IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

PEGGY JOHNSON, Individually §

and as the Administratrix of §

the Estate of EUGENE JOHNSON, §

and as Next Friend of §

DAVID JOHNSON, JONATHAN JOHNSON,§

 §

Plaintiff, §

 § Civil Action No. 3:04-CV-2066-D

VS. §

 §

JOHNSON COUNTY, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

In this removed action, plaintiff Peggy Johnson (“Peggy”),

individually and as the Administratrix of the Estate of Eugene

Johnson, and as next friend of David Johnson and Jonathan Johnson,

sues defendant Johnson County, alleging that it is liable under 42

U.S.C. § 1983 for the suicide of her husband, Eugene H. Johnson

(“Eugene”), who was at the time a pretrial detainee in the Johnson

County Jail. Johnson County moves for summary judgment. For the

reasons that follow, the court grants the motion as to Peggy’s

§ 1983 claims and dismisses them with prejudice. The court in its

discretion remands her state-law claim to state court.

I

On the afternoon of September 1, 2002, Peggy met with James L.

Dorsey (“Deputy Dorsey”), a Johnson County Deputy Sheriff,

 

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1The court recounts the evidence in a light favorable to

Peggy, as the summary judgment nonmovant, and draws all reasonable

inferences in her favor. See, e.g., Clift v. Clift, 210 F.3d 268,

270 (5th Cir. 2000).

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regarding a domestic violence complaint against Eugene.1 Among

other things, Peggy told Deputy Dorsey that Eugene had assaulted

her, threatened to burn down her father’s house, and attempted

suicide, and that she was seeking a divorce. During the meeting,

Peggy’s sister called and informed her that Eugene had passed out

and was lying under his car, with their children inside. Peggy

advised Deputy Dorsey of the situation, he contacted Sheriff’s

Office dispatch to call an ambulance, and he told her to follow him

to the scene.

When Deputy Dorsey and Peggy arrived, a Fire Department

ambulance was there, as was Peggy’s sister. Johnson County

Sheriff’s Deputies Brad Bollin (“Deputy Bollin”) and Kenneth

Bradley Watson (“Deputy Watson”), a trainee, arrived within

minutes. Deputy Bollin smelled a strong odor of alcohol on Eugene,

who advised him that he had consumed a six-pack of beer. Eugene

denied having an altercation with Peggy, admitted he was going

through a divorce, made statements about his ability to purchase

armor-piercing ammunition, and stated that he had attempted suicide

in the past. Eugene was eventually arrested for public

intoxication. Peggy told Deputies Dorsey and Bollin that she was

concerned about Eugene’s intoxicated, upset, depressed, and

 

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2

The blank contains the statement of the

arresting/transporting officer that “This inmate has no injuries,

mental disabilities, recent accident, suicide tendencies, trauma or

medical conditions known to me except the following[.]” P. App.

103.

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potentially suicidal state. She said, in relevant part: “If you

take him in, he’s suicidal. He’s already tried to kill himself

once. I’ve hid his guns from him repeatedly. He gets mad.” P.

App. 42.

Deputies Bollin and Watson drove Eugene to the jail. Deputy

Bollin filled out the requisite booking paperwork, including a

Receiving Screening Form. Near the top of the form, in the blank

that specifically asks the arresting/transporting officer about,

inter alia, “suicide tendencies,”2

 Deputy Bollin wrote in capital

letters, “SUICIDAL TENDENCIES.” P. App. 103. He wrote nothing else

on the form besides Eugene’s name. Deputy Bollin gave the

paperwork to Sergeant Toni Prine (“Sgt. Prine”), a corrections

officer employed by the Johnson County Sheriff’s Department. Sgt.

Prine did not notice the “SUICIDAL TENDENCIES” notation. Deputies

Bollin and Watson departed. Sgt. Prine directed another officer to

issue Eugene a mattress cover, blanket, towel, cup, and spoon and

had him dressed in a jail uniform. Between 6:00 p.m. and 6:10

p.m., Sgt. Prine had Eugene placed in a holding cell in the book-in

area. She then booked another prisoner into the Jail. At

approximately 6:30 p.m., a jail trustee discovered that Eugene had

committed suicide. He had made a noose from his mattress cover and

 

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3

Peggy does not specify in her state-court petition that she

is suing under § 1983. Johnson County removed the case on this

basis, however, and it is clear from Peggy’s summary judgment

response that her first four claims are asserted under § 1983. See

P. Br. 1-2 (referring to her “§ 1983 claims.”).

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hung it over a welded steel frame in his cell.

Peggy sues Johnson County under § 19833 and the Texas Tort

Claims Act. She alleges under § 1983 that the County had

unconstitutional policies that resulted in the denial of medical

and psychological treatment to Eugene that would have prevented his

death by suicide; lacked policies to ensure that medical and

psychological treatment was provided to incarcerated persons with

serious medical or psychological conditions, which resulted in

Eugene’s suicide; utilized procedures or customs at the Jail that

resulted in Eugene’s suicide; and failed to train or inadequately

trained arresting officers and/or employees who were responsible

for the operation of the Jail. She avers that Johnson County is

liable under state law because Eugene’s death was occasioned

through the use and/or misuse of real and tangible personal

property. Peggy brought suit in Texas state court, and Johnson

County removed the case to this court based on federal question

jurisdiction. It moves for summary judgment on all of Peggy’s

claims. 

