Opinion
No. 7-98CV-183-R.
October 26, 2000.
MEMORANDUM OPINION
Plaintiffs, individually and as next friends to Lester Alexander Norice ("Mr. Norice"), assert claims against Defendants Hardeman County ("the County"), Randy Akers, Chief Deputy Mance Nelson, and Deputy Tim Solis for violating Mr. Norice's constitutional rights under 42 U.S.C. § 1983. Specifically, Plaintiffs allege that Defendants caused Norice's death by either using or allowing others to use excessive force, and Defendant Hardeman County failed to provide proper training to its officers with respect to suicidal prisoners, including the need to timely inspect the cells and insure the prisoner's well being. Now before the Court is Defendants' Motion for Summary Judgment, filed on September 14, 2000. For the reasons stated below. Defendants' motion is GRANTED and Plaintiffs claims are hereby DISMISSED.
I. BACKGROUND FACTS
On September 21, 1996, Lester Norice was arrested for assault and public intoxication. At approximately 6p.m., he was placed in a holding cell in Hardeman County jail. Affidavits submitted by Defendant showed that Mr. Norice responded normally to routine questioning arid otherwise exhibited no signs of suicidal behavior. County jailors continued to check on Mr. Norice at regular intervals until at least 8:00 p.m. The next documented check of Mr. Norice's cell came at 9:45 p.m. when Robyn West discovered Mr. Norice. She found Mr. Norice unresponsive in his cell, "apparently having hung himself." An autopsy of the decedent similarly concluded that he died from self inflicted hanging by a shirt fashioned into ligature.
Plaintiffs filed their original complaint in September 1998, complaining of violations of Mr. Norice's civil rights under § 1983. Plaintiffs sought $10,000,000 in damages based on Mr. Norice's alleged mental anguish and his next friends' severe emotional distress caused by his wrongful death at the hands of County officials. After ordering Plaintiffs to provide a more definite statement, Plaintiffs filed their First Amended Complaint on July 17, 2000, Plaintiffs' allegations accused the County of intentionally causing Mr. Norice's death through the use of excessive force or, in the alternative, they claimed that the County failed to protect Mr. Norice's constitutional rights as a suicidal pretrial detainee.
After receiving notice of Defendants' Motion for Summary Judgment, Plaintiffs failed to produce evidence to support the allegations in their complaint, and they failed to produce evidence to refute Defendants' Motion for Summary Judgment. Furthermore, while Defendants complied with this Court's scheduling order by timely designating expert witnesses, Plaintiffs wholly failed to comply with the scheduling order, producing no evidence and designating no expert witnesses. Notably, Plaintiffs have been completely unresponsive since the filing of their First Amended Complaint.
II. ANALYSIS
Defendants contend that summary judgment is proper because Plaintiffs have failed to produce evidence on every element of every claim alleged within the complaint. Furthermore, Defendants argue that even if such evidence were provided, the affirmative defense of qualified immunity should shield them from the present suit.
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment only when no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. See FED. R. Civ, P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Ass'n of Am., 114 F.3d 557, 559 (5th Cir. 1997). Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the nonmoving party's case. See Celotex, 477 U.S. at 325.
Once the moving party has satisfied this burden, the nonmoving party must go beyond the pleadings and by its own affidavits, depositions, answers to interrogatories, or admissions on file set forth specific facts showing a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431-32 (5th Cir. 1998). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
B. Excessive Force Claim
Plaintiffs claim that the County's sheriff and/or deputies used excessive force, which resulted in Mr. Norice's death. Defendants attack this claim contending that Plaintiffs have shown no evidence to give rise to any reasonable inference that County officials did violence to Mr. Norice. Indeed, Defendants submit the affidavit of Robyn West, which directly challenges such a proposition. In her affidavit, West states that she found Mr. Notice "unresponsive, apparently having hung himself."
