Converse et al v. Kemah The City Of
MEMORANDUM OPINION AND ORDER (Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
RONALD LEE CONVERSE,
CITY OF KEMAH, TEXAS, et al,
October 13, 2016
David J. Bradley, Clerk
§ CIVIL ACTION NO. 3:15-CV-105
MEMORANDUM OPINION AND ORDER
Plaintiff, Ronald Lee Converse, has sued the City of Kemah Police Department as
well as Kemah Police Officers James Melton, Ruben Kimball, Marcus Way, and Daniel
Kirby, Police Dispatcher Anna Marie Whelan, and Police Chief Greg Rikard, in their
individual capacities. Converse alleges that his son, Chad Silvis, committed suicide in
April 2014 by hanging himself in a jail cell, using a blanket provided to him by one of the
officers. Converse bring claims on his own behalf as well as on behalf of his son’s estate.
The mother of Silvis’s minor child has also filed a lawsuit in this Court, asserting nearly
identical claims on behalf of Silvis’s child, and the Court has consolidated these suits.
Converse filed his lawsuit in state probate court in March 2015, and the City
removed it this Court. After an initial motion to dismiss, Converse filed another
“Complaint.” Defendants again filed a motion to dismiss. Converse then filed a “First
Amended Complaint,” which is his current live pleading. Converse acknowledges that
some documentation and a videotape has been handed over by the City, but he alleges
that no other discovery has taken place.
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Converse’s live pleading alleges that, twenty minutes after midnight on April 11,
2014, a passerby informed Officer Way of a “possible jumper” on a Kemah bridge.
Officers Melton, Way, and Kimball all responded to the scene and Converse alleges that
these officers then “gained actual knowledge that Mr. Silvis was suicidal.” Silvis was
arrested for an unstated reason and transported to the Kemah Police Department. During
the booking process, Converse alleges that “Silvis [was] clearly depressed” and “told
officers that he [was] unhappy, that he [was] ready to go to the doctor and see what is
wrong with him,” and “complain[ed] that he does not have anyone.” Converse describes
Silvis’s behavior during the booking process as “erratic, with mood swings and irrational
behavior and talk of suicide.”
At some point after Silvis’s arrest, but before he was placed in a cell, Officer
Kimball gave Silvis a blanket. Silvis took this blanket into his cell, and Converse alleges
that Officers Kimball, Way, and Kirby, as well as Dispatcher Whelan, all saw Silvis take
the blanket into his cell with him. Converse alleges that “the individual Defendants knew
Mr. Silvis was clearly in distress and wanting to complete his suicide attempt.”
Nonetheless, Converse alleges that Silvis was left “in a solitary cell, with a defective
blanket with no monitoring, either in person or through the video cameras in the cell or
Converse alleges that, while in the cell, Silvis yelled and banged on the cell door,
injuring his hands. Converse alleges that Silvis asked for a nurse for his hands, as well as
for a cigarette, then “says that he should have jumped” and “that he is going to hurt
himself.” At 1:44 a.m.—less than an hour and a half after he was reported on the
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bridge—Silvis hanged himself in his cell with the blanket. Converse alleges that, while
Silvis was hanging himself, Dispatcher Whelan was “in the dispatch room with the
monitors showing Mr. Silvis’s jail cell, watching TV on the internet.” Silvis’s death was
discovered 45 minutes later, at approximately 2:30 am.
Converse now contends that the City of Kemah and the individual Defendants
failed to provide proper medical care to Silvis; failed to give him a “non-defective
blanket;” and violated the City of Kemah’s policies requiring prisoner medical requests
be conveyed to a shift supervisor and that suicidal prisoners be given a “non-defective
blanket” or “suicide smock.” Converse alleges that the individual officers were ignorant
of, or wholly ignored, these policies. Converse also alleges that Chief Rikard “falsely
reported in the custodial death report” that Mr. Silvis “did not have mental issues.”
