Converse et al v. Kemah The City Of

Filing 120

MEMORANDUM OPINION AND ORDER grants in part and denies in part 109 MOTION for Summary Judgment . The plaintiffs claims against Melton are dismissed; the claims against Way, Kimball, and Whelan survive.(Signed by Judge Jeffrey V Brown) Parties notified.(rcastro, 4)

United States District Court
Southern District of Texas

ENTERED

In the United States District Court
for the Southern District of Texas

May 26, 2022
Nathan Ochsner, Clerk

GALVESTON DIVISION
═══════════

No. 3:15-cv-105
═══════════

RONALD LEE CONVERSE, ET AL., PLAINTIFFS,
v.
CITY OF KEMAH, TEXAS, ET AL., DEFENDANTS.
══════════════════════════════════════════

MEMORANDUM OPINION AND ORDER
══════════════════════════════════════════

JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE:
Before the court is the officer-defendants James Melton, Marcus Way,
Anna Marie Whelan, and Reuben Kimball’s motion for summary judgment.
Dkt. 109. Having considered the arguments, the summary-judgment
evidence, and the applicable law, the court grants in part and denies in part.
I.

Background
This case arises out of the suicide of Chad Silvis while he was detained

in the City of Kemah jail. On April 11, 2014, shortly past midnight, a passerby
flagged down Kemah Police Sergeant Marcus Way to tell him that a man was
at the top of the Kemah Clear Creek bridge and appeared ready to jump. Dkt.

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75 ¶ 16 (Second Amended Complaint). Way broadcasted on his police radio
that there was a possible “jumper” on the bridge. Id. Sergeant James Melton,
Officer Reuben Kimball, and Telecommunications Officer/Dispatcher Anne
Marie Whelan all heard the call. Id.
Way arrived at the top of the bridge to find Silvis sitting on the railing
with his feet over the edge. Id. ¶ 17. He appeared impaired and was drinking
from a pint bottle of whiskey. Dkt. 109-1 at 2. Way called dispatch for backup,
and Kimball and Melton soon joined him. Dkt. 75 ¶ 17. Eventually the three
officers succeeded in safely pulling Silvis off the railing. Id. ¶ 18. Silvis was
handcuffed and Kimball transported him to the Kemah jail. Id. After Silvis
was booked, processed, and taken to his cell, Way directed Kimball to take
Silvis’s shoes—a typical precaution with suicidal inmates. Id. ¶ 20–22.
Kimball had, however, given Silvis a blanket during his in-processing when
Silvis complained he was cold. Id. ¶ 21. Way was present when Silvis was
placed in the cell with the blanket. Id. Whelan and Melton also each came by
Silvis’ cell at different times while he possessed the blanket. Id.
At about 1:44 a.m., Silvis used the blanket Kimball had given him to
hang himself from the top bunk of the cell’s metal bedframe. Id. ¶ 25. Fortyfive minutes passed before the officers realized what had happened. Id. ¶ 26.

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The decedent’s father, Ronald Converse, sued the City of Kemah and
the officers as representative of Silvis’s estate and in his individual capacity.
Id. ¶ 1. Converse’s suit was consolidated with that of Sara Monroe who sued
as next friend of Silvis’s minor child, B.S. Dkt. 109 at 9; see also Dkt. 46
(Order of Consolidation).
The plaintiffs allege three causes of action against Kemah and the
officers: (1) § 1983 claims against the officers for violating the Eighth and
Fourteenth Amendments; (2) supervisory liability under § 1983 against
Melton; and (3) municipal liability under § 1983 against Kemah. Dkt. 75 ¶¶
40–57.1 The plaintiffs seek wrongful-death and survival damages, costs to
repair damage to Silvis’s personal property, funeral expenses, and exemplary
damages. Id. ¶ 66.
II.

