Regina A. Evans, Individually and As Representative of Theestate of Verna Rae Evans, Plaintiff-decedent,plaintiff-appellant, v. City of Marlin, Texas, John Trousdale, Chief of Police Ofmarlin, Texas, Randy Trice, and Pete Otholt,defendants-appellees, 986 F.2d 104 (5th Cir. 1993)

Verna Rae Evans was found dead in the Marlin, Texas city jail, a garden hose draped over the cell bars and around her neck. Her daughter, Regina A. Evans, individually and as the representative of the Decedent's estate, sued the Police Chief and two officers asserting claims under 42 U.S.C. § 1983 and Texas law. The thrust of the complaint alleged that Marlin's Police Department failed to use due care in Decedent's confinement. The district court granted the Appellees' motion for summary judgment. We find that the district court properly dismissed the federal claims because no constitutional violations are present. The summary judgment on the state law claims, however, must be reversed and remanded, as there are issues of material fact.

Background and Procedural History

Decedent was arrested for public intoxication, taken to the Marlin City Jail, and placed in a cell alone. Approximately two hours and fifteen minutes later, an officer discovered Evans hanging from the cell's bars, suspended by a garden hose normally used to wash down the jail floors. An autopsy confirmed that the cause of death was asphyxia by hanging, and concluded that she committed suicide.¹ 

Suit was brought pursuant to 42 U.S.C. § 1983 (1981), Texas Wrongful Death²  and Survivorship Statutes,³  and the Texas Tort Claims Act.⁴  The district court held that no violations of Decedent's constitutionally secured rights occurred. Additionally, the court held that the Defendants-Appellees met their burden of proof in establishing suicide as an affirmative defense to the Texas state law claims.⁵  Summary judgment was entered against Regina A. Evans, and she now appeals.

Standard of Review

Summary judgment is appropriate if the record discloses "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In reviewing the summary judgment, we apply the same standard of review as did the district court. Waltman v. International Paper Co., 875 F.2d 468, 474 (5th Cir. 1989); Moore v. Mississippi Valley State Univ., 871 F.2d 545, 548 (5th Cir. 1989). The pleadings, depositions, admissions, and answers to interrogatories, together with affidavits, must demonstrate that no genuine issue of material fact remains. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). To that end we must "review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); see Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc).

§ 1983 Claims

The elements of a § 1983 cause of action are: (1) a deprivation of rights secured by the constitution, (2) by a person acting under color of state law. Daniels v. Williams, 474 U.S. 327, 330-31, 106 S. Ct. 662, 664-65, 88 L. Ed. 2d 662 (1986); Augustine v. Doe, 740 F.2d 322, 324-25 (5th Cir. 1984). A § 1983 claim may lie when a prisoner's obviously serious medical needs are met with "deliberate indifference" by officials. See Estelle v. Gamble, 429 U.S. 97, 105, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976); Burns v. City of Galveston, 905 F.2d 100, 103 (5th Cir. 1990). Likewise, "The failure to provide pre-trial detainees with adequate protection from their known suicidal impulses is actionable under § 1983...." Rhyne v. Henderson County, 973 F.2d 386, 391 (5th Cir. 1992) (emphasis supplied).

Appellant contends that the city acted with deliberate indifference towards the Decedent's right to protection from her own suicidal tendencies. This indifference was allegedly illustrated by the failure to provide adequate training to police officers in dealing with suicidal prisoners, and failure to adopt policies to prevent detainees from taking their own lives.

Failure to train police personnel can support § 1983 liability "only where the failure to train amounts to a deliberate indifference to the rights of persons with whom the police come into contact." City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 1204, 103 L. Ed. 2d 412 (1989). We recently addressed the issue of training to detect suicidal detainees in Burns v. City of Galveston, 905 F.2d 100 (5th Cir. 1990). A municipality should be required to provide its police officers with minimal training to detect "obvious medical needs of detainees with known, demonstrable, and serious mental disorders." Id. at 104 (emphasis supplied). Police personnel are not required to "unerringly detect suicidal tendencies;" such an exacting standard "requires the skills of an experienced medical professional with psychiatric training...." Id. Recognizing these practical realities, the Burns court held that detainees have no absolute right to a complete psychological examination. Id. Absent such a right, the failure to train custodial officials in screening procedures to detect latent suicidal tendencies does not rise to the level of a constitutional violation. Id.; cf. Partridge v. Two Unknown Police Officers, 791 F.2d 1182, 1184 (5th Cir. 1986) (§ 1983 liability may exist where suicidal tendencies obvious to arresting officers).