Significantly, Defendants can point to a total lack of evidence to support Plaintiffs allegations of excessive force. Because Defendants have met their burden of showing no evidence will support Plaintiffs' claim, it becomes incumbent upon Plaintiffs to provide more than the mere allegations of wrongdoing found in their complaint. Plaintiffs must produce affidavits, answers to interrogatories, or other evidence to show a question of material fact remains for trial. Plaintiffs have not done so, remaining passive in the face of Defendants' Motion for Summary Judgment. Furthermore, Defendants have raised evidence that directly contradicts Plaintiffs allegations. Because Plaintiffs both have failed to produce any evidence to support their allegations of excessive force and have failed to produce evidence refuting Defendants' evidence, Plaintiffs have not met their summary judgment burden. Therefore, summary judgment is GRANTED to the Defendants on the issue of excessive force.
C. Negligence and Deliberate Indifference Claims
Plaintiffs also claim that the County and its officials were deliberately indifferent as to the safety of Mr. Notice. They further allege that the County was negligent in failing to train its staff on procedures that might have kept Mr. Norice from committing suicide.
As for the complaints against the County, the complainant must show that the omission of a policy amounted to "deliberate indifference" to the safety of a known suicidal risk. See Rhyne v. Henderson County, 973 F.2d 386 (5th Cir. 1992) (evidence did not support a showing of "deliberate indifference" in failing to train officers of suicide risks where no evidence was offered comparing their actual training with the training that they should have had in order to avoid an obvious violation of a suicidal pretrial detainee's constitutional right). The same inquiry is made when assessing the acts of County officials, both in their official capacities and in their individual capacities. See Barber v. City of Salem, 953 F.2d 232 (6th Cir. 1992); see also Estate of Frank v. City of Beaver Dam, 921 F. Supp. 590 (E.D. Wis. 1996) (officer who was told of detainee's mood swings was not so indifferent to detainee's suicidal risk as to remove the officer's qualified immunity from suit). Deliberate indifference consists of actual knowledge of risk combined with an official's failure to take obvious precautions to avoid the suicidal risk. Manarite v. City of Springfield, 957 F.2d 953 (1st Cir. 1992). The risk must be a substantial likelihood, rather than a mere possibility, that self inflicted harm will occur. Colburn v. Upper Darby Tp., 946 F.2d 1017 (3rd Cir. 1991).
In the present case, Defendants have produced evidence tending to show that no officer had any knowledge of the decedent's suicidal condition. Defendants also have produced evidence that tends to show that its jailors regularly checked on Mr. Norice in his cell between 6:00 p.m. and 8:00 p.m. It is unclear from the record whether any checks occurred between 8:00 p.m. and 9:45 p.m., when Mr. Notice was discovered hanging in his cell. Plaintiffs have produced no evidence to support the allegation that the County, or its officials, knew or should have known of Mr. Norice's suicidal condition. Furthermore, Plaintiffs have produced no evidence about the level of training the jailors received or should have received to better protect Mr. Norice from himself. Lastly, Plaintiffs have produced no evidence explaining how the County's training could have obviously led to the violation of a pretrial detainees' constitutional rights. Because Plaintiffs have produced no evidence and because Defendants' evidence has not been refuted by additional affidavits or evidence by the complainants, Plaintiffs have failed completely in meeting their summary judgment burden. Therefore, Defendants' Motion for Summary Judgment is properly GRANTED. Because Plaintiffs failed to survive summary judgment, the Court does not reach whether the County or its officials have a qualified immunity defense that would otherwise shield them from suit.
Even if Hardeman County's officers could be deemed to have been negligent by not checking on Mr. Norice between 8:00 p.m. and 9:45 p.m., this lack of diligence would not rise to the level of a § 1983 violation. This is because mere negligence does not satisfy the "deliberate indifference" standard required in such cases See Danese v. Asman, 670 F. Supp. 709 (E.D.Mich. 1987). This conclusion is further bolstered by the fact that there exists no evidence to suggest that officers had knowledge of Mr. Norice's suicidal condition. See Beicher v Oliver, 898 F.2d 32 (W.Va. 1990). To the contrary, Mr. Norice even joked with officers about his previous arrest for public intoxication.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED.
It is so ORDERED.