Wever v. Lincoln County, Nebraska

• Decision Date: 04 November 2004
• Docket Number: No. 03-3633.,03-3633.
• Citation: 388 F.3d 601
• Parties: Nancy WEVER, as Personal Representative of the Estate of Dennis Wever, Deceased, Appellee, v. LINCOLN COUNTY, NEBRASKA, Defendant, James Carman, Individually and as Lincoln County Sheriff, Appellant, Martin Gutschenritter, Individually and as North Platte Chief of Police; City of North Platte, Nebraska; John Does 1-10; John Does 11-20, Defendants.
• Court: U.S. Court of Appeals — Eighth Circuit

388 F.3d 601

Nancy WEVER, as Personal Representative of the Estate of Dennis Wever, Deceased, Appellee, v. LINCOLN COUNTY, NEBRASKA, Defendant James Carman, Individually and as Lincoln County Sheriff, Appellant Martin Gutschenritter, Individually and as North Platte Chief of Police; City of North Platte, Nebraska; John Does 1-10; John Does 11-20, Defendants.

No. 03-3633.

United States Court of Appeals, Eighth Circuit.

Submitted: April 15, 2004.

Filed: November 4, 2004.

Appeal from the United States District Court for the District of Nebraska, Thomas M. Shanahan, J Randall L. Goyette of Lincoln, NE (Jarrod S. Boitnott on the brief), for appellant.

Shelley A. Horak of Sioux City IA (Patricia A. Knapp, Lincoln, NE, on the brief), for appellee.

Before MORRIS SHEPPARD ARNOLD, MAGILL, and MURPHY, Circuit Judges.

MAGILL, Circuit Judge.

This case arises from the following tragic facts. On December 8, 2001, Lincoln County officers responded to a 911 call from an emotionally despondent Dennis Wever. Though Wever threatened to kill himself if jailed, the officers arrested Wever, brought him to jail, placed him in an isolation cell, and gave him a blanket upon his request. Less than half an hour after making the threat, Wever hung himself with the blanket. He was the third person in five years to commit suicide in the Lincoln County jail.

Wever's mother, acting as his personal representative, brought a § 1983 claim against James Carmen, the sheriff of Lincoln County, and various officers, alleging that his deficient training and supervision of the officers involved in the arrest and incarceration deprived her son of rights under the Fourteenth Amendment. Carmen moved for summary judgment based on qualified immunity and for dismissal for failure to state a claim. The district court denied the motion, holding that the complaint stated a violation of the Fourteenth Amendment and that Carmen had not established he was due qualified immunity. We have jurisdiction to review the district court's denial of qualified immunity pursuant to 28 U.S.C. § 1291, and we affirm. As we discuss below, we lack jurisdiction to review the district court's determination that Wever's complaint states a claim.

Wever called 911 on December 8, 2001 at approximately 3:30 p.m. The 911 call log reveals he was depressed and crying. A number of Lincoln County police officers were dispatched to the home of Wever's father. Upon their arrival, Wever emerged from the home and engaged in a discussion with the officers. The officers were concerned that he was suicidal because of the 911 call and his demeanor upon their arrival. During this discussion, Wever's father returned home and attempted to aid the officers in calming Wever. Various officers' reports reflect that several times during the initial discussion, Wever stated that he was not going to kill himself.

Wever eventually consented to go to a hospital and speak with a doctor. However, for reasons not made clear by the various officers' reports and Carmen's brief, the officers decided instead to arrest him. Carmen alleges only that Wever was arrested "because of his combative and volatile state." Br. of Defendant-Appellant at 8.¹ One of the officers in charge during the arrest, Sergeant Tolle, was similarly vague as to the justification for the arrest, suggesting little more than that Wever was arrested for speech the officers found offensive: "Due to Dennis's yelling obscenities and derogatory remarks and his lack of cooperation and the feeling that without taking action of some sort the problem would only continue I also felt that Dennis needed to be taken into custody." J.A. at 57-58.²

Wever offered to go with the police peacefully on the condition that he not be handcuffed. The officers refused, and instead wrestled Wever to the ground and forcibly handcuffed him. During this process, Wever suffered an abrasion to his left cheek. Over the course of the confrontation, he yelled obscenities and threatened the officers.