Here there was no indication that Verna Rae Evans would take her own life. The officers' affidavits showed that the Decedent did not exhibit any apparent suicidal behavior on the night of her death, and that she had been in the Marlin City Jail on prior occasions and had never exhibited such an inclination. R. at 153 (affidavit of Peter Otholt); R. at 175 (affidavit of Randy Trice). The Appellant did not controvert this evidence. In the absence of any manifest signs that the Decedent was a danger to herself, the city's failure to train police personnel to detect potential suicidal impulses does not give rise to a deprivation of constitutional rights. Rhyne v. Henderson County, 973 F.2d 386, 391 (5th Cir. 1992); Burns v. City of Galveston, 905 F.2d 100, 104 (5th Cir. 1990).

Plaintiff-Appellant also argues that the failure to adopt and implement adequate policies regarding care for potentially suicidal inmates amounts to deliberate indifference on the city's part, and that such indifference contributed to the deprivation of Decedent's rights.

To serve as a basis for § 1983 liability, the failure to promulgate municipal policy must amount to "an intentional choice, not merely an unintentionally negligent oversight." Rhyne, 973 F.2d at 392 (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 389, 109 S. Ct. 1197, 1205, 103 L. Ed. 2d 412 (1989)). A failure to adopt a policy rises to the level of deliberate indifference "when it is obvious that the likely consequences of not adopting a policy will be a deprivation of civil rights." Rhyne, 973 F.2d at 392.

The Marlin Police Department has policies in place for the safe incarceration of inmates. See R. at 130-46. No controverting evidence was presented that these policies were implemented with deliberate indifference towards the plight of suicidal detainees. At most, these policies were not strictly followed on the night of Verna Rae Evans' death. Had they been she would not have had access to the hose.⁶  The proximity of the hose to her cell may have been negligence, but the negligent acts of an official will not support liability under § 1983. See Daniels v. Williams, 474 U.S. 327, 328, 106 S. Ct. 662, 663, 88 L. Ed. 2d 662 (1986); see also Davidson v. Cannon, 474 U.S. 344, 347, 106 S. Ct. 668, 670, 88 L. Ed. 2d 677 (1986) (" [W]here a government official is merely negligent in causing the injury, no procedure for compensation is constitutionally required."). Consequently, it cannot be said that the city acted with deliberate indifference in this policy making endeavor: "Put another way, a reasonable juror could not find that [Marlin, Texas] adopted policies creating an obvious risk that pretrial detainees' constitutional rights would be violated." Rhyne, 973 F.2d at 392.⁷ 

Texas Tort Claims Act

Appellant argues that summary judgment was improvidently entered on her pendant state law claims. A Texas municipality can be liable for personal injury or death caused by a condition or use of tangible personal or real property under its control. See Tex.Civ.Prac. & Rem.Code Ann. § 101.021 (West 1986); see also Hale v. Sheikholeslam, 724 F.2d 1205, 1209 (5th Cir. 1984) ("If nondefective property is alleged to have been used or misused by an officer acting within the scope of employment so as to cause the injury, a cause of action is stated.") (citing Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32 (Tex.1983)).

In a civil action for wrongful death, a defendant can plead and prove suicide as an affirmative defense. This defense succeeds only if:

the plaintiff's conduct was the sole cause of the damages sustained; provided, however, if the suicide was caused in whole or in part by a failure on the part of any defendant to comply with an applicable legal standard, then such suicide or attempted suicide shall not be a defense.

Tex.Civ.Prac. & Rem.Code Ann. § 93.001 (West Supp.1992) (emphasis added).

The district court held that there was no evidence to counter the autopsy's conclusion that Evans' death was a suicide. The Appellant, however, presented expert testimony that Appellees' negligence played a part in Verna Rae Evans' suicide. See R. at 247-49 (e.g., failure to have "protrusion-free cells," and the accessibility of the hose). Furthermore, the Chief of Police testified that there is a duty to protect inmates, and it is a breach of this duty to allow inmates access to objects with which they could harm themselves. R. at 212.

This evidence creates a genuine issue of material fact, at least with respect to the applicability of § 93.001's affirmative defense of suicide. First, the defense is available only if the decedent's conduct was the sole cause of death. There has been evidence presented which raises the possibility that Appellees' negligence played a role in the suicide.⁸  Additionally, if the suicide was even partially caused by the Appellees' breach of "an applicable legal standard," the affirmative defense of suicide is unavailable. Whether or not the conduct of the Appellees' amounts to a breach of the legal standard of due care is a question of fact. Because we must review the facts drawing all inferences in a light most favorable to the non-movant,⁹  we cannot say that no genuine issue of fact remains.

Conclusion

The Appellant does not state any claims of constitutional deprivation that would support liability under 42 U.S.C. § 1983. Summary judgment in favor of the Defendants-Appellees on this issue is AFFIRMED. The Appellant has presented sufficient evidence on her state law claims to create a valid issue of material fact. Summary judgment on the state law claims is REVERSED, and we REMAND these claims to the district court.¹⁰