, Palmer never expressed any suicidal tendencies. All of the jailers testified
that Palmer’s actions appeared to be normal. While there are disputed issues of fact regarding
whether Halbert was adequately watching the video monitors when Palmer hung herself, this
does not establish that Halbert had actual knowledge that Palmer posed a risk of suicide.
Viewing the facts in the light most favorable to the Plaintiffs, as the non-moving party,
and giving Plaintiffs the benefit of all reasonable inferences which may be drawn from the facts,
the Court finds that the risk that Palmer would commit suicide was not obvious. Defendant

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Jailers, therefore did not know that Palmer presented a substantial suicide risk. Since Plaintiffs
have failed to establish that the jailers had actual knowledge of Palmer’s suicide risk, they cannot
establish that the jailers were deliberately indifferent to a known risk of suicide. Accordingly,
the Defendant Jailers are entitled to qualified immunity on the § 1983 claim.
2. Liability of City of Sullivan
Plaintiffs claim the City of Sullivan and the Chief of the Sullivan Police Department,
George Counts were deliberately indifferent to the known risk of suicide because: (a) they failed
to train officers and dispatchers in suicide prevention, monitoring of prisoners, identification of
at risk prisoners, detection of dangerous items on detainees and in cells, and intake; (b) they
failed to enforce policies and procedures, discipline officers, and allowing a custom and practice
of continued and persistent deviations from policies and procedures; (c) they maintained
inadequate suicide prevention policies and procedures and an inadequate monitoring system; and
(d) failed to adequately staff the jail facility. Pls.’ Second Am. Compl. ¶ 9.
It is well established that for municipalities, respondeat superior or vicarious liability
will not attach under § 1983. City of Canton v. Harris, 489 U.S. 378, 385 (1989). “A local
government may not be sued under § 1983 for an injury inflicted solely by its employees or
agents. Instead, it is when execution of a government's policy… inflicts the injury that the
government as an entity is responsible under § 1983.” Monell v. Department of Social Services
of City of New York, 436 U.S. 658, 694 (1978). A municipality may be liable for failure to train
its employees when that failure can be shown to be deliberate indifference to the rights of others.
Yellow Horse v. Pennington County, 225 F.3d 923, 928 (8th Cir. 2000).
Deliberate indifference in the context of a claim for failure to train is a stringent standard
of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of

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his action. Board of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997). When city
policymakers are on actual or constructive notice that a particular omission in their training
program causes city employees to violate citizens' constitutional rights, the city may be deemed
deliberately indifferent if the policymakers choose to retain that program. Id. at 407. The city's
“policy of inaction” in light of notice that its program will cause constitutional violations “is the
functional equivalent of a decision by the city itself to violate the Constitution.” Canton, 489
U.S. at 395. “A pattern of similar constitutional violations by untrained employees is ‘ordinarily
necessary’ to demonstrate deliberate indifference for purposes of failure to train. Connick v.
Thompson, 131 S.Ct. 1350, 1360 (2011).
A supervisor may be held individually liable under § 1983 if a failure to properly
supervise and train the offending employees caused a deprivation of constitutional rights.
Plaintiffs must demonstrate that the supervisor was deliberately indifferent to or tacitly
authorized the offending acts, which requires a showing that the training procedures and
supervision were inadequate and likely to result in a constitutional violation. See Wever v.
Lincoln County Nebraska, 388 F.3d 601, 606 (8th Cir. 2004).
In Wever, a man was arrested after he made a 911 call. Officers were concerned that he
was suicidal because he was depressed and crying during the call. Prior to his arrest, the man
threatened to kill himself if jailed. Not long after he was arrested and placed in a cell, he
requested a blanket. After receiving the blanket from the jailers, he hung himself. The district
court was affirmed for denying summary judgment to the Sheriff on plaintiff’s claim for
individual liability against the Sheriff, “in large part because he ‘did not present any evidence
showing what training procedures, if any, were in place for handling potentially suicidal
detainees or inmates, nor did he present any evidence showing what steps, if any were taken

