Hamilton By and Through Hamilton v. Cannon

Page 1525

80 F.3d 1525

Mathew HAMILTON, By and Through Lovelurn HAMILTON, his next

friend, Lovelurn Hamilton, Administratrix of the

Estate of Kim Orlena Hamilton, Una

Hamilton, Plaintiffs-Appellees, v. Charles CANNON, in his official capacity as Sheriff of Macon

County, Georgia, Ronald Duncan, Macon Co., GA, a

political subdivision of the State of

Georgia, Michael Tookes,

Defendants-Appellants,

The Macon County Sheriff's Department, The Macon County/City

of Montezuma, Georgia, Department of Parks and Recreation,

The City of Montezuma, Georgia, Police Department, Freddy

Mallard, Logan Walton, XYZ Pool Management Company, Defendants,

The City of Montezuma, Lonnie Brown, Defendants-Appellees.

Mathew HAMILTON, By and Through Lovelurn HAMILTON, his next

friend, Lovelurn Hamilton, Administratrix of the

Estate of Kim Orlena Hamilton, Una

Hamilton, Plaintiffs-Appellants, v. Charles CANNON, in his official capacity as Sheriff of Macon

County, Georgia, Ronald Duncan, Macon Co., GA, a political

subdivision of the State of Georgia, City of Montezuma, and

Lonnie Brown, Defendants-Appellees,

The Macon County Sheriff's Department, et al., Defendants.

Nos. 94-9098, 94-9158.

United States Court of Appeals Eleventh Circuit.

April 19, 1996.

George M. Peagler, Jr., Ellis & Easterlin, P.C., Americus, GA, for appellants in No. 94-9098.

Shawn Marie Story, Jones, Cork & Miller, Macon, GA, for City of Montezuma & Lonnie Brown, Defendants-not Appellees in No. 94-9098.

L. David Wolfe, Wolfe & Steele, P.A., Atlanta, GA, Stephen C. Andrews, Bodker, Ramsey & Anderes, A Professional Corporation, Atlanta, GA, for the Hamiltons in No. 94-9098.

Larry David Wolfe, Stephen C. Andrews, David J. Maslia, Atlanta, GA, for appellants in No. 94-9158.

George M. Peagler, Jr., Americus, GA, for Charles Cannon, Ronald Duncan & Macon Co. in No. 94-9158.

Thomas C. Alexander, Macon, GA, for City of Montezuma, Lonnie Brown, Michael Tookes in No. 94-9158.

John T. Croley, Jr., Fitzgerald, GA, for Michael Tookes in No. 94-9158.

William T. Prescott, Jones, Cork & Miller, Macon, GA, for City of Montezuma and Lonnie Brown in No. 94-9158.

Appeals from the United States District Court for the Middle District of Georgia.

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and FAY, Senior Circuit Judge.

CARNES, Circuit Judge:

These appeals arise from the tragic death of Kim Orlena Hamilton at a Montezuma, Georgia municipal swimming pool. The three plaintiffs--Hamilton's mother, Hamilton's minor child, and the Administratrix of Hamilton's estate--brought this action in federal district court alleging constitutional claims under 42 U.S.C. § 1983 and state law negligence claims. ¹ The complaint named as defendants Macon County, Georgia; Macon County Deputy Sheriff Ronald Duncan (in his individual and official capacities); and Macon County Sheriff Charles Cannon (in his official capacity only). We refer to these defendants as "the county defendants." The complaint also named as defendants the city of Montezuma; Michael Tookes, a lifeguard at the swimming pool (in his individual and official capacities); and Lonnie Brown, the manager of the pool (in his individual and official capacities). We refer to these defendants as "the city defendants." ²

The district court granted summary judgment to all of the defendants on the plaintiffs' state law negligence claims, Hamilton v. Cannon, 864 F.Supp. 1332, 1338 (M.D.Ga.1994), and we have jurisdiction over that judgment pursuant to 28 U.S.C. § 1292(b). The plaintiffs' appeal of that ruling is our case number 94-9158. The court also granted Lonnie Brown summary judgment on the section 1983 claims, in his individual capacity, on the ground of qualified immunity. Id. However, the court denied Tookes' and Duncan's motions for summary judgment on the section 1983 claims, in their individual capacities, holding that they were not entitled to qualified immunity. Id. We have jurisdiction over Tookes' and Duncan's appeal of that decision under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and their appeal of that ruling is our case number 94-9098. The part of the case involving the plaintiffs' federal claims against these individual defendants in their official capacities, and against Macon County and the City of Montezuma, is not before us. ³

Although two appeals with two different case numbers are before us, they are based on the same record and the same evidence. The district court disposed of the defendants' motions for summary judgment on the plaintiffs' state law negligence claims and the defendants' motions for summary judgment on the federal claims in a single order. We have consolidated the two appeals for decisional purposes.

