Calton v. Livingston et al

Filing 83

MEMORANDUM AND ORDER.(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ALLEN CALTON,
TDCJ #1123880,
Plaintiff,
v.
BRAD LIVINGSTON, et al.,
Defendants.

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CIVIL ACTION NO. H-09-2507

MEMORANDUM AND ORDER
State inmate Allen Calton (TDCJ #1123880) has filed a complaint under 42 U.S.C.
§ 1983, alleging violations of his civil rights in connection with the conditions of his
confinement. Pending before the Court are motions for summary judgment by two groups
of defendants [Docs. # 72, # 74]. Calton has filed a response to each motion [Docs. # 78,
# 79]. After reviewing all of the pleadings, the exhibits, and the applicable law, the Court
grants the defendants’ motions and dismisses this case for reasons that follow.
I.

BACKGROUND
Calton is presently incarcerated in the Texas Department of Criminal Justice

(“TDCJ”) at the Michael Unit in Tennessee Colony, Texas. His allegations, however, stem
from an incident that occurred at the Byrd Unit, in Huntsville, where he attempted to commit
suicide on September 19, 2008. Calton sues the following security or correctional officers
in connection with that incident: Lieutenant Karl Krischke, Sergeant Beverly Cannalito; and
Officer Carolyn O’Bryant. Calton also sues the following health care providers employed

by the University of Texas Medical Branch (“UTMB”) at the Byrd Unit facility: Mental
Health Manager Samuel Hallman; Licensed Vocational Nurse Beverly Love; and Mental
Health Clinician Richard Tolles.1 The chronology of events that form the basis for Calton’s
complaint, as well as the relevant policies that pertain to preventing suicide by offenders
assigned to TDCJ, are summarized below along with Calton’s allegations in this case.
A.

Chronology of Calton’s Confinement in TDCJ

Calton was convicted of attempted murder and sentenced to life in prison following
a 2004 jury trial in the 213rd District Court of Tarrant County, Texas.2 Following that
conviction, Calton was assigned to TDCJ’s Clements Unit. In 2006, doctors determined that
Calton suffered from major depressive disorder and anti-social personality disorder. Calton
was given a prescription for the anti-depressant Wellbutrin to treat his condition. In addition

1

Calton has also sued Jamie Williams, who works as an administrator for UTMB at the Byrd
Unit. Calton concedes that he has never met Williams, and that she was not present at the
Byrd Unit on the day of his suicide attempt. Calton does not allege, and the evidence does
not show, that Williams had any policymaking authority or supervisory responsibility over
the other defendants in this case. Thus, Calton concedes that she had no personal
involvement with the incident that forms the basis of his claim that he was denied adequate
care on September 19, 2008, when he announced that he was suicidal. Williams has moved
for summary judgment on the grounds that there is no evidence showing that she had any
personal involvement with the incident at issue and that she is otherwise entitled to qualified
immunity. [Doc. # 72]. Calton concedes that “[she] is entitled to summary judgment on her
qualified immunity defense.” [Doc. # 78, at 12, n.6]. For this reason, the Court will grant
Ms. Williams’ motion for summary judgment and will not address the claims directed toward
her any further.

2

See Calton v. State, 2-04-228-CR, 2005 WL 3082202 (Tex. App. — Fort Worth, Nov. 17,
2005, pet. withdrawn); see also Calton v. Quarterman, Civil Action No. 4:07-471, 2008 WL
5083022 (N.D. Tex. Sept. 16, 2008) (recommending that Calton’s petition for a writ of
habeas corpus be denied). Calton was convicted separately of evading arrest with a motor
vehicle. See Calton v. State, 176 S.W.3d 231 (Tex. Crim. App. 2005).
2

to this medication, Calton was also taking Haldol, Cogentin, and Carbamazepine for an
unspecified seizure disorder.3
In late July of 2008, Calton was transferred from TDCJ on a bench warrant to the
Tarrant County Jail in Forth Worth, Texas. Calton was reportedly returned to Tarrant County
on a bench warrant for the purpose of appointing counsel to represent him in connection with
an unspecified post-conviction proceeding. While he was in the Tarrant County Jail, Calton
continued to receive all of his prescribed medications. He was “disappointed” by the
proceedings in Tarrant County, however, because he had hoped to get his conviction
overturned. When this did not occur, Calton reportedly felt “kind of bad.”
On September 5, 2008, Calton left the Tarrant County Jail and returned to TDCJ
custody at the Middleton Unit in Abilene, Texas. Calton claims that, after his arrival at the
Middleton Unit on September 5, through September 10, 2008, he did not receive any of his
medication. On September 10, 2008, a physician at the Middleton Unit examined Calton and
prescribed Celexa, instead of Wellbutrin, to treat his depression. Because the Middleton Unit
did not have housing accommodations that suited Calton’s custodial classification level,
Calton was transferred to the Byrd Unit in Hunstville, Texas, for re-assignment.
Calton arrived at the Byrd Unit at around noon on September 18, 2008. A Senior
Warden for the Byrd Unit (Senior Warden Tracy Bailey) describes the unit as an “intake

3

Deposition of Allen F. Calton [Calton Dep.], at 60, 70. Unless it is pertinent or otherwise
attributed, most of the facts outlined in the chronology are taken from Calton’s deposition,
selected portions of which are found in Exhibit A to his response to the defendants’ summary
judgment motions. [Docs. # 78, # 79].
3

facility” with a relatively small (approximately 237 offenders) permanent inmate population.4
Warden Bailey explains that most of the inmates assigned to the Byrd Unit are in transit from
various other prison units to the nearby UTMB Hospital in Galveston or are “newly
convicted offenders who are in-processing [sic] to the TDCJ prison system.” These
“transient offenders” are typically assigned to the Byrd Unit for a short time during the intake
process. Warden Bailey estimates that the average length of assignment for a transient
offender at the Byrd Unit is “about 45 days.” According to Warden Bailey, the Byrd Unit
facility processes a high volume of inmates assigned to TDCJ. Warden Bailey notes that, in
2009, approximately 88,000 transient offenders passed through the Byrd Unit.
Calton arrived at the Byrd Unit on September 18, 2008, along with a bus full of other
prisoners.5 Calton and the other prisoners reported directly to a large intake area where
“SSI” workers (i.e., inmates assigned to provide support services or other labor) were
distributing state-issued clothing and other supplies under the supervision of correctional
officers. Calton was issued a uniform, “boxers,” and a “bedroll,” which contained sheets,
a blanket, toilet paper, soap, and a plastic safety razor for shaving.
Prisoners assigned to state prison receive a razor because TDCJ has a grooming policy

4

Doc. # 75, Exhibit B, Expert Report from Tracy Bailey, Senior Warden at the Byrd Unit
[“Bailey Report”], at ¶ 5.

5

Calton Dep. at 74. Calton estimates that there were approximately 45 other prisoners on his
bus, and that other buses were arriving throughout the day. Id. at 74-75 (“[B]uses come in
all day every day” at the Byrd Unit. . . . “It’s an all-day thing on those intake units.”).
4

that requires inmates to be clean-shaven, subject to certain exceptions, for security reasons.6
Evidence in the record reflects that incoming inmates at the Byrd Unit are given a plastic
disposable razor with their bedroll.7 Thereafter, inmates are given a new razor on a weekly
basis.8 Inmates who are assigned to “administrative segregation or special housing,”
however, are not given a razor.9 These inmates are given a razor “when they go to shower,
but then they’ve got to hand it back.”10 Warden Tracy Bailey adds that inmates who are
identified by medical staff as a suicide risk are not issued a razor, but are instead given a
“clipper shave,” which is a “device [that] cannot be used to harm oneself.”11
B.