 

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II

“Section 1983 creates a private right of action for redressing

the violation of federal law by those acting under color of state

law.” Colson v. Grohman, 174 F.3d 498, 504 n.2 (5th Cir. 1999)

(citation omitted). “Rather than creating substantive rights,

§ 1983 simply provides a remedy for the rights that it designates.

Thus, an underlying constitutional or statutory violation is a

predicate to liability under § 1983.” Harrington v. Harris, 118

F.3d 359, 365 (5th Cir. 1997) (citations and internal quotation

marks omitted) (quoting Johnston v. Harris County Flood Control

Dist., 869 F.2d 1565, 1573 (5th Cir. 1989)). 

“[S]ince pretrial detainees and convicted state prisoners are

similarly restricted in their ability to fend for themselves, the

State owes a duty to both groups that effectively confers upon them

a set of constitutional rights that fall under the [Supreme]

Court’s rubric of ‘basic human needs.’” Hare v. City of Corinth,

Miss., 74 F.3d 633, 639 (5th Cir. 1996) (en banc). “Pretrial

detainees and convicted prisoners, however, look to different

constitutional provisions for their respective rights to basic

needs such as medical care and safety.” Id. As a pretrial

detainee, Eugene’s constitutional rights flowed from the due

process guarantees of the Fourteenth Amendment rather than from the

Eighth Amendment’s prohibition against cruel and unusual

punishment. See id. The Fifth Circuit has recognized, however,

 

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that “there is no significant distinction between pretrial

detainees and convicted inmates concerning basic human needs such

as medical care.” Gibbs v. H.M. Grimmette, 254 F.3d 545, 548 (5th

Cir. 2001). 

In sum, although Peggy does not cite § 1983 or a provision of

the United States Constitution in her petition, see supra note 3,

it is clear that her first four counts allege causes of action

under § 1983 premised on a series of alleged violations of Eugene’s

Fourteenth Amendment due process rights. The court will first

consider Peggy’s § 1983-based claims and then turn to her state-law

claim in count V.

III

To determine the appropriate standard to apply in analyzing

constitutional challenges under § 1983 by pretrial detainees, the

Fifth Circuit has directed courts first to classify the challenge

as an attack on a “condition of confinement” or as an “episodic act

or omission.” Flores v. County of Hardeman, Tex., 124 F.3d 736,

738 (5th Cir. 1997) (citing Hare, 74 F.3d at 644). 

A

“A ‘condition of confinement’ case is a constitutional attack

on ‘general conditions, practices, rules, or restrictions of

pretrial confinement.’” Id. (quoting Hare, 74 F.3d at 644). “In

such cases, the reasonable relationship test of Bell v. Wolfish,

441 U.S. 520 (1979), is apposite, as [the court] may safely assume,

 

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by the municipality’s very promulgation and maintenance of the

complained-of condition, that it intended to cause the alleged

constitutional deprivation.” Scott v. Moore, 114 F.3d 51, 53 (5th

Cir. 1997) (en banc) (citing Hare, 74 F.3d at 645).

If the complained-of harm is a particular act or omission of

one or more officials, the action is characterized as an “episodic

act or omission” case. See Hare, 74 F.3d at 645. 

In an episodic act or omission case, an actor

is usually 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. The

detainee in such a case must establish that

the official(s) acted with subjective

deliberate indifference to prove a violation

of his constitutional rights.

Flores, 124 F.3d at 738 (citing Scott, 114 F.3d at 54). To succeed

in holding the County liable for such a violation, Peggy must show

that a County employee (1) violated Eugene’s clearly established

constitutional rights with subjective deliberate indifference and

(2) the violation resulted from a County policy or custom adopted

or maintained with objective deliberate indifference. Id. (citing

Scott, 114 F.3d at 54). 

Notably, “the reasonable-relationship test employed in

conditions cases is ‘functionally equivalent to’ the deliberate

indifference standard employed in episodic cases.” Scott, 114 F.3d

at 54. 

 

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4In Flores the plaintiffs had attempted to allege a conditions

case based on the defendant-county’s training and staffing

policies. See Flores, 124 F.3d at 738. Peggy, too, includes a

training-based claim. See Pet. count IV. This claim is treated as

an “episodic act or omission” claim under circuit precedent. See

Flores, 124 F.3d at 738.

5

Peggy does not contend that, because she did not sue a County

employee individually, she need not demonstrate the first step of

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B

Although some parts of Peggy’s first four claims could be

interpreted to complain of conditions, see, e.g., Pet. count II,

both parties acknowledge that this case falls into the “episodic

act or omission” category. See P. Br. 6 (“In the present case, the

constitutional violation was an episodic omission by the arresting

officers and the officers at the Jail . . . .”); D. Br. 5, 15-18

(arguing that no County employee violated Eugene’s clearly

established constitutional rights with subjective deliberate

indifference). The Fifth Circuit has likewise categorized pretrial

detainee suicide cases as “episodic act or omission” cases. See

Flores, 124 F.3d at 738 (holding that, although plaintiffs

attempted to plead both episodic and conditions case, “it is clear”

that fact of jail suicide was episodic act or omission case);4

Scott, 114 F.3d at 53-54 (holding that case was episodic act or

omission case, notwithstanding that plaintiff-victim of sexual

assault by jailer pleaded case as conditions case); Hare, 74 F.3d

at 645, 650 (applying episodic act or omission rubric to jail

suicide).5

 The court will therefore analyze Johnson County’s

 

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an episodic act or omission case: the subjective deliberate

indifference of the officer and/or the jailer. Nor does she assert

a condition-of-confinement claim. Cf. Scott, 114 F.3d at 54 (“As

in most cases involving incidents at jails, the defendants here are

both individual . . . and governmental . . . .”); see Posey v. Sw.

Bell Tel. L.P., ___ F.Supp.2d ___, 2006 WL 757961, at *5 (N.D. Tex.

Mar. 24, 2006) (Lindsay, J.) (granting summary judgment where

plaintiffs only sued county because, inter alia, plaintiffs failed

to demonstrate county employees acted with subjective deliberate

indifference).

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motion as addressing an episodic act or omission.

C

Because the County will not have the burden of proof at trial

as to Peggy’s § 1983 claims, it can meet its summary judgment

obligation by pointing the court to the absence of evidence to

support them. See Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986). Once it does so, Peggy must go beyond her pleadings and

designate specific facts showing there is a genuine issue for

trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine

if the evidence is such that a reasonable jury could return a

verdict for Peggy. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). In this case, Peggy must adduce evidence that would

permit a reasonable jury to find that a Johnson County employee

violated Eugene’s clearly established constitutional rights with

subjective deliberate indifference, and that the violation resulted

from a County policy or custom adopted or maintained with objective

deliberate indifference. Summary judgment is mandatory if Peggy

 

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6It did so although Farmer concerned a violation of a

convicted prisoner’s Eighth Amendment rights. See Hare, 74 F.3d at

648-50. 

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fails to meet this burden. Little, 37 F.3d at 1076. Additionally,

if Peggy cannot create a genuine issue of material fact concerning

the first element of her claims, the court need not address the

second. “The summary judgment nonmovant’s failure to adduce proof

as to any essential element of [her] cause of action renders all

other facts immaterial.” Edgar v. Gen. Elec. Co., 2002 WL 318331,

at *4 (N.D. Tex. Feb. 27, 2002) (Fitzwater, J.) (citing Celotex

Corp., 477 U.S. at 323). 

IV

A

In Hare the en banc Fifth Circuit adopted for use in episodic

act or omission cases the formulation of the deliberate

indifference test that the Supreme Court had recently outlined in

Farmer v. Brennan, 511 U.S. 825 (1994).6 In Farmer the Court held

“that a prison official may be held liable under the Eighth

Amendment for denying humane conditions only if he knows that

inmates face a substantial risk of serious harm and disregards that

risk by failing to take reasonable measures to abate it.” Id. at

847. Consequently,

 

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[d]eliberate indifference in the context of an

episodic failure to provide reasonable medical

care to a pretrial detainee means that: 1) the

official was aware of facts from which an

inference of substantial risk of serious harm

could be drawn; 2) the official actually drew

that inference; and 3) the official’s response

indicates the official subjectively intended

that harm occur. 

Thompson v. Upshur County, Tex., 245 F.3d 447, 458-59 (5th Cir.

2001) (citing Hare, 74 F.3d at 643, 649-50). Deliberate

indifference, however, “cannot be inferred merely from a negligent

or even a grossly negligent response to a substantial risk of

serious harm.” Id. (citing Hare, 74 F.3d at 645, 649). To apply

the Farmer test, each individual’s subjective deliberate

indifference must be examined separately. Lawson v. Dallas County,

286 F.3d 257, 262-63 (5th Cir. 2002); see Stewart v. Murphy, 174

F.3d 530, 537 (5th Cir. 1999). 

B

Peggy contends preliminarily that, once she adduced evidence

that a substantial risk of harm existed and that the risk to Eugene

was obvious, at least to a reasonable person, the burden shifted to

Johnson County to prove affirmatively that the official did not

have knowledge of the risk. She posits that, once she produced

circumstantial evidence that the risk was obvious (establishing

that the official should have known), the jury must decide whether

the official did know of the risk.