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following’ an earlier suicide that had occurred during his term as sheriff.” Id. at 605. The
Sheriff was aware of two prior suicides in the Lincoln County jail, one while he was sheriff and
one before his term began. The Eighth Circuit recognized that a supervisor may be individually
liable under § 1983 if a failure to properly supervise and train the offending employee caused a
deprivation of constitutional rights. See also Vaughn, 438 F.3d at 851 (failure to properly
supervise and train the offending employee may cause a deprivation of a constitutional right).
The 8th Circuit recognized plaintiff’s burden of demonstrating that the supervisor was
deliberately indifferent to or tacitly authorized the offending acts. “This requires a showing that
the training procedures and supervision were inadequate and likely to result in a constitutional
violation.” The Court noted that although the Sheriff did not contest supervisory liability in his
motion for summary judgment, he did address it in his reply brief. In a qualified immunity
analysis, the Court ruled, “[i]n some instances, one or two suicides may be sufficient to put a
sheriff on notice that his suicide prevention training needs revision. . .Wever has alleged that
Carmen [sheriff] was placed on notice by two previous suicides, and we cannot say this is
insufficient as a matter of law.” Id. at 608.
a. Failure to train
It is undisputed that the City of Sullivan did not have a program in place to train officers
to determine who might be at risk for suicide. However, defendants did provide evidence that
the jailers were trained on proper intake procedures, monitoring prisoners and detection of
dangerous items on detainees or in their cells.
With regard to the adequacy of training in suicide prevention, the undisputed evidence is
that Defendant Rohrer received field training at Sullivan Police Department and he was trained
to identify suicidal behavior and to call an ambulance. Reed testified that he went through the

12

Sullivan Police Department field training program. He stated he received training at Sullivan
Police Department to screen for suicide. He testified that the training consisted of: If someone
showed signs or behavior that might show they wanted to harm themselves or stated they wanted
to harm themselves, he had the discretion to determine if that person was suicidal. Defendant
Jones testified that suicide screening consisted of taking a detainee to the hospital if they come
into the jail and say they want to harm themselves. Defendant Halbert testified that if people
threaten to harm themselves, or if he observed them attempt to harm themselves, they would get
immediate attention. Chief Counts testified that the Sullivan Police Department does not have
someone qualified to make the determination of whether an inmate has a mental illness or is at
risk for suicide. He stated that the policy regarding suicide is “if you have someone that’s trying
to commit suicide, you take them to the hospital.” A person would be considered at risk of
suicide if they spoke about committing suicide or they want to commit suicide. There is no
evidence that Defendants Roche or Hinson had any training for suicide prevention or screening
for suicidal detainees.
Plaintiffs also contend that officers were not properly trained on intake procedures.
However, the officers who booked Palmer, Defendants Rohrer, Reed, and Hinson all testified
that they had read the Sullivan PD policy and procedure manual and that they were trained on
intake procedures, including removing ligatures from detainees before placing them in a cell.
Plaintiffs argue that this Court should draw the inference that Defendant Halbert’s
training was inadequate with regards to monitoring prisoners to prevent suicide. Halbert testified
that he helped write the PD’s communications policy. That policy provides that “the dispatcher
will watch so that a prisoner does not tie something to the cage or around his neck attempting to
strangle themselves.” The policy also required that all items that may be used to create a ligature

13

shall be taken from prisoners. Plaintiffs note that Halbert testified that he did not know that a
drawstring from a hooded sweatshirt was a ligature at the time of Palmer’s suicide. While
Halbert may not have been aware that a drawstring could be used as a ligature, that fact is not
material in this case because there is no evidence that Halbert was responsible for searching
Palmer. In addition, there is no evidence that he saw the drawstring in her sweatshirt before her
suicide.
As Defendants concede, the Police Department policy and approach in place at the time
of Palmer’s death may have been inadequate. However, that is not the end of the inquiry. The
question for the Court is whether Chief Counts had notice that the training procedures and
supervision were inadequate and likely to result in a constitutional violation.
It is undisputed that there had been at least 12 suicide attempts during the years preceding
Palmer’s death. However, no one had actually committed suicide in the Sullivan jail. Therefore,
the Sullivan Police Department policy and procedure of taking detainees to the hospital if they
indicate they are suicidal or attempt to harm themselves does not amount to deliberate
indifference. There is no indication from the record that Chief Counts had notice that the
policies, training procedures or supervision were inadequate and likely to result in a
constitutional violation. This case is distinguishable from Wever. In that case, the 8th Circuit
held the defendant sheriff was put on notice his training procedures and supervision were
inadequate given the sheriff knew of two prior suicides in his jail, one of which occurred during
his tenure as sheriff. Id. at 607-08.
b.

