Filed: Jul. 21, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS For the Fifth Circuit July 21, 2004 Charles R. Fulbruge III Clerk No. 03-41165 RICHARD SCOTT SULLIVAN, JR., Plaintiff-Appellee, VERSUS COUNTY OF HUNT, TEXAS, ET AL., Defendants. PHILLIP KILLGORE, Individual and official capacity; GARY COLLINS, Individual and official capacity; JERRY MCRAE, Individual and official capacity, Defendants-Appellants. Appeals from the United States District Court For the Eastern Dist
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS For the Fifth Circuit July 21, 2004 Charles R. Fulbruge III Clerk No. 03-41165 RICHARD SCOTT SULLIVAN, JR., Plaintiff-Appellee, VERSUS COUNTY OF HUNT, TEXAS, ET AL., Defendants. PHILLIP KILLGORE, Individual and official capacity; GARY COLLINS, Individual and official capacity; JERRY MCRAE, Individual and official capacity, Defendants-Appellants. Appeals from the United States District Court For the Eastern Distr..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit July 21, 2004
Charles R. Fulbruge III
Clerk
No. 03-41165
RICHARD SCOTT SULLIVAN, JR.,
Plaintiff-Appellee,
VERSUS
COUNTY OF HUNT, TEXAS, ET AL.,
Defendants.
PHILLIP KILLGORE, Individual and official capacity; GARY
COLLINS, Individual and official capacity; JERRY MCRAE,
Individual and official capacity,
Defendants-Appellants.
Appeals from the United States District Court
For the Eastern District of Texas
5:01-CV-23
Before DAVIS, BENAVIDES and PRADO, Circuit Judges.
DAVIS, Circuit Judge.*
Plaintiff, Sullivan, a former game warden with the Texas Parks
and Wildlife Department (TPWD) filed this suit against two of his
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
supervisors, Gary Collins and Jerry McRae, and the Chief Deputy
Sheriff of Hunt County, Texas, Phillip Killgore, under § 1983. He
also asserted pendent state law claims. The suit seeks damages
arising out of an incident in which Deputy Killgore directed his
officers to take Sullivan into custody for a mental evaluation
based on Killgore’s belief that Sullivan was suicidal and a danger
to himself. The defendants moved for summary judgment based on
qualified immunity which the district court denied based on its
conclusion that questions of fact were presented. After a careful
review of the record, we find no issues of fact presented and
reverse the district court’s order denying qualified immunity.
I.
At the time of the incident in question, Sullivan had been
employed as a game warden for the TPWD for approximately four
years. Sullivan’s immediate TPWD supervisor was defendant Collins,
who in turn was under the supervision of defendant McRae. On June
20, 2000, plaintiff found his fiancé, Rhonda Farber, dead in the
bathroom of his house where the two of them lived. Plaintiff had
spent the night of June 19 next door, at his mother’s home. Ms.
Farber had apparently committed suicide with plaintiff’s service
revolver.
II. The Claims Against Killgore
A.
The dispatcher for the Hunt County Sheriff’s Office notified
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the deputies on duty, including Chief Deputy Killgore, that
Sullivan’s family was concerned that he would harm himself. When
Killgore arrived at Sullivan’s home, several deputies were there
already. He took charge of the deputies on the scene and, as
explained below, eventually ordered that Sullivan be taken into
custody for a mental examination.
Based upon our review of the record we are satisfied that the
following undisputed facts demonstrate that before Killgore ordered
Sullivan detained, a reasonable officer in Chief Deputy Killgore’s
position would have had probable cause to believe that Sullivan was
a suicide risk and therefore a danger to himself:
1. The day before Sullivan’s seizure, Sullivan discovered
that his fiancé, Rhonda Farber, had shot herself with
Sullivan’s service revolver in the bathroom of Sullivan’s
home.
2. Chief Deputy Killgore and other Hunt County Sheriff’s
Office personnel investigated this suicide. Killgore
knew Sullivan and knew of his relationship with Ms.
Farber and his distress over her tragic death.
3. The next day plaintiff and his father went to the
plaintiff’s house to clean the bathroom where Ms. Farber
had committed suicide. Sullivan’s sister became concerned
about her brother’s emotional state and dialed 911. The
evidence is in dispute about what Sullivan’s sister said
to the 911 operator. However, it is undisputed that the
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911 operator contacted the Hunt County Sheriff’s Office
and advised that plaintiff’s family reported that
Sullivan had returned to the scene of the suicide and
that they feared that he would harm himself. The 911
operator relayed this information to the Hunt County
Sheriff’s Office dispatcher and Killgore received
essentially this same information from the dispatcher.
Several officers at the scene reported to Killgore that
Sullivan’s sister and mother were telling the officers
that they were concerned for Sullivan’s safety. Although
Sullivan’s sister and mother deny voicing such concerns,
it is undisputed that the officers reported these
concerns to Killgore.
