Lead Opinion
This case arises from the death of 26 year old Jason Ray Brown in the Wichita County Jail in Texas while he was a pretrial detainee. This is the second appeal in this case. In the prior appeal, Brown v. Callahan,
I.
Because the district court decided this case on summary judgment, this court “must view the facts and the inferences to be drawn from them in the light most favorable to [the plaintiffs].” Wyatt v. Hunt Plywood Co., Inc.,
On Thursday July 22, 2004 around 3:00 p.m., Brown was arrested and brought to the Wichita County Jail. Brown told the booking officer at the jail that he was under the care of a local specialist, Dr. Joseph Dean, for several serious medical conditions, including autoimmune chronic hepatitis, esophageal varices (enlarged veins in the lower part of the esophagus), anemia, jaundice, and splenomegaly (an enlargement of the spleen). Brown was placed in the jail’s general population. At 4:00 p.m., Brown complained that he felt nauseous and had vomited a small amount of blood. Nurse Michelle George contacted Brown’s pharmacist, who gave her Brown’s list of prescribed medications, which were prescribed to be taken every few hours. The pharmacist also told her that Brown had not picked up his medications in several months. Nurse George attempted to reach Brown’s physician, Dr. Dean. George then spoke with her supervisor, Nurse Rose Ingram, who told her not to order the medications until the patient was seen by the jail’s medical officer, Dr. Daniel Bolin. Dr. Bolin was under contract with Wichita County to be the physician in charge of providing medical care to inmates at the jail, as well as supervising the jail’s nursing staff and providing written standing orders for the nursing staff.
The following day, July 23, shortly before midnight, Brown vomited a large amount of blood. Other inmates contacted officers for help. Corporal Green and Officer Sours responded. They found a large puddle of blood next to Brown. Officer
Brown took the antacid but soon other inmates alerted the officers that Brown was complaining that he was in a lot of pain. Officer Sours called Krajca again and she asked whether anyone actually saw Brown throw up blood. Sours told her, “Kaye, I had to clean it up.” Krajca told the officers to give Brown a phener-gan suppository for the nausea from Dr. Bolin’s standing orders. Around 2:25 a.m. (now July 24), the officers returned to Brown’s cell to administer the suppository but found Brown moaning and incoherent. The officers called Krajca at home again and told her that Brown was incoherent. Krajca advised that she was en route.
When Krajca arrived at the jail, Brown was largely unresponsive. Krajca had Brown moved to medical solitary and administered the suppositories. During a cigarette break, Krajca asked Sours, “Do you know what kind of ass chewing I would get from Dr. Bolin if I sent him to the hospital in the good health that he is in?”
On Saturday, July 24, between 3:12 a.m. and 11:30 p.m., detention officers allegedly monitored Brown through a slot in the cell door. At approximately 11:30 p.m., Brown was found unresponsive and without a pulse by the two officers. Krajca advised them to call emergency services. The medical response team reported that Brown had died quite some time prior to their arrival. The autopsy report indicates that Brown died from a massive gastrointestinal hemorrhage.
The plaintiffs, Brown’s parents, sued Wichita County; the Wichita County Sheriff; Dr. Bolin; and nurses and officers at the jail. In addition to state law negligence claims, the plaintiffs brought claims under 42 U.S.C. § 1983, alleging that the defendants violated Brown’s Fourteenth Amendment right to due process through their deliberate indifference to his serious medical needs. The district court denied summary judgment for the County, and denied summary judgment for Dr. Bolin and the Sheriff, concluding that they were not entitled to qualified immunity. Sheriff Callahan appealed and this court reversed, concluding that Sheriff Callahan was entitled to qualified immunity. Callahan,
II.
This court reviews de novo the grant of summary judgment. Callahan,
A qualified immunity defense alters the usual summary judgment burden of proof. See Michalik v. Hermann,422 F.3d 252 , 262 (5th Cir.2005). Once an official pleads the defense, the burden then shifts to the plaintiff, who must rebut the defense by establishing a genuine fact issue as to whether the official’s allegedly wrongful conduct violated clearly established law. Id. The plaintiff bears the burden of negating qualified immunity, id., but all inferences are drawn in his favor.