Failure to Enforce Department Policies and Procedures

Plaintiffs also claim the City of Sullivan was deliberately indifferent to Palmer’s rights in
that they failed to enforce policies and procedures for suicide prevention including policies and

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procedures for prisoner in-take, confiscation of dangerous items from prisoners and monitoring
of prisoners; failed to enforce the policies through discipline; and caused, permitted and allowed
a custom and practice of continued deviations from police department policies and procedures.
This failure to enforce claim can be analyzed as a failure to supervise. A claim for failure to
supervise requires the same analysis of a claim of failure to train. Liebe v. Norton, 157 F.3d 574,
579 (8th Cir. 1998). “First a supervisor cannot be held vicariously liable under § 1983 for an
employee’s actions. Second…a failure to supervise may be maintained only if a defendant
demonstrated deliberate indifference or tacit authorization of the offensive acts.” Id. As with the
failure to train claim, this claim is governed by the deliberate indifference standard. Id.
The City and Chief Counts may be liable under § 1983 if they (1) had “notice of a pattern
of unconstitutional acts committed by subordinates;” (2) were deliberately indifferent to or
tacitly authorized those acts; and (3) failed to take “sufficient remedial action;” (4) proximately
causing Palmer’s death.” Livers v. Schenck, 700 F.3d 340,355 (8th Cir. 2012) (internal quotation
marks and citations omitted). To impose supervisory liability, other misconduct must be very
similar to the conduct giving rise to the liability. Id. at 356.
Plaintiffs argue that there is a reasonable inference that it was the custom and practice of
the SPD to allow officers to escape discipline for violations of policies and procedures. In
support of this argument, Plaintiffs note that Chief Counts testified that no disciplinary action
would be taken against an officer who violated a procedure or rule, if that officer was able to
articulate a reason that was acceptable to him or a supervisor. As an example, Plaintiffs point to
Chief Counts’ failure to discipline officers Rohrer and Hinson for violating department policy
that mandated removal of ligatures, when they failed to remove the string from Palmer’s
sweatshirt before putting her in a cell.

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To succeed on this claim, Plaintiffs must show there was a pattern of Chief Counts
allowing unconstitutional acts to be committed by his subordinates; that he tacitly authorized
those acts; that he failed to take remedial action and the acts cause Palmer’s death. However,
Plaintiffs have not presented undisputed facts establishing that Chief Counts’ practice of
allowing officers to articulate a reason for failing to follow a policy or procedure allowed
unconstitutional acts to be committed by those officers. Chief Counts’ decision not to discipline
Officers Rohrer and Hinson following Palmer’s death does not establish deliberate indifference.
c.

Inadequate suicide prevention policies and procedures and
inadequate monitoring system

In their Memorandum in Opposition to Defendants’ Motion for Summary Judgment,
Plaintiffs claim that the City of Sullivan maintained unconstitutional policies, customs and
procedures. Plaintiffs argue that the intake/screening policy which states that the Sullivan Police
Department is not equipped to house inmates who require immediate or sustained medical
attention, fails to require that an inmate be screened for suicide. Defendants’ corrections expert
testified that there should be screening for anyone who is placed in jail, including questions
about their physical and mental health.
Plaintiffs also contend that the monitoring policies exposed inmates to a safety risk. The
monitoring policies require that a communications officer check on prisoners every 10 minutes
by looking at a video monitor, but there is no policy, custom or practice for doing cell checks.
Again, the Plaintiffs provide testimony from the Defendants’ expert who testified that 30 minute
cell checks should be required.
While Plaintiffs have presented evidence that the policies and procedures may be
inadequate, they fail to establish that these policies are facially unconstitutional. In addition,

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Plaintiffs fail to cite to any authority to support their argument that an expert’s opinion regarding
the adequacy of policies and procedure constitutes a constitutional violation.
Employing a failure to train analysis, Plaintiffs’ argument fails.