The court rejects Peggy’s formulation of her burden as to this

 

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element of her § 1983 claims. First, it is counter to the Fifth

Circuit’s holding in Hare that a pretrial detainee has the burden

of establishing that an official acted with subjective deliberate

indifference. See Hare, 74 F.3d at 649 n.4. Second, it would use

an objective deliberate indifference standard to shift the burden

to the defendant and create a genuine issue of material fact. The

Supreme Court in Farmer specifically rejected the use of a civillaw objective standard of recklessness in the Eighth Amendment

context, and the Fifth Circuit in Hare has imported that standard

into the Fourteenth Amendment context. See Farmer, 511 U.S. at

847; Hare, 74 F.3d at 648-50. Third, adopting such a paradigm

would risk injecting a negligence standard into the assessment of

the conduct of jail officials, which Hare rejects. See Hare, 74

F.3d at 649-50. This is because a jail officer would have the

burden of proving that he did not act with knowledge of a risk,

once the plaintiff adduced evidence that a reasonable official

would have been aware of the risk.

C

Both Peggy and Johnson County focus their arguments on the

first two prongs of the subjective deliberate indifference test:

the official’s awareness of facts from which an inference of

substantial risk of serious harm could be drawn, and whether the

official actually drew that inference. See Thompson, 245 F.3d at

458-59. As discussed infra at § IV(D) and (E), however, the

 

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principal question as to at least two officials concerns the third

prong. Because the parties fail to address this component in any

detail, it is necessary to review Fifth Circuit precedent that

informs whether an official’s response would permit a reasonable

jury to find there was subjective intent that the harm occur.

Notably, there are relatively few such cases, because decisions

that address pretrial detainees who allege this type of § 1983

claim frequently focus on the defense of qualified immunity, which

is inapplicable in this case because Peggy sues only Johnson

County. And analyzing qualified immunity involves applying a

slightly different test than the one announced in Farmer and

adopted in Hare. See Thompson, 245 F.3d at 459 (highlighting “the

importance of appreciating the difference between the objective

reasonableness standard for qualified immunity . . . and the

subjective deliberate indifference standard for section 1983

liability”).

Lawson illustrates conduct that would permit the finding of

subjective intent that harm occur. In Lawson the Fifth Circuit

upheld the district court’s conclusion that jail medical staff were

subjectively deliberately indifferent to a paraplegic detainee.

After the detainee’s incarceration, a doctor at the jail diagnosed

him with decubitis ulcers, which can occur in paraplegics who do

not receive proper care and can also be life-threatening. Lawson,

286 F.3d at 260. The physician ordered the nurses to change his

 

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dressings three times per day. The nurses disregarded the order,

instead following jail policy to change dressings only twice daily.

Id. At one point, the detainee received no dressing changes for

nine successive days. Id. at 261. Jail medical staff twice sent

him to the hospital, which returned him both times with medically

necessary orders to, inter alia, change the dressings three times

daily. Id. The jail medical staff did not follow the instructions

either time. Id. The detainee eventually was returned to the

hospital, which refused to release him to the jail, determining

that it could not treat him. Id. The circuit court held that jail

medical personnel who treated Lawson had actual knowledge of the

risk to his health, but consciously disregarded it. Id. at 263.

Specifically, they “must have observed first-hand the large holes

developing in [the detainee’s] skin” over nearly a month and knew

about the doctors’ orders but chose not to follow them, thus

exhibiting deliberate indifference. Id. at 262; see Scott, 114

F.3d at 54 (holding that plaintiff-pretrial detainee had met

summary judgment burden of establishing subjective deliberate

indifference where jailer repeatedly sexually assaulted her).

By contrast, in Flores the circuit court concluded, inter

alia, that the summary judgment evidence did not raise a genuine

issue of material fact as to whether a sheriff acted with

subjective deliberate indifference toward a pretrial detainee who

committed suicide. The sheriff, who had known the decedent “all of

 

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his life,” felt he was “not acting like himself,” and, after

detainment, gave orders to check on him every half hour (instead of

the usual one-hour checks), to strip him to his underwear, and to

give him only a mattress and pillow (instead of the full issue of

inmate supplies). Flores, 124 F.3d at 737. The decedent never

threatened suicide and, the following morning, was taken to his

arraignment. Id. His father, who was present at the arraignment,

testified that he did not think the decedent was contemplating

suicide. Id. The protective measures were lifted following the

arraignment, and he committed suicide that afternoon. Id. The

Fifth Circuit concluded that the sheriff took “appropriate action”

in instituting the protective measures for a 12-hour period, and

that his decision to discontinue the measures was not, “as a matter

of law, deliberately indifferent.” Id. at 738-39; see also Gibbs,

254 F.3d at 550 (affirming summary judgment and holding that

jailers did not act with deliberate indifference where they refused

to give tuberculosis test to pretrial detainee, since they did not

know of any diagnosed active cases of disease).

In adopting the Farmer test, the Fifth Circuit observed in

Hare that it “purports to distinguish” errant inaction, which does

not constitute subjective deliberate indifference, from the

infliction of punishment, which does. Hare, 74 F.3d at 649. In

Lawson, knowing the risk of harm to a detainee, witnessing his

medical condition worsen over nearly four weeks, and deciding

 

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multiple times to disregard medical orders constituted subjective

deliberate intent to cause harm. In Flores, knowing the risk of

harm that a pretrial detainee posed to himself, instituting

protective measures for a 12-hour period, and eventually lifting

those measures did not rise to that level. Keeping these

contrasting factual scenarios in mind, the court turns to Peggy’s

claim that Johnson County employees were subjectively deliberately

indifferent to Eugene.