The qualified immunity defense has two prongs: whether an official’s conduct violated a constitutional right of the plaintiff; and whether the right was clearly established at the time of the violation. Manis v. Lawson,585 F.3d 839 , 843 (5th Cir.2009). A court may rely on either prong of the defense in its analysis. Id. If the defendant’s actions violated a clearly established constitutional right, the court then asks whether qualified immunity is still appropriate because the defendant’s actions were “objectively reasonable” in light of “law which was clearly established at the time of the disputed action.” Collins v. Ainsworth,382 F.3d 529 , 537 (5th Cir.2004) (citations omitted). Whether an official’s conduct was objectively reasonable is a question of law for the court, not a matter of fact for the jury. Williams v. Bramer,180 F.3d 699 , 703 (5th Cir.1999). To be clearly established for purposes of qualified immunity, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Brown v. Miller,519 F.3d 231 , 236 (5th Cir.2008). The unlawfulness of the defendant’s actions must have been readily apparent from sufficiently similar situations, but it is not necessary that the defendant’s exact act have been illegal. Id. at 236-37. An official’s actions must be judged in light of the circumstances that confronted him, without the benefit of hindsight. Graham v. Connor,490 U.S. 386 , 396-97,109 S.Ct. 1865 ,104 L.Ed.2d 443 (1989). In essence, a plaintiff must allege facts sufficient to demonstrate that no reasonable officer could have believed his actions were proper. Babb v. Dorman,33 F.3d 472 , 477 (5th Cir.1994).
Id. at 253.
III.
As a pretrial detainee, Brown had a clearly established Fourteenth Amendment right not to be denied medical care as a result of deliberate indifference. Hare,
More often, however, a plaintiffs claim, properly characterized, faults specific jail officials for their acts or omissions because the plaintiff cannot establish the existence of an officially sanctioned unlawful condition. In these cases, “an actor usually is interposed between the detainee and the municipality, such that the detainee complains first of a particular act of, or omission by, the actor and then points derivatively to a policy, custom, or rule (or lack thereof) of the municipality that permitted or caused the act or omission.” Scott,114 F.3d at 53 .
Id.
We conclude that this case presents an episodic acts complaint. The specific complaint in this case is that Nurse Krajca, faced with Brown’s critical medical situation, should have sent Brown to the hospital or at least called Dr. Bolin for advice. Brown alleges that Krajca’s conduct was a consequence of Dr. Bolin’s and the County’s policy of: (1) placing inadequately trained vocational nurses in the position to make critical medical decisions for the inmates without adequate guidance, training or supervision; and (2) with the knowledge that the supervising physician intimidated nurses to prevent them from calling him after hours. However, the claim starts with Nurse Krajca’s determination that Brown’s medical condition could be handled in the jail by use of the standing orders for medication without sending him to the hospital. See Scott,
The record lacks evidence of a systemic failure of medical care of the type that we have found to present a unconstitutional condition of confinement. In Shepherd, the plaintiff indicted the entire jail medical system as a cause of his stroke.
Similarly, in Duvall v. Dallas County, the plaintiff contracted a severe infection that was resistant to typical antibiotic treatment.
IV.
We turn next to the issue of whether the district court properly granted summary
An official
not personally involved in the acts that deprived the plaintiff of [his] constitutional rights is liable under section 1983 if: 1) the [supervisor] failed to train or supervise the officers involved; 2) there is a causal connection between the alleged failure to supervise or train and the alleged violation of the plaintiff’s rights; and 3) the failure to train or supervise constituted deliberate indifference to the plaintiffs constitutional rights.
Id., (citing Thompson v. Upshur Cnty., Tex.,
Supervisory liability can also be established without direct participation in the alleged events “if supervisory officials implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation.” Thompkins v. Belt,
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the [government entity] ... or by an official to whom the [entity] has delegated policy-making authority; or
2. A persistent, widespread practice of ... officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents [the entity’s] policy.
Cozzo,
Brown’s evidence on summary judgment paints a picture of a system of medical care for prison inmates and detainees that has serious potential for the type of harm that befell Brown. Although the County has in place a General Order for Health Services, it was drafted by the Sheriff and the summary judgment evidence reflects that neither Dr. Bolin nor Nurse Krajca were aware of it. The General Order outlines circumstances in which an inmate should be transported for emergency med
The nurses who were charged with the gatekeeping function between the inmates and Dr. Bolin or medical care other than what could be provided via the standing orders were LVNs, licensed vocational nurses. According to the Texas Occupations Code for Health Profession, V.T.C.A. § 301.002(5), nurses with this qualification are not trained to diagnose patients or do procedures.
Nurse Krajca, who observed Brown’s condition, undoubtedly acted with deliberate indifference to Brown’s medical needs. However, to find that Dr. Bolin was deliberately indifferent, there must be evidence from which we can conclude that Dr. Bolin was aware that the failure to properly train or supervise the nurses or that his other policies and procedures for medical care at the jail created a substantial risk of harm to the detainees and then acted with deliberate indifference to that risk. Hare,
The record contains no such evidence at the time of Brown’s death. Dr. Bolin had no knowledge of Brown’s medical problems before he died. The record contains no evidence of past instances
V.