In order to defeat

summary judgment on this issue, the Plaintiffs must show that the City disregarded a known or
obvious consequence of its action. See Bryan supra. When city policymakers are on actual or
constructive notice that a particular omission in their training program causes city employees to
violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the
policymakers choose to retain that program. Id.at 407. Plaintiffs have not demonstrated that the
City had actual or constructive notice that any inadequacy in its policies regarding intake
procedures or monitoring of inmates caused a violation of citizens’ constitutional rights.
Therefore, Plaintiffs have not established that the City was deliberately indifferent in choosing to
retain the challenged policies.
d.

Inadequate staffing

Plaintiffs also argue that there are disputed issues of fact regarding whether the Sullivan
Police Department was adequately staffed. Even if there was inadequate staffing, the City did
not have actual or constructive notice that any inadequacy in staffing caused a violation of
constitutional rights. Accordingly, Plaintiffs have not demonstrated that the City acted with
deliberate indifference with regard to the staffing.
Viewing the facts in the light most favorable to the Plaintiffs, as the non-moving party,
and giving Plaintiffs the benefit of all reasonable inferences which may be drawn from the facts,
the Court finds that there are no genuine issues of material fact to establish that the City of
Sullivan and Chief Counts were deliberately indifferent to a known risk of suicide through a
failure to train or supervise the Defendant Jailers. Nor have Plaintiffs established that inadequate

17

policies and procedures rose to the level of constitutional violations. Accordingly, summary
judgment will be entered in favor of the City and Chief Counts on the § 1983 claim.
V.

Count II- Wrongful Death Mo. Rev. Stat. § 537.080
Plaintiffs also bring a wrongful death cause of action under Missouri law against

Defendants Don L. Reed, Darrin M. Jones, Kevin L. Halbert, Jeff Rohrer, Shaun Hinson, David
Roche, George Counts (“Defendant Jailers”) and the City of Sullivan. Second Am. Compl. pp.
8-12. Defendants assert that they are entitled to summary judgment on the wrongful death claim
because (1) Plaintiffs failed to establish the proximate cause of Palmer’s suicide, (2) Defendants
have official immunity from liability, (3) Defendants are not liable under the public duty
doctrine, and (4) the City of Sullivan has sovereign immunity from suit. Plaintiffs contest
Defendants’ assertions.
A.

Defendant Jailers

The Defendant Jailers assert that they are immune from liability in Plaintiffs’ wrongful
death claim under the official immunity and public duty doctrines. Further, the Defendant Jailers
assert that even if they were not entitled to immunity, Plaintiff cannot establish that their actions
were the proximate cause of Palmer’s death.
1.

Official Immunity5

Under Missouri law, “public officials exercising discretionary duties, as opposed to
ministerial duties, are entitled to official immunity from suit for all discretionary acts unless the
officials acted in bad faith or with malice, which ordinarily requires actual intent to cause
injury.” Austell v. Sprenger, 690 F.3d 929, 938 (8th Cir. 2012) (internal quotations omitted).
5

The Court notes that Defendants’ Motion for Summary Judgment only addresses official immunity for Defendants
Reed, Jones, Halbert, Rohrer, Hinson, and Roche regarding the search of Palmer; Defendant Halbert regarding his
video monitoring of Palmer; and Defendant Jones regarding leaving utensils in Palmer’s cell. The Defendants did
not address any other allegations against the Jailer Defendants in relation to the official immunity defense.
Therefore, these are the only allegations addressed by the Court in its analysis.

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“Whether an act can be characterized as discretionary depends on the degree of reason and
judgment required.” Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. 2008).
A discretionary act requires the exercise of reason in the
adaptation of means to an end and discretion in
determining how or whether an act should be done or
course pursued. A ministerial function, in contrast, is one
of a clerical nature which a public officer is required to
perform upon a given set of facts, in a prescribed manner,
in obedience to the mandate of legal authority, without
regard to his own judgment or opinion concerning the
propriety of the act to be performed.
Id. “The determination of whether an act is discretionary or ministerial is made on a case-bycase basis, considering: (1) the nature of the public employee’s duties; (2) the extent to which the
act involves policy making or exercise of professional judgment; and (3) the consequences of not
applying official immunity. Id.
a.

