Roberts v. City of Troy

• Decision Date: 30 September 1985
• Docket Number: No. 83-1334,83-1334
• Parties: Wesley ROBERTS, Personal Representative of the Estate of David Roberts, Deceased, Plaintiff-Appellant, v. The CITY OF TROY and Forrest O. Fisher, Jointly and Severally, Defendants- Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 720

773 F.2d 720

Wesley ROBERTS, Personal Representative of the Estate of David Roberts, Deceased, Plaintiff-Appellant, v. The CITY OF TROY and Forrest O. Fisher, Jointly and Severally, Defendants- Appellees.

No. 83-1334.

United States Court of Appeals Sixth Circuit.

Argued July 19, 1984.

Decided Sept. 30, 1985.

Julie H. Hurwitz (argued), John P. Quinn (argued), Detroit, Mich., for plaintiff-appellee.

Bernard P. McClorey (argued), Livonia, Mich., Jeannette A. Paskin, Detroit, Mich., for defendants-appellees.

Before KENNEDY, Circuit Judge, CELEBREZZE, Senior Circuit Judge, and NEESE, Senior District Judge. ^*

CORNELIA G. KENNEDY, Circuit Judge.

Plaintiff's decedent David Roberts hanged himself in the defendant City of Troy's jail. This action brought under 42 U.S.C. Sec. 1983 asserted that David Roberts' constitutional rights were violated by the failure of defendant Fisher, the Chief of Police of the City of Troy, to promulgate and enforce procedures to identify potential suicides and prevent their occurrence. The jury returned a verdict for defendants. Plaintiff appeals from the denial of his motion for judgment notwithstanding the verdict and for new trial. He also appeals from the summary judgment for defendants on the pendent state claims. We affirm the judgment on the 1983 claims, and on the pendent state claim against the City of Troy. We reverse the summary judgment in favor of Fisher on the pendent state claims.

Roberts was arrested on September 17, 1977 for fraudulent use of a credit card. When stopped by a store security officer he plunged through a glass door in an attempt to escape and received serious cuts. He was taken by the police to a local hospital where he was treated. He was cooperative with hospital personnel but uncommunicative and withdrawn from the police officers.

He was then booked at the police station. There was no special screening or questioning to determine if he was a high suicide risk. He was permitted to make a phone call and placed in a cell. He was given his medication as prescribed. In accordance with procedures at the Troy jail he was observed at least once during each clock hour, that is, once between 12 and 1 o'clock, once between 1 and 2 o'clock, once between 2 and 3 o'clock, etc. Regulations promulgated by the Michigan Department of Corrections and applicable to local jails required visual checks of each inmate at least once every 60 minutes. Some time during the next morning Roberts made another telephone call and spoke to his mother. The police cadet checking Roberts' cell saw him at 10:42 a.m. At approximately 11:50 a.m., a police officer found Roberts hanging in his jail cell. Efforts to revive him were unsuccessful and he was pronounced dead on his arrival at the hospital.

Roberts' personal representative, first his mother, then after her death his brother, brought this suit. The complaint charged the City of Troy, the Chief of Police, and various police officers with violating Roberts' constitutional rights under 42 U.S.C. Sec. 1983; the defendants were also charged with negligence and gross negligence under Michigan law. Before trial, the District Court granted summary judgment under Sec. 1983 in favor of the police officers, and denied it to Police Chief Forrest O. Fisher and the City of Troy. The state law counts were dismissed as to the police officers. ¹ Summary judgment on the state law counts was granted to Fisher.

At trial, the plaintiff attempted to demonstrate that proper screening at the jail would have shown that Roberts fitted the profile of an individual at high risk of committing suicide in a lockup, and should have been monitored more closely. The plaintiff also attempted to show that the failure of the Troy Police Department to comply with state regulations requiring monitoring every 60 minutes was a contributing cause of Roberts' death. The case was submitted to the jury on a deliberate indifference standard. The jury returned a verdict for defendants, and the District Court ordered the case dismissed. This appeal followed.