D

Peggy maintains that she has satisfied her summary judgment

burden as to deliberate indifference by showing that Deputies

Dorsey and Bollin and Sgt. Prine were subjectively, deliberately

indifferent to Eugene’s suicide risk. She contends that Deputy

Dorsey was aware that Eugene was a risk to himself and others, but

failed to take steps to ensure that he would not be a threat to

himself. She points to Deputy Dorsey’s affidavit, in which he

averred that Eugene informed him that he had attempted suicide two

weeks before his arrest. Peggy argues that, because when he

arrived on the scene, Deputy Dorsey possessed this knowledge, he

should have taken steps to ensure that Eugene would not be a threat

to himself. Instead, Deputy Dorsey chose not to do so and

concurred with Deputy Bollin to arrest Eugene and take him to jail.

Peggy asserts that Deputy Dorsey was indifferent to Eugene’s risk

because he knew that Eugene was a risk but failed to take any

 

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further action to protect against the risk.

The court holds that Peggy has proffered sufficient evidence

that Deputy Dorsey knew that Eugene had in the past attempted

suicide and that he might do so again in the future, i.e., that

Deputy Dorsey was aware of facts from which an inference of

substantial risk of serious harm could be drawn. See Thompson, 245

F.3d at 458-58. She has failed, however, to cite summary judgment

evidence that would permit a reasonable jury to find that Deputy

Dorsey was deliberately indifferent, that is, not only that he was

aware of facts from which an inference of substantial risk of

serious harm could be drawn and that he actually drew that

inference, but that his response indicates he subjectively intended

that harm occur. 

Peggy simply asserts, without citing the summary judgment

record, that Deputy Dorsey knew that Eugene was a risk “yet he

failed to take any further action to protect against this risk.”

P. Br. 10. Deputy Dorsey’s inaction is not comparable to the jail

medical staff in Lawson, who deliberately chose not to follow

medical advice and witnessed the harm to the detainee intensify

daily. The decisions in Lawson were made repeatedly and

consciously and had the direct effect of harming the detainee. 

And Deputy Dorsey’s response that Eugene be arrested and taken

into custody does not indicate that he made a conscious choice with

intent that Eugene harm himself. Rather, a reasonable jury could

 

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only find that Deputy Dorsey took “appropriate action” by placing

Eugene in custody. See Flores, 124 F.3d at 739. Deputy Dorsey

testified that, based on Eugene’s behavior and Peggy’s reports of

family violence, he and Deputy Bollin decided to arrest Eugene. A

reasonable jury could only find that his acts indicate concern not

only for the well-being of Eugene, but also for the safety of the

Johnson family. A reasonable jury could not find that Deputy

Dorsey’s response was “errant” or negligent. Hare, 74 F.3d at 649.

Accordingly, the court concludes that Peggy has failed to

proffer summary judgment evidence from which a reasonable jury

could find that Deputy Dorsey was subjectively, deliberately

indifferent to the risk of harm to Eugene. 

E

Peggy next maintains that Deputy Bollin was indifferent. She

relies on evidence that, in response to the stated intentions of

Deputies Bollin and Dorsey that they were taking Eugene to jail to

sleep off his intoxicated state, she “expressed to them very

clearly, very plainly, that [she] was afraid [Eugene would] kill

himself.” P. Br. 10 (first alteration in original). Peggy also

testified that she warned Deputy Dorsey, that “[i]f you take him

in, he’s suicidal. He’s already tried to kill himself once. I’ve

hid his guns from him repeatedly. He gets mad.” P. App. 42. She

contends her statement was a clear indication that Eugene was a

current suicidal threat and that it was obvious from her

 

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communications that he posed a substantial risk to himself.

Nevertheless, neither Deputy Dorsey nor Deputy Bollin took any

additional steps to determine whether Eugene needed any kind of

special care or to be transported to the hospital rather than to

the Jail, and instead transported him to the Jail for the night.

Peggy relies on Deputy Bollin’s admission that he knew Eugene was

disoriented, that Eugene had told Deputy Bollin that he could buy

armor piercing ammunition but that he would not use it to kill

himself because that was between “him and God.” P. Br. 11 (quoting

P. App. 104). She maintains that Deputy Bollin was aware that

Eugene had attempted suicide in the past and admitted in his

deposition that, based on this knowledge, he felt he needed to ask

Eugene questions when he arrested him. She also cites Deputy

Bollin’s concession that he knew the behavioral signs of a suicidal

person, and she points to deposition testimony of the County’s

expert witness, who opined that one sign to look for is

intoxication and a change of behavior from belligerent and

combative to very quiet. Peggy cites Deputy Bollin’s deposition

testimony that Eugene was belligerent upon arrest but became very

calm at the time he arrived at the Jail. She also maintains that

Deputy Bollin signed a probable cause affidavit in which he swore

that Eugene was a danger to himself and others. Finally, she

argues that Deputy Bollin drew the inference that there was a

substantial risk because he wrote on the Receiving Screening Form

 

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7

Peggy contends that Deputy Bollin underlined “SUICIDAL

TENDENCIES.” See P. Br. 12. A reasonable jury could only find,

however, that what Peggy says is underlining is part of the preprinted form. See P. App. 103.

