Opinion
CAUSE NO. NA 02-133-C H/H
February 17, 2004
ENTRY ON MOTION FOR SUMMARY JUDGMENT AND ORDER TO SHOW CAUSE
Plaintiff Doria Miller is the mother of the late Roy Alien Miller, who committed suicide after escaping from the custody of the Floyd County Sheriff. Mrs. Miller has filed this action in her own right and as the personal representative of Roy Alien Miller's estate. Her complaint named as defendants Floyd County Sheriff Randall Hubbard in his official and individual capacities and Floyd County Jail Officer James Dexter. By earlier entry, the court dismissed with prejudice the claims against Officer Dexter, the officer whom Miller shot and nearly killed. Sheriff Hubbard now seeks summary judgment in his favor on claims brought against him in his individual capacity. He relies on the doctrine of qualified immunity. He also contends he had no personal involvement in Miller's death, as would be required for individual liability under 42 U.S.C. § 1983. As explained below, Sheriff Hubbard's motion for summary judgment is granted, and the court orders plaintiff to show cause no later than April 8, 2004 why summary judgment should not be granted as to any remaining claim against Sheriff Hubbard in his official capacity.
Undisputed Facts
The following facts are undisputed for purposes of summary judgment, meaning either that there is no dispute or that the court is giving plaintiff, as the non-moving party, the benefit of credibility contests and of reasonable favorable inferences that could be drawn from the evidence.
Roy Alien Miller was arrested on July 14, 2000 in Floyd County, Indiana, for resisting law enforcement, battery, and vehicle theft. On July 17, 2000, the Floyd County Sheriff's Department transported Miller to Clark Memorial Hospital for detoxification and psychiatric care. Miller was not supposed to leave Clark Hospital, but he did. On July 27, 2000 a warrant was issued for Miller's arrest. He was again taken into custody and brought to the Floyd County Jail. A psychiatrist assessed him as drug dependent and in need of continued medical detoxification. On July 29, 2000, Miller's drug withdrawal symptoms worsened to the point that jail personnel were unable to administer the prescribed medication. Paramedics from an ambulance crew recommended that Miller be taken to the hospital. Officer James Dexter transported Miller to the hospital for further treatment.
While Miller was at the hospital he somehow managed to gain control of Officer Dexter's gun. He shot Dexter several times, wounding him critically. Miller then escaped from the hospital and the custody of the Sheriff's Department. Later, while authorities were attempting to recapture Miller, he used Officer Dexter's gun to kill himself with a gunshot to the head.
The undisputed evidence shows that Sheriff Hubbard did not know of Miller's two July 2000 jail bookings until after Miller had committed suicide. Hubbard did not know that Miller had been transported to the hospital, nor did he participate in making decisions about his incarceration, transportation, or security arrangements.
In an attempt to hold Sheriff Hubbard personally liable, the plaintiff has focused on the Sheriffs Department's standard operating procedures. One of those, SOP 13, deals with inmate transportation and includes instructions on security and such items as: "Do not have your weapon where a prisoner might grab it." Pl. Ex. 5. SOP 13 also states: "A separate SOP for' High Risk' transport is forthcoming," though none apparently was issued during any time relevant to this case. Plaintiff also points out that the Sheriff's Department has not issued more specific SOPs for dealing with inmates with severe narcotic withdrawal or "long term suicide risks," though there is no contention that there is more general indifference to suicide risks. Plaintiff also claims even more specifically that there is no SOP "for transporting inmates suffering from severe narcotics withdrawal to the hospital and/or handling inmates suffering from severe narcotics withdrawal while at the hospital," or for training deputies on how to protect their firearms while transporting or handling inmates outside the jail.
