Hebert v. State

Hebert v. State  (95-121); 165 Vt 557; 679 A.2d 887

[Opinion Filed 18-Apr-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-121

                             JANUARY TERM, 1996


Harold Hebert                        }     APPEALED FROM:
				     }
				     }
     v.                              }     Franklin Superior Court
				     }
State of Vermont, et al.             }
				     }     DOCKET NO. S60-93Fc


       In the above-entitled cause, the Clerk will enter:

       Plaintiff, the administrator of the estate of Rose Ann LaPlant, who
  committed suicide in 1991 while incarcerated at the Chittenden Community
  Correctional Center, brought suit against the State of Vermont and several
  corrections employees and officials under the Vermont Tort Claims Act, 12
  V.S.A. § 5601, and 42 U.S.C. § 1983.  Defendants moved for judgment on the
  pleadings on the ground that both the State and the individual defendants
  had immunity from suit.  The trial court denied the motion, holding that 12
  V.S.A. § 5601 permitted the suit against the State, and that the individual
  defendants could be sued in their personal capacities under 42 U.S.C. §
  1983.  Defendants sought and received permission to file an interlocutory
  appeal.  We affirm in part and reverse in part.

       A court should grant a motion for judgment on the pleadings only if
  the movant is entitled to judgment as a matter of law on the basis of the
  pleadings.  Bressler v. Keller, 139 Vt. 401, 403, 429 A.2d 1306, 1307
  (1981).  "For the purposes of the motion all well pleaded factual
  allegations in the nonmovant's pleadings and all reasonable inferences that
  can be drawn therefrom are assumed to be true and all contravening
  assertions in the movant's pleadings are taken to be false."  Id.; Thayer
  v. Herdt, 155 Vt. 448, 456, 586 A.2d 1122, 1126 (1990). Defendants may not
  prevail on the motion for judgment on the pleadings if plaintiff's
  pleadings contain allegations that would permit recovery if proven. 
  Thayer, 155 Vt. at 456, 586 A.2d  at 1126.

                                     I.

       We first consider the argument that sovereign immunity protects the
  State from suit under these circumstances.  The State relies on our
  decision in Denis Bail Bonds, Inc. v. State of Vermont, 159 Vt. 481, 622 A.2d 495 (1993), where we held that 12 V.S.A. § 5601 permits actions
  against the State "only if `a plaintiff's cause of action [is] "comparable"
  to a "cause of action against a private citizen."'"  Id. at 486, 622 A.2d 
  at 498 (quoting Chen v. United States, 854 F.2d 622, 626 (2d Cir. 1988)). 
  The State argues that there is no private analog to the "purely
  governmental function to imprison."

       In Sabia v. State, ___ Vt. ___, 669 A.2d 1187 (1995), we clarified our
  analysis of sovereign immunity and 12 V.S.A. § 5601.  In Sabia, we first
  considered whether the

 

  Department of Social and Rehabilitation Services (SRS) had a statutory duty
  of care to protect the plaintiffs, children who had been abused by their
  stepfather.  Having found a statutory duty, we then looked for an analogous
  cause of action against a private individual.  We rejected as "too
  narrow[]" SRS's argument that no private analog existed because only the
  government can remove children from their homes.  Id. at ___, 669 A.2d  at
  1193.  Instead, we asked whether "a private analog exist[ed] for an action
  based on SRS's failure to perform its statutory duty to assist children
  seeking protection from reported and substantiated abuse."  Id.  We found a
  private analog under the common-law tort principle that a person who
  undertakes to provide necessary services to another may be "subject to
  liability for physical harm resulting from negligent performance of the
  undertaking."  Id. at ___, 669 A.2d  at 1194.

       Here, the trial court found that a statutory duty to prevent inmate
  suicides arose from 28 V.S.A. § 601(3), which requires supervisors "to take
  proper measures to protect the safety of the inmates," and 28 V.S.A. §
  801(a), which requires the Corrections Department to "provide health care
  for inmates in accordance with the prevailing medical standards."  The
  State does not challenge the trial court's holding as to the statutory
  duty, but relies solely on the argument that no private analog exists to
  the governmental power to imprison.

       As in Sabia, this argument is based on an overly narrow construction
  of plaintiff's claim. Plaintiff's complaint does not arise out of LaPlant's
  arrest or imprisonment, but out of defendants' alleged failure to provide
  for her safety while she was in custody.  Even if incarceration is a
  "uniquely governmental" function, a number of private persons and
  institutions are charged with the care of persons in their custody.  As the
  trial court found, the State's obligation to LaPlant was analogous to that
  of a private institution with custody over a person at risk of suicide. 
  See LaShay v. Department of Social & Rehabilitation Servs., 160 Vt. 60, 68-
  69, 625 A.2d 224, 229 (1993) (analogizing SRS's delegation of care of child
  in custody to private persons who entrust children to babysitters, daycare
  workers, and teachers).  We conclude that a private analog with respect to
  the State of Vermont exists under the facts of this case.

                                     II.

       Defendants also challenge the trial court's holding that the doctrine
  of qualified immunity does not protect defendant Patrisi, then Commissioner
  of Corrections, and defendant Robinson, then Superintendent of the
  Chittenden Community Correctional Center, from suit under 42 U.S.C. § 1983. 
  Under federal law, the doctrine of qualified immunity shields public
  officials "from liability for civil damages insofar as their conduct does
  not violate clearly established statutory or constitutional rights of which
  a reasonable person would have known."  Harlow v. Fitzgerald, 457 U.S. 800,
  818 (1982).