Converse pleads that the conduct of the City and the Officers “caused the death of
Mr. Silvis.” Converse first specifically alleges that the City and the individual officers are
liable for “negligence and gross negligence” under Texas law. Next, he alleges that the
individual defendants “were deliberately indifferent to the serious risks associated with
the mental state of Mr. Silvis and the risks/mental health issues posed to prevent this
unfortunate death.” Converse alleges that the individual defendants knew that Mr. Silvis
was “physically and mentally impaired and suicidal,” but failed to issue proper medical
care and instead gave him the very blanket he used to commit suicide. Further, Converse
contends that the officers failed to take away the blanket once it was given to Silvis,
failed to check on Silvis or obtain medical help for him, failed to watch Silvis over
monitors while he was in the cell, and then failed to discover his death for 45 minutes.
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Converse alleges these failures were deprivations of Silvis’s rights under the Eighth and
Converse alleges that the City violated Silvis’s constitutional rights by failing to
treat Silvis’s mental health problems, and by failing to create policies to attend to Silvis’s
mental health issues. Converse alleges that the City acted with “deliberate indifference to
its actual knowledge of Mr. Silvis’s suicidal state.” Alternatively, Converse alleges that
the City “adopted a custom or informal policy disregarding the constitutional rights of
detainees.” Converse highlights that, even though the City had a policy in place “to
prevent detainees who displayed suicidal behavior from being given blankets,” officers
were allegedly told during their training to disregard this policy. Converse alleges that
formal policies about securing medical attention for prisoners were also customarily
ignored. In fact, Converse appears to allege that the City of Kemah routinely ignores all
of its policies, stating, “For example, in a recent Houston Chronicle Article, Kemah
residents accused the Mayor of Kemah of ignoring municipal and building codes.”
Converse also brings a cause of action under the Texas Tort Claims Act, “since
Mr. Silvis’s death was caused by a condition or use of tangible personal or real property.”
Converse alleges that the blanket, the bunk, and the cell were all defective because they
lacked the safety components to be used by a suicidal detainee.
The City has filed a motion to dismiss most, but not all, of Converse’s claims
under Federal Rule of Civil Procedure 12(b)(6). The City has not yet moved to dismiss
the claims brought by the mother of Silvis’s minor child.
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A. Federal Rule of Civil Procedure 12(b)(6)
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” FED.
R. CIV. P. 8(a)(2). A Rule 12(b)(6) motion tests the formal sufficiency of the pleadings
and is “appropriate when a defendant attacks the complaint because it fails to state a
legally cognizable claim.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
The court must accept the factual allegations of the complaint as true, view them in a
light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff’s
To defeat a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly,
127 S.Ct. at 1965). “The plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
(quoting Twombly, 127 S.Ct. at 1965). “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of entitlement to relief.’” Id. (quoting Twombly, 127 S.Ct. at 1966).
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Moreover, the court does not accept as true legal conclusions: “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Id. at 1950.
B. Negligence and Gross Negligence Under Texas Law
Converse first alleges that the Defendants are all liable for negligence and gross
negligence under Texas law. This Court has supplemental jurisdiction to decide the
remaining state law claims that are a part of the same case or controversy. 28 U.S.C.
C. Section 1983
42 U.S.C. § 1983 provides a private right of action for the deprivation of rights,
privileges, and immunities secured by the Constitution or laws of the United States. A
complaint under § 1983 must allege that the acts complained of occurred under color of
state law and that the complaining parties were deprived of rights guaranteed by the
Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct.
1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams,
474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Piotrowski v. City of Houston, 51
F.3d 512, 515 (5th Cir. 1995). A complaint under § 1983 must also allege that the
constitutional or statutory deprivation was intentional or due to deliberate indifference
and not the result of mere negligence. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970,
128 L.Ed.2d 811 (1994). Plaintiffs suing public officials under § 1983 must file short and
plain complaints that must be factual and not conclusive. Schultea v. Wood, 47 F.3d
1427, 1433 (5th Cir. 1995) (en banc).