Screening Procedures for Transient Offenders

During the intake process, incoming inmates are strip-searched and their property is
screened for contraband. Inmates are also subject to certain screening procedures designed
to facilitate appropriate classification and custodial assignment. All incoming offenders are

6

The grooming policy, which prohibits long hair and beards of more than one-quarter inch,
has been addressed at length (no pun intended) in other cases. See, e.g., DeMoss v. Crain,
636 F.3d 145, 153-55 (5th Cir. 2011); Longoria v. Dretke, 507 F.3d 898, 901-02 (5th Cir.
2007); Diaz v. Collins, 114 F.3d 69, 72-73 (5th Cir. 1997).

7

Deposition of Beverly Cannalito [Cannalito Dep.] at 43.

8

Id.

9

Id.

10

Id.

11

Bailey Report, at ¶ 5.
5

screened for physical, medical, mental, and dental issues.12 Once the screening process is
completed, the classification department determines an appropriate unit for long-term
assignment and these inmates are transferred elsewhere to other TDCJ facilities throughout
the state.
Mental health screening is included in the intake process. TDCJ has a written policy,
which contains a detailed list of “behaviors suggestive of suicidal intent” along with
procedures for handling offenders who have been identified as suicide risks.13 Under this
policy, TDCJ Administrative Directive 06.56 (“AD-06.56”), “[o]ffenders are considered to
be suicide risks when behavior appears to have the intent or the definite potential of leading
to self-inflicted physical harm or death.” This policy requires that, when offenders are
received at intake facilities, such as the Byrd Unit, “a trained intake screener shall administer
a Diagnostic Screening Interview.” This policy requires further that any inmate who
expresses “suicidal ideas or self-injurious thoughts or behaviors” during the Diagnostic
Screening Interview process “shall be referred to the unit medical department,” which is then
“responsible for ensuring appropriate medical management of the offender identified as
potentially suicidal.”
When Calton arrived at the Byrd Unit on September 18, 2008, he was screened by an
“intake nurse,” who asked whether he had any acute medical problems or conditions that

12

Deposition of Samuel Hallman [Hallman Dep.] at 113.

13

Doc. # 75, Exhibit H, TDCJ Administrative Directive 06.56 [AD-06.56] (Rev. 5) April 25,
2007.
6

required medication. Calton recalls that the intake nurse specifically asked him whether he
was suicidal. Calton told her that he was “feeling pretty depressed” and that he needed
medication, but he denied feeling suicidal. Noting that Calton also had a “seizure disorder”
that required medication, the nurse issued him a pass to “see somebody” in the psychiatric
department.
Within two hours of his arrival at the Byrd Unit on September 18, 2008, Calton was
evaluated by Richard Tolles, who is employed by UTMB as a “Mental Health Clinician” or
“counselor” at the intake facility. By Calton’s own estimation, he visited with Tolles for at
least an hour. During this interview, Calton reportedly disclosed to Tolles that he had
previously attempted suicide in 2005, by cutting his wrist with a razor. Tolles followed up
by asking Calton “a lot of questions.” Medical records indicate that Tolles, who noted a
“superficial scar” on Calton’s wrist, conducted a mental health evaluation, which included
a suicide risk assessment.14 The records from this evaluation reflect that Tolles could not
access the Electronic Medical Record (EMR) system on that date because of lingering
damage to the area from Hurricane Ike.15 Calton told Tolles that he was currently receiving

14

Doc. # 73, Ex. A, Medical Records, at 10-16.

15

Id. The Court takes judicial notice that Hurricane Ike made landfall in Galveston, Texas, on
September 13, 2008, and caused extensive damage. Much of Galveston flooded, including
the UTMB Hospital, which closed for an extended period of time. The federal courthouse
in Houston was also closed for most of the following week, through Friday, September 19,
2008, due to widespread power outages caused by Hurricane Ike.
7

Celexa to treat his depression, but that this medication did not “help” him.16 Calton told
Tolles that he needed Wellbutrin because this medication was the only thing that helped.17
In addition to making observations about Calton’s demeanor, Tolles noted that Calton
expressly denied feeling suicidal or having “any current thoughts of self-harm.”18 Based on
his evaluation, Tolles determined that Calton was not suicidal or in need of a transfer for
“crisis management” at an in-patient care facility, but referred him to the unit psychiatrist for
further treatment at the next available appointment.19
Calton did not tell Tolles, the intake nurse, or anyone else he saw during the intake
process on September 18, 2008 that he was suicidal.20 Calton explains that he did not advise
anyone that he was suicidal when he first arrived at the Byrd Unit on September 18, 2008,
because he was not feeling suicidal on that date. According to Calton, he did not begin to
feel suicidal at the Byrd Unit until the morning of September 19, 2008, when he awoke
feeling “very depressed.”21
C.

Events Leading Up to Calton’s Suicide Attempt

At around 8:30 a.m. on the morning of September 19, 2008, Calton summoned an

16

Doc. # 73, Ex. A, Medical Records, at 10.

17

Id.

18

Id. at 11.

19

Id.

20

Calton Dep. at 75-76, 79-80.

21

Doc. # 52, at ¶ 23.
8

unidentified correctional officer, who was conducting the morning count of Calton’s housing
unit, and told this officer that he was suicidal.22 Specifically, Calton told the officer that he
“wanted to die,” that he “was going to kill [him]self,” and that he needed help. Calton
acknowledges that the officer “immediately” stopped what he was doing and escorted him
to the ranking officer on duty (Lieutenant Krischke), whose desk was located in the main
hallway. At Lieutenant Krischke’s desk, Calton repeated that he “was going to kill
[him]self” and that he “needed help.”
According to TDCJ policy (AD-06.56) and the procedures for handling offenders
identified as suicide risks, “[i]f unit staff observe an offender expressing suicidal thoughts
or thoughts of self-injurious behavior or exhibiting behaviors suggestive of suicidal intent,
such as attempting to hang or cut one’s self, staff shall bring the offender to medical
personnel for evaluation.”23 The determination whether an offender is actually “at risk for
suicide or self-injury,” however, must be made by unit medical personnel.24
After speaking briefly with Calton, Lieutenant Krischke determined that he needed
“mental health intervention” or evaluation and called another ranking correctional officer to
escort Calton to the infirmary for psychiatric care.25 By Calton’s own estimation, Sergeant
Beverly Cannalito “quickly” responded and promptly took him to the infirmary, where the

22

Calton Dep. at 83-84.

23

Doc. # 75, TDCJ Administrative Directive 06.56 [AD-06.56] (Rev. 5).

24

Id.

25

Deposition of Karl Krischke [Krischke Dep.] at 24-25.
9

psychiatric department is located. Calton arrived at the infirmary at around 8:45 a.m.,
approximately 15 minutes after he first apprised the unidentified correctional officer of his
suicidal thoughts.
A standing order that governs the infirmary security detail (TDCJ Post Order 07.22)
requires that the infirmary officer “pat-search[]” all offenders who enter and exit the
infirmary.26 It is undisputed that neither Sergeant Cannalito, nor Officer Carolyn O’Bryant,
who was assigned to provide security in the infirmary on September 19, 2008, searched
Calton before he entered the infirmary. Instead, Sergeant Cannalito immediately escorted
Calton to Samuel Hallman’s office.27 Because Hallman was available to see Calton right
away, Sergeant Cannalito left Calton with Hallman and returned to duty elsewhere.28 Calton
told Hallman, who is a psychologist employed by UTMB as a “Mental Health Manager,” that
he was very depressed, that he wanted to die, and that he was suicidal.29
The policy outlined in TDCJ AD-06.56 requires that offenders who are “at risk for
suicide or self-injury must be transferred immediately to an inpatient psychiatric or crisis
management facility or placed in outpatient mental health observation cells” in accordance

26

Doc. # 75, Exhibit I.

