Kitchen v. Dall. Cnty.

• Citation: 759 F.3d 468
• Decision Date: 17 July 2014
• Docket Number: No. 13–10545.,13–10545.
• Parties: Denise KITCHEN, Individually and as Representative of the Estate of Gregory Maurice Kitchen, Deceased, Plaintiff–Appellant v. DALLAS COUNTY, TEXAS; Unknown Dallas County Correctional Officers; Anthony Benson, Dallas County Detention Officer; David Garrett, Dallas County Detention Officer; Gregory Myers, Dallas County Detention Officer; David Roberts, Dallas County Detention Officer; Rene Guzman, Dallas County Detention Officer; Ta'mon Haggerty, Dallas County Detention Officer; Ollie Polk, Jr., Dallas County Detention Officer; Jeree Hall, Dallas County Detention Officer; Marquita Gray, Dallas County Detention Officer; Jeremiah Mosley, Dallas County Detention Officer, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

759 F.3d 468

Denise KITCHEN, Individually and as Representative of the Estate of Gregory Maurice Kitchen, Deceased, Plaintiff–Appellant

v.DALLAS COUNTY, TEXAS; Unknown Dallas County Correctional Officers; Anthony Benson, Dallas County Detention Officer; David Garrett, Dallas County Detention Officer; Gregory Myers, Dallas County Detention Officer; David Roberts, Dallas County Detention Officer; Rene Guzman, Dallas County Detention Officer; Ta'mon Haggerty, Dallas County Detention Officer; Ollie Polk, Jr., Dallas County Detention Officer; Jeree Hall, Dallas County Detention Officer; Marquita Gray, Dallas County Detention Officer; Jeremiah Mosley, Dallas County Detention Officer, Defendants–Appellees.

No. 13–10545.

United States Court of Appeals,Fifth Circuit.

July 17, 2014.

James Douglas Montgomery, Jr., John K. Kennedy (argued), Cochran, Cherry, Givens, Smith & Montgomery, L.L.C., Chicago, IL, Aubrey Dale Pittman, Pittman Law Firm, P.C., Dallas, TX, for Plaintiff–Appellant.

Dolena Tutt Westergard (argued), District Attorney's Office, Dallas, TX, for Defendants–Appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before DAVIS, ELROD, and COSTA, Circuit Judges.^*

W. EUGENE DAVIS, Circuit Judge:

Plaintiff–Appellant, the widow of Gregory Maurice Kitchen (“the deceased”), brings several constitutional claims under 42 U.S.C. § 1983 against Defendants–Appellees. First, Plaintiff–Appellant claims that individual Defendants–Appellees used excessive force against the deceased to extract him from his jail cell while in pretrial detention at Dallas County Jail, which resulted in the deceased's asphyxiation and death. Second, Plaintiff–Appellant claims that Defendants–Appellees acted with deliberate indifference to the deceased's medical needs by failing to contact Dallas County Jail's medical personnel prior to extracting the deceased from his jail cell. As to both of these claims, Plaintiff–Appellant argues that the nine detention officers ¹ named as Defendants–Appellees are each liable in their individual capacities despite their eligibility for qualified immunity. Importantly, some of the nine detention officers may be liable solely under the alternative theory of bystander liability, according to Plaintiff–Appellant, as described in our decision in Hale v. Townley, 45 F.3d 914, 919 (5th Cir.1995). Finally, Plaintiff–Appellant also argues that Defendant–Appellee Dallas County is liable as a municipality under Monell v. Department of Social Services of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for failing to provide adequate training to the detention officers.

In the present appeal, Plaintiff–Appellant challenges the district court's order of April 24, 2013, which granted Defendants–Appellees' motion for summary judgment as to all of Plaintiff–Appellant's claims. In that order, the district court concluded that the record contained insufficient evidence to create a genuine issue of material fact relating to Plaintiff–Appellant's claims for either excessive force or deliberate indifference to the deceased's medical needs. The district court therefore had no reason to address Plaintiff–Appellant's arguments regarding the individual detention officers' bystander liability under Hale, 45 F.3d at 919. The district court also explicitly refrained from addressing either the individual detention officers' entitlement to qualified immunity or Defendant–Appellee Dallas County's liability under Monell, 436 U.S. at 694, 98 S.Ct. 2018.

We now reverse and remand in part, and affirm in part. For the reasons set forth below, the record does indeed present genuine issues of material fact from which a jury could conclude that excessive force was used against the deceased. On remand, therefore, the district court must consider in the first instance whether any or all of the individual Defendants–Appellees may proceed to trial on a theory of direct liability for use of force or, in the alternative, on a theory of bystander liability. The district court should also consider in the first instance whether the individual Defendants–Appellees are entitled to qualified immunity.

As to Plaintiff–Appellant's claim against the individual Defendants–Appellees for deliberate indifference to the deceased's medical needs, however, we conclude that the district court's analysis was correct. As explained below in greater detail, we affirm the district court's grant of summary judgment on this claim.

Finally, we affirm summary judgment as to Defendant–Appellee Dallas County's municipal liability for failing to provide adequate training to the detention officers. Plaintiff–Appellant has neither demonstrated a pattern of constitutional violations similar to those at issue in this case, nor demonstrated that this single incident of injury was highly predictable and patently obvious. Plaintiff–Appellant's arguments as to this claim must therefore be rejected.

I.

All of the events relevant to this case took place in January 2010, while the deceased was in pretrial detention at Dallas County Jail. With a few critical exceptions, most of the facts are not in dispute. Because the deceased had been observed “digging through other detainees' personal property,” as well as “mumbling, walking backwards, and avoiding eye contact with others,” the deceased was placed in the facility's West Tower for psychiatric evaluation. During interviews with medical staff in the West Tower, the deceased urinated on himself, cried, stated that he could hear his mother's voice, and admitted to having suicidal thoughts.

Just before midnight on January 21, 2010, the deceased was observed pacing around his jail cell and hitting his head on the cell door and walls. A detention officer sent the deceased to a nursing station for evaluation. Shortly after midnight, the deceased “broke free from the guards, started screaming, and grabbed one of the nurses” before two detention officers “subdued [him] ... and placed him in a restraint chair where he remained from 12:25 a.m. until at least 5:15 a.m.” Out of concern that “he was going to assault the medical staff,” who are based mostly in the West Tower, a supervisor transferred the deceased to the North Tower.

The deceased was placed in a cell in the North Tower near to the cell of an inmate named Etheridge. Both had been designated as suicidal. In the afternoon on January 22, 2010, Etheridge attempted suicide by cutting himself, which brought several of the detention officers on duty into Etheridge's cell in an effort to save Etheridge's life.

While the detention officers were attending to Etheridge, the deceased began to scream obscenities and cry out for his mother. According to the detention officers, the deceased also resumed banging his head against the bars. One of the detention officers, Defendant–Appellee Guzman, left Etheridge's jail cell, told the deceased to stop banging his head, and then returned to attend to Etheridge. The deceased briefly stopped, according to the detention officers, but then resumed. A second detention officer, Defendant–Appellee Myers, told the deceased at this time that they would call the medical staff. Defendant–Appellee Guzman also again instructed the deceased “to have a seat,” after which the deceased showed the detention officers his middle finger and urinated on the floor.

At this point, Defendants–Appellees Guzman and Myers attempted to extract the deceased from his cell and return him to a restraint chair. They were assisted by the other individual detention officers named in this lawsuit, all of whom had been present in the North Tower and near the deceased's cell at the time. The detention officers spent “seven to eight minutes” talking to the deceased, during which time the deceased “was not banging his head against anything or otherwise causing harm to himself.” No attempt was yet made by the detention officers to summon the medical staff.

Defendant–Appellee Guzman then entered the cell, after which a violent altercation began. As Defendant–Appellee Guzman explained during his deposition, the deceased “turned around abruptly and raised his hands,” after which Defendant–Appellee Guzman then performed a “neck controlled take down” on the deceased, which physically brought the deceased down onto the floor. Using pepper spray, the detention officers subdued the deceased and moved him out of the cell onto the floor of the hallway. The deceased was then restrained in cuffs and leg-irons.

The record contains affidavits by four inmates: John Adams, Morris Simons, Joseph Daniels, and Jason Barcellever. According to a fair reading of these four affidavits, the detention officers kicked, choked, and stomped on the deceased even after he had already been restrained. The inmates also assert in their affidavits that the detention officers used pepper spray on the deceased multiple times after he had stopped resisting. While Defendants–Appellees dispute the factual content of the inmates' affidavits, they do not challenge these affidavits' status as competent evidence on summary judgment.²

While still lying on the floor shortly after being restrained, the deceased became unresponsive, stopped breathing, and died. According to the autopsy report, the death was a homicide caused by “complications of physical restraint including mechanical asphyxia” due to “neck restraint during struggle” and the fact that “one officer was kneeling on the decedent's back during restraint.” Other factors included “physiologic stress,” “[m]orbid obesity and cardiomegaly,” and exposure to “oleoresin capsicum,” which was one of the chemicals in the pepper spray.

Less than nine months later, on September 10, 2010, Plaintiff–Appellant filed her complaint in the district court alleging constitutional violations under 42 U.S.C. § 1983. On December 31, 2012, Defendants–Appellees filed their motion for summary judgment, which the district court...