Jones v. McKenzie

Margaret Jones

v.Tommie C. McKenzie et al.

Civil No. 10-cv-152-JL

Opinion No. 2011 DNH 209

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dated: December 16, 2011

ORDER

This case involves the level of care that police owe to detainees to prevent them from committing suicide while in protective custody. Margaret Jones, acting as the administratrix of the estate of her brother, Robert Vieara, has sued the Town of Conway, as well as two of its police officers, and two of its police dispatchers (the "dispatchers" and, together with the police officers, the "individual defendants"), on claims of constitutional violations under 42 U.S.C. § 1983 and negligence under state law arising out of Vieara's death. Vieara took his own life while in the protective custody of the Conway Police. Jones alleges that the individual defendants ignored Vieara's risk of suicide and that the Town failed to train them properly to identify and care for potentially suicidal detainees.

The defendants move for summary judgment on a number of grounds, most notably, the absence of any evidence that theindividual defendants were deliberately indifferent to the risk of Vieara's suicide, which Jones must show to prevail on her § 1983 claim. This court has jurisdiction under 28 U.S.C. § 1331 (federal question) and § 1367 (supplemental jurisdiction).

After hearing oral argument, the court grants the defendants' motion for summary judgment on the § 1983 claim and declines to exercise supplemental jurisdiction over the state-law claims. As explained fully infra, no rational finder of fact could conclude that the individual defendants acted with deliberate indifference to Vieara's risk of suicide. He did not present an unusually strong risk of suicide and, in any event, the individual defendants were not willfully blind to the risk he presented. While this ruling also resolves the § 1983 claim against the Town, that claim also fails for the independent reason that there is no evidence of the requisite casual connection between the Town's alleged failure to train the individual defendants and Vieara's suicide.

I. Applicable legal standard

Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."Fed. R. Civ. P. 56(c)(2). An issue is "genuine" if it could reasonably be resolved in either party's favor at trial, and "material" if it could sway the outcome under applicable law. See, e.g., Estrada v. Rhode Island, 594 F.3d 56, 62 (1st Cir. 2010) (citation omitted). In determining whether summary judgment is appropriate, the court must "view[ ] all facts and draw[ ] all reasonable inferences in the light most favorable to the nonmoving party." Id. The following facts are set forth accordingly, though the court has made an effort to note the defendants' version of events where appropriate.

II. Background

On a day in August 2009, Edward Vieara boarded a bus at South Station in Boston to visit his sister, Margaret Jones, with whom he planned to stay for approximately one week to help her paint her house. Jones originally planned to meet Vieara at the bus station in Berlin, New Hampshire, at about 9:30 p.m. that night, but later called him and left him a message to meet her at the Gorham, New Hampshire stop. Jones waited at the Gorham station, but, as it turned out, the bus did not stop there.

Jones then drove to the Berlin station, the final stop on the route, meeting the bus at approximately 10:00 p.m. But Vieara was not on the bus. When Jones inquired of the driver, hetold her that he had removed a passenger at the stop in Conway, New Hampshire, because that passenger had been drinking. Jones then drove to her house in Dummer, New Hampshire, about twelve miles from the Berlin stop and approximately an hour's drive from Conway. When she arrived, a message on her answering machine from defendant George Walker, a sergeant with the Conway Police Department, told her that Vieara was at the police station. In the message, Sgt. Walker asked Jones to call the station.

Sgt. Walker had responded to a call from the bus driver about Vieara, which had been placed at approximately 9:00 p.m. When Sgt. Walker met the bus at the Conway stop, he observed that Vieara was very intoxicated, and took him into protective custody. See N.H. Rev. Stat. Ann. § 172-B:3, I ("[w]hen a peace officer encounters a person who, in the judgment of the officer, is intoxicated . . . , the officer may take such person into protective custody").

