Barber v. City of Salem, Ohio

• Decision Date: 07 January 1992
• Docket Number: No. 91-3310,91-3310
• Citation: 953 F.2d 232
• Parties: Randy James BARBER, Administrator of the Estate of Kenneth Robert Barber, Deceased, Plaintiff-Appellant, v. CITY OF SALEM, OHIO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 232

953 F.2d 232

Randy James BARBER, Administrator of the Estate of Kenneth

Robert Barber, Deceased, Plaintiff-Appellant, v. CITY OF SALEM, OHIO, et al., Defendants-Appellees.

No. 91-3310.

United States Court of Appeals, Sixth Circuit.

Submitted Nov. 22, 1991.

Decided Jan. 7, 1992.

Bernard Fineman, Aronson, Fineman & Davis Co., LPA (briefed), East Liverpool, Ohio, for plaintiff-appellant.

Nick Tomino, Reminger & Reminger (briefed), Cleveland, Ohio, Earl A. Schory, III, Office of Director of Law, Salem, Ohio, for defendants-appellees.

Before JONES and MILBURN, Circuit Judges, and ENGEL, Senior Circuit Judge.

MILBURN, Circuit Judge.

Randy James Barber, Administrator of the Estate of Kenneth Robert Barber, deceased, appeals the district court's grant of summary judgment in favor of defendants. The district court also dismissed plaintiff's pendent state claims pursuant to Federal Rule of Civil Procedure 12(b)(1).

Plaintiff in his capacity as administrator, brought this action under 42 U.S.C. § 1983 for various alleged constitutional violations and under Ohio state law for alleged wrongful death and a survivor claim for defendants' alleged failure to exercise reasonable care to ensure the decedent's safety while confined in defendants' jail. The decedent, Kenneth Robert Barber, committed suicide at the Salem, Ohio, City Jail on January 22, 1982, after being arrested and jailed for driving under the influence of alcohol and driving without a valid driver's license. The defendants in this case are the City of Salem ("City") and the following individuals in their official and individual capacities, viz., Mayor Robert Sell, Chief of Police John Sommers, Lt. Raymond Esterly, Police Officer Paul Bradley, Police Officer John Petrachkoff, and Auxiliary Officer Edward Hardy.

On appeal, plaintiff raises two issues which he states as follows: (1) Whether the district court erred in granting the defendants' motion for summary judgment on the basis that defendant Police Officers Esterly, Bradley, Hardy and Petrachkoff were entitled to qualified immunity as to plaintiff's claim under 42 U.S.C. § 1983, in holding that defendants City of Salem, Mayor Sell, and Police Chief Sommers did not have a constitutional duty to train the police officers in suicide prevention; and (2) whether the conduct of defendants City of Salem, Mayor Sell, and Police Chief Sommers constituted a deliberate indifference to the substantive constitutional rights of the decedent under 42 U.S.C. § 1983. For the reasons that follow, we affirm.

I.

On January 21, 1982, at approximately 11:30 p.m., Kenneth Robert Barber and his fiancee, Kathy Simpson, went to a tavern to celebrate a friend's birthday. At approximately 1:40 a.m., an automobile driven by Barber was stopped by Police Officers Bradley and Hardy. Barber was placed under arrest and charged with driving under the influence of alcohol and without a valid license. Officer Bradley drove Barber to the Salem city jail while Officer Hardy drove Barber's passenger, Kathy Simpson, to the Salem city jail.

In her deposition, Simpson testified that while Barber was being "booked," Barber asked one of the officers what was the offense with which he was being charged. The officer then "shoved" Barber against a wall and told Barber something to the effect that he knew what he was being "booked for." Simpson further testified that Barber asked an officer about the sentence that he might receive if convicted of the offenses for which he was charged. One of the officers offered to obtain Barber's record, bring it back to him, and discuss the possibilities with him. Another officer, however, shouted, "If I had my way, you will get six months to a year." Both of these incidents occurred in the presence of Lt. Esterly, the shift commander; Officer Petrachkoff, the desk man and jailer for the night shift; and Officers Bradley and Hardy.

At 2:17 a.m., Barber took a breathalyzer test which registered a thirteen percent breath-alcohol reading. An officer informed Barber that if he could raise $300 for a bond, he could go home. Barber informed Simpson that the only way he could raise the money for the bond was to call his mother which he did not want to do. An officer then took his shoe strings, belt, wallet and handkerchief. Simpson further testified that Barber expressed concern that his job, his engagement to her, and his ability to obtain custody of his young son would be jeopardized by a long jail sentence. According to Simpson's testimony, Barber said to her: "Before it is all over with, I am going to lose my son and you too." At approximately 2:40 a.m., Barber was placed in a jail cell alone on an empty cell block where he could not be observed visually. An electronic audio monitor was present in Barber's cell, but plaintiff maintains that the monitor provided inadequate surveillance.