Discussion
A claim under 42 U.S.C. § 1983 must allege a constitutional deprivation. In this case, plaintiff alleges in her own right that the acts or omissions of Sheriff Hubbard deprived her of her right to "parental association," a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. See Bell v. City of Milwaukee, 746 F.2d 1205, 1245 (7th Cir. 1984); see generally White v. City of Philadelphia, 118 F. Supp.2d 564, 566 n. 1 (E.D. Pa. 2000) (discussing Bell and division among courts on recognition of parents' constitutional liberty interest in relationships with adult children). As the personal representative of Miller's estate, plaintiff also alleges that Sheriff Hubbard deprived Miller of his right to life without due process of law and more specifically deprived him of his rights as a person in pre-trial custody to be free from punishment or infliction of pain, to be housed safely, and to receive adequate and sufficient emergency medical treatment.
Plaintiff claims that Sheriff Hubbard should be held individually liable for Miller's death because: (1) he should have been aware of and prevented Miller from being transported to the hospital against the earlier instructions of a doctor; (2) he should have known Miller was a drug addicted inmate with emotional and physical withdrawal symptoms who was a potential suicide risk and who had previously fled from the hospital, and as such should not have been transported; (3) he did not provide a sufficient number of deputies to prevent Miller from escaping; (4) he failed to make sure that jail officers were properly trained in handling inmates like Miller, who were drug dependent suicide risks with emotional and physical withdrawal symptoms and who had previously successfully fled from a hospital when transported there for help; and (5) he failed to have in place, or enforce, proper polices and procedures for handling, transporting and securing those same types of inmates.
Plaintiff relies on a document that appears to be a hospital medical record from July 29, 2000 authored by Dr. Daniel Cannon. The document states in pertinent part: "this patient was admitted through the emergency department against my express order to the county jail not to bring him to the hospital." This document and several others were submitted by plaintiff in response to the motion for summary judgment without foundation of any sort. Over an objection by the defendant, the document is not admissible without appropriate foundation. The fact that a document or record has been produced by one party to another in response to a discovery request does not make it admissible evidence against the producing party. If challenged, documents relied upon by either side in connection with a summary judgment motion must be authenticated, typically by the affidavit of an appropriate person. Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (7th Cir. 1987). In any event, even if the document were admissible, it would not present a material fact affecting this court decision.
Sheriff Hubbard has moved for summary judgment on grounds of qualified immunity, arguing that Miller's constitutional rights were not violated by anyone acting under color of state law. A two-part test determines whether a government official is entitled to qualified immunity in a civil suit under § 1983. Saucier v. Katz, 533 U.S. 194, 200-01 (2001); see also McNair v. Coffey, 279 F.3d 463, 465 (7th Cir. 2002); Marshall v. Teske, 284 F.3d 765, 771-72 (7th Cir. 2002). First a court asks whether the facts alleged demonstrate a constitutional violation when examined in the light most favorable to the plaintiff. Saucier, 533 U.S. at 201. If the facts as alleged reveal no constitutional violation, the inquiry ends and the officer prevails on the merits of the case. Los Angeles v. Heller, 475 U.S. 796 (1986) (holding that if there is no constitutional violation, there can be no liability on the part of the individual officer or the government body); Estate of Phillips v. Milwaukee, 123 F.3d 586, 596-97 (7th Cir. 1997). If the facts alleged would amount to a constitutional violation, the court next examines whether the law was "clearly established" at the relevant time. Saucier, 533 U.S. at 201; Marshall, 284 F.3d at 772.
To answer the second "clearly established law" question, the court asks whether a reasonable public official who faced the same factual circumstances that the defendant faced would have recognized at the time that his or her actions would violate the Constitution. The question is not a broad question of abstract constitutional doctrine, but specific to the particular circumstances. See Saucier, 533 U.S. at 201; Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). Qualified immunity protects a government official even if that official is mistaken about the law that applies to her actions. Forman v. Richmond Police Dep't, 104 F.3d 950, 958 (7th Cir. 1997) (finding that qualified immunity gives "ample room for mistaken judgments" and protects "all but the plainly incompetent or those who knowingly violate the law").