For similar reasons, we conclude that the district court did not err in granting summary judgment for Wichita County on the issue of qualified immunity. A plaintiff seeking to hold a municipality liable under § 1983 must put on evidence demonstrating that (1) a policymaker; (2) exercised deliberate indifference in promulgating an unconstitutional policy; and (3) the unconstitutional policy was a moving force in the violation of an individual’s constitutional rights. Piotrowski v. City of Houston,
The existence of a constitutional violation and a municipality’s liability for that violation are two separate issues. Hare,
Different versions of the deliberate indifference test govern the two inquiries. Our opinion in this case makes clear that to prove an underlying constitutional violation in an individual or episodic case, a pre-trial detainee must establish that an official acted with subjective deliberate indifference. Once the detainee has met this burden, she has proved a violation of her rights under the Due Process Clause. To succeed in holding a municipality accountable for that due process violation, however, the detainee must show that the municipal employee’s act resulted from a municipal policy or custom adopted or maintained with objective deliberate indifference to the detainee’s constitutional rights. See Farmer,114 S.Ct. at 1981 (“It would be hard to describe the Canton understanding of deliberate indifference, permitting liability to be premised on obviousness or constructive notice, as anything but objective.”).
Id.
In Scott v. Moore,
First, there is no showing that the city had actual knowledge that its staffing policy created a substantial risk of harm to female detainees. To the contrary, the city had followed the same staffing procedures since the late 1970’s without any incident and had received no complaint of sexual assault by a jailer prior to this incident.
/¿.Further the jailers underwent a background investigation, medical exam and polygraph test which revealed no cause for concern. The specific jailer in question had served for four years as a commissioned police officer without incident and had been trained by experienced jailers in the official policies of the jail. See also Snyder v. Trepagnier,
As stated above, the record contains no evidence of failure of the system of medical care at the Wichita County Jail that would indicate that the County was deliberately indifferent in maintaining that policy. Accordingly, we conclude that the district court did not err in granting summary judgment on the issue of qualified immunity in favor of the County.
VI.
Although we reach these conclusions based on the facts available to Dr. Bolin and the County at the time of Brown’s incarceration, this holding is not approval of the medical care provided by Dr. Bolin or the Wichita County Jail. As pointed out by the plaintiffs, there have been two documented cases of improper assessment by the nursing staff at the jail since Brown’s death which could be viewed as evidence that the nurses do not have the proper training to recognize critical medical situations. These incidents may be sufficient to put the Sheriff, Dr. Bolin and the County on notice that their present policies may be likely to endanger the constitutional rights of the inmates in the Wichita County Jail. However, based on the record in this case, we affirm the judgment of the district court granting qualified immunity to these defendants.
AFFIRMED.
Notes
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. The Texas Occupations Code for Health Professions defines Vocational Nursing as follows:
§ 301.002. Definitions
(5) “Vocational nursing” means a directed scope of nursing practice, including the performance of an act that requires specialized judgment and skill, the proper performance of which is based on knowledge and application of the principles of biological, physical, and social science as acquired by a completed course in an approved school of vocational nursing. The term does not include acts of medical diagnosis or the prescription of therapeutic or corrective measures. Vocational nursing involves:
(A)collecting data and performing focused nursing assessments of the health status of an individual;
(B) participating in the planning of the nursing care needs of an individual;
(C) participating in the development and modification of the nursing care plan;
(D) participating in health teaching and counseling to promote, attain, and maintain the optimum health level of an individual;
(E) assisting in the evaluation of an individual’s response to a nursing intervention and the identification of an individual’s needs; and
(F) engaging in other acts that require education and training, as prescribed by board rules and policies, commensurate with the nurse’s experience, continuing education, and demonstrated competency.
V.T.C.A., Occupations Code § 301.002(5). (emphasis added).
Concurrence Opinion
concurring in part and dissenting in part.
I agree with the majority’s holding that Wichita County cannot be held liable as a municipality under 42 U.S.C. § 1988 for the death of Jason Ray Brown. Actions by those with final authority for making a decision in the municipality constitute an official policy of the municipality for purposes of § 1983.
