Converse et al v. Kemah The City Of

Filing 89

MEMORANDUM OPINION AND ORDER(Signed by Judge George C Hanks, Jr) Parties notified.(lusmith, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
RONALD LEE CONVERSE,
Plaintiff,
VS.
CITY OF KEMAH, TEXAS, et al,
Defendants.

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November 07, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 3:15-CV-105

MEMORANDUM OPINION AND ORDER
Plaintiff, Ronald Lee Converse, sued the City of Kemah Police Department and
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 given to him by one of the officers.
Converse brings claims on his own behalf as well as his son‘s estate. The mother
of Silvis‘s minor child has intervened, filing nearly identical claims as next friend of
Silvis‘s minor child. Each of the Defendants moved to dismiss the claims against them.
This Court dismissed some, but not all, of the claims. Specifically, the Court denied
motions to dismiss the Fourteenth Amendment claims against Officers Way, Kimball,
Melton, and Kirby, and against Dispatcher Whelan. Dkt. 51.
Some limited discovery regarding these remaining Defendants and their assertions
of qualified immunity then took place, and Plaintiff and Intervenor (for ease of reference,

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―Plaintiffs‖) have filed a Second Amended Complaint, Dkt. 75. Defendants have again
moved to dismiss the remaining claims against them. Dkt. 81.
The Second Amended Complaint alleges that, at twenty minutes after midnight on
April 11, 2014, a passerby told Officer Marcus Way of the City of Kemah Police
Department that a person appeared to be preparing to jump off of a nearby bridge.
Officer Way used his radio to report a possible ―jumper,‖ and Plaintiffs allege that the
report was heard by Officer Melton, Dispatcher Whelan, and Officer Kimball. Officer
Way then went to the bridge, saw Silvis sitting on the bridge railing with his feet over the
edge, confirmed via his radio to Dispatcher Whelan that there was a indeed ―jumper,‖ and
asked for additional officers. Officers Kimball and Melton arrived at the bride, and along
with Officer War, they heard Silvis state that he was going to jump off the bridge. Silvis
was eventually grabbed by officers, including Officers Kimball, Way, and Melton, and
then handcuffed. Plaintiffs allege that Silvis maintained that he wanted to commit suicide
throughout the entire interaction on the bridge, and that he appeared ―depressed‖ as he
was taken to the City of Kemah Jail. Plaintiffs allege that Silvis continued to speak of
committing suicide throughout his interaction with Defendants, including stating, ―Let‘s
do it again tomorrow.‖
After Silvis‘s arrest, Plaintiffs allege that Officer Kimball prepared a cell in the
―very small‖ City of Kemah Jail, and that he ―gave Mr. Silvis a blanket which could be
easily used by an inmate to hang or strangle themselves.‖ Plaintiffs allege that Officer
Kimball did not give Silvis a suicide smock, even though one was available, because he
―decided—on his own—that Mr. Silvis was not serious and was no longer a threat to
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himself.‖ Officer Way is alleged to have instructed Officer Kimball to remove Silvis‘s
shoes, and to have entered Silvis‘s cell without removing the blanket.
Plaintiffs specifically allege that Officer Kimball, Officer Way, Dispatcher
Whelan and Officer Melton each visited Silvis‘s cell after he was locked into it and
―observed the suicidal Silvis in his cell by himself with a blanket which each knew Silvis
could easily kill himself with.‖ Plaintiffs also allege that each of these Defendants knew
that Silvis‘s cell contained a bunkbed where a suicidal person could tie off a blanket.
Plaintiffs then allege that ―Silvis was left in isolated in a solitary cell, with the blanket
with no monitoring, either in person or through the video cameras in the cell or checks
instituted. Defendants Whelan, Melton, Way, and Kimball did nothing to ensure any
monitoring occurred.‖ Plaintiffs allege that the cell door had a window to allow jail
personnel to see inside the cell.
After Silvis was placed in the cell, he yelled and banged on the cell door, asked for
a cigarette, asked for a nurse because his hands hurt, and said that he should have
jumped. According to Plaintiffs, each of the Defendants heard Silvis ―yelling and
banging‖ and interacted with him in the ―small‖ jail area during the relevant time period.
After Silvis was placed into the cell, Officer Melton spoke to him at least twice through
the window on the cell door, asking him to be quiet and ―promis[ing] him a cigarette if he
could be quiet for 30 minutes.‖ However, according to Plaintiffs, Defendant Melton
―ignored the blanket lying on the floor,‖ did not provide a suicide smock, and failed to
return after the promised 30 minutes. Instead, Plaintiffs allege that Officer Melton was
―watching television on the internet, entirely missing the painful minutes [of Silvis‘s
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suicide].‖ Then, at 1:44 am—one hour and twenty-four minutes after Officer Wray was
first told there was a man on the bridge—Silvis hanged himself with the blanket from the
top bunk. He is alleged to have died several minutes later. Silvis‘s body was discovered
by jail personnel at 2:30 a.m.
Plaintiffs generally allege that ―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.‖ More specifically, the Plaintiffs allege
that these Defendants failed to provide (or even request) medical care for Silvis‘ injured
hand or mental health issues, that they further failed to provide a suicide smock or other
appropriate covering for Silvis, and that they failed to properly monitor him once he was
placed into the jail cell. Plaintiffs allege that the City of Kemah had a written policy, and
had trained its personnel, that suicidal detainees were not to be given blankets in their
cells, were instead to be provided a ―suicide smock,‖ and they were to be monitored
―frequently,‖ but they allege that each of these Defendants ignored or violated those
policies. In addition, Plaintiffs allege that the City of Kemah‘s Jail policies require any
medical requests from detainees ―to be taken to the shift supervisor [here, Officer
Melton]‖ and the policies forbid any employee from ignoring or diagnosing a medical
complaint from a detainee. Plaintiffs allege that the Defendants were trained on these
policies by the City of Kemah, as well as courses administered by the Texas Commission
on Law Enforcement, but that these Defendants failed to adhere to these standards and
policies. Plaintiffs also allege that ―Defendants Whelan, Way, Melton and Kimball were
aware of several media reports of inmates dying of suicides using bedding in jails,‖ and
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they were aware ―jail suicide was the leading cause of death in Texas jails and that
bedding hanging was the most frequent method of suicide.‖
APPLICABLE LAW
The Court‘s previous Memorandum Opinion and Order set out the applicable
standards for motions to dismiss under Rule 12(b)(6), as well as the law governing claims
under 42 U.S.C. § 1983 and the defense of qualified immunity. All of those standards are
incorporated into the following analysis.
ANALYSIS
The Court has previously dismissed all of the claims under the Eighth
Amendment, the Fourteenth Amendment claims against the City of Kemah and Police
Chief Rikard, and all of the claims under the Texas Tort Claims Act. Accordingly, the
Court now turns to the remaining Defendants‘ contention that the Second Amended
Complaint fails to state a claim under § 1983 for the deprivation of Silvis‘s Fourteenth
Amendment rights against Officers Way, Kimball, Melton, and Kirby, and Dispatcher
Whelan.
The Court examines the claims against the individual officers through the lens of
Rule 12(b)(6), looking at the allegations in the Second Amended Complaint to determine
whether it alleges specific facts that, if true, would be sufficient to: (1) demonstrate
liability, i.e., that each individual defendant 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 defendant‘s actions were