I. The Facts and Procedural Background

The procedural posture of these cases requires us to view the facts, which are drawn from the pleadings, affidavits, and depositions, in the light most favorable to the plaintiffs. Rodgers v. Horsley, 39 F.3d 308, 309 (11th Cir.1994). What we consider to be facts for present purposes may not turn out to be the actual facts if the case goes to trial. Swint v. City of Wadley, 51 F.3d 988, 992 (11th Cir.1995). Viewed from the present perspective, however, we take the facts to be as follows. On July 6, 1990, Hamilton, who was fourteen years old, accompanied her sister and a friend to the Hill Street municipal swimming pool in Montezuma, Georgia. Hamilton did not know how to swim and did not intend to enter the pool, but a boisterous group of swimmers engaging in horseplay threw her into the water. The ultimate result of this "dunking" was Hamilton's death.

Tookes assisted in managing the pool and served as lifeguard. He had received no formal lifeguard training nor any instruction with respect to drownings or other potential emergencies at the pool. After Hamilton was thrown in the pool, she collapsed trying to get out of the water. All Tookes knew to do was to remove her from the pool and place her on the edge of it. Immediately after Tookes removed Hamilton from the pool, Sharon Simpson, a bystander who was trained in CPR, began administering CPR in an attempt to revive Hamilton. Tookes stood by and wiped Hamilton's mouth from time to time. After Simpson initiated CPR, Hamilton appeared to begin shallow breathing and to revive slightly. There is testimony that Hamilton held her head up, began to cough, and moved her arm. Simpson felt a pulse and saw Hamilton trying to respond by moving her eyes. Additionally, Hamilton moved her head in response to her name. Tookes believed Hamilton was recovering and in no danger of dying.

While this rescue attempt was underway, Macon County Deputy Sheriff Ronald Duncan arrived at the scene. Duncan ordered everyone to clear the area around Hamilton. Despite Simpson's objections, Duncan specifically ordered her away from Hamilton. Duncan then examined Hamilton's condition, but did not himself undertake CPR efforts or take any other medical action on her behalf, apparently believing that Macon County's emergency medical technicians would arrive immediately after him. Those medical technicians had been called and were enroute, but unfortunately, they were confused about the location and mistakenly went to another public swimming pool located several blocks away. This mistake delayed their arrival by several minutes, and during that time no one provided medical attention to Hamilton.

Once Simpson realized that Deputy Duncan had no intention of administering CPR, she ran to her nearby home to retrieve her Red Cross CPR certification card. Simpson was gone approximately five minutes, and during that time neither Duncan, Tookes, nor the Montezuma police officers who arrived in the interim provided any medical attention to Hamilton. Upon Simpson's return, the medical technicians still had not arrived, and Duncan permitted Simpson to recommence CPR. Soon afterward, the technicians did arrive, having learned this swimming pool's location from persons at the other pool. Unfortunately, Hamilton had already passed the point at which medical assistance could be of benefit. She was declared dead soon after.

II. The Section 1983 Claims and Tookes'

and Duncan's Claims of Qualified

Immunity, Appeal No. 94-9098

A. Background

The plaintiffs presented claims pursuant to 42 U.S.C. § 1983, which provides a tort remedy against persons acting under color of state law for deprivations of rights secured by federal law. Before a person, county, or municipality can be held liable under section 1983, a plaintiff must establish that she suffered a constitutional deprivation. E.g., Bradberry v. Pinellas County, 789 F.2d 1513, 1515 (11th Cir.1986). Further, to impose individual liability on public officers, the plaintiff must prove that the defendants violated not only a constitutional right, but a "clearly established" constitutional right; otherwise the defendants are protected by qualified immunity. E.g., Lassiter v. Alabama A & M Univ., 28 F.3d 1146 (11th Cir.1994) (en banc).

To overcome the qualified immunity defense, the contours of the right allegedly violated must be sufficiently clear that a reasonable official would understand that what he was doing violates that right. E.g., Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). That is to say, "[u]nless a government agent's act is so obviously wrong, in the light of preexisting law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit." Lassiter, 28 F.3d at 1149. "If case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant." Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1557 (11th Cir.1993).

The district court denied Tookes' and Duncan's motions for summary judgment on qualified immunity grounds. The court held that, viewing the evidence in the light most...