Search of Palmer

In this case, the City of Sullivan had written procedures that stated that “[a]ll personal
property (jewelry, belts, shoe laces, etc.) shall be taken from the prisoner and entered on the
inmates, “Jail/Booking Report- SPD-64-A.” [Doc. 119-7]. The City’s procedures also state “[a]
thorough and systematic search shall be made of the prisoner.” Id. Finally, the procedures state
that “[i]tems that may be used to create a ligature shall be taken from all prisoner’s [sic] (shoe
laces, etc.)” Id.
“The mere act of inventorying and securing an arrestee’s property in a prescribed manner
during booking, is not a protected discretionary function in light of the lack of policy making or
expertise involved.” Jungerman v. City of Rayton, 925 S.W.2d 202, 206 (Mo. 1996), abrogated
on other grounds by Southers, 263 S.W.3d at 615, n. 13. The facts of the case clearly show a
ministerial function. The City’s procedures detail the procedure for booking detainees, including

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the inventory of property, removal of ligatures, and a thorough and systematic search of inmates.
Defendant Jailers argue that “to the extent that a detainee’s property is hidden, the decision to
conduct a more thorough search for such items is the epitome of discretion as it necessarily relies
upon the defendant’s judgment and experience with inmates, such as Palmer.” The Court
disagrees. The City’s procedures require a “thorough and systematic” search of all inmates and
the removal of items that may be considered a ligature. It is undisputed that Palmer entered the
jail with a hooded sweatshirt that contained a string, which is common in hooded sweatshirts.
The purpose of conducting a search of detainees is to find unauthorized items that the detainees
are not allowed to possess and may be hidden on their bodies or clothing.6 It is a huge logical
stretch to conclude that a “thorough and systematic search” including the requirement to remove
ligatures would not require an officer as part of his ministerial duties to look for a string in an
item of clothing known to commonly contain strings. Therefore, “the police officers enforcing
the search procedure were not exercising judgment and discretion and they are not entitled to the
protection offered by official immunity.”
b.

Video Monitoring of Palmer

Defendant Halbert contends that he is entitled to official immunity regarding Plaintiffs’
claims that he failed to monitor Palmer by video camera. The City’s Communication Officer
Training Manual policy regarding video monitoring states as follows:
It is a tremendous responsibility for communications to
ensure the safety of the Prisoners incarcerated in the
Sullivan Jail. Each one MUST be monitored. There is no
sound from this system. You will watch so that a prisoner
does not tie something to the cage or around his neck
attempting to strangle themselves.
6

“Correctional officials have a legitimate interest, indeed a responsibility, to ensure that jails are not made less
secure by reason of what new detainees may carry in on their bodies. Facility personnel, other inmates, and the new
detainee himself or herself may be in danger if these threats are introduced in the jail population.” Florence v.
Board of Chosen Freeholders of County of Burlington, 132 S.Ct. 1510, 1513 (2012).

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[Doc. 120-1] (emphasis in original). The City’s General Orders states “[t]he monitor’s [sic]
located in the main console, shall be surveilled by the duty C/O in 10 minute interval’s [sic],
unless circumstances dictated a closer watch, (i.e., suicide threat, escape risk, etc.) and “the
Communications Division shall visually monitor prisoner’s [sic] behavior while they are in
custody” [Doc. 119-7]. Halbert contends that it is undisputed that he checked the monitors
every 10 minutes and he had no information that Palmer was a suicide risk. Moreover, he states
that he did not recognize that she was hanging from the cell, because it appeared to him that she
was just sitting on the stool with her back to the camera.
The court disagrees. First, the act of monitoring the video monitor every ten minutes and
watching to ensure that a prisoner did not tie something to the cage were ministerial acts.
Halbert had no discretion in performing those actions. Second, there is a genuine issue of
disputed fact regarding whether Halbert checked on Palmer every ten minutes. The string from
the sweatshirt used by Palmer to hang herself is clearly visible on the video tape and it is also
clear that Palmer was not sitting on the stool, because the empty stool was clearly visible to
Palmer’s immediate left. Halbert acknowledges that he was doing other duties at the time of
Palmer’s suicide. Furthermore, Palmer’s body was left hanging for two hours before being
discovered, despite Halbert allegedly viewing her twelve times during a two hour time period.
Because of these disputed facts, official immunity is not appropriate in this case. See Hutson v.
Walker, 688 F.3d 477, 486 (8th Cir. 2012) (official immunity appropriate if no genuine issue of
material fact remains). Therefore, the Court denies official immunity regarding Halbert’s actions
in monitoring Palmer via the video monitor.

