Popham v. City of Talladega

• Decision Date: 01 June 1989
• Docket Number: Civ. A. No. CV88-PT-0616-E.
• Citation: 742 F. Supp. 1504
• Parties: Kathy Roberts POPHAM, etc., Plaintiff, v. CITY OF TALLADEGA, et al, Defendants.
• Court: U.S. District Court — Northern District of Alabama

742 F. Supp. 1504

Kathy Roberts POPHAM, etc., Plaintiff, v. CITY OF TALLADEGA, et al, Defendants.

Civ. A. No. CV88-PT-0616-E.

United States District Court, N.D. Alabama, E.D.

June 1, 1989.

Albert C. Bowen, Beddow Fullan & Vowell, Robert L. Wiggins, Jr., Gordon Silberman Wiggins & Childs, Birmingham, Ala., for plaintiff.

Robert E. Parsons, Parsons Lee and Juliano, Birmingham, Ala., for defendants.

Earl Martin Bloom, Jr., William A. Davis, III, Starnes & Atchison, Birmingham, Ala., for City of Talladega.

MEMORANDUM OPINION

PROPST, District Judge.

This cause comes to be heard on Motions for Summary Judgment filed by the individual defendants¹ on March 3, 1989, and by the City of Talladega on March 14, 1989. This action arises out of the suicide death of plaintiff's decedent, Robert Popham, while incarcerated in the Talladega City Jail on December 24, 1987. Plaintiff alleges that defendants, in each's official and individual capacities, denied her decedent substantive due process and other civil rights as guaranteed and protected by the Fourteenth Amendment and 42 U.S.C. Section 1983 et seq. Plaintiff also states a claim for wrongful death under Ala.Code § 6-5-410.

Around 9:00 p.m. on the evening of December 24, 1987, plaintiff, Kathy Roberts Popham, telephoned the Talladega Police Department to report a disturbance involving her husband, Ronald (Ronnie) Popham, at the home of James and Christine Wilson, where the Pophams had gone to celebrate their (the Popham's) wedding. Officers Jones and Williams responded to the call, and after arriving at the scene, Officer Watson was called for backup. The officers arrested Ronnie Popham for public intoxication,² which he violently resisted. In an effort to handcuff Popham, the officers wrestled with him, and Officer Jones struck him on the chin and in the stomach area with a police baton. When they arrived at the Talladega Police Department, the officers had to forcefully place Ronnie Popham directly into the holding cell, removing his belt, shoes, and the contents of his pockets. Officer Jones testified in his deposition that before he left Mr. Popham in the holding cell, he (Popham) had calmed down, and Officer Jones talked with him briefly telling him that "it's all over with, everything is okay." When he left, Jones testified that Popham began to cry or whimper.

The Talladega jail is equipped with closed circuit television monitors, and David Brooks, the dispatcher on duty at the time Popham was placed in the holding cell, was instructed by Sergeant Watson to lock the camera monitor on the holding cell. Before leaving the police station, Sergeant Watson checked on Mr. Popham between 10:30 and 11:00 that evening. The third shift³ dispatcher, David Brooks, who was responsible for monitoring the radios and the closed circuit television monitors, stated that between 10:00 p.m. and 11:00 p.m., he observed Ronnie Popham walking around in the holding cell, but did not notice anything unusual. These were the last occasions Popham was observed before his body was discovered at 5:15 the next morning.

In his statement to the ABI investigator, David Brooks acknowledged that "there are several spots in the dayroom holding cell where a person can stand or lay out of the view of the camera." He further stated that it was "not unusual for an inmate to lie in one of these spots without trying intentionally to be out of view." Brooks stated that he knew Popham had been arrested for public intoxication, and that he therefore assumed Popham was somewhere in the cell out of view "sleeping it off."

Also incarcerated that same evening was Randy Langley, who had known Ronnie Popham all of his life and had been incarcerated at the same time as Popham on numerous occasions in the past. Langley was confined two cells down from Popham, and observed the officers struggling to get him into the holding cell. Langley stated in his sworn statement⁴ that Popham appeared and sounded drunk, and that he cursed, kicked, and spat at the officers, and off and on, after he had been left in the cell, screamed and called for them to come back and "take him on", so to speak, after the handcuffs had been removed. Langley also stated that Popham had been hollering so much that he began to cough and gag, but eventually quieted down, and began talking to Langley — "drunk talk," to which Langley did not "pay that much attention ... because a drunk will tell you anything." Some of what Popham told Langley concerned the events of the evening that purportedly led to Popham's arrest that night. Langley further testified as follows:

About 11:00 when he got real quiet and he calmed down, like he had done prior to that, and he just calmed down. And in normal voice, I mean, he just told me, he said, "Make sure my wife and my kids get what they deserve out of this because I'm going to kill myself." And I told him, I said, "No, Pop, you don't want to do nothing like that." And he said, "Well, I am." That was his last words. I was sleepy. It was 11:00. I mean, it didn't strike me that he would do it, you know. But it wasn't five minutes after he told me that I heard a gag, like a choke, but what I — I mean, you know, what I actually thought was that he was gagging, you know, spitting like he had been doing ever since 7:00, like he was spitting in the floor. But he had got quiet. And I heard that gag and I never heard no more from him, so I went on to sleep. That was about 11:00.

Langley testified that, while in retrospect, that last gagging sound he heard sounded different from those had heard Popham make earlier, he "didn't pay no attention" then, and "didn't think nothing about it because I didn't think he would do it. I mean, I had been around him all my life." (Langley Sworn Statement at pp. 31-32.) In other words, Langley did not take Popham's suicide threat seriously.

At 5:15 a.m. on December 25, 1987, jailor Thurman Smith discovered Ronnie Popham hanging from the jail cell bars by his blue jeans. He had hung himself behind the shower in the cell, an area which was not within the viewing range of the closed circuit camera.

I. Was There a Constitutional Deprivation?

The evidence is undisputed in this case that Ronnie Popham had been incarcerated in the Talladega City Jail on numerous occasions since the mid-1970's, and on none of those occasions had he ever threatened or attempted to commit suicide. Nor is there any evidence that on the night in question Ronnie Popham threatened or in any way communicated to any of the defendants his desire, plan, or intent to commit suicide that night or sometime during his incarceration. While there is undisputed evidence that indeed Popham had attempted to commit suicide approximately one week prior to his death by taking an overdose of Thorazine, there is no evidence whatsoever that any of the defendants had actual or constructive knowledge or notice of that prior suicide attempt by Popham. Nevertheless, when Popham was brought in on the night in question, after being placed in the holding cell, his belt and shoes were removed, and the dispatcher on duty was instructed to monitor the holding cell by way of the closed circuit television cameras with which the jail was equipped.

As recently noted by the Eleventh Circuit in Edwards v. Gilbert, 867 F.2d 1271, 1274-75 (11th Cir.1989),⁵

"in a prisoner suicide case, to prevail under section 1983 for violation of substantive rights, under either the eighth or fourteenth amendment, the plaintiff must show that the jail official displayed "deliberate indifference" to the prisoner's taking of his own life. See Whitley v. Albers, 475 U.S. 312 at 327, 106 S.Ct. 1078 at 1088 89 L.Ed.2d 251 (1986) State Bank of St. Charles v. Camic, 712 F.2d 1140, 1146 (7th Cir.1983).

The court further noted the following:

In the absence of a previous threat of or an earlier attempt at suicide, we know of no federal court in the nation or any other court within this circuit that has concluded that official conduct in failing to prevent a suicide constitutes deliberate indifference. See e.g., Cabrales v. County of Los Angeles, 864 F.2d 1454 (9th Cir.1988) (denying defendants' motion for JNOV where jailers had rescued decedent from previous suicide attempt); Partridge v. Two Unknown Police Officers, 751 F.2d 1448 (5th Cir.1985), withdrawn, 755 F.2d 1126 (5th Cir.1985), Substituted opinion, 791 F.2d 1182 (5th Cir.1986) (plaintiff stated a valid claim where it was known that detainee-decedent had attempted suicide in previous confinement); Guglielmoni v. Alexander, 583 F.Supp. 821 (D.Conn.1984) (defendants' motion for summary judgment denied where inmate-decedent had "faked" suicide by hanging then actually hung himself a month later); Matje v. Leis, 571 F.Supp. 918 (S.D.Ohio 1983) (defendants' motion for summary judgment denied where inmate-decedent told counsel who told jail officials that inmate would attempt suicide if sent to jail by smuggling in drugs behind her diaphragm and body cavity search was not performed at jail); Francis v. Pike County, 708 F.Supp. 170 (S.D.Ohio 1988) (summary judgment in favor of defendants appropriate, where police officer failed to remove the detainee's belt and detainee used belt to hang himself, because there was no evidence that officer or any other employee of sheriff's department knew or should have known that detainee was suicidal); Hutchinson v. Miller, Case No. 86-6005-CA-T (Fla. 18th Cir.Ct. Sept. 15, 1988) (jailers entitled to summary judgment because of absence of evidence that jailers had knowledge of suicidal tendencies, where juvenile inmate asked to remain in doors while his cell mates went out for exercise and hung himself while left alone for an hour).

867 F.2d at 1275.

Here, there is no evidence of any knowledge on the part of the officials in question of a previous threat or attempt at suicide by the decedent. Without that critical element, the court concludes that plaintiff has failed to...