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D. Medical Care for Pre-trial Detainees under the Fourteenth Amendment
“‘[P]retrial detainees have a constitutional right, under the Due Process Clause of
the Fourteenth Amendment, not to have their serious medical needs met with deliberate
indifference on the part of the confining officials.’” Hines v. Henson, 293 Fed. App’x.
261, 263 (5th Cir. 2008) (quoting Thompson v. Upshur County, 245 F.3d 447, 457 (5th
Cir. 2001)). Further, “[t]o show that the right to medical care has been violated, a plaintiff
must establish that ‘the official had subjective knowledge of a substantial risk of serious
harm to a pretrial detainee but responded with deliberate indifference.’” Hines, 293 Fed.
App’x at 263. In similar cases, the Fifth Circuit uses the standards set out in Eighth
Amendment cases such as Farmer to evaluate claims that officials failed to prevent
suicide by pre-trial detainees. See Hare v. City of Corinth, Miss., 74 F.3d 633, 648 (5th
Cir. 1996) (citing Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811
As the Fifth Circuit has explained in a related context, the “subjective knowledge”
prong here “is a question of fact subject to demonstration in the usual ways, including
inference from circumstantial evidence, and a factfinder may conclude that a prison
official knew of a substantial risk from the very fact that the risk was obvious.” Hinojosa
v. Livingston, 807 F.3d 657, 665 (5th Cir. 2015) (citing Farmer, 511 U.S. at 842, 114
S.Ct. 1970 (internal citation omitted)). A plaintiff may carry his burden here by alleging
that the particular risk was “longstanding, pervasive, well-documented, or expressly
noted by prison officials in the past, and the circumstances suggest that the defendant7 / 22
official being sued had been exposed to information concerning the risk and thus ‘must
have known’ about it.” Id. (internal quotation marks omitted). However, the knowledge at
issue is that of the officers individually, not collectively. See Meadours v. Ermel, 483
F.3d 417, 421–22 (5th Cir.2007).
Further, “[w]hether a risk is substantial and the threatened harm is serious
represents an objective test.” Hinojosa, 807 F.3d at 665. In contrast, whether officials
consciously disregarded the risk at issue represents a subjective inquiry. Id. Negligence,
even gross negligence, is insufficient to establish deliberate indifference. Hare, 74 F.3d at
650 (“Our inquiry begins with the fundamental rule that negligent inaction by a jail
officer does not violate the due process rights of a person lawfully held in custody of the
State.”). Instead, a prison official acts with “deliberate indifference” when he “knows of
and disregards an excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Hinojosa, 807 F.3d at 665; see also
Hare, 74 F.3d at 643 (“[T]he proper inquiry is whether the official had a culpable state of
mind in acting or failing to act . . . We adopt a standard of deliberate indifference as the
measure of culpability for such episodic acts or omissions.”).
In Hines, for example, the Fifth Circuit concluded that the fact that a detainee
exhibited signs of intoxication, “including confusion, slurred speech, and loss of
coordination,” alone did not give an officer knowledge that the detainee was in serious
need of medical care. 293 Fed. App’x. at 263 (“Hines has offered no evidence to show
that he complained of his condition or requested medical assistance, nor has he offered
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evidence showing that his medical condition was apparent and clearly necessitated
medical care”). In contrast, in Domino v. Texas Dept. of Criminal Justice, the Fifth
Circuit found that deliberate indifference could be demonstrated where a plaintiff
established that the officials “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.” 239 F.3d 752, 756 (5th Cir. 2001).
E. Texas Tort Claims Act
Under Texas law, a governmental entity’s immunity is waived for “personal injury
and death so caused by a condition or use of tangible personal or real property if the
governmental unit would, were it a private person, be liable to the claimant according to
Texas law.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021. However, in a similar case
involving a jail suicide, the Texas Supreme Court clarified, “[i]mmunity is not waived
when the governmental unit merely ‘allow[s] someone else to use the property and
nothing more.’” Dallas County v. Posey, 290 S.W.3d 869, 871 (Tex. 2009) (per curiam)
(holding inmate’s use of telephone cord to commit suicide in county holding cell did not
constitute “condition or use” of tangible personal property under Tort Claims Act) (citing
San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004)); see also Sides v.