Upon being arrested and placed in a squad car, Wever kicked out the back window. He was then removed from the car, thrown to the ground, physically subdued, and put in leg chains. Wever's mother alleges that after they had subdued him, the officers continued to beat and kick him while he was on the ground.³ Officers then placed Wever in another car and took him to a hospital. After being advised of his combative behavior, the responding nurse opted to treat Wever in the squad car. She opined that the injury to his face was merely a scratch and signed a Medical Clearance Report, checking a box accompanied by the following typed, pre-printed text: "I have examined the prisoner and find him/her acceptable for admission to the jail. I have no specific suggestions regarding care of this prisoner for the condition for which I have examined him/her." J.A. at 28 (emphasis added). Carmen does not assert that the treating nurse was advised of suicidal threats Wever made at the hospital. More importantly, the record indicates the medical clearance the nurse gave Wever was specifically for the scratch on his cheek.

Until the time he was arrested, Wever told the officers that though he was depressed, he did not intend to kill himself.⁴ However, once the officers decided to arrest him, Wever made it clear that he would kill himself if jailed. While waiting in the car at the hospital, Wever stated several times that he would hang or otherwise kill himself if he was taken to jail. According to officer Dowhower, who drove the car, Wever was emphatic in stating that he would kill himself if jailed. Nevertheless, after Wever's cut was examined, Dowhower took Wever to the county jail, where the jailer was advised of Wever's threats. When Wever arrived at the jail, he "made a comment to the [e]ffect of `now it's time.'" J.A. at 54.

Despite the fact that he had repeatedly threatened suicide, Wever was placed in an isolation unit at about 5:00 p.m. He asked to make a call at approximately 5:08, and was allowed to do so. He was unable to reach the party and asked officer Klingsporn if he could try later. Klingsporn agreed, and returned Wever to the isolation cell, whereupon Wever requested a blanket. Though Klingsporn had been advised by one of the arresting officers only minutes earlier that Wever had threatened suicide, he brought Wever a blanket at approximately 5:14. In a report written after the incident, Klingsporn stated: "I asked him if he promised not to do anything with it except cover himself up. He said he wasn't going to do anything with the blanket. He also joked about there not being anywhere in Iso to hang himself...." J.A. at 61. At approximately 5:30, officer Wilson went to check on Wever and discovered him hanging in his cell by the blanket Klingsporn had provided. Wever had been in the county jail only half an hour after threatening suicide. He was brought to a hospital and pronounced dead.

It is undisputed that Sheriff Carmen took no personal part in the arrest, nor was he present at the jail during the suicide.

Wever's representative sued Carmen in his individual capacity for deliberate indifference to Wever's serious medical needs as a pretrial detainee known to be suicidal. Carmen filed a motion for summary judgment accompanied by only two exhibits spanning a mere three pages: a two-page affidavit signed by Carmen, and a one-page medical form signed by the nurse who examined Wever. His summary judgment motion argued that Wever failed to state a claim and that Carmen was due qualified immunity for the sole reason that he had no personal involvement in the arrest. Absent from Carmen's affidavit is mention of any training given to Lincoln County officers concerning treatment of suicidal inmates; nor does it relate any policy for dealing with suicidal inmates, or when any such policy was implemented. Finally, it omits two prior suicides which occurred at the jail and what, if any, preventive steps may have been taken following those suicides. Carmen's motion and accompanying brief similarly omitted any discussion of liability he may have as a supervisor for inadequate training or supervision of the numerous Lincoln County officers who interacted with Wever shortly before his death.

The district court denied Carmen's meagerly supported motion, construing the complaint to adequately allege a Fourteenth Amendment violation by Carmen, and holding that Carmen was not due summary judgment in large part because he "did not present any evidence showing what training procedures, if any, were in place for handling potentially suicidal detainees or inmates, nor did he present any evidence showing what steps, if any, were taken following" an earlier suicide that had occurred during his tenure as sheriff. Wever v. Lincoln County, Neb., No. 7:02CV05016, 5 (D.Neb. Sept. 24, 2003). Carmen appeals. We affirm the district court.

We review a denial of a summary judgment motion claiming qualified immunity de novo, considering it only to the extent it turns on an issue of law. Bankhead v. Knickrehm, 360 F.3d 839, 842-43 (8th Cir.2004).

In order to determine whether Carmen is due qualified immunity, "we must perform two inquiries in `proper sequence.'" Coleman v. Parkman, 349 F.3d 534, 537 (8th Cir.2003) (citation omitted). First, we "must ask whether, when viewed in the light most favorable to the plaintiff, the alleged facts show the official's conduct violates a constitutional right." Id. at 538. If the answer to this question is "yes," then we ask a second question: "`whether the right was clearly established.'" Id. (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). Only the first inquiry is at issue in this case. As a pretrial detainee, Wever had a clearly established Fourteenth Amendment right to be protected from the known risks of suicide.⁵ Yellow Horse v Pennington County, 225 F.3d 923, 927 (8th Cir.2000).⁶

As the party moving for...