The shift commander, Lt. Esterly, left the Salem city jail at approximately 2:25 a.m. to patrol the city and did not return that night. At approximately 3:05 a.m., Officer Bradley went to the cell block to give Barber some matches. Officer Bradley testified in his deposition that when he left the cell block, Barber appeared to be going to sleep, and plaintiff does not dispute this contention. Thereafter, Bradley left the Salem city jail for the remainder of the night. Officer Hardy took Simpson home and did not return to the Salem city jail. Officer Petrachkoff remained stationed at the police department desk and did not at any time go into the cell block that night. There was no other inspection made of Barber's jail cell that night.

A new shift of police officers arrived at the Salem city jail the following morning at 8:25 a.m. When William Gray, the new shift's desk man, went to inspect the cell block, he found Barber hanging by the neck from a noose tied to horizontal bars at the top of the cell door. The noose had been made from a strip of the blanket which had been placed in the jail cell. Barber was left hanging for approximately forty-five minutes until the Columbiana County Coroner, Dr. William Kolozsi, arrived. Barber was then cut down, and the coroner examined the body for approximately ten to fifteen minutes. Coroner Kolozsi determined that the cause of death was asphyxiation and choking and noted that other significant conditions were depression and acute alcoholism. He further determined that the time of death was 6:15 a.m. and that there was a ten-minute interval between the initial hanging and Barber's subsequent death. The coroner's investigator wrote on his report the following: "Apparent motivation, decedent intoxicated, apparently overwrought over recent arrest."

Coroner Kolozsi did not perform an autopsy, but a blood alcohol test was taken which showed a result of .114 milligrams per deciliter. Plaintiff alleges that this blood test disputes the coroner's determination that Barber's death occurred at 6:15 a.m. Coroner Kolozsi did not determine the metabolism rate of alcohol. Plaintiff also contends that the coroner did not know how to convert the breath alcohol percentage to a blood alcohol percentage to help determine the time of death. Plaintiff does not, however, offer an alternative estimate of Barber's time of death. Neither the Salem Police Department nor the coroner kept the noose which Barber used to hang himself.

Barber's suicide was the third alcohol-related suicide in the Salem city jail during a period of time of twenty-two years. In 1960, an inmate committed suicide by hanging himself in the Salem city jail within four hours after being arrested for an intoxication-related offense. In 1970, another inmate committed suicide by hanging himself within eleven hours of his arrest for intoxication.

After the first suicide, Coroner Kolozsi, who investigated both of these suicides recommended to the Salem Police Department that it more closely observe the prisoners. After the second suicide in 1970, Coroner Kolozsi informed the police department on numerous occasions that they should check on the prisoners more often. He informed Mayor Sell, the City Safety Director, and possibly Chief Sommers on several occasions about the need for closer and more frequent observation of the prisoners and made other suggestions which he believed would help prevent another suicide. In addition to more frequent observation, he recommended not placing a prisoner in a cell alone, removing blankets and other materials which prisoners could use to make a noose, and covering the horizontal bars over the cell door from which prisoners could hang themselves.

In his affidavit attached to defendants' motion for summary judgment, Police Chief Sommers stated that police officers in the Salem Police Department receive a minimum of 310 hours of training prescribed by the Ohio Peace Officer Training Council. However, Police Chief Sommers admits no formal training is given regarding suicide prevention. Nevertheless, Salem Police Officers are instructed to remove prisoners' belts and shoe laces and to be alert for abnormal behavior which may indicate a prisoner may harm himself. If a prisoner is exhibiting abnormal behavior, then the officers are to observe him more closely. Furthermore, according to the Salem Police Department regulations promulgated November 30, 1981, only one mid-shift inspection of a prisoner's jail cell is required during the last, early morning shift.

Plaintiff alleges that these measures do not comply with Ohio Revised Code § 5120.10 which sets forth minimum standards for full service jails. Requirements include preliminary health evaluations to determine if the prisoners are experiencing any serious mental disorders, in-person surveillance of prisoners at least every sixty minutes, and a number of requirements concerning proper corrections personnel training.

II.

A.

Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled...