245 F.3d 447 (5th Cir. 2001), 99-41023, Thompson v Upshur County Texas

Docket Nº:99-41023, 99-41024
Citation:245 F.3d 447
Party Name:BETTY THOMPSON; DONALD THOMPSON, Plaintiffs-Appellees, v. UPSHUR COUNTY, TX; ET AL, Defendants, R.D. CROSS, Individually and in his official capacity as Sheriff of Upshur County, TX; PAULA WHORTON, Individually and in her official capacity as Jailer, Upshur County; ROBERT CROMLEY, Individually and in his official capacity as Lieutenant, Upshur Coun
Case Date:March 15, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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245 F.3d 447 (5th Cir. 2001)




R.D. CROSS, Individually and in his official capacity as Sheriff of Upshur County, TX; PAULA WHORTON, Individually and in her official capacity as Jailer, Upshur County; ROBERT CROMLEY, Individually and in his official capacity as Lieutenant, Upshur County Jail, Defendants-Appellants.




EUGENE TEFTELLER, Individually and in his official capacity as Sheriff, Marion County, TX; Defendant-Appellant.

No. 99-41023, 99-41024

United States Court of Appeals, Fifth Circuit

March 15, 2001

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Appeal from the United States District Court for the Eastern District of Texas


GARWOOD, Circuit Judge:

In this 42 U.S.C. § 1983 and state law suit for damages arising from the death of Michael Thompson (Thompson), a pretrial detainee in the respective jails of Upshur County, Texas, and Marion County, Texas, defendants-appellants Eugene Tefteller (Tefteller), formerly Sheriff of Marion County, R.D. Cross (Cross), Sheriff of Upshur County, and Paula Whorton (Whorton), an Upshur County jailer, appeal the district court's denial of their motions for summary judgment based on qualified immunity. We reverse as to Tefteller and Cross, but affirm as to Whorton.

Facts and Proceedings Below

At approximately 4:35 p.m. on Monday, August 25, 1997, Thompson, unmarried and about thirty-three years old, was arrested in Upshur County, Texas for D.W.I. A breathalyzer test indicated his blood alcohol level was 0.348%. Because Upshur County's jails were overcrowded, Thompson, on August 26, after having spent the night of August 25 in the Upshur County jail where charges were lodged against him, was transferred by Upshur County to the Marion County jail pursuant to a pre-existing general agreement between the two counties. He arrived at Marion County jail on Tuesday, August 26 at 9:55 p.m.1

Thompson does not appear to have been in special distress until the early morning hours of Thursday, August 28, when he began suffering from delirium tremens (DTs).2 Thompson was shaking, sweating profusely, and hallucinating. Specifically,

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Thompson saw snakes coming out of the walls, requested a screwdriver so he could build a house, and believed he was at a barbecue in Gladewater, Texas. Upon becoming aware that Thompson might be in need of medical assistance, Marion County Chief Jailer Linda Bolick (Bolick) called for an ambulance at 10:47 a.m. The Emergency Medical Technicians (EMTs) confirmed Thompson was experiencing DTs, warned him that injuries and death could result therefrom, told him that he should go to the hospital and urged him to do so. Thompson explained that he had experienced DTs before and that if he could consume three beers he would be fine. Despite the efforts of Bolick and the EMTs to convince Thompson to go to the hospital, he refused at least twice. Bolick conferred with the EMTs and all believed that Thompson had the capacity to make the decision. Bolick told the EMTs that to force Thompson to submit to health care against his will would violate his constitutional rights. The EMTs believed that because Thompson was conscious, they could not force him to be transported to the hospital. Thompson signed a refusal of medical treatment form, and nothing in the record suggests he was forced to do so. Plaintiffs-appellees Betty and Donald Thompson (Michael's parents) contend that Thompson was not competent to refuse medical treatment. There is some evidence that Marion County sheriff Tefteller had some generally contemporaneous awareness of these developments as they occurred.3

Jailer Bolick then made arrangements to transfer Thompson back to Upshur County because its jail, unlike that of Marion County, had a detoxification cell that would facilitate the observation and care of Thompson. Less than two hours elapsed between the EMTs' visit and Thompson's departure for the Upshur County jail at about 12:30 p.m. During the forty-five minute trip to the Upshur County jail, Thompson appears to have had a lucid conversation with Upshur County Deputy Decuir, driver of the Upshur County vehicle which took Thompson back to Upshur County.