Texas Dep’t of Criminal Justice, 01-15-00004-CV, 2015 WL 6692136, at *3 (Tex.
App.—Houston [1st Dist.] Nov. 3, 2015, pet. denied) (“A government actor waives
immunity by providing allegedly dangerous property only if the property poses a hazard
when put to its intended and ordinary use by the plaintiff.”).
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F. Municipal Liability under § 1983
A municipality may be held liable under § 1983 only when the municipality itself
causes a constitutional deprivation. See City of Canton v. Harris, 489 U.S. 378, 109 S.Ct.
1197, 1203, 103 L.Ed.2d 412 (1989); Monell v. Dept. of Soc. Servs., 436 U.S. 658, 98
S.Ct. 2018, 2037–38, 56 L.Ed.2d 611 (1978). This requires the execution of an official
city policy or custom that results in the injury made the basis of the § 1983 claim. Monell,
98 S.Ct. at 2035–36. Proof of municipal liability sufficient to satisfy Monell requires: (1)
an official policy or custom, of which (2) a policymaker can be charged with actual or
constructive knowledge, and (3) a constitutional violation whose “moving force” is that
policy or custom. Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002).
In this context, an “official policy” may be (1) a policy statement, ordinance, or
regulation, or (2) “a persistent, widespread practice of City officials or employees, which,
although not authorized by officially adopted and promulgated policy, is so common and
well-settled as to constitute a custom that fairly represents municipal policy.” Piotrowski
v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001) (quoting Webster v. City of
Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc)); see also Zarnow v. City of
Wichita Falls, 614 F.3d 161, 166 (5th Cir. 2010). “The description of a policy or custom
and its relationship to the underlying constitutional violation, moreover, cannot be
conclusory; it must contain specific facts.” Spiller v. City of Texas City, 130 F.3d 162,
167 (5th Cir. 1997). “It follows that each and any policy which allegedly caused
constitutional violations must be specifically identified by a plaintiff, and it must be
determined whether each one is facially constitutional or unconstitutional.” Piotrowski,
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237 F.3d at 579–80. A municipality’s policy of inaction despite awareness—constructive
or actual—that its policy will cause a constitutional violation may be “‘the functional
equivalent of a decision by the city itself to violate the Constitution.’” Connick v.
Thompson, 563 U.S. 51, 131 S.Ct. 1350, 1360, 179 L.Ed.2d 417 (2011) (citing City of
Canton, Ohio v. Harris, 489 U.S. 378, 395, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).
However, a plaintiff must point to more than the actions of municipal employees,
he must also normally “identify a policymaker with final policymaking authority.” Rivera
v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003); see also Piotrowski, 237
F.3d at 578 (“[T]he unconstitutional conduct must be directly attributable to the
municipality through some sort of official action or imprimatur.”). In determining
whether the plaintiff has properly identified a policy maker, the “court would not be
justified in assuming that municipal policymaking authority lies somewhere other than
where the applicable law purports to put it.” Id. at 248.
The Court is also mindful that, “[o]fficial municipal policy includes the decisions
of a government’s lawmakers, the acts of its policymaking officials, and practices so
persistent and widespread as to practically have the force of law.” Connick, 563 U.S. at
61. In other words, a custom or policy can stem from a policy statement formally
announced by an official policymaker, or it can be be demonstrated through a “‘persistent
widespread practice of city officials or employees, which, although not authorized by
officially adopted and promulgated policy, is so common and well settled as to constitute
a custom that fairly represents municipal policy.’” Zarnow, 614 F.3d at 168-69 (“A
pattern of conduct is necessary only when the municipal actors are not policymakers”).