27

Id. at 94-95.

28

Deposition of Beverly Cannalito [Cannalito Dep.] at 26, 37.

29

Calton Dep. at 96-97.
10

with a separate TDCJ Health Services policy on suicide prevention.30 As a transfer facility,
the Byrd Unit did not have an outpatient mental health observation cell in which to place
Calton.31 The procedures found in AD-06.56 dictate that facilities that are not approved to
use outpatient mental health observation cells, such as the Byrd Unit, “shall transfer
offenders determined to be at imminent risk for suicide or serious self-injury immediately to
an inpatient psychiatric or crisis management facility.”32 Those procedures also dictate that
offenders who are awaiting transfer “must remain under constant observation by security or
medical personnel until the offender departs the unit.”33
In addition to the policy found in TDCJ AD-06.56, medical personnel also have a
“Suicide Prevention Plan” in place (TDCJ Health Services Policy G-53.1) to treat offenders
who are identified as being at-risk of self-harm. The Suicide Prevention Plan found in Policy
G-53.1 contains similar instructions for Health Services staff.34
Hallman, who has worked for TDCJ for over 20 years both as a prison guard and a
psychologist, performed an assessment on Calton as soon as Sergeant Cannalito brought

30

Doc. # 75, Exhibit H, TDCJ Administrative Directive 06.56 [AD-06.56] (Rev. 5).

31

AD-06.56. The policy acknowledges that only certain units are “approved to utilize mental
health observation cells in accordance with the TDCJ Health Services policy G-53.1, Suicide
Prevention Plan.”

32

AD-06.56.

33

Id.

34

Doc. # 73, Exhibit G. The UTMB Mental Health Service Department also has procedures
that govern the identification and treatment of offenders at risk for suicide or self-injury
[Doc. # 73, Ex. H].
11

Calton to Hallman’s office.35 During that evaluation, Calton told Hallman that “he [could]
not get the thought of cutting his wrists out of his mind” and that he was deeply depressed.36
When Hallman asked if Calton had cut himself before, Calton disclosed that he had cut his
wrist previously in 2005.37 When Hallman asked Calton if he was planning to “cut himself,”
Calton did not respond.38 Hallman then directly asked Calton whether he had a razor on his
person, in his mouth, or in his “house” (i.e., his cell).39 Calton answered “no.”40
Hallman told Calton to take a seat outside his office in the infirmary waiting room,
where an estimated 50 to 60 other inmates were in line for medical appointments. After
Calton left Hallman’s office, Hallman called one of TDCJ’s in-patient mental health facilities
(the Skyview Unit) to make arrangements for Calton to be evaluated further.41 Hallman then
called Nurse Beverly Love to his office and told her that Calton “needed to be worked up for
crisis management.”42
While arrangements were being made for his transfer to the Skyview Unit, which is

35

Deposition of Samuel Hallman [Hallman Dep.] at 35-36, 67.

36

Id. at 73.

37

Id. at 72-73.

38

Id.

39

Id.

40

Id.

41

Hallman Dep. at 79.

42

Doc. # 73, Ex. A, at 4; Deposition of Beverly Love at 21; Deposition of Samuel Hallman at
151.
12

located in Gatesville, Texas, Calton was instructed to remain in the infirmary waiting area.43
Officer O’Bryant was informed that Calton “was not to leave the clinic” because he was
going to be transferred to the Skyview Unit for crisis management.44 According to Officer
O’Bryant, Hallman advised her that Calton “was going to his cell and cut himself or create
a disturbance in the [infirmary].”45
Calton, who claims that he was unaware of the plan to transfer him for crisis
management, did not wait patiently. At about 9:15 a.m., Calton approached Nurse Love and
told her that he needed help immediately because he was suicidal. Nurse Love, who was
helping Hallman to make the requisite transfer arrangements, told Calton to return to his seat.
Calton claims that he then turned to Officer O’Bryant and told her that he was suicidal.
Officer O’Bryant also reportedly told Calton to return to his seat. While Calton continued
to wait, he saw Tolles enter Hallman’s office. Calton approached both men and repeated that
he was suicidal and needed help. Calton claims that Tolles “yelled” at him to “sit down and
wait,” because he (Calton) “wasn’t going to kill [himself] right then.”
Unbeknownst to any of the defendants up to this point, Calton had in his possession
the plastic safety razor he had been issued the previous day along with the bedroll that he had
been given during the intake process. Calton had placed the safety razor in a small plastic
“ID holder” or pouch that was clipped to the front of his uniform. Uncertain whether the
43

Doc. # 52, at ¶ 27.

44

Deposition of Carolyn O’Bryant [O’Bryant Dep.] at 37, 47.

45

Doc. # 78, Exhibit E, at 7.
13

razor was visible, Calton explains that he “may have” placed the safety razor behind some
other items in the pouch, which also contained the prison identification card that was required
to be on his person at all times and a medication pass. Sometime before 10:00 a.m., Calton
slipped into the infirmary restroom with the safety razor in his possession. Calton estimates
that he sat in the restroom for 15 minutes before he took the safety razor out of his ID pouch,
broke the metal blade out of its plastic case, and used it to cut his wrists.
It is undisputed that Officer O’Bryant, who was the only security officer assigned to
the infirmary on the morning of September 19, 2008, failed to keep Calton under direct
observation while he was in the restroom. Officer O’Bryant explains that she left the
infirmary briefly to get something to drink from the commissary.46 Officer O’Bryant advised
the officer who came to relieve her (Officer Ortiz, who is not a defendant in this case) that
Calton “was not to leave the clinic because he was being transported to Skyview.” When
Officer O’Bryant returned a few minutes later, Officer Ortiz told her that Calton was in the
restroom. Officer O’Bryant looked in through a small window on the bathroom door and
observed Calton “near the toilet” with his back towards her. It appeared to Officer O’Bryant
that Calton was “using the restroom.” By Officer O’Bryant’s estimation, “[a]nother minute
or two passed” before Calton “opened the door to the restroom and [she] could see that his
wrists were bleeding.” At that time, she alerted other security officers that there was a
“cutter in the infirmary.”

46

Doc. # 79, Exhibit F.
14

Sergeant Cannalito was the first officer to respond to the infirmary, along with other
security officers. When these officers arrived, Calton stepped out of the restroom and
dropped the razor blade. Calton was promptly escorted into the infirmary emergency room.
The medical records show that Calton inflicted a 2-inch cut to his left wrist, which required
4 sutures.47 Calton’s right wrist sustained a 1-inch cut that required 2 sutures, a ½-inch cut
that required 1 suture, and a small-sized superficial cut that required only a bandage.48 After
his injuries were treated, Calton was promptly transported to the Skyview Unit on September
19, 2008.
D.

Calton’s Allegations

In his pending civil rights complaint, Calton claims that the defendants are
“responsible for the pain and mental anguish caused by their impermissible and
unconstitutional failure to prevent his suicide attempt[.]” In particular, Calton claims that the
defendants failed to provide him with adequate medical care or to prevent him from
attempting suicide after he told each of them that he wanted to kill himself.49 Citing the
defendants’ failure to prevent him from attempting suicide, Calton seeks compensatory and
punitive damages from the defendants in their official and individual capacities. He also
seeks an injunction requiring the defendants to “implement a policy for managing suicidal
inmates and preventing those inmates from inflicting self-harm and requiring [d]efendants
47

Doc. # 73, Ex. A, at 6.