Legal Standard
Summary judgment is proper when “there is no genuine dispute as to

any material fact and the movant is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The court must view the evidence in the light most
favorable to the nonmovant. Coleman v. Hous. Indep. Sch. Dist., 113 F.3d
528, 533 (5th Cir. 1997). The movant bears the burden of presenting the basis

The court dismissed the plaintiffs’ claims against Kemah under the Texas
Tort Claims Act at the motion-to-dismiss stage. Dkt. 51 at 21.
1

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for the motion and the elements of the causes of action for which a genuine
dispute of material fact does not exist. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The burden then shifts to the nonmovant to offer specific facts
showing a genuine dispute for trial. See Fed. R. Civ. P. 56(c); Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). “A
dispute about a material fact is ‘genuine’ if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993) (citation
omitted).
The court “may not make credibility determinations or weigh the
evidence” in ruling on a summary-judgment motion. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). But when the nonmoving
party has failed “to address or respond to a fact raised by the moving party
and supported by evidence,” then the fact is undisputed. Broad. Music, Inc.
v. Bentley, No. SA-16-CV-394-XR, 2017 WL 782932, at *2 (W.D. Tex. Feb.
28, 2017). “Such undisputed facts may form the basis for summary
judgment.” Id. The court may grant summary judgment on any ground
supported by the record, even if the ground is not raised by the movant.
United States v. Houston Pipeline Co., 37 F.3d 224, 227 (5th Cir. 1994).

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III. Analysis
A. The Law of Qualified Immunity
“Qualified immunity shields government officials from liability when
they are acting within their discretionary authority and their conduct does
not violate clearly established statutory or constitutional law of which a
reasonable person would have known.” Gates v. Tex. Dep’t of Protective &
Reg. Servs., 537 F.3d 404, 418 (5th Cir. 2008). It “balances two important
interests—the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from harassment,
distraction,

and

liability

when

they

perform

their

duties

reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). And “it provides
ample protection to all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
“Qualified immunity is an immunity from suit rather than a mere
defense to liability.” Pearson, 555 U.S. at 237 (internal quotation marks
omitted). Even more, it alters the usual summary-judgment burden of proof:
Once an official pleads the defense, the burden then shifts to the
plaintiff, who must rebut the defense by establishing a genuine
fact issue as to whether the official's allegedly wrongful conduct
violated clearly established law. The plaintiff bears the burden of
negating qualified immunity, but all inferences are drawn in his
favor.
Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
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The qualified-immunity analysis is a two-pronged inquiry: “whether an
official’s conduct violated a constitutional right of the plaintiff; and whether
the right was clearly established at the time of the violation.” Id. The court
may rely on either prong in its analysis, id., and has the “discretion to decide
which prong to consider first.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir.
2013) (citing Pearson, 555 U.S. at 236).
“If the defendant’s actions violated a clearly established constitutional
right, the court then asks whether qualified immunity is still appropriate
because the defendant’s actions were ‘objectively reasonable’ in light of ‘law
which was clearly established at the time of the disputed action.’” Id.
(quoting Collins v. Ainsworth, 382 F.3d 529, 537 (5th Cir. 2004)). “Whether
an official's conduct was objectively reasonable is a question of law for the
court, not a matter of fact for the jury.” Id.
“Since at least 1989, it has been clearly established that officials may
be held liable for their acts or omissions that result in a detainee’s suicide if
they ‘had subjective knowledge of a substantial risk of harm to a pretrial
detainee but responded with deliberate indifference to that risk.’” Converse
v. City of Kemah, 961 F.3d 771, 775 (5th Cir. 2020) (quoting Jacobs v. W.
Feliciana Sheriff's Dep’t, 228 F.3d 388, 394 (5th Cir. 2000)); see also Flores
v. Cnty. of Hardeman, 124 F.3d 736, 738 (5th Cir. 1997) (“A detainee's right

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to adequate protection from known suicidal tendencies was clearly
established when Flores committed suicide in January 1990.”).
Because there was clearly established law at the time of Silvis’s suicide,
the sole remaining question for this court is whether each officer’s conduct
violated Silvis’s rights.
The sometimes confusing relationship between these two
standards—qualified immunity’s “objective reasonableness”
standard and the Fourteenth Amendment’s ‘subjective deliberate
indifference’ standard—has been distilled as follows: “[W]e are
to determine whether, in light of the facts as viewed in the light
most favorable to the plaintiffs, the conduct of the individual
defendants was objectively unreasonable when applied against
the deliberate indifference standard.”
Converse, 961 F.3d at 775 (quoting Jacobs, 228 F.3d at 394).
A prison official will not be held liable if he merely ‘should have
known’ of a risk; instead, to satisfy this high standard, a prison
official “must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.”
Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). An official shows
a deliberate indifference to that risk “by failing to take reasonable measures
to abate it.” Hare v. City of Corinth, 74 F.3d 633, 648 (5th Cir. 1996) (en
banc).
The Fourteenth Amendment’s protections for pretrial detainees
include requiring detention officers to take reasonable, prophylactic steps to
prevent suicide when a detainee is an actual suicide risk. See Flores, 124 F.3d
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at 738. Federal law does not support a claim for general failure to prevent a
detainee from committing suicide, or general failure to implement suicideprevention procedures. Taylor v. Barkes, 575 U.S. 822, 826 (2015) (per
curiam). “[T]he proper inquiry is whether the jail official had a culpable state
of mind in acting or failing to act.” Hare, 74 F.3d at 643 (emphasis added).
The “inquiry begins with the fundamental rule that negligent inaction
by a jail officer does not violate the rights of a person lawfully held in custody
by the State.” Id. at 645. Liability for inaction by detention personnel
attaches only when an officer’s failure to act amounts to deliberate
indifference to a detainee's rights. Id. at 639. “Deliberate indifference, i.e.,
the subjective intent to cause harm, cannot be inferred from [an officer's]
failure to act reasonably.” Hare, 74 F.3d at 649. “[E]ven if an officer responds
without the due care a reasonable person would use–such that the officer is
only negligent–there will be no liability.” Hyatt v. Thomas, 843 F.3d 172, 178
(5th Cir. 2016) (citing Davidson v. Cannon, 474 U.S. 344, 347 (1986)).
“Deliberate indifference is an extremely high standard to meet.” Domino v.
Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001).
“The deliberate indifference standard is a subjective inquiry; the
plaintiff must establish that the jail officials were actually aware of the risk,
yet consciously disregarded it.” Lawson v. Dallas Cnty., 286 F.3d 257, 262

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(5th Cir. 2002) (emphasis added). “[L]iability attaches only if [an officer]
actually

knew—not

merely

should

have

known—about

the

risk.”

Olabisiomotosho v. City of Houston, 185 F.3d 521, 528 (5th Cir. 1999).
“Specifically in the pretrial-detainee-suicide context, ‘a plaintiff must
show that public officers were [1] aware of facts from which an inference of a
substantial risk of serious harm to an individual could be drawn; [2] that they
actually drew the inference; and [3] that their response indicates subjective
intention that the harm occur.’” Garza v. City of Donna, No. 7:16-CV-00558,
2017 WL 6498392, at *7 (S.D. Tex. Dec. 15, 2017) (internal citations
omitted); see also Tamez v. Manthey, 589 F.3d 764, 770 (5th Cir. 2009).
“Evidence of negligence, or even gross negligence, is not enough.” Id. (citing
Sanchez v. Young Cnty., Texas, 866 F.3d 274, 280 (5th Cir. 2017)).
Mere “evidence that an official was aware of a substantial risk to inmate
safety does not alone establish deliberate indifference.” Hyatt, 843 F.3d at
177. Officers “who actually knew of a substantial risk to inmate health or
safety may be found free from liability if they responded reasonably to the
risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 847.
Reasonableness in this context must be tempered by the conflicting demands
placed on officers charged with attempting to protect individuals who are
detained. See generally Kingsley v. Hendrickson, 576 U.S. 389, 399 (2015)

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(recognizing that “[r]unning a prison is an inordinately difficult
undertaking” and that “safety and order at these institutions requires the
expertise of correctional officials, who must have substantial discretion to
devise reasonable solutions to the problems they face” (internal citations
omitted)).
The court applies these principles to assess the conduct of each
individual defendant in turn.
B. Application to Individual Defendants
1. Sergeant Melton
Melton argues that he is entitled to summary judgment because his
conduct was reasonable under the circumstances. In turn, to survive
summary judgment, the plaintiffs must show a genuine issue of material fact
as to Melton’s deliberate indifference to the risk of harm Silvis posed to
himself. Tamez, 589 F.3d at 770. To show subjective deliberate indifference,
the plaintiffs must present evidence (1) that Melton had subjective
knowledge of facts from which an inference of substantial risk of serious
harm could be drawn; (2) that Melton actually drew that inference; and (3)
that Melton’s response to the risk reflects that he subjectively intended that
harm to occur. Id.

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Melton argues he did not violate the Fourteenth Amendment. To the
contrary, he argues that the uncontroverted evidence shows that he risked
his life to prevent Silvis from committing suicide on the bridge and took
reasonable steps to protect Silvis from harming himself at both the bridge
(after he was taken off the ledge) and again at the Kemah jail. Dkt. 109 at 17.
Because Melton did not believe it was safe for the paramedics to triage Silvis
on the bridge, as it would require them to remove Silvis from the police
vehicle he was detained in, the medical evaluation was conducted at the
Kemah jail. Dkt. 109-1 at 3 (Melton Declaration). The paramedics found no
reason to transport Silvis from the police station to the hospital for further
examination or treatment. Id.
Melton states he then contacted a mental-health professional trained
through the Texas Commission on Law Enforcement and employed by the
Galveston County Sheriff’s Office Mental Health Division about Silvis. Id.
The mental-health professional informed Melton it was necessary for Silvis
to sober up before his mental health could appropriately be assessed. Id. at
4. The mental-health professional directed Melton to detain Silvis overnight
based on his public intoxication and that a mental-healthcare deputy would
arrange for a provider to assess Silvis at the police station in the morning. Id.

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Melton argues he deferred to the expertise of the paramedics and the
mental-health professional’s decision not to remove Silvis from the jail. Id.
Melton states had “no reason to suspect Silvis would likely harm himself
inside the cell, and [he] knew of no need for more or different monitoring of
Silvis than [he] understood would be done.” Id. Melton believed Silvis had
been searched before he was placed in the cell, so he had “no reason to believe
he possessed any weapon, or even blanket, to harm himself.” Id. Melton
“never saw a blanket inside Silvis’s cell and [] did not know he had one.” Id.
Additionally, Melton “knew officers periodically check[ed] on Silvis’s
condition inside the cell,” and that there was also video monitoring of the
cell’s interior. Id. While Silvis was in the cell and before his death, Melton
had some interactions with him about noise and Silvis’s desire to smoke a
cigarette, but Melton could not see the blanket from his vantage point. Dkt.
109 at 5.
The plaintiffs respond that each defendant knew that Silvis was
suicidal and actively trying to harm himself; that it was against jail policy to
provide a suicidal inmate with items such as a blanket; that Silvis had been
provided with a blanket; and yet each defendant chose to do nothing. Dkt.
118 at 5. The plaintiffs argue that Melton was aware of the policy that suicidal
detainees were not to be issued a blanket; that jail suicides were a “problem”;

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that one method of committing suicide was with bedding; and that detainees
had their shoelaces taken in order to prevent suicide. Id. The plaintiffs also
argue because Melton interacted with Silvis on the bridge, he knew Silvis was
serious about committing suicide, and knew that Silvis’s intention to commit
suicide had not changed during his detention. Id. at 5–6. The plaintiffs point
out that Melton can be seen on video footage interacting with Silvis, Way,
and Kimball while Silvis is holding the blanket, and that Melton looked into
the cell where the blanket was clearly visible. Dkt. 118 at 6.
The video evidence the plaintiffs cite to for this proposition, however,
shows only Way, Kimball, and an unidentified Seabrook Police Department
officer interacting with Silvis in the jail hallway as Silvis is holding a jailissued orange blanket. Def. Ex. 6 at 1:00-2:30; see also Dkt. 119 at 8. Melton
is not seen in that video until about the 16-minute mark, at which point he is
looking in on Silvis in his cell. Def. Ex. 6 at 16:00-18:00. In-cell video reveals
that at the two discrete points in time Melton is checking on Silvis, no blanket
is clearly visible. The blanket is first on the floor, partially underneath the
lower bunk-bed mattress (at the 24:30-mark on the video) during Melton’s
first visit and then placed out of view of the in-cell camera, at the 25-minute
mark, by Silvis before Melton’s extended, second visit. Def. Ex. 8.

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The plaintiffs present no other evidence that Melton was aware of the
presence of the blanket and thus cannot satisfy the requirement to show
Melton had “subjective knowledge of facts from which an inference of serious
harm could be drawn.” Tamez, 589 F.3d at 770. While the plaintiffs discredit
as self-serving Melton’s declaration that he did not know Silvis had a blanket,
Dkt. 109-1 at 4, the plaintiffs’ own deposition of Melton elicited no testimony
to the contrary, Dkt. 118-1. Because the plaintiffs, as the nonmoving parties,
have failed to show the existence of an element essential to their case and on
which they will bear the burden of proof at trial, Celotex Corp., 477 U.S. at
322–23, Melton is entitled to summary judgment on the § 1983 claims
against him.2
2. Sergeant Way
Sergeant Way argues he is entitled to summary judgment because he
acted with objective reasonableness when he helped Melton prevent Silvis
from completing suicide and directed Kimball to remove Silvis’s shoes before
Kimball placed Silvis in the cell. Dkt. 109 at 18. Way believed Silvis had no
means available to harm himself in the cell because he observed several
officers and Melton interact with Silvis and that he also knew the dispatch
The plaintiffs have abandoned their § 1983 supervisory-liability claim
against Melton by failing to pursue it beyond the amended complaint. See Black v.
N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (finding failure to
pursue a claim beyond the complaint constituted abandonment).
2

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office had video monitors available to observe Silvis in his cell. Id. Finally,
Way states he was already off-duty and at home when Silvis committed
suicide. Id.
The plaintiffs argue, however, that a fact question exists as to whether
Way knew Silvis had a blanket. They point to evidence showing that Way
interacted with Silvis while Silvis was holding the blanket. Dkts. 118 at 6; 1182 at 2–3. Because Way was “aware of the facts” from which an inference
could be drawn that Silvis posed a substantial risk of harm to himself, the
plaintiffs argue that summary judgment for Way is improper.
Video evidence of the hallway shows Kimball and the unidentified
Seabrook police officer escorting Silvis to his cell, uncuffing Silvis, and
putting him in the cell. Def. Ex. 6 at 00:49–2:30. Silvis is holding the jailissued orange blanket throughout his appearance on camera. Id. The back
and top of Way’s head is visible in the bottom of the video, and he can be seen
facing the jail cell and the other officers while Silvis is speaking with Kimball
and the unidentified officer. Id. At the 1:25-minute mark, Way comes on
camera to instruct Kimball to take Silvis’s shoes. Id. Shortly after, Way is seen
at the door of the cell while Kimball, who is inside the cell and not visible
from this camera angle, removes and tosses Silvis’s shoes out of the cell. Id.