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objectively unreasonable in light of the clearly established law at the time those actions
were taken.
Sadly, this is not the only case on the Court‘s docket arising from an alleged lack
of medical care for a pretrial detainee, nor is it the only case involving the suicide or
death of a pretrial detainee. Other courts in the Southern District of Texas and the Fifth
Circuit have heard similar lawsuits. See, e.g., Hyatt v. Thomas, 843 F.3d 172, 180 (5th
Cir. 2016) (―It is clear that more can and must be done to address suicides in prisons and
jails.‖). Each is an individual and collective tragedy. But there is no doubt that the law
with respect to qualified immunity is a substantial hurdle for plaintiffs to overcome, even
at the 12(b)(6) stage. See, e.g., McLin v. Ard, 866 F.3d 682, 688 (5th Cir. 2017) (―When
the motion to dismiss raises the defense of qualified immunity, the plaintiff ‗must plead
specific facts that both allow the court to draw the reasonable inference that the defendant
is liable for the harm ... alleged and that defeat a qualified immunity defense with equal
specificity.‘‖) (citing Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014) and Backe v.
LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012)). After reviewing the allegations in the
Second Amended Complaint, and even accepting as true all of its properly pled, specific,
factual allegations and making all reasonable inferences in favor of the non-movants, the
Court concludes that the remaining claims asserted against the remaining Defendants
should be DISMISSED.
Reviewing the individual allegations against Officer Kirby, the Court notes that
the Second Amended Complaint does not include him in the specifically-pled events that
led to Silvis‘s suicide. Accordingly, the Court finds that the Second Amended Complaint
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does not contain any specific factual allegations that would either 1) demonstrate liability
as to Officer Kirby or 2) would overcome Officer Kirby‘s assertion of qualified
immunity. Accordingly, the remaining claims against Officer Kirby are DISMISSED.
As to the particular allegations against each of the remaining Defendants—Officer
Way, Officer Kimball, Officer Melton, and Dispatcher Whelan—the Court finds that
those allegations, as set forth in detail above, do not overcome thier assertions of
qualified immunity. Specifically, in light of cases such as Hyatt v. Thomas, 843 F.3d 172,
177–78 (5th Cir. 2016) (internal citations omitted), the Court finds that the allegations
against these individual Defendants are not sufficient to allow the Court to draw the
reasonable inference that each of these individual Defendants acted with ―deliberate
indifference‖ or that their actions were objectively unreasonable in light of the clearly
established law at the time those actions were taken. In particular, the Court notes the
rapid sequence of events, as well as the Plaintiff‘s own assertions that Officer Kimball
gave Silvis the blanket because he concluded that Silvis was ―not serious‖ about
committing suicide. Similarly, although Plaintiffs complain that Officer Way and Officer
Melton each had an opportunity to remove the blanket from Silvis‘ cell but failed to do
so, this failure is not ―objectively unreasonably in light of the clearly established law at
the time.‖ Officer Way instructed that Silvis‘ shoelaces were to be taken from him, and
Officer Melton interacted with Silvis during the short time he was in the jail, trying to
keep him calm. Although Plaintiffs allege that Silvis was not monitored closely enough,
they do not explain what timetable should have been used, and which checks were missed
during the short time Silvis was in the Jail. Finally, there are little, if any, specific
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allegations about Dispatcher Whelan and her duties or actions that night, other than a
conclusory allegation that she too had an opportunity to prevent the suicide but failed to
act. Accordingly, the Court finds that the claims against these Defendants should also be
DISMISSED.
CONCLUSION
All of the Plaintiff‘s and Intervenor‘s claims against the remaining individual
Defendants are hereby DISMISSED on the grounds that Plaintiffs have failed to allege
specific facts that would overcome the assertions of qualified immunity in this case.
ANY REMAINING PENDING MOTIONS ARE DENIED AS MOOT.
SIGNED at Galveston, Texas, this 7th day of November, 2017.
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George C. Hanks Jr.
United States District Judge

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