48

Id.

49

Doc. # 52, Amended Complaint, ¶ 36.
15

to adequately train and supervise TDCJ officers and UTMB medical personnel to carry out
the policy and take appropriate actions to manage suicidal inmates and prevent those inmates
from inflicting self-harm.”50
The health care providers (Hallman, Love, and Tolles) have filed a joint motion for
summary judgment, arguing that the Eleventh Amendment bars Calton’s claims against them
in their official capacity and that they are entitled to qualified immunity from Calton’s claims
against them in their individual capacity [Doc. # 72]. The security officers (Lieutenant
Krischke, Sergeant Cannalito, and Officer O’Bryant) have also filed a joint motion for
summary judgment on those same grounds [Doc. # 74]. The parties’ contentions are
addressed below under the governing standard of review.
II.

STANDARD OF REVIEW
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil

Procedure. Under this rule, a reviewing court “shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). A fact is “material” if its resolution in favor of one party might affect the outcome
of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U .S. 242, 248 (1986).
An issue is “genuine” if the evidence is sufficient for a reasonable jury to return a verdict for

50

Id. at ¶ 49.
16

the nonmoving party. Id.
If the movant demonstrates the absence of a genuine issue of material fact, the burden
shifts to the non-movant to provide specific facts showing the existence of a genuine issue
for trial. See Matsushita, 475 U.S. at 587. In deciding a summary judgment motion, the
reviewing court must “construe all facts and inferences in the light most favorable to the
nonmoving party.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (internal citation and
quotation marks omitted). However, the non-movant cannot avoid summary judgment
simply by presenting “conclusory allegations and denials, speculation, improbable
inferences, unsubstantiated assertions, and legalistic argumentation.” TIG Ins. Co. v.
Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc).
III.

DISCUSSION
Calton filed the complaint in this case under the civil rights statute found at 42 U.S.C.

§ 1983, which provides a private right of action to individuals who are deprived of “any
rights, privileges, or immunities” protected by the Constitution or federal law by any person
acting under the color of state law. To establish liability under § 1983, a civil rights plaintiff
must satisfy two elements: (1) state action, i.e., that the conduct complained of was
committed under color of state law, and (2) a resulting violation of federal law, i.e., that the
conduct deprived the plaintiff of rights secured by the Constitution or laws of the United
States. See Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992); Baker v. McCollan,
443 U.S. 137, 142 (1979).
17

As outlined above, Calton primarily claims that the defendants were deliberately
indifferent to his health and safety, in violation of the Eighth Amendment to the United
States Constitution, by failing to prevent him from attempting suicide on September 19,
2008. The defendants contend that they are entitled to qualified immunity from Calton’s
claims against them in their individual or personal capacity, and that the Eleventh
Amendment bars the remainder of Calton’s claims against them in their official capacity.
These arguments are addressed in turn.
A.

Qualified Immunity from Individual-Capacity Claims

The defendants argue that Calton fails to demonstrate that he was denied adequate
care or that his pleas for help were deliberately ignored. The defendants also argue that, to
the extent that Calton alleges a failure to train or supervise officers who might have
prevented him from harming himself, such claims also fail as a matter of law. In the
alternative, the defendants maintain that Calton fails to show that a constitutional violation
occurred or that their response was objectively unreasonable under the circumstances. The
defendants maintain, therefore, that they are entitled to qualified immunity from liability for
Calton’s claims against them in their individual or personal capacity.
Public officials acting within the scope of their authority generally are shielded from
civil liability by the doctrine of qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Qualified immunity protects government employees against civil liability in
their individual capacity “insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
18

Wernecke v. Garcia, 591 F.3d 386, 392 (5th Cir. 2009) (quoting Harlow, 458 U.S. at 818))
(internal quotation marks omitted). “Even if a defendant’s conduct actually violates a
plaintiff’s constitutional rights, the defendant is entitled to qualified immunity if the conduct
was objectively reasonable.” Zarnow v. City of Wichita Falls, Tex., 500 F.3d 401, 408 (5th
Cir. 2007) (quoting Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990)).
Thus, the doctrine of qualified immunity “shields from civil liability ‘all but the plainly
incompetent or those who knowingly violate the law.’” Manis v. Lawson, 585 F.3d 839, 845
(5th Cir. 2009) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
To determine whether a public official is entitled to qualified immunity for an alleged
constitutional violation, reviewing courts engage in a two-prong inquiry. See Pearson v.
Callahan, 555 U.S. 223, 129 S. Ct. 808, 815 (2009). The first prong of the analysis asks
whether, taken in the light most favorable to the party asserting the injury, the facts alleged
show that the official’s conduct violated a constitutional right that was “clearly established”
at that time. See id., 129 S. Ct. at 815-16; Scott v. Harris, 550 U.S. 372, 377 (2007) (citation
omitted). The second prong of the analysis asks whether qualified immunity is appropriate,
notwithstanding an alleged violation, because the defendant’s actions were objectively
reasonable “in light of clearly established law at the time of the conduct in question.”
Hampton Co. Nat’l Sur., L.L.C. v. Tunica County, Miss., 543 F.3d 221, 225 (5th Cir. 2008)
(quoting Freeman v. Gore, 483 F.3d 404, 410-11 (5th Cir. 2007)). A reviewing court may
consider these prongs in any sequence. See Pearson, 129 S. Ct. at 818.
The usual summary judgment burden of proof is altered in the case of a qualified
19

immunity defense. See Gates v. Texas Dep’t of Protective and Regulatory Servs., 537 F.3d
404, 419 (5th Cir. 2008). An official need only plead his good faith, which then shifts the
burden to the plaintiff, who must rebut the defense by establishing that the official’s allegedly
wrongful conduct violated clearly established law. See Michalik v. Hermann, 422 F.3d 252,
262 (5th Cir. 2005) (citing Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001)).
The plaintiff bears the burden of negating the defense and cannot rest on conclusory
allegations and assertions, but must demonstrate genuine issues of material fact regarding the
reasonableness of the official’s conduct. See Michalik, 422 F.3d at 262; see also Ontiveros
v. City of Rosenberg, Tex., 564 F.3d 379, 382 (5th Cir. 2009) (noting that, to avoid summary
judgment on qualified immunity, a plaintiff need not present “absolute proof,” but must offer
more than “mere allegations”) (quotation omitted). In this case, the Court finds it appropriate
to examine initially whether the plaintiff establishes a constitutional violation of the Eighth
Amendment to the United States Constitution, which governs access to medical or mental
health care and prohibits deliberate indifference to serious health and safety needs.

1.

Eighth Amendment — Medical Care

Calton alleges that the defendants violated his constitutional rights under the Eighth
Amendment by denying him adequate medical or mental health care at the Byrd Unit and that
he injured himself as a result of their failure to protect him from self-harm. “Although the
Eighth Amendment ‘does not, by its precise words, mandate a certain level of medical care
for prisoners[,]’ the Supreme Court has interpreted it as imposing a duty on prison officials
20

to ‘ensure that inmates receive adequate . . . medical care.’” Easter v. Powell, 467 F.3d 459,
463 (5th Cir. 2006) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). “A prison
official violates the Eighth Amendment’s prohibition against cruel and unusual punishment
when his conduct demonstrates deliberate indifference to a prisoner’s serious medical needs,
constituting an ‘unnecessary and wanton infliction of pain.’” Easter, 467 F.3d at 463 (citing
Wilson v. Seiter, 501 U.S. 294, 297 (1991) (quoting Estelle v. Gamble, 429 U.S. 97 (1976)).
It is also settled that prison officials have a constitutional duty to protect a prisoner with
known or obvious suicidal tendencies from self-inflicted harm. See Jacobs v. West Feliciana
Sheriff’s Dept., 228 F.3d 388, 394 (5th Cir. 2000); see also Flores v. County of Hardeman,
124 F.3d 736, 738 (5th Cir. 1997) (“A detainee’s right to adequate protection from known
suicidal tendencies was clearly established when Flores committed suicide in January
1990.”).
The defendants maintain that Calton cannot establish a valid Eighth Amendment claim
because he fails to show that they acted with the requisite deliberate indifference to a serious
medical need or threat to his safety. The Eighth Amendment deliberate-indifference standard
has both an objective and subjective component. See Farmer v. Brennan, 511 U.S. 825, 834
(1994). To establish deliberate indifference under this standard, the prisoner must show that
(1) the defendants were aware of facts from which an inference of an excessive risk to the
prisoner’s health or safety could be drawn, and (2) that they actually drew an inference that
such potential for harm existed. See id. at 837; Harris v. Hegmann, 198 F.3d 153, 159 (5th
Cir. 1999). The Fifth Circuit has stated that the deliberate-indifference standard is an
21

“extremely high” one to meet. Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752,
756 (5th Cir. 2001). “A prison official acts with deliberate indifference ‘only if [(A)] he
knows that inmates face a substantial risk of serious bodily harm and [(B)] he disregards that
risk by failing to take reasonable measures to abate it.’” Gobert v. Caldwell, 463 F.3d 339,
346 (5th Cir. 2006) (quoting Farmer, 511 U.S. at 847). Where medical care is concerned,
“[u]nsuccessful medical treatment, acts of negligence, or medical malpractice do not
constitute deliberate indifference, nor does a prisoner’s disagreement with his medical
treatment, absent exceptional circumstances.” Id. (citations omitted). A showing of
deliberate indifference requires the prisoner to submit evidence that prison 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.’” Id. (citations omitted).
The chronology that forms the basis of Calton’s complaint in this case, which is
outlined in more detail above, refutes Calton’s claim that he was denied prompt medical
intervention or mental health care in violation of the governing constitutional standards. In
that respect, Calton does not dispute that he denied being suicidal when directly asked during
his screening interview with the intake nurse on September 18, 2008. Calton also does not
dispute that he expressly denied being suicidal or harboring thoughts of self-harm during his
hour-long interview with a mental health clinician (Tolles) that same day. Calton concedes
that, when he first announced his suicidal intention to the unidentified correctional officer
who was conducting the count of his housing unit on the morning of September 19, 2008, the
22

officer immediately removed Calton from his cell and took him to a supervisor (Lieutenant
Krischke), who promptly contacted another ranking security official (Sergeant Cannalito) to
escort Calton to the infirmary for a mental health evaluation.
It is undisputed that Calton was examined by a psychologist (Hallman) within 15
minutes of alerting officers to his suicidal state. Hallman testified in his deposition that,
when advised of a prior suicide attempt in 2005, he expressly asked Calton if he had any
intention of cutting himself and he also asked Calton directly if he had a razor on his
person.51 Calton denied that he did.52 In fact, Calton admitted during his deposition that he
did not tell anybody that he planned to cut himself:
No, I didn’t tell anybody about cutting myself. I told them I wanted to kill
myself, I wanted to die, I needed help. That’s when I told them I was suicidal.
I never said anything about how I was going to do it. I never told anybody
about cutting myself.53
After concluding that Calton warranted further evaluation, Hallman and Nurse Love
promptly began to make arrangements to transfer Calton to an inpatient facility (the Skyview
Unit) for crisis management. In the meantime, Calton was seated outside Hallman’s office
in the waiting room, where a security officer (Officer O’Bryant) was present. A review of
Calton’s testimony, which shows that he approached Nurse Love, Officer O’Bryant, Hallman
and Tolles, shows that he was within full view of others while he remained in the waiting

51

Hallman Dep. at 73-74.

52

Id.

53

Calton Dep. at 93-94, 96-97.
23

room.
As Calton concedes, both TDCJ and the Health Services Division have policies in
place to prevent suicide by incarcerated offenders (TDCJ Policy AD-06.56 and Health
Services Policy G-53.1). The record, which shows that the defendants acted promptly to
escort Calton for evaluation by a medical professional (Hallman) and for mental health crisis
management, refutes Calton’s central allegation that the defendants “failed to impose any
suicide prevention measures[.]”54 Likewise, Calton does not show that the policies were
deficient or that he was otherwise denied adequate care in violation of the applicable
constitutional standard. As the Fifth Circuit has recognized, “[s]uicide is inherently difficult
for anyone to predict, particularly in the depressing prison setting.” Domino, 239 F.3d at 756
(citing Collignon v. Milwaukee Co., 163 F.3d 982, 990 (7th Cir. 1998)). Taking all of the
facts in the light most favorable to Calton, as non-movant, Calton fails to demonstrate that
any of the defendants deliberately ignored his complaints, refused him treatment, or
intentionally treated him incorrectly.
Calton appears to allege that, if only Tolles had immediately given him Wellbutrin on
September 18, 2009, instead of the Celexa that had been previously prescribed, he would not
have attempted to harm himself. To the extent that Calton disagrees with the level of care
that he received, the Fifth Circuit has held repeatedly that mere disagreement with medical
treatment does not state a claim for deliberate indifference to serious medical needs under

54

Doc. # 52, Amended Complaint, ¶ 37.
24

the Eighth Amendment. See Stewart v. Murphy, 174 F.3d 530, 535 (5th Cir. 1999); Norton
v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997); Spears v. McCotter, 766 F.2d 179, 181 (5th
Cir. 1985); Young v. Gray, 560 F.2d 201, 201 (5th Cir. 1977). Even assuming that a lapse
in professional judgment occurred, any such failure amounts to mere negligence or
malpractice, and not deliberate indifference. See Harris v. Hegman, 198 F.3d 153, 159 (5th
Cir. 1999) (citing Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993)). Thus,
allegations of negligence and medical malpractice will not suffice to demonstrate a
constitutional violation. See Gibbs v. Grimmette, 254 F.3d 545, 549 (5th Cir. 2001); see also
Stewart, 174 F.3d at 534 (“[A]lthough inadequate medical treatment may, at a certain point,
rise to the level of a constitutional violation, malpractice or negligent care does not.”). Based
on this record, Calton does not show that Tolles or any other individual defendant was
deliberately indifferent to his mental health or that a constitutional violation occurred with
respect to his medical care.
Calton insists, nevertheless, that the measures taken by the defendants were
inadequate because, after advising them that he was suicidal, they “failed to restrain Calton,
pat search him for objects with which he might harm himself, and/or visually monitor and
supervise him.”55 Calton notes in particular that Officer O’Bryant, who was assigned to
provide security for the infirmary on September 19, 2008, did not pat search him when he
entered the medical department as required by the standing order governing that work

55

Doc. # 52, Amended Complaint, ¶ 37.
25

assignment (TDCJ Post Order 07.22). Calton complains further that, once it was determined
by Hallman that he needed crisis management, Officer O’Bryant should have searched him
at that time. Calton also complains that, contrary to the suicide prevention policies in place
[TDCJ AD-06.56 and Health Services Policy G-53.1], Officer O’Bryant failed to keep him
under constant supervision while he waited to be transferred to the Skyview Unit. In other
words, Calton claims that the defendants should have done more to prevent him from
harming himself.
It is undisputed that TDCJ AD-06.56 requires “constant observation” for inmates who
are awaiting transfer for crisis management and that Officer O’Bryant did not ensure that
Calton was directly supervised while he was in the restroom. Officer O’Bryant also admits
that she did not search Calton when he entered the infirmary and that she did not comply with
the post order (TDCJ Post Order 07.22) for her job assignment. She apparently assumed that,
because Calton was being escorted by Sergeant Cannalito, who was a ranking security
official, Calton had already been searched. Sergeant Cannalito acknowledged in her
deposition that, as infirmary officer, it was O’Bryant’s duty to pat-search any offender who
enters or exits the infirmary, regardless of whether the inmate was escorted by another
security officer.56 Therefore, it was “incorrect” for her to assume that Calton had been
subject to a pat-search.57
Warden Bailey also acknowledges that TDCJ Post Order 07.22 “requires the infirmary
56

Cannalito Dep. at 25.

57

Id.
26

officer to pat-search offenders when they enter and leave the infirmary,” but that this was not
done in Calton’s case.58 Nevertheless, Warden Bailey states that she is “quite familiar with
how pat-searches are conducted and it is [her] opinion that even if Calton was pat-searched,
a standard issue razor could still have gone undetected” because “that type [of] razor is small
and can be successfully secreted about the offender’s person to escape detection during a patsearch.”59 The defendants argue, therefore, that a pat-search would not necessarily have kept
Calton from harming himself after he entered the infirmary on September 19, 2008.
To the extent that Calton claims that the defendants violated prison policy, it is well
established that an officer’s failure to follow prison rules, standing alone, does not warrant
relief under 42 U.S.C. § 1983. See Stanley v. Foster, 464 F.3d 565, 569 (5th Cir. 2006)
(citing Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996)); Murray v. Mississippi Dep’t
of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990); Hernandez v. Estelle, 864 F.2d 1235,
1251-52 (5th Cir. 1989); see also Jackson v. Cain, 864 F.2d 1235, 1251-52 (5th Cir. 1989)
(noting that a state’s failure to follow its own rules or regulations, alone, does not establish
a constitutional violation).

To prevail, a civil rights plaintiff must demonstrate a

constitutional violation.
An unsuccessful failure to prevent harm is not actionable under the Eighth
Amendment if reasonable steps have been taken to ensure safety in the turbulent prison
environment. See Farmer, 511 U.S. at 834 (citations omitted). To establish liability for a
58

Doc. # 75, Exhibit B, Bailey Report, ¶ 6.

59

Id.
27

claim based on a failure to prevent harm, an inmate must show that he has been incarcerated
under conditions which, objectively, posed a sufficiently serious risk of harm. See id. The
Supreme Court has explained that “an official’s failure to alleviate a significant risk that he
should have perceived but did not, while no cause for commendation, cannot under our cases
be condemned as the infliction of punishment.” Id. at 838. Notably, “prison officials who
actually knew of a substantial risk of 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.” Id.
at 844. A prison official’s duty under the Eighth Amendment is to ensure “‘reasonable
safety’” under the circumstances. Id. (quoting Helling v. McKinney, 509 U.S. 25, 33 (1993)).
The Eighth Amendment standard associated with this duty incorporates due regard for the
“unenviable task of keeping dangerous men in safe custody under humane conditions.” Id.
at 846 (citations omitted). Thus, the Supreme Court has emphasized that “a prison official
may be held liable under the Eighth Amendment . . . only if he knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take reasonable
measures to abate it.” Id. at 847.
Calton’s contention that the defendants’ response was inadequate or unreasonable
under the circumstances does not establish a claim for deliberate indifference in violation of
the Eighth Amendment. The record does not demonstrate that the defendants had reason to
know that Calton had a razor blade in his possession and intended to cut himself with it. It
bears repeating that Calton denied he had a razor blade on his person and he did not tell
anyone he encountered on September 19, 2008, that he intended to cut himself
28

momentarily.60 While the defendants clearly knew that Calton was depressed, if not suicidal,
and that he needed mental health evaluation, this is not enough to establish deliberate
indifference under the facts presented. A defendant cannot be found liable under the
“deliberate indifference” standard unless that defendant “knows of and disregards an
excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. In the context of failing
to prevent a prisoner’s suicide, “[the deliberate-indifference] standard is met only if there
[was] a ‘strong likelihood, rather than a mere possibility,’ that self-infliction of harm would
result.” Lambert v. City of Dumas, 187 F.3d 931, 937 (8th Cir. 1999) (citation and quotation
omitted); see also Tittle v. Jefferson County Comm’n, 10 F.3d 1535, 1539-40 (11th Cir. 1994)
(explaining in the context of a jail suicide case that “deliberate indifference can only be
established where a plaintiff demonstrates a ‘strong likelihood, rather than a mere
possibility,’ that suicide would result from a defendant’s actions or inaction”). The strong
likelihood must be based on facts concerning the inmate at issue, “not experience with other
[inmates] in the facility or studies of [inmates] generally. Bowen v. City of Atmore, 171 F.
Supp. 2d 1244, 1253 (S.D. Ala. 2001) (citing Tittle, 10 F.3d at 1539) (“[A] finding of
deliberate indifference requires that officials have notice of the suicidal tendency of the
individual whose rights are at issue . . .”) (emphasis in original).
The record demonstrates that none of the correctional officers at the Byrd Unit knew
of Calton’s history of mental health problems because, due to privacy laws, medical

60

Calton Dep. at 79, 84-85, 91, 93-94, 96-97, 105-06, 114.
29

personnel are prohibited from sharing this information. In TDCJ, medical information is not
available to correctional officers below the rank of Captain.61 Although there is evidence
showing that both Tolles and Hallman knew that Calton had made a previous suicide attempt
three years earlier in 2005, a suicide attempt that is remote in time is insufficient to show a
strong likelihood that suicide will result. See Lambert, 187 F.3d at 938 (holding that a
suicide attempt was insufficient to show a strong likelihood of suicide three years later); see
also Bowen, 171 F. Supp. 2d at 1255-56 (refusing to infer a strong likelihood of suicide
based on an inmate’s remote history of previous attempts).
The record does not otherwise demonstrate an obvious or strong risk of suicide here.
Even assuming that the defendants failed to search, restrain, or otherwise continuously
monitor Calton while he awaited his transfer to the Skyview Unit, the record establishes that
he was seated outside Hallman’s office where Hallman and Nurse Love were preparing his
transfer. Although Calton claims that he did not know he was being transferred to an
inpatient facility for further monitoring, it is obvious that his complaints were not being
ignored. In that regard, the record reflects that Calton was escorted to the infirmary in a
prompt manner and, after conducting a brief evaluation, Hallman told Nurse Love and
Officer O’Bryant that Calton could not leave the infirmary because he was being transferred
for crisis management.

61

Deposition of Jamie Williams, at 20; see also Hallman Dep. at 151 (explaining that officers
are not told about an inmate’s mental, medical, or dental conditions because it would violate
the HIPAA privacy rule).
30

To the extent that Calton complains that he was not searched or restrained and that
was able to go to the restroom unsupervised, the deficiencies that he references constitution
negligence, at worst, and do not rise to the level of deliberate indifference. As the Fifth
Circuit has recognized, officials are not required to “unerringly detect suicidal tendencies”
in prisoners. Evans v. City of Marlin, 986 F.2d 104, 107 (5th Cir. 1993); see also Domino,
239 F.3d at 756 (noting that suicide is inherently difficult for anyone to predict, particularly
in the depressing prison setting). It is well established that deliberate indifference “is a
degree of culpability beyond mere negligence or gross negligence; it ‘must amount to an
intentional choice, not merely an unintentional oversight.’” James v. Harris County, 577 F.3d
612, 617-18 (5th Cir. 2009) (quoting Rhyne v. Henderson County, 973 F.2d 386, 392 (5th
Cir. 1992); see also Conner v. Travis County, 209 F.3d 794, 796 (5th Cir. 2000)). Only
deliberate indifference will suffice to state a claim under the Eighth Amendment; mere
negligence is not sufficient. See id.; see also Oliver v. Collins, 914 F.2d 56, 60 (5th Cir.
1990) (holding that a negligent failure to protect from harm does not make a claim under 42
U.S.C. § 1983). Thus, even if the defendants were negligent in failing to assess or monitor
Calton properly, this is insufficient to demonstrate liability under the Eighth Amendment
standard. See Domino, 239 F.3d at 756; see also Whitt v. Stephens County, 226 F. App’x
900, 902, 2007 WL 1577930, *2 (5th Cir. 2007).
There is no evidence that any of the individual defendants deliberately disregarded a
known danger to Calton’s health or safety as he sat in the infirmary waiting room on
September 19, 2008. Based on this record, Calton does not demonstrate that he was
31

intentionally treated with wanton disregard for his mental state or that any of the defendants
were deliberately indifferent to a known risk of harm. Thus, Calton fails to demonstrate the
requisite knowledge on the defendants’ part of a substantial risk to Calton’s health or safety.
Because Calton has failed to raise a genuine issue of material fact on whether he was denied
adequate care or safekeeping, he does not establish a constitutional violation and the
defendants are entitled to summary judgment on the defense of qualified immunity in
connection with this claim.

2.

Failure to Train and/or Supervise

Calton alleges that Lieutenant Kritsche and Sergeant Cannalito violated his Eighth
Amendment rights by failing to train or supervise staff to prevent suicide attempts.62 “Under
section 1983, supervisory officials are not liable for the actions of subordinates on any theory
of vicarious liability.” Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir. 2001)
(quoting Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987)). To establish § 1983 liability
against supervisors, the plaintiff must show that: (1) the supervisory official failed to
supervise or train the officer; (2) a causal connection existed between the failure to supervise
or train and the violation of the plaintiff’s rights; and (3) the failure to supervise or train
amounted to deliberate indifference to the plaintiff’s constitutional rights. City of Canton v.
Harris, 489 U.S. 378, 388-89 (1989); Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th

62

Doc. # 52, Amended Complaint, at ¶¶ 45-47.
32

Cir. 2003).
Calton’s claim concerns the failure of Officer O’Bryant to comply with TDCJ Post
Order 07.22 by subjecting Calton to a pat-search when he entered the infirmary. As outlined
above, all of the individual defendants identified by Calton complied with existing prison
policies designed to prevent suicide and did not consciously disregard a strong likelihood that
Calton would attempt suicide while he waited in the infirmary to be transferred to the
Skyview Unit. The record does not reflect that a failure to train or supervise amounted to
deliberate indifference, as opposed to negligence. In that respect, where claims of inadequate
training or supervision are at issue, “mere proof that the injury could have been prevented
if [an] officer had received better or additional training cannot, without more, support
liability.” Roberts v. City of Shreveport, 397 F.3d.287, 293 (5th Cir. 2005) (citing Snyder v.
Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998) (quoting City of Canton, 489 U.S. at 390-91)).
Based on this record, Calton fails to raise a genuine issue of material fact on whether
Lieutenant Krischke or Sergeant Cannalito violated his Eighth Amendment rights by failing
to train and/or supervise security officers at the Byrd Unit. Accordingly, these defendants
are entitled to summary judgment on the defense of qualified immunity.
3.

Objective Reasonableness

Alternatively, even assuming that a constitutional violation occurred, the defendants
insist that they are entitled to qualified immunity nevertheless because they acted in good
faith and Calton cannot show that their actions were objectively unreasonable under the
circumstances. Thus, the Court turns to the second prong of the qualified immunity
33

framework and examines whether the defendants’ conduct was objectively unreasonable.
To avoid summary judgment on the second prong of the qualified immunity defense, a
plaintiff must present evidence to raise a fact issue “material to the resolution of the questions
whether the defendants acted in an objectively reasonable manner in view of the existing law
and facts available to them.” Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir.
1993) (emphasis added). If reasonable public officials could differ as to whether the
defendants’ actions were lawful, the defendants are entitled to immunity. See Malley, 475
U.S. at 341.
As outlined above, the chronology reflects that Calton was quickly escorted to the
infirmary for a mental health evaluation on the morning of September 19, 2008. He was
immediately evaluated by Hallman, who determined that Calton needed crisis management
and began making arrangements to transport him to an appropriate inpatient facility. Calton
does not take issue with the promptness in which he was treated or the reasonableness of the
defendants’ efforts to afford him immediate medical care. The Court concludes that the
actions taken by the health care providers (Hallman, Tolles, and Love) were not objectively
unreasonable.63
Calton complains, however, that it was objectively unreasonable that the defendants
failed to search him, place him in restraints, and subject him to constant observation at all
times while he waited to be transferred to the Skyview Unit. According to TDCJ Post Order

63

The record reflects that medical personnel are not allowed to search inmates. Hallman Dep.
at 77.
34

07.22, which governs duties assigned to the infirmary officer, Officer O’Bryant was
supposed to pat search every offender who entered the infirmary for treatment. Officer
O’Bryant, who knew that Calton was awaiting transfer to an in-patient psychiatric facility
for crisis management, admits that she did not conduct a pat search.64 Warden Bailey notes
that, even if a pat-search had been done, it may not have disclosed a razor hidden on a
prisoner’s person. In view of the fact that Calton denied having a razor in his possession, it
was not clearly unreasonable for health care providers to have him wait in the infirmary,
where a security officer was present, and other medical personnel were nearby, while Calton
waited to be transferred to the Skyview Unit.
Calton argues, nevertheless, that the measures taken in his case were not sufficient to
protect him from self-harm. The Fifth Circuit has observed that the law is clearly established
that prison officials and jailers “must take measures to prevent inmate suicides once they
know of the suicide risk.” Hare v. City of Corinth, 135 F.3d 320, 328-29 (5th Cir. 1998)
(quoting Rellergert v. Cape Girardeau County, 924 F.2d 794, 797 (8th Cir. 1991)).
However, the “objective reasonableness standard does not afford a simple bright-line test”
in this context, Hare, 135 F.3d at 328, and Calton does not cite any authority, much less
show that the law is established with any clarity, about what those measures must be. The
facts are insufficient to establish that the defendants’ actions were objectively unreasonable
here. Importantly, the second prong of the qualified immunity analysis requires a reviewing