Upon his return to the Upshur County Jail, Thompson was placed in a special "detox" cell. Defendant jailer Sgt. Whorton began work that Thursday, August 28, at 3:00 p.m. She was aware that Thompson was suffering from DTs and had refused medical treatment in Marion County. She began an observation log on Thompson at 5:00 p.m. and claims to have called a hospital from which she received medical advice concerning Thompson's care. The advice was to keep Thompson in a dark, quiet area, to try to keep him calm, and to call back if he started convulsing or seizing. Plaintiffs dispute that any advice was obtained, and submitted an affidavit from Bonita Fincher, the Nurse Supervisor at East Texas Medical Center. Ms. Fincher declared that the hospital has a policy of not providing medical advice over the telephone and that Chevaughn Shaw, the nurse who spoke with Whorton, was aware of this policy.4

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Thompson's condition worsened into the evening. He began to collide with objects in his cell, sometimes falling and striking his head against the window, floor or concrete bench of his cell. Whorton was aware of this and noticed what she thought was blood flowing from Thompson's ears. After Thompson was placed in a straight jacket, Whorton entered the cell and cleaned his wounds. She noted that the blood had not come from his ears, but rather from a small cut on the back of his head. Additional mattresses were placed in the cell for Thompson's protection, but he was not fitted with a helmet, which, as Whorton knew, was kept available for such a purpose. After this, Thompson appeared to calm down.

Whorton's shift ended at 11:00 p.m. Jailers Bishop and Bean relieved her. Whorton discussed Thompson's condition with them. In her affidavit, Bishop stated that: 1) Whorton told her and Bean to leave Thompson alone unless he was going to bleed to death; 2) Whorton told her and Bean that "we don't take inmates to the hospital unless they're dying"; 3) after Bishop asked if an ambulance should be called for Thompson, Whorton responded that she had already contacted the emergency room and that there was nothing that could be done for Thompson, that he just had to "sleep it off"; 4) Whorton informed Bishop and Bean that Thompson would soon be transferred to Huntsville, and thus wouldn't be their problem for much longer; 5) Whorton commanded Bishop and Bean not to summon medical help for Thompson without calling her at home, i.e. that Whorton was to make that decision; 6) after Whorton departed, Bishop and Bean considered calling an ambulance for Thompson, but did not do so because they were afraid to "go over Sgt. Whorton's head"; and 7) Bishop and Bean considered calling Whorton at home to obtain permission to call an ambulance for Thompson, but they did not do so because Whorton had instructed them not to bother her at home unless Thompson was dying.

Thompson accepted water or orange juice two times during the early hours of Friday, August 29, 1997. At about 7:10 a.m., Thompson appeared to have a thirty-second seizure. A few minutes after the seizure ended, Thompson stopped breathing. Paramedics were summoned at 7:21 a.m. Thompson was pronounced dead at 9:10 a.m. at East Texas Medical Center. An autopsy revealed the cause of death to be the result of delirium tremens.

On July 16, 1998, plaintiffs-appellees Betty Thompson and Donald Thompson filed this action against Upshur County, Upshur County sheriff R.D. Cross, Upshur County jailer Sgt. Paula Whorton, Upshur County jailer Lt. Robert Cromley, Marion County, and Marion County sheriff Eugene Tefteller, asserting claims under 42 U.S.C. § 1983, the Texas Survival and Wrongful Death Statute, Tex. Civ. Prac. & Rem. Code Ann. § 71.021 and the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Ann. § 101.001 et seq., for the failure of defendants to provide reasonable medical

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care to their son, Michael Thompson, which resulted in Michael's death.5

All defendants eventually moved for summary judgment based solely on the issue of qualified immunity.6 The parties consented to trial by magistrate McKee and on January 21, 1999, the case was transferred to him. In separate orders, dated August 16 and 20, 1999, Magistrate McKee denied the motion to strike certain affidavits tendered by plaintiffs and all motions for summary judgment (except Cromley's, which was not considered).

In his order concerning Tefteller, the magistrate found that there were several "fact issues" that precluded granting summary judgment based on qualified immunity: 1) whether Thompson was capable of determining if he required medical attention; 2) whether a reasonably diligent attempt to locate a surrogate decision-maker was made; 3) whether Tefteller could have required Thompson to receive medical attention against his will; 4) whether Tefteller had a duty to require Thompson to receive medical attention; 5) if Tefteller could have forced Thompson to receive medical attention, whether the decision not to do so amounts to deliberate indifference to Thompson's right to reasonable medical care; 6) whether Tefteller failed to properly supervise or train his staff; 7) whether the alleged lack of supervision or training caused the alleged violation of Thompson's rights; and 8) whether Tefteller's alleged failure to supervise or train constituted deliberate indifference to...

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