Because Sheriff Hubbard has moved for summary judgment only on the claims against him in his individual capacity, the court bypasses for the moment the initial inquiry — whether plaintiff has alleged a constitutional violation at all. The parties have not yet briefed that issue, and they will need to address it in response to the court's order to show cause why summary judgment should not also be granted on the official capacity claims.
Turning to the second element, of a "clearly established" right, in the Seventh Circuit, once a defendant claims qualified immunity, the burden is on the plaintiff to show that the right claimed to have been violated was clearly established. Marshall v. Alien, 984 F.2d 787, 797 (7th Cir. 1993); Pounds v. Griepenstroh, 970 F.2d 338, 342 (7th Cir. 1992). Plaintiff has not come forward with any authority holding that any law enforcement official has a constitutional duty to prevent an escaped prisoner from committing suicide, or even that any law enforcement official owes a constitutional duty to an inmate to prevent him from escaping.
The closest plaintiff has come is an Eleventh Circuit case, Greason v. Kemp, 891 F.2d 829, 836-40 (11th Cir. 1990), in which a prison inmate had committed suicide after his psychotropic medication had been abruptly halted. The Eleventh Circuit affirmed a denial of summary judgment on qualified immunity for prison supervisors, relying on well-established law concerning prison officials' responsibilities to care for the safety of inmates, including those who are suicidal. That well-recognized duty has not, to this court's knowledge, been extended to apply a duty to prevent an escaped prisoner from committing suicide, or to a duty to an inmate to prevent him from escaping.
In the absence of such clearly established law, Sheriff Hubbard is entitled to summary judgment on grounds of qualified immunity. On this defense, Sheriff Hubbard is entitled to summary judgment even if the court assumes that he knew about Miller's arrest, prior escape, withdrawal symptoms, and the danger of escape and/or suicide. The Seventh Circuit has suggested in dicta that jail official might be held liable for jail suicide if the jail lacked policies such as allowing for a "suicide watch" for high risk prisoners. Boncher v. Brown County, 272 F.3d 484, 486 (7th Cir. 2001), citing Greason v. Kemp. Even if such a claim might be possible in theory, plaintiff has not come forward with evidence that would allow a reasonable jury to find that the standard operating procedures issued by the Sheriff Department were so inadequate that an inference might be drawn of deliberate indifference to inmate safety.
Sheriff Hubbard is also entitled to summary judgment because there is no genuine issue of fact as to his personal responsibility for Miller's death. To hold a public official liable in his individual capacity under § 1983, there must be a showing of personal involvement. Palmer v. Marion County, 327 F.3d 588, 593-94 (7th Cir. 2003). Sheriff Hubbard has testified in his affidavit that, before Miller committed suicide, Hubbard had no knowledge of his incarceration or transportation to the hospital.
Plaintiff has attempted to find a genuine issue of fact regarding Sheriff Hubbard's personal knowledge of Miller's case in the defendants' joint answer to the complaint. Paragraph 22 of the complaint alleged: "Defendants were aware that [Roy Alien Miller] was going through withdrawal and was suicidal." The remaining defendants — Sheriff Hubbard in both his individual and official capacities — filed a joint answer and responded: "[T]he Defendants admit that Miller's treating healthcare providers had diagnosed Miller as suffering from chemical dependency withdrawal and advised the Defendants that Miller posed a risk of suicide and escape. The remaining allegations of ¶ 22 are denied." This was a joint answer that failed to distinguish carefully, as did the plaintiff's complaint, between individual and official capacity claims against the Sheriff. From the record as a whole, however, it is clear that there is no genuine issue of Sheriff Hubbard's personal knowledge. Plaintiff recognized how thin this argument was when she said that if the Sheriff tried to explain away this admission in the answer, she would seek to take his deposition. Pl. Br. at 2 n. 1. The Sheriff certainly tried to explain away the admission. The record gives no indication that plaintiff has tried to take his deposition.