64

Because Calton was escorted to the infirmary by a ranking security office (Sergeant
Cannalito), Officer O’Bryant evidently assumed that Calton had already been searched.
35

court “only to determine whether, in light of the facts viewed in the light most favorable to
the plaintiff[], the conduct of the individual defendants was objectively unreasonable when
applied against the deliberate indifference standard.” Jacobs, 228 F.3d at 394. Viewing all
of the evidence in Calton’s favor, the failure of security officers to ensure that he had been
searched once he expressed suicidal impulses and to ensure that Calton was restrained or
directly monitored at all times while he awaited his transfer to crisis management rises only
to the level of negligence. To establish liability under 42 U.S.C. § 1983, a plaintiff must
demonstrate more than “mere negligence or even gross negligence.” Rhyne, 973 F.2d at 392
(explaining that the basis of § 1983 liability “must amount to an intentional choice, not
merely and unintentionally negligent oversight”). The defendants’ actions, while less than
ideal, do not demonstrate conscious disregard of a known risk of imminent harm to Calton’s
health or safety and are not sufficient to satisfy the deliberate indifference standard under the
facts of this case.
In summary, Calton, as plaintiff, has the burden to produce admissible evidence that
raises a genuine issue of material fact on whether the defendants’ actions were objectively
unreasonable under the circumstances in view of existing law and the facts known to them.
See Michalik, 422 F.3d at 262. Calton has filed lengthy responses to the defendants’ motions
for summary judgment, but he does not overcome the defendants’ assertion of qualified
immunity. Calton does not present evidence showing that the defendants knew, but
deliberately chose to disregard, facts showing that Calton harbored a razor blade on his
person and posed an immediate danger to himself while he was seated in the infirmary.
36

Calton has not otherwise shown that the defendants acted with the requisite deliberate
indifference to his health or safety. Likewise, he does not show that the actions taken by the
defendants were objectively unreasonable in this instance. The Court concludes, therefore,
that summary judgment on the defendants’ assertion of qualified immunity is warranted.

B.

Eleventh Amendment Immunity — Official Capacity Claims

The defendants argue that Calton’s claims against them in their official capacity as
state employees are barred by the Eleventh Amendment to the United States Constitution.65
Federal court jurisdiction is limited by the Eleventh Amendment and the principle of
sovereign immunity that it embodies. See Seminole Tribe of Florida v. Florida, 517 U.S. 44,
54 (1996); Vogt v. Board of Comm’rs, Orleans Levee Dist., 294 F.3d 684, 688 (5th Cir.
2002). Unless expressly waived, the Eleventh Amendment bars an action in federal court by,
inter alia, a citizen of a state against his or her own state, including a state agency. See
Martinez v. Texas Dep’t of Criminal Justice, 300 F.3d 567, 574 (5th Cir. 2002).
As state agencies, TDCJ and UTMB are immune from a suit for money damages
under the Eleventh Amendment. See Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). It
is also settled that the Eleventh Amendment bars a recovery of money damages under 42
U.S.C. § 1983 from state employees in their official capacity. See Oliver v. Scott, 276 F.3d

65

The Eleventh Amendment states: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
U.S. CONST. amend. XI.
37

736, 742 (5th Cir. 2001); Aguilar v. Texas Dep’t of Criminal Justice, 160 F.3d 1052, 1054
(5th Cir. 1998). Because all of the defendants are state employees of TDCJ or UTMB, the
Eleventh Amendment bars Calton’s claims for monetary damages against them in their
official capacity.
A narrow exception to Eleventh Amendment immunity exists for suits brought against
individuals in their official capacity, as agents of the state or a state entity, where the relief
sought is injunctive in nature and prospective in effect. See Aguilar, 160 F.3d at 1054 (citing
Ex parte Young, 209 U.S. 123 (1980)). Although Calton seeks injunctive relief in this case,
the exception is narrow and allows only prospective relief. The defendants maintain that
Calton does not fit within the limited exception and that he cannot prevail in this instance.
According to the complaint, Calton faults the defendants for failing to institute a
policy that “inmates expressing suicidal thoughts be denied the prison-issued shaving razor,
be immediately restrained, be immediately searched for dangerous objects, and/or be visually
monitored and supervised continuously.”66 Calton claims further that certain defendants
failed to adequately supervise or train staff to prevent suicide attempts and that he was
harmed as a result.67 Thus, Calton requests injunctive relief in the form of a court order
directing the defendants to adopt an adequate policy to prevent suicide attempts by inmates
and to adequately train officers and supervise personnel to ensure that suicide prevention
policies are enforced.
66

Doc. # 52, Amended Complaint, at ¶ 42.

67

Id. at ¶¶ 45-47.
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The defendants note that TDCJ and its Health Services Division already have policies
in place that are designed to prevent suicide.68 Likewise, according to the statement from
Warden Tracy Bailey, once an inmate is identified as suicidal, he is not issued a safety razor,
but is instead given a clipper shave device that is not capable of causing harm.69 Thus,
contrary to Calton’s allegation, there is a policy in place that pertains to preventing suicide
as well as access to a state-issued razor by prisoners who express suicidal intentions.
Calton does not dispute that there are suicide prevention policies in place at TDCJ and
that access to razors is restricted in certain circumstances. Calton insists, however, that the
policies and practices in place are inadequate where he has been concerned. Calton discloses
that, in addition to his suicide attempt that occurred on September 19, 2008, he used a stateissued razor to cut his wrists again while this lawsuit was pending in December of 2010.70
The defendants argue, nevertheless, that Calton does not show that he has standing to request
injunctive relief that is prospective in nature or that such relief is available in this case. In
order to pursue a claim in federal court, a plaintiff must establish standing as part of the
“case-or-controversy requirement” found in Article III of the United States Constitution,
which restricts federal court jurisdiction. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332,
342 (2006) (emphasizing the critical role of standing, which is a “core component” of the
“case-or-controversy requirement” found in Article III) (citing Lujan v. Defenders of
68

Doc. # 73, Exhibits G & H; Doc. # 75, Exhibit H.

69

Doc. # 75, Exhibit B, ¶ 5.

70

Doc. # 78, at 24; Doc. # 79, at 24.
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Wildlife, 504 U.S. 555, 560 (1992)). The “irreducible constitutional minimum of standing”
requires the following three elements: (1) the plaintiff must have suffered an “injury in fact”
– that is, an invasion of a legally protected interest which is (a) concrete and particularized,
and (b) “actual or imminent,” not “conjectural” or “hypothetical”; (2) there must be causal
connection between the injury and the conduct complained of – the injury has to be fairly
traceable to the challenged action of the defendant, and not the result of the independent
action of some third party not before the court; and (3) it must be “likely” as opposed to
merely “speculative” that the injury will be redressed by a favorable decision. Lujan, 504
U.S. at 560-61.
The defendants note that none of them are in a position to adopt the policy that Calton
seeks. Because these defendants have no power to adopt the requested policy, Calton has not
articulated a valid case or controversy that will permit an action for injunctive relief against
these defendants in federal court. See Okpalobi v. Foster, 244 F.3d 405, 427 (5th Cir. 2001).
In other words, the plaintiff fails to satisfy the “‘redressability’ requirement” of the case-orcontroversy analysis. See id. at 426-27; see also Lujan, 504 U.S. at 560-61 (outlining the
three elements — injury, causation, and redressability — to establish standing). Because
Calton does not raise a genuine issue of material fact on this claim, the defendants’ motions
for summary judgment will be granted.
IV.

CONCLUSION AND ORDER
Based on the foregoing, the Court ORDERS as follows:
1.

The motion for summary judgment filed by Samuel Hallman, Beverly Love,
40

Richard Tolles, and Jamie Williams [Doc. # 72] is GRANTED.
2.

The motion for summary judgment filed by Lieutenant Karl Krischke,
Sergeant Beverly Cannalito, and Officer Carolyn O’Bryant [Doc. # 74] is
GRANTED.

3.

The Court appointed local attorney Jason Newman of Baker & Botts, LLP, to
assist Calton with articulating his claims against the appropriate defendants,
and he has done a commendable job. That order appointing counsel [Doc.
# 31] is now TERMINATED.

4.

This case is DISMISSED with prejudice.

The Clerk will provide a copy of this order to the parties.
SIGNED at Houston, Texas, on May 27, 2011.

NANCY F. ATLAS
UNITED STATES DISTRICT JUDGE

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