       In Estelle v. Gamble, 429 U.S. 97, 104 (1976), the United States
  Supreme Court held that a prisoner's constitutional rights were violated
  where the jailers exhibited a "deliberate indifference" to his medical
  needs.  A number of federal courts of appeals have applied this "deliberate
  indifference" standard to jail suicide cases brought under § 1983.  See,
  e.g., Hall v. Ryan, 957 F.2d 402, 404-05 (7th Cir. 1992); Rellergert v.
  Cape Girardeau County, 924 F.2d 794, 796 (8th Cir. 1991); Buffington v.
  Baltimore County, 913 F.2d 113, 120 (4th Cir. 1990); Partridge v. Two
  Unknown Police Officers, 791 F.2d 1182, 1187 (5th Cir. 1986).  In Hall, for
  example, the court held that "[i]t was clearly established in 1986 that
  police officers could not be deliberately indifferent to a detainee who is
  in need of medical attention because of a mental illness or who is a
  substantial suicide risk."  Hall, 957 F.2d  at 404-05.  And in Rellegert,
  the court held that to defeat a claim of qualified immunity, "the evidence
  [must] demonstrate

 

  deliberate indifference by the jailers in the face of a known suicide risk
  at the time preventive measures were effected."  Rellegert, 924 F.2d  at
  797.  Deliberate indifference is a higher standard than negligence; the
  plaintiff must show that the defendant ignored or was willfully blind to
  "`a strong likelihood, rather than a mere possibility, that self-infliction
  of harm [would] occur.'"  Elliott v. Cheshire County, 940 F.2d 7, 10 (1st
  Cir. 1991) (quoting Torraco v. Maloney, 923 F.2d 231, 236 (1st Cir. 1991)).

       Plaintiff has made no allegations to support a finding of "deliberate
  indifference" on the part of defendants Patrisi and Robinson.  Supervisors
  may be held liable under § 1983 "`only on the basis of their own acts or
  omissions.'"  Bowen v. Manchester, 966 F.2d 13, 20 (1st Cir. 1992) (quoting
  Figueroa v. Aponte-Rogue, 864 F.2d 947, 953 (1st Cir. 1989)).  "A plaintiff
  must show `that the supervisor's conduct or inaction amounted to a reckless
  or callous indifference to the constitutional rights of others.'"  Id.
  (quoting Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.
  1989)).  Construing the complaint in the light most favorable to plaintiff,
  the complaint alleges only that defendants Patrisi and Robinson knew or
  should have known of the general suicide risks of inmates like LaPlant, and
  failed to respond (in an unspecified manner) to this risk. Although the
  failure to take preventive measures may amount to negligence, it does not
  rise to the level of "deliberate indifference" to the risk of suicide.

       Addressing the liability of a police chief under similar
  circumstances, the court in Manarite v. City of Springfield, 957 F.2d 953,
  958 (1st Cir. 1992), stated that "[n]o case finds a supervisor
  `deliberately indifferent' (or the like) simply because he does not react
  when he learns of a significantly increased suicide attempt rate."  See
  also Bowen, 966 F.2d  at 21 (not deliberate indifference where police chief
  failed to take preventive measures such as installing monitoring system and
  requiring training in suicidal screening);  cf. Gutierrez-Rodriguez, 882 F.2d  at 562 (police chief liable under § 1983 where he knew that officer
  involved in shooting had history of violent behavior and had received
  numerous citizen complaints but did not respond).  In the absence of
  allegations of "significantly more culpable behavior (or omissions),"
  Mannarite, 957 F.2d  at 958, defendants Patrisi and Robinson have qualified
  immunity from suit, and plaintiff's claims against them must be dismissed.

       Defendants do not challenge the trial court's holding that John Doe
  and Richard Roe, the individual corrections officers who are also named
  defendants, are not protected from suit by the doctrine of qualified
  immunity.  We must assume that defendants have conceded this issue. We
  note, moreover, that plaintiff alleges that the arresting officer told the
  corrections officers that LaPlant had talked about committing suicide.  If
  the officers knew of LaPlant's suicidal tendencies and failed to take
  preventive measures, that failure could amount to deliberate indifference. 
  See, e.g., Gordon v. Kidd, 971 F.2d 1087, 1095 (4th Cir. 1992) (jailer's
  disregard of warning about inmate's suicidal tendencies rises to level of
  deliberate indifference). Plaintiff has made sufficient allegations on this
  issue to survive the motion for judgment on the pleadings.(FN1)

 

       The trial court's denial of the motion for judgment on the pleadings
  is reversed with respect to defendants Patrisi and Robinson; in all other
  respects, the ruling is affirmed.


     BY THE COURT:



     _______________________________________
     Frederic W. Allen, Chief Justice

     _______________________________________
     Ernest W. Gibson III, Associate Justice

     _______________________________________
     John A. Dooley, Associate Justice

     _______________________________________
     James L. Morse, Associate Justice

     _______________________________________
     Denise R. Johnson, Associate Justice


  ------------------------------------------------------------------------
                                  Footnotes


FN1.  Defendants also raise a third issue, arguing that absolute
  immunity protects Commissioner Patrissi from state law tort claims.  We
  need not consider this issue.  As the trial court recognized, under the
  Tort Claims Act state employees cannot be held liable for claims based
  solely on negligence.  12 V.S.A. § 5602(a) & (b).  Plaintiff's state law
  tort claims lie only against the State of Vermont, and any immunity the
  Commissioner may have with respect to those claims is irrelevant.  The
  trial court correctly held that Vermont law cannot afford a state official
  absolute immunity against a federal § 1983 claim, and defendants do not
  challenge that holding on appeal.