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Such a pattern of conduct requires “similarity and specificity; [p]rior indications cannot
simply be for any and all ‘bad’ or unwise acts, but rather must point to the specific
violation in question . . . . A pattern also requires ‘sufficiently numerous prior incidents,’
as opposed to ‘isolated instances.’” Peterson v. City of Fort Worth, Texas, 588 F.3d 838,
851 (5th Cir. 2009). “If actions of city employees are to be used to prove a custom for
which the municipality is liable, those actions must have occurred for so long or so
frequently that the course of conduct warrants the attribution to the governing body of
knowledge that the objectionable conduct is the expected, accepted practice of city
employees.” Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984); Peterson,
588 F.3d at 850. In other words, “[i]t is not enough that an illegal custom exist; municipal
policymakers, who are the persons capable of subjecting a municipality to liability, must
be chargeable with awareness of the custom.” Milam v. City of San Antonio, 113 Fed.
App’x. 622, 626 n.3 (5th Cir. 2004); see also Okon v. Harris County Hosp. Dist., 426
Fed. App’x 312, 316 (5th Cir. 2011) (“The governing body of the municipality or an
official to whom that body has delegated policy-making authority must have actual or
constructive knowledge of such a custom.”).
The plaintiff must also allege that the policy at issue was the “moving force,” or in
other words, the “direct causal link” between the action and the deprivation of
constitutional rights. Piotrowski, 237 F.3d at 579–80.
G. Qualified Immunity Under Federal Law
Under federal law, public officials acting within the scope of their authority
generally are shielded from civil liability by the doctrine of qualified immunity. See
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Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982).
Qualified immunity protects “all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 106 S. Ct. 1092, 1096 (1986); DePree v. Saunders,
588 F.3d 282, 288 (5th Cir. 2009). As a result, courts will not deny qualified immunity
unless “existing precedent ... placed the statutory or constitutional question beyond
debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 2083, 179 L. Ed. 2d
1149 (2011). In conducting a qualified immunity analysis, each defendant’s conduct must
be examined individually. See Meadours v. Ermel, 483 F.3d 417, 422 (5th Cir. 2007).
Although qualified immunity is an affirmative defense, a plaintiff “has the burden
to negate the assertion of qualified immunity once properly raised.” Collier v.
Montgomery, 569 F.3d 214, 217 (5th Cir. 2009). A plaintiff can meet this burden by
alleging facts showing that the defendant committed a constitutional violation and that
the defendant’s actions were objectively unreasonable in light of the clearly established
law at the time those actions were taken. Atteberry v. Nocono General Hosp., 430 F.3d
245, 253 (5th Cir. 2005). To be “clearly established,” the law must be “sufficiently clear
that every reasonable official would have understood that what he is doing violates that
right.” Taylor v. Barkes, ––– U.S. ––––, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015).
Further, the Fifth Circuit has taken pains to point out that the “objectively
unreasonable” analysis here is not the same as the “deliberate indifference” analysis
above—“[o]therwise, a successful claim of qualified immunity in this context would
require defendants to demonstrate that they prevail on the merits, thus rendering qualified
immunity an empty doctrine.” Hinojosa v. Livingston, 807 F.3d 657, 672 (5th Cir. 2015).
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H. Official Immunity Under Texas Law
Under Texas law, official immunity is a common-law defense that protects
government employees from personal liability in performing (1) discretionary duties (2)
in good faith, so long as they are (3) acting within the scope of their authority. Kassen v.
Hatley, 887 S.W.2d 4, 8 (Tex. 1994); see, e.g., Wren v. Towe, 130 F.3d 1154, 1160 (5th
Cir. 1997) (noting, “Texas law of official immunity is substantially the same as federal
qualified immunity law.”). Texas state courts have held that police officers who failed to
confiscate personal property of detainees and failed to properly monitor video screens
during jail suicides are entitled to rely on the doctrine of official immunity against claims
of negligence. City of Coppell v. Waltman, 997 S.W.2d 633 (Tex. App.–Dallas 1998, writ
denied); Butler v. City of Terrell, 05-96-01845-CV, 1999 WL 62387, at *3 (Tex. App.—
Dallas Feb. 11, 1999, pet. denied).