1. Deliberate Indifference Standard

The essence of plaintiff's claim is that David Roberts had a constitutional due process right to reasonably necessary medical care while incarcerated; that he had a serious and obvious medical need for precautions designed to prevent a suicide; that defendants through acts, omissions, customs and policies, and practices, were negligent and grossly negligent (i.e., deliberately indifferent) in their failure to take the necessary precautions; and that the defendants' negligence and gross negligence substantially increased the risk that David Roberts would die by suicide. (Plaintiff's Brief, p. 1). The instructions to the jury permitted recovery only if defendants exhibited deliberate indifference. Plaintiff did not object to the instruction that was given.

The seminal case with respect to the constitutional due process right of pretrial detainees is Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Its holding is succinctly summarized in Block v. Rutherford, --- U.S. ----, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984):

Four Terms ago, in Bell v. Wolfish ... we considered for the first time, in light of these security concerns, the scope of constitutional protection that must be accorded pretrial detainees. The respondents in Wolfish challenged numerous conditions of their confinement at the pretrial detention facility in New York City and various policies and practices of that institution. We held that, where it is alleged that a pretrial detainee has been deprived of liberty without due process, the dispositive inquiry is whether the challenged condition, practice, or policy constitutes punishment, "[f]or under the Due Process Clause, a detainee must not be punished prior to an adjudication of guilt in accordance with due process of law." Id., at 535, 99 S.Ct., at 1872 (footnote omitted).

In addressing the particular challenges in Wolfish, we carefully outlined the principles to be applied in evaluating the constitutionality of conditions of pretrial detention. Specifically, we observed that "[a] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose." Id., at 538, 99 S.Ct., at 1873 (citation omitted). Absent proof of intent to punish, we noted, this determination "generally will turn on 'whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].' "

Plaintiff does not claim that in failing to have in place procedures to reduce the likelihood of Roberts' accomplishing the suicide defendants intended to punish him. Rather, in accordance with the holding in Bell v. Wolfish that "pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners," id. at 545, 99 S.Ct. at 1877, plaintiff claims that his decedent's rights under the eighth amendment were violated by "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). ("We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain,' (citation omitted) proscribed by the Eighth Amendment." Id. at 104, 97 S.Ct. at 291.) Roberts, as a pretrial detainee rather than a convicted prisoner, was not within the protection of the eighth amendment; however, the eighth amendment rights of prisoners are analogized to those of detainees under the fourteenth amendment, to avoid the anomaly of extending greater constitutional protection to a convict than to one awaiting trial. See Norris v. Frame, 585 F.2d 1183, 1187 (3d Cir.1978). See also Bell v. Wolfish, supra.

Plaintiff argues that although the case was submitted to the jury on this basis, the court's charge defining deliberate indifference constitutes reversible error. Plaintiff did not object to this instruction. Under Rule 51, Fed.R.Civ.P., failure to object waives the right to appeal from an incorrect instruction. The plaintiff's argument that he implicitly objected by offering a different instruction is not persuasive, see Kropp v. Ziebarth, 601 F.2d 1348, 1356-57 (8th Cir.1979). Rule 51 can be satisfied by less than a formal objection, but "only if it is clear that the judge was made aware of the possible error in or omission from the instructions." Transcontinental Leasing, Inc. v. Michigan National Bank, 738 F.2d 163 (6th Cir.1984). Here the plaintiff did nothing to make the court aware of his opposition to the language defining deliberate indifference.

Plaintiff also argues that he may recover under Sec. 1983 on the basis of a failure to exercise due care in failing to prevent suicides of pretrial detainees. Again, plaintiff did not object to the failure to give such an instruction. The transcript is replete however with arguments between counsel for the plaintiff and the court over using a negligence standard. Plaintiff argues that he repeatedly made known to the court his position that he should be permitted to recover on the basis of negligence and that this case falls within the category of exceptions to Rule 51 in which "the failure to object may be disregarded if the party's position has previously been made clear to the court and it is plain that a further objection would have been unavailing." Lang v. Texas & Pacific Railway Co., 624 F.2d 1275, 1279 (5th Cir.1980). Since we find that plaintiff was not entitled to an instruction on negligence we need not decide if that claimed error was preserved.

The plaintiff essentially argues that a claim is established under Sec. 1983 by showing an official's negligence in the face of a pervasive and unreasonable risk of...