Susan Bahner v. James Roy Carmack ( 1997 )

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No. 96-1127
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Susan Bahner, Individually and *
as the Administratrix of the *
Estate of Edward Bahner, *
Deceased; Kurt Bahner; Kurt *
Joshua Bahner; Nequila Rae *
Bahner, *
* Appeal from the United States
Appellants, * District Court for the
* Western District of Arkansas.
v. *
* [UNPUBLISHED]
James Roy Carmack; J.R. *
Mitchell; Neal Thomas; Shannon *
Stovall; Roger Dye; Montgomery *
County, Arkansas, *
*
Appellees. *
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Submitted: February 7, 1997
Filed: March 6, 1997
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Before HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.
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PER CURIAM.
This 42 U.S.C. § 1983 action arises from Edward Bahner's death by
suicide while incarcerated at the Montgomery County Jail. The undisputed
facts, viewed in the light most favorable to the appellants, are as
follows. Bahner was arrested for theft and murder and transported
to the Montgomery County Jail in October 1992. Based on a tip from
a drug abuse counselor that Bahner might be suicidal, Bahner was
placed on suicide watch for the first week following his arrest.
In March 1993, Bahner was temporarily moved to the Polk County Jail
and in July 1993, Bahner was transferred to the Arkansas County
Hospital, where he underwent psychiatric and
psychological evaluations between July 7 and August 2. The
psychologist's report states that the examining psychiatrist
reported Bahner showed no indication of psychotic thought or
behavior, and denied suicidal or homicidal ideation; he diagnosed
Bahner with alcohol abuse and antisocial personality disorder.
During Bahner's absence from the Montgomery County Jail, his
diary was discovered and read by defendants Sheriff James R.
Carmack and Deputy Shannon Stovall. The diary--which contained
entries from November 8, 1992, through March 7, 1993--included
frequent references to suicide, including a November 1992 entry
referring to an attempted suicide by hanging with a strip of towel;
Bahner wrote that taking his life was better than twenty, or even
ten years in jail; he wrote he was unable to get the strip of towel
tight enough, but would "keep on trying." A December 1992 entry
indicated Bahner planned to take his life that night by
strangulation.
Bahner was returned to the jail August 3, 1993. In December
1993, Bahner wrote his mother that he had tried to kill himself.
Bahner pleaded guilty to murder and theft and was sentenced to a
total of sixty years imprisonment.
Bahner's parents visited with him on January 23, 1994, the day
before Bahner was scheduled for transport to the Arkansas
Department of Correction to serve his sentence. They stated at
deposition that although they were worried about him, neither
thought he was suicidal that day. Defendants and witnesses
testified Bahner was upbeat and exhibited no change in his demeanor
that day.
Defendant Deputy Roger Dye was the only deputy on duty after
11:00 p.m. on January 23. Dye was given no special instructions
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regarding monitoring Bahner; jail policy required Dye to personally
check each inmate's cell hourly. Dye checked the inmates at 12:00
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a.m., but failed to make the next two hourly checks, as he became
busy with other duties at 1:00 a.m. Surveillance monitors were
focused on each cell and broadcast to the communication center
where Dye was stationed. At some point between 12:00 a.m. and 2:26
a.m., Bahner hung himself with a braided towel. In response to
calls by Bahner's cellmate, Dye went to the cell; he did not enter
because jail policy forbade officers from entering prisoner's cells
unless a second officer was present. Dye asked Bahner's cellmates
to help cut Bahner down and perform CPR, before he called a fellow
deputy and an ambulance. When the second deputy arrived, within
approximately seven minutes, both deputies entered the cell and
performed CPR. Bahner was pronounced dead at St. Joseph's Hospital
in Hot Springs, Arkansas, at 3:36 a.m.
Bahner's relatives filed this section 1983 action against
Carmack; Deputies Neal Thomas, Stovall, and Dye; and Montgomery
County, Arkansas, alleging violation of Bahner's Eighth Amendment
protections. Specifically, plaintiffs alleged that Carmack and his
deputies knew or should have known Bahner was suicidal and
demonstrated deliberate indifference by allowing Bahner to have a
towel in his cell, and failing to conduct required cell checks.
Plaintiffs also alleged Carmack failed to train officers as to
monitoring of inmates, and both Carmack and the County failed to
promulgate policies for prevention of inmate suicides.
The defendants moved for, and the district court1 granted
summary judgment. This court reviews de novo the grant of summary
judgment, giving the nonmoving party the benefit of every inference
drawn from the evidence, and finding summary judgment is proper
1
The Honorable Bobby E. Shepherd, United States Magistrate
Judge for the Western District of Arkansas, to whom the case was
referred for final disposition by consent of the parties pursuant
to 28 U.S.C. § 636(c).
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where there is no genuine issue of material fact and judgment
appropriate as a matter of law. See Yowell v. Combs, 89 F.3d 542,
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544 (8th Cir. 1996).
We conclude summary judgment was proper, as the plaintiffs did
not produce sufficient evidence that any defendant was deliberately
indifferent to "a strong likelihood, rather than a mere
possibility, that self-infliction of harm would occur." Bell v.
Stigers, 937 F.2d 1340, 1343 (8th Cir. 1991) (internal quotes
omitted); see Farmer v. Brennan, 511 U.S. 825, 837-38 (1994)
(official is not deliberately indifferent unless he knows of and
disregards excessive risk to inmate health and safety; knowledge
requires that official both knew facts from which inference of
excessive risk could be drawn and drew inference). Although
Carmack and Stovall both read parts of Bahner's diary indicating he
was contemplating suicide, the last diary entry was in March 1993,
and there is no evidence defendants knew Bahner continued to
contemplate suicide; the psychologist's report stated Bahner denied
suicidal ideations, and by all accounts--including that of Bahner's
parents--Bahner did not display any outward manifestations of being
suicidal. Additionally, allowing Bahner to possess a towel is, at
most, negligence. See Bell, 937 F.2d at 1343-45 (negligence in
failing to recognize suicidal tendencies not an Eighth Amendment
violation; no deliberate indifference in failing to detect or
remove belt where defendant not aware inmate suicidal, omission may
be characterized as negligence, but not deliberate indifference).
We further conclude plaintiffs failed to demonstrate Dye acted
with deliberate indifference. There was no evidence that he was
aware of the diary, and his conduct--in failing to perform his
hourly check and video surveillance, and failing to enter the cell
and perform CPR until another officer was present--amounts to no
more than negligence. See Rellergert v. Cape Girardeau County, 924
F.2d 794, 797-98 (8th Cir. 1991) (no deliberate indifference where
defendant let decedent out of his sight with a bed sheet, while on
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suicide watch; evidence tends to show defendant had more
responsibilities than he could successfully discharge in emergency
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situation; could reasonably conclude defendant acted imprudently,
wrongly, or negligently, but not with deliberate indifference); see
also Gordon v. Kidd, 971 F.2d 1087, 1095 (4th Cir. 1992) (no more
than negligence where jailer--who was not aware of suicide threat--
tardy in checking cell).
Finally, the district court correctly determined that the
plaintiffs failed to allege or demonstrate how the lack of any
written suicide policy by Carmack or the County contributed to
Bahner's death.
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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