Defendants have moved to dismiss Converse’s Amended Complaint under Rule
12(b)(6), arguing that Converse’s § 1983 claims fail because he has not alleged a
violation of Silvis’s constitutional rights, and that he failed to overcome the City’s Monell
immunity as well as each individual’s qualified immunity. Defendants also contend that
the Texas Tort Claims Act does not waive the City’s immunity under Texas law.
The Court notes that the Defendants’ motion does not seek dismissal of the claims
asserted by the mother of Silvis’s minor child.
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A. Claims under the Eighth Amendment
Defendants first contend that any claims asserted under the Eighth Amendment
must be dismissed because Silvis was a pretrial detainee whose rights are secured by the
Fourteenth Amendment. The Court agrees. See, e.g., McMillan v. Mem’l Hermann Health
Sys., No. H-14-1215, 2014 WL 7192263, at *6 (S.D. Tex. Dec. 16, 2014) (“Pretrial
detainees enjoy the same rights as convicted prisoners to ‘constitutional essentials like
medical care and safety,’ but that right emanates from the Fourteenth Amendment’s due
process guarantees, rather than the Eighth Amendment’s protection against cruel and
unusual punishment.”) (citing Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d 388, 393
(5th Cir. 2000)).
Accordingly, the Court GRANTS the motion to dismiss all of Converse’s claims
against all of the Defendants under the Eighth Amendment.
B. Claims under the Fourteenth Amendment against Individual Defendants
Next, the Court turns to the Defendants’ contention that Converse has failed to
state a claim under § 1983 for the deprivation of Silvis’s rights under the Fourteenth
Amendment. The Court first examines the claims against the individual officers, looking
at the allegations in the live complaint to determine whether Converse has alleged
specific facts that, if true, would be sufficient to: (1) demonstrate liability, i.e., that each
individual had “subjective knowledge of a substantial risk of serious harm to [Silvis] but
responded with deliberate indifference,” and (2) to overcome qualified immunity, i.e.,
that each individual’s actions were objectively unreasonable in light of the clearly
established law at the time those actions were taken.
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This process is difficult because many of Converse’s allegations regarding Silvis’s
actions and statements are made without naming the individual who observed these
actions and statements. For example, Converse generally alleges that, during the booking
process, Silvis told “the officers” that he was unhappy, including stating that he was
“ready to go to the doctor and see what is wrong with him,” that he “did not have
anyone,” and general “talk of suicide.” He does not, however, list the “officers” involved
in the booking process by name. Similarly, Converse alleges that, after he was placed in a
cell, Silvis “continue[d] to yell,” and banged on the cell door, injuring his hands.
Converse alleges that Silvis asked for a nurse for his hands, as well as for a cigarette, then
“says that he should have jumped” and “that he is going to hurt himself.” Again,
Converse does not specify which of the individual officers, if any, heard or were made
aware of these statements and acts by Silvis.
Police Dispatcher Anna Marie Whelan
Dispatcher Whelan is specifically alleged to have seen Silvis, in his jail cell, with a
blanket. Broadly construed, Converse’s pleading also alleges that Whelan, as one of the
“individual Defendants” somehow knew that Silvis was “clearly in distress and wanting
to complete his suicide attempt.” Converse, does not, however, explain this allegation
further. Converse also alleges that Whelan, as the Police Dispatcher, was “in the dispatch
room with the monitors showing Mr. Silvis’s jail cell, watching TV on the internet,” at
the time Silvis committed suicide. Converse does not allege that she was the individual
tasked with monitoring Silvis’s cell.
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Police Chief Greg Rikard
Converse’s single allegation naming Police Chief Rikard is that he “filled out a
custodial death report falsely stating the Mr. Silvis did not have any mental health
problems.” Converse does not allege that Chief Rikard was present in the Kemah Police
Station during the time span between Silvis’s arrest and suicide, nor does he otherwise
allege any specific facts regarding Chief Rikard.