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“SUICIDAL TENDENCIES.”7 Peggy argues that Deputy Bollin was aware

that Eugene was a substantial risk to himself but failed to inform

Sgt. Prine or any other officer working at the Jail on September 1,

2002 that Eugene was a suicidal risk and had previous suicidal

ideations. She urges that this amounts to deliberate indifference

because he knew of the substantial risk but failed to communicate

it to Sgt. Prine or any other jail officer, thereby ensuring there

was an awareness of the risk.

Johnson County cites Deputy Bollin’s deposition and urges

that, while he believed Eugene may have posed a risk of accidental

harm to himself and others due to his intoxicated state, he did not

feel that Eugene was at risk to intentionally harm himself or

commit suicide. And although Eugene referred to prior suicide

attempts, he indicated to Deputies Bollin and Dorsey at the scene

that he had no present intentions of harming himself. Johnson

County posits that when Deputy Bollin wrote on the Receiving

Screening Form that Eugene had “SUICIDAL TENDENCIES,” he was merely

noting that Eugene had exhibited suicidal tendencies in the past;

had Deputy Bollin perceived such a risk, he would have taken steps

to ensure that Eugene received proper mental health care and would

at least have advised jail staff of the problem so that suicide

 

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prevention measures could be taken.

The court holds that a reasonable jury could find that Deputy

Bollin was aware of facts from which an inference of substantial

risk of serious harm could be drawn and that Deputy Bollin actually

drew that inference. A reasonable assessment of Deputy Bollin’s

notation on the Receiving Screening Form that Eugene had “SUICIDAL

TENDENCIES” is that Deputy Bollin intended to make jail officials

aware that Eugene posed a present danger to himself, since the form

equated suicidal tendencies with known mental disabilities, trauma,

or medical conditions. See P. App. 103; cf. Posey v. Sw. Bell Tel.

L.P., ___ F.Supp.2d ___, 2006 WL 757961, at *5 (N.D. Tex. Mar. 24,

2006) (Lindsay, J.) (granting summary judgment in favor of

defendant county where plaintiffs failed to show that jail

personnel were deliberately indifferent to risk of suicide, where

there was no evidence that decedent had previously attempted

suicide, that county had knowledge of such attempt, or that

decedent indicated he was contemplating suicide). This conclusion,

however, does not end the inquiry, because Peggy must proffer

evidence from which a reasonable jury could infer that Deputy

Bollin’s response indicated that he intended that the harm occur.

Peggy complains about Deputy Bollin’s response at two separate

points in time: Eugene’s arrest and the Jail drop-off. Because the

court has already considered Deputy Dorsey’s decision to place

Eugene into custody and concluded that a reasonable jury could not

 

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8

It is unclear whether Peggy also asserts this argument

against Deputy Dorsey. The contention appears in a paragraph of

her brief that concerns Deputy Bollin, but the sentence refers to

both Deputies. See P. Br. 10. Even assuming arguendo that she

raised it as to Deputy Dorsey, it fails for the same reason: it

does not indicate that Deputy Bollin intended that the harm to

Eugene occur.

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find that it was subjectively, deliberately indifferent, see supra

at § IV(D), the court concludes for the same reasons that Deputy

Bollin’s response of arresting Eugene could not be found to be

deliberately indifferent. 

Peggy makes an additional contention with respect to Deputy

Bollin: that his failure to take steps to determine whether Eugene

needed to be transported to the hospital constituted indifference.

See P. Br. 10.8 Peggy does not identify what additional steps

Deputy Bollin should have but failed to take. Absent such a

specification, a reasonable jury could not infer that Deputy Bollin

subjectively and deliberately intended that harm occur to Eugene.

Moreover, even viewing the evidence favorably to Peggy, Eugene was

acting not only in an erratic manner but posed a potential danger

to others. He mentioned being able to purchase “armor piercing

ammunition” and that he was drunk. P. App. 104. Peggy stated that

she told the Deputies that Eugene possessed multiple guns, that he

“gets mad,” and that she had to hide “his guns from him

repeatedly.” P. App. 42. Deputy Bollin opted to place Eugene in

custody and to take him to Jail. The only reasonable inference

that a jury could draw from these facts is that Deputy Bollin’s

 

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response was reasonable and was made with the intent not only to

protect Eugene but to protect others to whom he posed a potential

danger. 

Moreover, a reasonable jury could not find that Deputy

Bollin’s response at the Jail was deliberately indifferent. His

decisions would only reasonably permit the contrary finding that,

aware of the risk that Eugene may harm himself, Deputy Bollin

attempted to communicate his concern to jail officers. And

assuming that Deputy Bollin’s failure to orally communicate his

concern to jail officers was negligent or even grossly negligent,

this does not rise to the level of subjective deliberate

indifference. This failure is akin to the sheriff’s decision in

Flores to remove the protective measures around the detainee. See

Flores, 123 F.3d at 738-39. In both instances one could conclude

in hindsight that the decisions were “ill advised.” Id. at 739.