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The interior-cell video shows Silvis and Kimball inside the cell while
Silvis’s shoes are being removed. Def. Ex. 8 at 1:25–2:00. Way’s left hand can
be seen as he shakes Silvis’s hand, all while Silvis is still holding the jail issued
orange blanket. Id. at 1:53. Way testified at his deposition that his view of the
blanket was blocked by Kimball’s body when he was at the threshold of the
jail cell. Dkt. 118-2 at 9.
Way argues that the video evidence “proves that Officer Kimball’s body
obstructed [his] view of Silvis holding the blanket and proves that [he]
directed Officer Kimball to remove Silvis’ shoes.” Dkt. 119 at 8. The video
evidence does indeed prove that Way directed Kimball to remove Silvis’s
shoes. But it is not dispositive as to whether Way’s view of the blanket was
blocked throughout the hallway interaction among Kimball, the unidentified
officer, and Silvis. Nor is it clear that during the in-cell interaction among
Silvis, Kimball, and Way, that Way’s view of the orange blanket, sometimes
loosely held by Silvis, was completely out of sight. Indeed, the length of the
interaction and the movement of the individuals on camera cautions against
a dispositive conclusion.
As this case is at the summary-judgment stage, it is appropriate to view
the facts and draw reasonable inferences “in the light most favorable to the
party opposing the [summary-judgment] motion.” United States v. Diebold,

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Inc., 369 U.S. 654, 655 (1962) (per curiam). Accordingly, the court finds a
fact issue remains as to whether Way knew Silvis had a blanket. Coupled with
the evidence the plaintiffs have presented establishing that Way knew Silvis
was suicidal and that it was against policy to give suicidal individuals
blankets, a genuine issue of material fact exists on whether Way was both
aware of the substantial risk of harm and that he drew such an inference
while on duty that night. Accordingly, the court denies Way’s motion for
summary judgment.
3. Officer Kimball
Officer Kimball, who was present with Silvis at the Kemah bridge and
escorted him throughout the booking process at the jail, argues that he is
entitled to summary judgment because Silvis’s change in demeanor led him
to mistakenly believe Silvis had regained control of his emotions and was no
longer a suicide threat. Dkt. 109 at 19. Kimball contends that because he
searched Silvis and removed his shoes, he subjectively believed Silvis did not
pose a threat to himself. Id. Kimball also explains that he gave Silvis a blanket
for warmth because Silvis was not wearing a shirt and said he was cold. Id.
Kimball admits to knowing Silvis possessed a blanket in the cell, but asserts
he did not perceive it as a safety risk because he believed Silvis had calmed
down, knew officers periodically checked on Silvis’s condition inside the cell,

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and knew there was a camera inside the cell that the dispatcher could use to
continuously monitor Silvis. Id. at 20. Kimball believed dispatchers would
notice if Silvis tried to harm himself with anything, including the blanket. Id.
The plaintiffs respond that Kimball knew it was against Kemah policy
to give suicidal inmates blankets and that he was familiar with other, similar
jail policies and the reason for them. Dkts. 118 at 6; 118-4 at 3–4, 7, 9. The
plaintiffs argue Kimball knew Silvis was suicidal, with a “litany of reasons for
wanting to kill himself, none of which could have changed over the course of
his short detention.” Dkt. 118 at 7.
The plaintiffs have presented evidence establishing a material fact
issue as to whether Kimball had subjective knowledge of facts from which an
inference of substantial risk of serious harm to Silvis could be drawn. A fact
issue exists as to whether Kimball knew that Silvis remained a suicide threat
warranting prophylactic steps by the officers that night, such as denying
Silvis a blanket. Accordingly, Kimball’s motion for summary judgment is
denied and the plaintiffs’ claim against him survives.
4. Officer Whelan
Officer Whelan argues that she is entitled to summary judgment
because her conduct does not rise to the level of deliberate indifference, but
can be characterized as mere negligence.