Converse alleges that Officer Way was the first police officer to be made aware
that Silvis was “a possible jumper” on the bridge. Along with Officer Melton and Officer
Kimball, he is alleged to have arrested Silvis and taken him to the Kemah Police
Department. Converse generally alleges that, during the booking process, Silvis told “the
officers” that he was unhappy, including stating that he was “ready to go to the doctor
and see what is wrong with him,” that he “did not have anyone,” and general “talk of
suicide.” Given the sequence of events and proximity of the allegations, a reasonable
inference is that Converse alleges Officer Way was present during the booking process.
Officer Way is also alleged to have been standing outside the cell when Silvis went in
with the blanket. Officer Way is then alleged to have instructed Officer Kimball to
remove Silvis’s shoes, and to have entered Silvis’s cell without removing the blanket.
There are no allegations of any specific acts or omissions by Officer Way after Silvis was
locked in his cell with the blanket.
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Officer Kimball is named as one of the officers who arrested Silvis on the bridge
and brought him to the Kemah Police Department. As noted above, Converse generally
alleges that Silvis told “the officers” during the booking process that he was considering
suicide, and this allegation may be reasonably inferred to include Officer Kimball.
Officer Kimball is specifically alleged to have given Silvis the blanket and then
accompanied Silvis to the cell. Officer Kimball was instructed to remove Silvis’s shoes,
and Converse alleges that he entered Silvis’s cell but failed to remove the blanket. There
are no allegations of any specific acts or omissions by Officer Kimball after Silvis was
locked in his cell with the blanket.
Officer Melton is also alleged to have been on the bridge with Silvis and to have
been one of the officers who arrested Silvis and brought him to the Kemah Police
Department. However, he is not named as one of the officers who observed Silvis enter
his cell with the blanket, and he is not alleged to have entered the cell with Officers Way
and Kimball. There are no allegations of any specific acts or omissions by Officer Melton
after Silvis was locked in his cell with the blanket.
The only specific allegation about Officer Kirby is that he was outside the cell
when Silvis entered it with a blanket. Broadly construed, Converse’s pleading also
alleges that Kirby, as one of the “individual Defendants,” somehow knew that Silvis was
“clearly in distress and wanting to complete his suicide attempt.” However, Officer Kirby
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is not alleged to have been present during Silvis’s arrest or booking. There are no
allegations of any specific acts or omissions by Officer Melton after Silvis was locked in
his cell with the blanket.
This case presents troubling allegations that public employees and law
enforcement officers wholly ignored the obvious distress and risk of death of a suicidal
person under their care, and that they further failed take steps to prevent his entirely
predictable death. However, upon consideration of the pleadings and arguments, as well
as the Fifth Circuit’s governing precedent and instructions in cases such as Backe v.
LeBlanc, 691 F. 3d 645 (5th Cir. 2012), the Court finds that Converse has failed to allege
specific facts that would allow this Court to draw the reasonable inferences that Chief
Rikard committed a constitutional violation and that his alleged actions as a Police Chief
were objectively unreasonable in light of the clearly established law at the time those
actions were taken. Hare, 74 F.3d at 643; Hines, 293 Fed. App’x at 263; Atteberry, 430 at
253; see also Taylor v. Barkes, 135 S. Ct. 2042 at 2044.
In contrast, Converse has alleged enough facts to allow the Court to draw the
reasonable inference that Officers Way, Kimball, Melton, and Kirby, and Dispatcher
Whelan, may be liable for the harm alleged, and further, those facts defeat their claims to
qualified immunity, i.e., that each individual’s actions were objectively unreasonable in
light of the clearly established law at the time. Hare, 74 F.3d at 643; Hines, 293 Fed.
App’x at 263; Atteberry, 430 at 253; see also Taylor v. Barkes, 135 S. Ct. 2042 at 2044.