Neither was made, however, with the intention that harm occur. By

contrast, in Lawson the jail medical staff must have known that the

detainee’s wounds would only worsen, because they failed to follow

medical advice. See Lawson, 286 F.3d at 263. A reasonable jury

could not infer that Deputy Bollin possessed a similar intent by

failing to notify jail staff orally of his knowledge of a potential

risk. Accordingly, Peggy has to failed present evidence that would

permit a reasonable jury to find Deputy Bollin’s response indicated

that he intended that harm occur to Eugene. 

 

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F

Peggy urges that Sgt. Prine was subjectively, deliberately

indifferent to Eugene’s suicide risk. She asserts that Sgt. Prine

placed Eugene in the cell without first processing any of his

booking information. Instead, she directed another officer to

dress him in a uniform, issue him a mattress cover, blanket, towel,

cup, and spoon, and provide him dinner. Peggy responds to Sgt.

Prine’s assertion that she was unaware of the suicide risk because

Deputy Bollin did not verbally communicate this to her and she did

not see the Receiving Screening Form on which he wrote “SUICIDAL

TENDENCIES,” by positing that Sgt. Prine knew that suicide was a

potential and substantial risk with detainees. According to Peggy,

this is because Sgt. Prine had experienced many suicide attempts

and two successful suicides during her employment with Johnson

County, and she was aware that detainees often used, inter alia,

mattress covers to hang themselves. Peggy complains that, although

Sgt. Prine may not have known that Eugene in particular was a

suicide risk, she knew that there was a substantial risk of suicide

for detainees generally, and she was aware of the substantial risk

that detainees pose. Relying on Farmer, she reasons that Sgt.

Prine cannot escape liability for deliberate indifference by

“showing that, while [she] was aware of an obvious, substantial

risk to inmate safety, [she] did not know that the complainant was

especially likely to be [at risk].” P. Br. 13 (quoting Farmer, 511

 

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U.S. at 843 (last alteration in brief)). She posits that, despite

the known risk that people brought to jail need to be evaluated for

suicidal ideations, Sgt. Prine placed Eugene in a cell without

first processing his booking sheets, which would have shown that

Eugene had “SUICIDAL TENDENCIES.” Peggy maintains that the

officers involved in booking Eugene were deliberately indifferent

because they knew that detainees posed a suicidal risk but placed

him in a cell without evaluating the risk. She contends that Sgt.

Prine knew that all persons taken into custody might pose a suicide

risk, that proper evaluation and classification was necessary, but

they failed to perform the evaluation and classification before

placing Eugene in a cell with implements that would enable him to

hang himself.

Johnson County argues that Sgt. Prine was not deliberately

indifferent to the risk that Eugene would commit suicide. It

points to Sgt. Prine’s affidavit, in which she states that nothing

about Eugene led her to believe that he was suicidal or otherwise

posed a risk of harm to himself. She also avers that, through

oversight or mistake, she did not notice the “SUICIDAL TENDENCIES”

notation on the Receiving Screening Form, and she did not believe

that Eugene was suicidal.

The court rejects Peggy’s contention that, because pretrial

detainees are especially likely to commit suicide and had done so

twice before during Sgt. Prine’s employment with Johnson County,

 

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Sgt. Prine was aware of a substantial risk of harm and opted to

ignore it by placing Eugene in his cell before evaluating and

classifying him. First, the summary judgment evidence would not

permit a reasonable jury to find that Sgt. Prine failed to classify

Eugene; it would only permit the finding that, with the benefit of

hindsight, she incorrectly classified him. Sgt. Prine stated that

nothing led her to believe that Eugene was suicidal and, had she

known otherwise, she would have acted differently. This is not

evidence of deliberate indifference, even if her failure to review

his Receiving Screening Form before placing him in his cell may

have constituted negligence or even gross negligence. Cf. Flores,

124 F.3d at 737 (reciting facts that sheriff knew of risk that

individual detainee would potentially harm himself upon detention

and finding no indifference).

Second, a reasonable jury could not infer deliberate

indifference based on Sgt. Prine’s knowledge about the general risk

of pretrial detainee suicide because, in these circumstances, it

could not find that it rises to the level of “obvious, substantial

risk to [pretrial detainee] safety” that the Supreme Court

identified in Farmer. For this proposition, the Court cited Hutto

v. Finney, 437 U.S. 678, 681-82 n.3 (1978), in which prison

officials had knowledge of more specific information than mere

awareness of a general risk of harm. See Farmer, 511 U.S. at 843-

44.

 

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If, for example, prison officials were aware

that inmate rape was so common and

uncontrolled that some potential victims dared

not sleep [but] instead . . . would leave

their beds and spend the night clinging to the

bars nearest the guards’ station, it would

obviously be irrelevant to liability that the

officials could not guess beforehand precisely

who would attack whom. 