In Estelle v. Gamble,
A prison official may be held liable for his or her policy affecting pretrial detainees that deprives them of basic human needs, including adequate medical care, if the official knew of a substantial risk of harm to detainees but responded with deliberate indifference to that risk. Id. In such a situation, the official’s “policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation.” Cozzo v. Tangipahoa Parish Council-President Gov’t,
“Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id. at 842,
The plaintiffs have alleged that Dr. Bo-lin implemented a policy discouraging nurses from permitting access to necessary life-saving medical treatment to seriously ill pretrial detainees. There is concrete, specific evidence in the record that Dr. Bolin maintained such a policy, creating dangerous conditions for critically ill inmates in the jail. Two former jail nurses attested that Dr. Bolin discouraged them from calling him for advice at nighttime, and they described two incidents in which they consulted Dr. Bolin about an inmate’s medical condition and were instructed not to send the patient to the emergency room for treatment. When the nurses did so anyway, it led to a confrontation with Dr. Bolin in which they attested that they felt bullied and intimidated. The nurses attested that they witnessed Dr. Bolin’s similar intimidation and mistreatment of other nurses on the jail staff. Nurse Krajca, who oversaw Jason Brown’s treatment, attested that she did not send Brown to the emergency room because she did not want an “ass-chewing” from the doctor. Specifically, after Nurse Krajca ordered Brown transferred to a medical solitary cell, she
Thus, the plaintiffs introduced evidence indicating that Dr. Bolin’s well-known policy of unavailability for consultations at night, coupled with his strong disapproval of emergency hospitalization of prisoners without his assent, created a dilemma for the nurses and caused Nurse Krajca to deny Brown necessary, life-saving medical treatment. The plaintiffs therefore introduced evidence that Dr. Bolin’s policy violated Brown’s constitutional right to emergency medical care. Accordingly, there are genuine disputes as to material facts, viz., whether Dr. Bolin by his policy knowingly created a risk of serious harm or death to prisoners, was deliberately indifferent to that risk, and thereby caused Nurse Krajca’s failure to secure for Brown the emergency medical attention that he obviously needed. In my view, a reasonable jury could find that Dr. Bolin had such a policy that created an undue risk to inmates’ health and safety, that he was deliberately indifferent to that risk, and that the policy deprived Brown of his constitutional rights and led to Brown’s death.
I disagree with the majority’s conclusion that there was insufficient evidence that Dr. Bolin knew his policy of nighttime inaccessibility would cause substantial risk of harm to prisoners due to their inadequate medical treatment at the jail. The plaintiffs presented evidence that Dr. Bo-lin’s actions endangered all inmates and that such a risk was obvious. The majority impermissibly erects a bar to the plaintiffs’ ability to demonstrate Dr. Bolin’s knowledge “in the usual ways, including inference from circumstantial evidence [and] ... the obvious.” Id. at 842-44,
Dr. Bolin was a trained medical doctor. A jury could reasonably find that this substantial risk of harm to prisoners was obvious to Dr. Bolin. He took no steps to mitigate or otherwise prevent the serious harm that awaited inmates when they were not sent to the emergency room for their critical conditions, even though the risk was brought to his attention by the nurses on his staff. Moreover, Dr. Bolin knew that the nurses at the county jail were not equipped or qualified to administer emergency treatment on their own; even worse, Dr. Bolin had openly adopted a policy of refusing to respond to the nurses’ requests for advice and assistance. Dr. Bolin’s knowledge may be established by reference to circumstantial evidence and inferences from the concrete evidence of Dr. Bolin’s behavior and its effect. Like a prison official who “knows that some diseases are communicable and that a single needle is being used to administer flu shots to prisoners[,]” id. at 843 n. 8,
Other circuits have permitted suits to go forward against prison supervisors for their own policies of deliberate indifference to inmates’ safety and medical needs when the officials’ alleged conduct created an obvious risk. For example, in McElligott v. Foley,
Similarly, in Clark-Murphy v. Foreback,
Here, as in the foregoing cases, the plaintiffs have submitted sufficient evidence that would allow a jury to reasonably conclude that Dr. Bolin’s alleged policy of nurse intimidation posed an obvious risk to the inmates at the Wichita County Jail. The majority impermissibly imposes a barrier to the plaintiffs’ ability to demonstrate Dr. Bolin’s knowledge “in the usual ways,” based on inference from circumstantial evidence and the obvious nature of the risk. Farmer,
The circumstances surrounding Brown’s death are disturbing, but unfortunately they are not unique. Since Brown’s death, at least two other detainees, including Chelsea Bowden and Wilbert Henson, have suffered extremely serious medical mistreatment in the Wichita County Jail, resulting in Bowden’s life-threatening illness and Henson’s death.
. E.g., Pembaur v. City of Cincinnati,
. Cf. Mandel v. Doe,
. See Turner v. Upton Cnty.,
. See Estate of Henson v. Callahan,
. See also, e.g., Nelson v. Corr. Med. Services,
. See also, e.g., Thomas v. Bryant,
.See also Farmer,
. Thomas,
. McElligott,
. See Estate of Henson v. Callahan,