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Whelan was working dispatch when the initial call of a jumper came in
and was the dispatcher who alerted Kemah law-enforcement units to Silvis’s
presence on the bridge. Dkt. 118-3 at 6. Whelan was aware EMS personnel
had examined Silvis at the police station and had visited Silvis in his cell, and
she was also able to see the activities that occurred inside Silvis’s cell via the
video monitor in the dispatch office. Dkt. 109 at 18. Whelan concedes she did
not perform her observations as diligently as required, but that mere
negligence does not amount to deliberate indifference. Id. Whelan states that
had she known that Silvis had a blanket in his cell, she may have observed
Silvis more closely. Id. at 18–19.
The plaintiffs argue that summary judgment is improper because a fact
issue exists as to whether Whelan knew Silvis had a blanket in his cell. The
plaintiffs offer evidence that Whelan knew it was against policy to give a
suicidal inmate a blanket, Dkts. 118 at 6; 118-3 at 6, 12, that she was able to
regularly check on Silvis’s status on the video monitor which clearly
displayed the bright orange jail blanket, Dkt. 118-3 at 8–9, and that she knew
Silvis was in fact suicidal and had attempted to jump off the Kemah bridge,
Dkt. 118-3 at 6. On the video footage, Whelan can be seen talking to Silvis in
person, through the meal-tray slot in his cell door. Def. Ex. 6 at 08:48–14:36.

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The corresponding in-cell footage during this time-stamp range shows the
orange blanket laying on the floor of the cell. Def. Ex. 8 at 13:30–14:45.
Whether the blanket was visible from the meal-tray slot in the door and
whether Silvis’s body potentially blocked Whelan’s view of the blanket are
unclear. Not up for debate, however, is that the in-cell footage did capture
the blanket and that such footage was displayed in the dispatch office for all
of Silvis’s time in the jail cell, including the 45 minutes he spent tying the
blanket to the bed frame, positioning himself and the blanket to complete his
asphyxiation, and remaining there until discovered. Def. Ex. 8 at 41:30–
47:45.
Two issues complicate what would otherwise be a straightforward
analysis. The cameras that Whelan used to monitor the in-cell activity of
inmates were installed the day before Silvis committed suicide, so they were
new to her when she came to work that day.3 Dkt. 118-3 at 2. Additionally,
Whelan was a retired master peace officer,4 with over 25 years of lawenforcement experience before retiring in 2007 and switching to dispatch
work as a telecommunications officer. Id. at 2–3, 6. The very recent

Only the cameras in the jail cells were new. The cameras monitoring the
booking area, where Kimball gave Silvis the blanket, were not new. Dkt. 118-3 at 5.
3

Texas peace-officer proficiency levels are basic, intermediate, advanced,
and master. Texas Commission on Law Enforcement, available at
https://www.tcole.texas.gov/content/proficiency-certificates.
4

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introduction of the in-cell cameras and Whelan’s alleged unfamiliarity with
the monitors buttresses Whelan’s justification for her failure to properly
monitor Silvis. Her profound experience as a peace officer, however, cuts
against her argument that any omission on her part to monitor a clearly
unstable, emotionally volatile, and suicidal inmate was merely negligent, and
instead raises a fact question on her knowledge of the substantial risks
present that night.
Viewing the facts and drawing reasonable inferences “in the light most
favorable to the [non-moving party],” Diebold, 369 U.S. at 655, the plaintiffs
have presented sufficient evidence to create a material fact issue on whether
Whelan had subjective knowledge of facts from which an inference of
substantial risk of serious harm could be drawn, that she did in fact draw that
inference, and that her response to the risk reflected she subjectively
intended that harm to occur. The plaintiffs’ claim against Whelan survives
summary judgment.
*

*

*

For all of the above reasons, the court grants in part and denies in part
the officers’ motion for summary judgment. Dkt. 109. The plaintiffs’ claims
against Melton are dismissed; the claims against Way, Kimball, and Whelan
survive.

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nd this 26th day of May, 2022.
Signed on Galveston Island

______________________
_
___________________________
JEFFREY VINCENT BROWN
UNITED STATES DISTRICT JUDGE

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