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Accordingly, the Court will deny the Defendants’ Rule 12(b)(6) motion on the
issue of the qualified immunity for these defendants because dismissal on a Rule 12(b)(6)
motion is not appropriate at this time. However, despite this determination, the Court
remains unable to rule on the qualified immunity defense of Officers Way, Kimball,
Melton, and Kirby, and Dispatcher Whelan, without further clarification of the facts, and
therefore, the Court finds that limited discovery is appropriate. This limited discovery
should be tailored to the personal knowledge and personal conduct of each of Officers
Way, Kimball, Melton, and Kirby, and Dispatcher Whelan, as it relates to the suicide of
Silvis, and to the circumstances that directly lead to his death. Such discovery may
include these Defendants’ prior interactions with or knowledge regarding Silvis, as well
as their personal knowledge regarding the risk that persons detained in jail after arrest
might commit suicide, whether they are aware of appropriate protocols or policies for
police officers and jails to use in responding to that risk, and whether these individual
Defendants ever received any training on evaluating and responding to the risk that
persons detained in jail after an arrest might commit suicide. This limited discovery may
include the depositions of Officers Way, Kimball, Melton, and Kirby, and Dispatcher
Whelan, as well as requests for production of documents and tangible or electronic items.
This limited discovery may also include a request for production of, and discovery
regarding the care, custody, and control of, any video of Silvis on the evening in
question. It is preferred that, if possible, discovery be conducted via interrogatories and
other written methods, and that depositions be noticed only if necessary and upon the
least intrusive terms possible.
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C. Claims under the Fourteenth Amendment against the City
The Court has carefully reviewed Converse’s allegations that the City is liable for
alleged violations of Silvis’s constitutional rights. Essentially, Converse alleges that, even
though the City of Kemah had a policy of refusing to provide blankets to suicidal
detainees, its police officers either did not know of that policy, or they wholly refused to
follow it. Converse also alleges that the City of Kemah had an informal policy of
encouraging its police officers to be ignorant of its official policies. However, Converse
has not pointed to other instances of jail policies being unknown or ignored, and he has
not alleged any prior instances of suicides while in the custody of the Kemah Police
Department. Nor has he alleged a general risk of post-arrest jail suicides of which the
City of Kemah was or should have been aware. Accordingly, upon consideration of the
pleadings and arguments, as well as Monell v. Dept. of Soc. Servs., 436 U.S. 658, 98 S.Ct.
2018, 2037–38, 56 L.Ed.2d 611 (1978), the Court finds that Converse’s claims against
the City for violations of § 1983 should be dismissed and the City’s 12(b)(6) motion on
this ground should be GRANTED.
D. Texas Tort Claims Act Against the City
Similarly, the Court finds that Defendants’ motion to dismiss Converse’s claims
under the Texas Tort Claims Act should also be GRANTED. The Court finds that, even
taking all of Converse’s allegations as true, this result is dictated by Texas law. See, e.g.,
Dallas County v. Posey, 290 S.W.3d 869, 871 (Tex. 2009) (per curiam); see also Sides v.
Texas Dep’t of Criminal Justice, 01-15-00004-CV, 2015 WL 6692136, at *3 (Tex.
App.—Houston [1st Dist.] Nov. 3, 2015, pet. denied).
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In light of the foregoing, the Court finds that the Defendants’ motion to dismiss
should be GRANTED, in part, and that all of Converse’s claims under the Eighth
Amendment, as well as his Fourteenth Amendment claims against the City and Police
Chief Rikard should be DISMISSED. Similarly, the Court finds that the Defendant’s
motion to dismiss Converse’s claims under the Texas Tort Claims Act should also be
However, for the reasons stated above, the Court DENIES the motion to dismiss
Converse’s Fourteenth Amendment claims against Officers Way, Kimball, Melton, and
Kirby, and Dispatcher Whelan, and ORDERS that limited discovery should proceed in
accordance with this Order.
SIGNED at Galveston, Texas, this 12th day of October, 2016.
George C. Hanks Jr.
United States District Judge
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