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c.

Utensil in Palmer’s Cell

Next, Defendant Jones contends that he is entitled to official immunity regarding leaving
the plastic eating utensils in Palmer’s cell. Plaintiffs allege that Palmer “self-mutilated” her wrist
for forty minutes with the plastic fork that was left in her cell prior to hanging herself. Plaintiffs
rely upon the City’s General Order, which states: “[a]ny tools, culinary items or similar items
brought into the cell block shall be recorded in and out through the ‘officer in charge’ of the
holding facilities.” [Doc. 119-7]. Plaintiffs state that the failure to remove the fork for four
hours violated the policy regarding utensils. The Court finds that the determination of when to
remove utensils from a prisoner’s cell is discretionary and Defendant Jones is entitled to official
immunity regarding the failure to remove the plastic fork from Palmer’s cell. Although the
officers were required to record the delivery and pick-up of utensils, there is no mandated policy
regarding the length of time a utensil could stay in a prisoner’s cell. Further, although Reed
testified that leaving a fork in a cell for four hours would deviate from the policy, he also
testified that there were acceptable reasons to deviate from the policy.

Because the

determination of when the utensils are to removed is a discretionary act and there is no evidence
of any bad faith or malice on the part of Jones, official immunity must be applied in this instance.
2.

Public Duty Doctrine

Next Defendant Jailers contend that the public duty doctrine provides them immunity
from suit.7 “The public duty doctrine states that a public employee is not civilly liable for the
7

It is unclear from Defendants’ Memorandum in Support of Motion for Summary Judgment the specific actions
they assert are shielded by the public duty doctrine. Plaintiffs’ Second Amended Complaint makes several and
sometimes different allegations against each Defendant. Defendants give a broad statement asserting they are
seeking immunity regarding “Defendants actions with respect to Palmer during the normal course and scope of their
employment on 10/16 and 10/17.” In their Reply Memorandum, Defendants specifically reference the failure to
remove ligatures from Palmer. Therefore, the Court will only address immunity under the public duty doctrine
based on the failure to remove Palmer’s hooded sweatshirt string.

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breach of a duty owed to the general public, rather than a particular individual.” Southers, 263
S.W.3d at 611. “This public duty rule is based on the absence of a duty to the particular
individual, as contrasted to the duty owed to the general public.” Id.
The public duty doctrine does not insulate an employee
from all liability, as he could still be found liable for
breach of ministerial duties in which an injured party had
a special, direct, and distinctive interest. This exception
exists when injury to a particular identifiable individual is
reasonably foreseeable as a result of a public employee’s
breach of duty. Whether an individual has such a private
interest depends on the facts of each case, not on broad
pronouncements about the usual status of relevant
functions. Further, the protections of the public duty
doctrine are not intended to be limitless, and just as the
doctrine of official immunity will not apply to conduct
that is willfully wrong or done with malice or corruption,
the public duty doctrine will not apply where defendant
public employees act in bad faith or with malice.
Id. at 611-12 (citing Jungerman, 925 S.W.2d at 205). “The public duty doctrine is not an
affirmative defense, but rather delineates the legal duty the defendant public employee owes the
plaintiff.” Id. at 612.

“The applicability of the public duty doctrine negates the duty element

required to prove negligence, such there can be no cause of action for injuries sustained as the
result of an alleged breach of public duty to the community as a whole.” Southers, 263 S.W.3d
at 612.
In this case, the Defendant Jailers assert that they are entitled to immunity under the
public duty doctrine as they did not owe a particular duty to Palmer, because she never exhibited
an obvious risk of suicide, none of the Defendants saw the string in her sweatshirt, and the risk
that she would commit suicide was not reasonably foreseeable. Missouri courts have found that
the practice of removing personal belongings has several plausible policy rationales including
preventing the prisoner from harming himself and others and keeping a close account of the

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prisoner’s property. Cooper v. Planthold, 857 S.W.2d 477, 480 (Mo. Ct. App. 1993) (policy to
remove all personal property was not promulgated to protect particular individuals and no special
duty to remove suspenders from prisoner who later hung himself).

Plaintiffs assert that

Defendants owed a special duty to Palmer to remove dangerous items from her person, because
there was a substantial risk that Palmer would harm herself, which was reasonably foreseeable as
a result of the Defendants’ policy violations.
The Court will deny immunity under the public duty doctrine in this case. Plaintiffs have
introduced sufficient evidence that a reasonable jury might find that the risk of suicide by Palmer
was reasonably foreseeable as a result of the Defendants’ failure to follow the policies regarding
thorough and systematic searches and the removal of ligatures considering Palmer’s demeanor at
the time of arrest and admonitions to watch her and provide her with her medicine.
3.

Causation

“Missouri’s causation standard in a wrongful death case is that the decedent’s death was a
‘direct result’ of a defendant’s negligence.” Kivland v. Columbia Orthopaedic Group, LLP, 331
S.W.3d 299, 309 (Mo. 2011). “Before a jury can decide causation, a plaintiff must offer
evidence that the court determines would establish that the defendant’s negligence was the
proximate cause of the decedent’s death.” Id. “If this evidence is not offered or is insufficient,
the plaintiff has not made a submissible case.” Id. Proximate cause is a question for the court.
Id. “A plaintiff can show that the defendant’s negligence was the proximate cause of the
decedent’s suicide by presenting evidence that the decedent’s suicide was the natural and
probable consequence of the injury he suffered at the hands of the defendant.” Id. “Unless this
evidence-which may require expert witness testimony-is presented, the suicide would be an
intervening cause and the claim would not be submitted to the jury.” Id. at 309-310. “If,

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however, the plaintiff presents evidence that the suicide resulted from the injury, the claim then
can be submitted to the jury to decide as a question of fact, whether the suicide is a direct result
of the defendant’s negligence. Id. at 310.
The Court finds that Plaintiffs have met the standard for submitting its wrongful death
claim in Count II to the jury. In a previous order on this date, the Court denied in part
Defendants’ Motion to Exclude and Strike Proffered Testimony of Plaintiffs’ Proposed Expert,
Jeffrey Eiser. In accordance with that Order, the Court finds that Dr. Eiser’s testimony will
assist the jury in determining whether Palmer’s death was a direct result caused by the injury that
she allegedly suffered due to Defendants’ negligence. Dr. Eiser’s testimony is admissible on the
issue of causation, which is genuine issue of material fact that will be determined by a jury. See
Kivland, 331 S.W.3d at 313-314.
B.

City of Sullivan

The City of Sullivan asserts that it is immune from suit pursuant to the sovereign
immunity doctrine.

Plaintiffs assert that the City is not entitled to sovereign immunity

protection, because the video monitoring system was a “dangerous condition,” which destroys its
sovereign immunity protection. “Sovereign immunity from tort liability exists except when such
immunity is specifically waived, and this lawsuit does not fall within any such waivers.”
Coleman v. City of Pagedale, 4:06-CV-1376 ERW, 2008 WL 161897 at *9 (E.D. Mo. Jan. 15,
2008). The parties do not dispute that the City of Sullivan is a public entity as defined by Mo.
Rev. Stat. § 537.600.
A public entity waives immunity under § 537.600 if the injury complained of arises from
the negligent operation of a motor vehicle or a dangerous condition of property. State ex rel.
Board of Trustees of City of North Kansas Memorial Hosp. v. Russell, 843 S.W.2d 353, 358

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(Mo. 1992).

To benefit from the statutory waiver [regarding dangerous conditions] set out in

§ 537.600.1(2), [Plaintiffs are] required to prove four elements: (1) that the property was in
dangerous condition at the time of the injury, (2) that the injury directly resulted from the
dangerous condition- that is, that the dangerous condition was the proximate cause of the injury,
(3) that the dangerous condition created a reasonably foreseeable risk of harm of the kind of
injury that was incurred; and (4) that a public entity had actual or constructive notice of the
dangerous condition in sufficient time prior to the injury to have taken measures to protect
against the dangerous condition. Hensley v. Jackson County, 227 S.W.3d 491, 496 (Mo. 2007)
(internal citations omitted); Mo. Rev. Stat. § 537.600.1(2). Based on the facts in the light most
favorable to the Plaintiffs, the Court finds that Plaintiffs cannot prove a dangerous condition of
property. As an initial matter, Plaintiffs have not shown that the video monitoring system was a
dangerous condition. The video monitoring system was operating that day, because it recorded
Palmer for hours, including when she committed suicide. In their Statement of Facts, Plaintiffs
repeatedly state that Halbert failed to observe Palmer using the video monitoring system. (Pls.’
S. Facts ¶¶ 55, 79, 88). Failure to observe the video monitor does not make the system defective
or a dangerous condition. Therefore, the dangerous condition exception to sovereign immunity
does not apply in this case.
Finally, a public entity can waive sovereign immunity to the extent of coverage received
for liability insurance. Mo. Rev. Stat. § 537.610.1 “[W]here the insurance policy includes a
disclaimer concerning the waiver of sovereign immunity, it has not been waived under
§ 537.610.1.”

Conway v. St. Louis County, 254 S.W.3d 159, 167 (Mo. Ct. App. 2008).

Although the City of Sullivan has purchased an insurance policy, it has not waived sovereign
immunity.

The City submitted its policy provisions, which specifically state that “[t]his

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insurance does not include coverage for any liability or suit for damages which is barred by the
doctrines of sovereign immunity or governmental immunity, as set forth in Chapter 537.600
R.S.M.O. et seq.” Missouri courts frequently uphold similar non-waiver provisions in public
entity insurance contracts. See e.g., Russell, 843 S.W.2d at 360 (sovereign immunity provision
does not constitute a waiver of immunity under § 537.610); Conway, 254 S.W.3d. at 167 (same).
Therefore, the City of Sullivan has not waived its sovereign immunity and is entitled to summary
judgment regarding Count II of Plaintiffs’ Second Amended Complaint.
VI.

Conclusion
For the foregoing reasons, the Court will grant summary judgment in favor of all

Defendants regarding Count I of Plaintiffs’ Second Amended Complaint based on qualified
immunity. The Court will grant summary judgment in favor of the City of Sullivan regarding
Count II of Plaintiffs’ Second Amended Complaint based on sovereign immunity. The Court
will grant summary judgment in favor of Defendant Darrin M. Jones regarding Count II related
to the failure to remove plastic utensils from Palmer’s cell based on official immunity. The
Court will deny summary judgment regarding Count II as to Defendants Don Reed, Darrin Jones,
Kevin Halbert, Jeff Rohrer, Shaun Hinson, and David Roche regarding the failure to remove the
drawstring from Palmer’s hooded sweatshirt. The Court will deny summary judgment regarding
Count II as to Defendant Kevin Halbert’s failure to monitor Palmer via the jail’s video
monitoring system. The Court will deny Defendants’ motion for summary judgment regarding
causation in Count II. Therefore, this case will proceed to trial on the claims outlined above as
well as the claims not addressed in Defendants’ motion for summary judgment.
Accordingly,

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IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment is
GRANTED in part and DENIED in part. [Doc. 84].
IT IS FURTHER ORDERED that summary judgment is GRANTED in favor of all
Defendants on Count I of Plaintiffs’ Second Amended Complaint.
IT IS FURTHER ORDERED that summary judgment is GRANTED in favor of
Defendant Darrin M. Jones regarding Count II of Plaintiff’s Second Amended Complaint related
to the failure to remove plastic utensils from Palmer’s cell.
IT IS FURTHER ORDERED that summary judgment is GRANTED in favor of the
City of Sullivan regarding Count II of Plaintiff’s Second Amended Complaint.
IT IS FURTHER ORDERED that summary judgment is DENIED regarding all other
matters presented in Defendants’ motion for summary judgment.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave of Court for Permission
to Supplement the Record on Summary Judgment in Light of Newly Discovered Evidence
Pursuant to Rule 60(b) is DENIED as untimely. [Doc. 168]
A separate Judgment will accompany this Memorandum and Order.
Dated this 9th day of January 2013.

/s/ Nannette Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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