Plaintiff makes no attempt in her complaint to differentiate her claims against the Sheriff in his individual capacity from those brought against him in his official capacity. Deliberate indifference is the recognized standard of protection afforded prisoners or detainees. Palmer v. Marion County, 327 F.3d at 593. Claims against officials based upon inappropriate protection of a prisoner or detainee require a showing that the conditions at the time posed a "substantial risk of harm" and that the defendants "had knowledge of and disregarded" the risk of harm. Id. A court will not find individual liability under § 1983 based only on one official's supervisory role over another. Zimmerman v. Tribble, 226 F.3d 568, 574 (7th Cir. 2000). In addition to deliberate indifference, there must be personal involvement in the alleged deprivation to support a viable claim against an individual. Zentmyer v. Kendall County, 220 F.3d 805, 811 (7th Cir. 2000). "Although direct participation is not necessary, there must at least be a showing that the Sheriff acquiesced in some demonstrable way in the alleged constitutional violation." Palmer, 327 F.3d at 594.
Here, no reasonable jury could find personal participation on the part of the Sheriff. In fact, the only evidence of record is the Sheriffs testimony that he learned of the arrest and detention of Miller only after he escaped and shot himself. Therefore, plaintiff cannot establish individual liability, and Sheriff Hubbard is entitled to summary judgment on the individual claims.
Whether plaintiff can establish liability on the part of the Sheriff in his official capacity is not at issue currently, but is doubtful as well in light of the deliberate indifference standard. Roy Alien Miller's death, like any suicide, was an unfortunate tragedy. Legal liability of others for a suicide is another question, though, especially since this case involves a suicide by a violent prisoner who seized control of a guard's firearm, shot and nearly killed the guard, escaped, and then later committed suicide with that gun. The court has great difficulty understanding how any official might be deemed to have violated the constitutional rights of Miller or his mother. In the briefing on the court's order to show cause on the claims against the shooting victim — Officer Dexter-and in the briefing on this summary judgment motion, plaintiff has not yet identified any case law providing support for finding either (1) that jail officials owe a constitutional duty to inmates to prevent them from escaping, or (2) that jail officials have a constitutional duty to prevent escaped prisoners from committing suicide.
In general, there is no constitutional duty on the part of the state to protect someone from private violence. DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189 (1989). The Supreme Court in DeShaney recognized an exception to this general rule in situations where the state has custody or is "restraining the individual's freedom to act on his own behalf," which can trigger a duty to provide for the individual's safety. Id. at 200. But in this case, Miller did not die while he was in custody. He shot himself after shooting Officer Dexter and escaping from custody. No state officials restrained his individual freedom to act when he pulled the trigger. Moreover, the Seventh Circuit and other courts have rejected constitutional claims by guards who were injured by violent escaping inmates and who alleged that their supervisors should have prevented the prisoners from escaping and injuring them. Walker v. Rowe, 791 F.2d 507, 509 (7th Cir. 1986) (guards injured in prison riot); accord, de Jesus Benavides v. Santos, 883 F.2d 385, 387 (5th Cir. 1989) (guards killed and injured by escaping prisoners). Where killed and injured guards have no such claim under the federal Constitution, it is difficult to understand how the escaping prisoner would have one.
These circumstances lead the court now to direct plaintiff to show cause why the court should not grant summary judgment on any remaining claim against Sheriff Hubbard in his official capacity. Any such showing needs to address: (a) the issue of constitutional duty to a prisoner in the context of an escape by that prisoner, (b) how any agent of the Sheriff's Department violated any constitutional right of Roy Alien Miller, and (c) the issue of causation, especially to the extent that plaintiff contends there was a constitutional duty to prisoners to train deputies to prevent those same prisoners from committing such criminal acts as battery, battery with a deadly weapon, and escape. Any such showing shall be filed no later than April 8, 2004, with supporting evidence. Defendant Hubbard may file a reply no later than 30 days after the response is filed.
So ordered.