After taking Vieara to the Conway Police Station, Sgt. Walker completed a "suicide evaluation form," which classifies a detainee as having a "low," "medium," "high," or "very high" risk of suicide depending on an officer's observations, including a detainee's answers to certain questions. Sgt. Walker noted on the form that Vieara was "tired," had "no spouse," had "prior arrests," was "intoxicated," and had "used alcohol" that day.These factors combined to put Vieara in the "low risk" category for suicide. Sgt. Walker should have also noted, however, that Vieara was in "protective custody" and that he was "crying."¹ If Sgt. Walker had noted these two additional factors, Vieara would have been placed in the "medium risk" category.²

Sgt. Walker informed Vieara that he could call someone for a ride or could stay the night to sober up and be released in the morning. Vieara asked and was permitted to call Jones but was unable to reach her. Sgt. Walker then placed Vieara in a holding cell, which was equipped with a video camera without an audio feed. The camera was being monitored by a dispatcher, defendant Roberta Roth. After placing Vieara in the cell, Sgt. Walker called Jones and left the message on her home answering machine.

Jones returned Sgt. Walker's call at approximately 10:58 p.m. Jones recalls that Sgt. Walker told her that Vieara "had been put into protective custody" and that "the police had decided that [he] could not be released until the next morning . . . . [T]hey were going to let [him] go, but they decided to keep him over night." Sgt. Walker left the station when his shift ended at 11:00 p.m. and he was relieved by another sergeant, defendant Tommie McKenzie.

Near the beginning of his shift, Sgt. McKenzie performed a routine station check, which included personally checking on Vieara in his holding cell. Sgt. McKenzie observed Vieara lying on his cot and "voicing his displeasure at being there," which Sgt. McKenzie did not consider to be unusual for a detainee. Sgt. McKenzie did not speak with Vieara. After his station check, Sgt. McKenzie left the station to go out on patrol, leaving Roth alone in the building with Vieara. Roth's duties were to monitor the holding cells via the closed circuit cameras, to answer the phones, and to dispatch police, fire, or ambulance personnel as needed. During her periodic monitoring, Roth did not notice Vieara doing much besides sitting or lying down. The last time Roth checked the camera prior to 11:30 p.m., Vieara was lying in his cot.

At approximately 11:30 p.m., Roth received a phone call from a woman who wanted to speak to Sgt. McKenzie about an earlier incident she had reported. Roth spoke with her for a few minutes. During this time, Roth was turned away from the camera.

It was during this time that Vieara took his own life. The video of the holding cell shows Vieara rising from his cot at 11:30:08; removing his shirt and making a "thumbs up" gesture to the camera at 11:30:50; then removing his underwear, climbing on his cot, and hanging himself by hooking the waistband of his underwear onto a screw protruding between 1/8 and 1/4 inch from the surface above the door. (The screw had formerly secured a Plexiglas cover for the cell's prior video equipment.) It took two minutes and thirty-one seconds for Vieara to make the preparations for hanging himself. At approximately 11:38 p.m., eight minutes after he rose from his cot, Vieara made his last movement.

At approximately 11:48 p.m., defendant James Mykland, another police dispatcher, arrived to relieve Roth at the end of her shift. At that point, they checked on Vieara via the closed circuit camera and observed that he appeared to be standing by the cell door. Neither went to the cell at that time.

At approximately 12:15 a.m., Sgt. McKenzie returned to the station to retrieve the message that Roth had recorded. Henoticed that Vieara appeared to be standing by the cell door and decided to check on him. Upon arriving, Sgt. McKenzie realized that Vieara had hanged himself. Sgt. McKenzie entered the cell, checked for a pulse, and called an ambulance. He began CPR and tried to revive Vieara. The medical examiner who responded declared Vieara dead at the scene.

Jones subsequently commenced this action in Coos County Superior Court, naming as defendants Sgt. Walker, Sgt. McKenzie, the dispatchers, and the Town. The defendants, invoking federal question jurisdiction, removed the case to this court. See 28 U.S.C. § 1441.

III. Analysis

Jones brings a number of claims on behalf of Vieara's estate: (1) against all defendants, a claim under § 1983 for violating Vieara's substantive due process rights; (2) against the individual defendants, state-law negligence claims; and (3) against the Town, theories of municipal liability, respondeat superior, and negligent training and supervision of the officers and dispatchers. In moving for summary judgment on the § 1983 claim, the defendants argue that no reasonable fact finder could conclude that the individual defendants acted with deliberate indifference toward Vieara's risk of suicide. The court agrees.The court also agrees with the defendants that the § 1983 claim against the Town fails for the independent reason that there is no evidence to suggest a causal connection between its alleged failure to train the officers...