Id. (internal quotation marks and citation omitted) (quoting Hutto,

437 U.S. at 681-682 n.3). Peggy contends only that Sgt. Prine knew

that pretrial detainees were generally at risk for suicide, that

several had attempted suicide during her employment tenure with

Johnson County, and that two had been successful. A reasonable

jury could not infer deliberate indifference to Eugene based only

on such undifferentiated knowledge. Accordingly, the court holds

that a reasonable jury could not find that Sgt. Prine was aware of

facts from which an inference of substantial risk of serious harm

to Eugene could be drawn. It need not address whether a reasonable

jury could find that she intended that harm occur to Eugene.

G

Although several hours elapsed between the time Peggy visited

with Officer Dorsey on the afternoon of September 1, 2002 and

Eugene’s death between 6:00 and 6:30 p.m., the principal points in

time when Peggy contends County employees were deliberately

indifferent to Eugene occurred in rather quick succession. Eugene

was arrested, transported to the Jail, booked into the Jail while

another detainee was arriving, and committed suicide within one-

 

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9

The court does not, of course, foreclose the possibility that

an official’s single decision, made quickly, could in other

circumstances constitute deliberate indifference. Nor does the

court suggest by its repeated comparisons of these facts to those

of Lawson that only evidence identical or substantial similar to

Lawson would permit a finding of subjective deliberate

indifference. Lawson is helpful, however, in understanding what is

necessary to make the required showing.

10In reaching this conclusion, the court suggests no view

concerning the viability of Peggy’s state-law claim. For example,

this conclusion is not intended to address whether Eugene’s death

was occasioned through the use and/or misuse of tangible personal

property.

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half hour of being placed in his cell. The decisions Peggy

complains about were made quickly, and the speed with which events

unfolded tends to undercut a reasonable finding that they were made

deliberately, with intent that harm come to Eugene. By comparison,

in Lawson the jail medical staff observed the inmate’s wounds

worsen over a month-long period, receiving instructions that they

did not follow on at least three separate occasions. This case

does not present circumstances in which law enforcement and jail

officials repeatedly made the same choice while witnessing the

resulting harm.9

In this case, a reasonable jury could essentially only find

that, following Eugene’s arrest, there was a regrettable

communication failure at the Jail between Deputy Bollin and Sgt.

Prine that had tragic consequences for Eugene and his family.10 A

reasonable jury could not find that the Hare standard has been met.

 

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The episodic act or omission of a state jail

official does not violate a pretrial

detainee’s constitutional right to be secure

in his basic human needs, such as medical care

and safety, unless the detainee demonstrates

that the official acted or failed to act with

deliberate indifference to the detainee’s

needs. 

Hare, 74 F.3d at 647-48. This requires, inter alia, that the

official’s response indicate that the official subjectively

intended that harm occur. Although, viewed favorably to Peggy, the

decisions she complains about were, in hindsight, ill advised, she

fails as in Flores to direct the court to any that a reasonable

jury could find were made with the subjective intent that harm

occur. At best, Peggy has presented summary judgment evidence of

negligence or arguably gross negligence; however, neither can be

the basis for a § 1983 claim. The Fourteenth Amendment Due Process

Clause does not in these circumstances provide a remedy for

Eugene’s death by suicide. 

Because Peggy has not adduced evidence that would permit a

jury to find in her favor on the first element of her § 1983

claims, the court need not decide whether she has demonstrated that

Eugene’s death resulted from a County policy or custom adopted and

maintained with objective deliberate indifference. See Edgar, 2002

WL 318331, at *4 (holding that summary judgment nonmovant’s failure

to adduce proof as to any essential element of cause of action

renders all other facts immaterial).

 

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V

The court now turns to Peggy’s state-law claim alleged in

count V of her petition. 

Peggy alleges that the County is liable under state law for

damages because Eugene’s death was occasioned through the use

and/or misuse of real and tangible personal property. Both parties

contend that this claim presents a tort cause of action arising

under Texas law and that the petition seeks to plead an exception

to governmental immunity under the Texas Tort Claims Act, Tex. Civ.

Prac. & Rem. Code § 101.021 (Vernon 2005 & Supp 2005). See, e.g.,

P. Br. 30; D. Br. 33. 

Having dismissed Peggy’s federal question claims, only her

pendent state-law claim remains. When the federal claims are

dismissed from a case removed on the basis of a federal question,

the court has the discretion to remand the state claims to state

court. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357

(1988). The court opts to do so here. The Texas Tort Claims Act

is a difficult statute even for Texas state courts to interpret and

apply. See, e.g., Dallas County Mental Health & Mental Retardation

v. Bossley, 968 S.W.2d 339, 342 (Tex. 1998) (“The many compromises

necessary to pass the Act obscured its meaning, making its

application difficult in many cases, including this one.”). Peggy’s

state-law claim presents issues of state-law that should be

resolved by Texas courts.

 

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* * *

For the reasons set out, the court grants Johnson County’s

January 13, 2006 motion for summary judgment as to Peggy’s § 1983

claims and, by Fed. R. Civ. P. 54(b) final judgment filed today,

dismisses them with prejudice. The court remands count V to the

18th Judicial District Court of Johnson County, Texas.

SO ORDERED.

June 21, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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