4. It is undisputed that officers attempted for
approximately two hours to telephone Sullivan, who was
accompanied by his father at the time and could not reach
him because the telephone was off the hook or busy.
5. Deputy Mike Parker (a hostage negotiator on the scene)
learned that Sullivan had seen a psychiatrist the day
before, and he telephoned that physician to determine if
Sullivan was taking medication that might be affecting
his judgment. The psychiatrist could not talk to Officer
Parker when he called but the psychiatrist returned the
call a short time later. The physician advised Officer
Parker that he had been treating Scott for depression and
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lack of sleep and expressed concern that Scott Sullivan
could be suicidal. Officer Parker reported this
information to the command headquarters where Killgore
was located.
The above uncontested facts are sufficient to create a
reasonable belief that plaintiff was in a precarious emotional
condition and was a suicide risk. These facts are therefore
sufficient to justify Killgore’s action in directing his officers
to seize Sullivan and transport him to meet with a counselor and
undergo a mental examination and screening. These facts are
sufficient to establish probable cause to seize Sullivan under the
4th amendment. Because the undisputed facts demonstrate that
Killgore did not violate Sullivan’s constitutional rights in taking
him into custody, Killgore is entitled to qualified immunity for
this conduct. Resendiz v. White, 203 F.3d 902 (5th Cir. 2000);
Anthony v. City of New York,
339 F.3d 129, 137 (2d Cir. 2003).
B.
Killgore also complains of the district court’s denial of
qualified immunity to him on Sullivan’s excessive force claim in
seizing him. The analysis of this claim is also controlled by
Fourth Amendment principles. The Supreme Court stated in Graham v.
Connor, 490 U.S. 386, 395 (1985): “Today we make explicit what was
implicit in Garner’s analysis and hold that all claims that law
enforcement officers have used excessive force–deadly or not– in
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the course of an arrest, investigatory stop, or other seizure of a
free citizen should be analyzed under the Fourth Amendment and its
‘reasonableness’ standard, rather than under a substantive due
process approach.”
Sullivan’s claim is predicated on his evidence that the
handcuffs were too tight and that he experienced pain and had scars
and bruising.
The summary judgment evidence is uncontested that Killgore did
not handcuff Sullivan or have any role in handcuffing Sullivan.
The evidence shows that Deputies Lance Simpson and Tommy Grandfield
handcuffed Sullivan in accordance with their usual practice and
without any direction from Killgore. Because the uncontested
evidence reveals that Killgore did not apply the force used in
handcuffing Sullivan, Sullivan did not establish a violation of a
constitutional right and the district court erred in denying
qualified immunity to Killgore on this claim.
C.
Killgore also complains of the district court’s denial of his
motion for summary judgment based on qualified immunity as to
Sullivan’s due process claim arising out of Sullivan’s two day
detention in Glen Oaks Hospital for mental examination.
It is undisputed that after Sullivan was taken into custody,
he was transported to the sheriff’s office where he was examined by
counselor Cliff Faraby. After his examination, counselor Faraby
executed an affidavit stating that in his opinion Sullivan should
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be committed to a mental health facility for emergency observation
and treatment because he posed a substantial risk of serious harm
to himself or others. This affidavit supported an application for
a warrant of detention which Faraby also completed. Thereafter,
this application for warrant of detention was presented to Justice
of the Peace Gloria Peters. Magistrate Peters determined that
plaintiff should be committed to a mental institution immediately
because of the risk of harm Sullivan posed to himself or others and
signed an order of detention and commitment. Sullivan was then
transported to Glen Oaks Hospital. At Glen Oaks, Sullivan was
again examined by a physician who determined that Sullivan should
be committed to the hospital because of the risk of harm he posed
to himself or others and he was accordingly committed. At the time
of his commitment, Sullivan signed a form stating that he had been
given an opportunity to obtain the services of counsel. Sullivan
was detained at Glen Oaks hospital for two days and was released on
June 23, 2000.
In his procedural due process claim, Sullivan complains
generally that Killgore did not strictly follow procedures
established by the Texas Health and Safety Code, particularly
Chapter 573 of that Code. Specifically, Sullivan complains that
Killgore took him to the sheriff’s office rather than to a hospital
after taking him into custody as provided in the Health and Safety
Code and also that Killgore did not personally complete the
application for detention.
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We conclude that the district court erred in concluding that
these violations of the administrative details of the state health
and safety code preclude Killgore’s qualified immunity defense. So
long as Killgore did not violate rights reserved to Sullivan under
the United States Constitution, Killgore is entitled to qualified
immunity on his federal claims. The important procedural steps
Texas requires for detention were complied with and the procedural
steps taken complied with rights guaranteed to Sullivan by the U.S.
Constitution. See Matthews v. Eldridge, 424 U.S. 319 (1976).
Because Sullivan has failed to demonstrate a denial of a
constitutional right, he is entitled to qualified immunity on this
claim.
D.
Killgore argues next that the district court erred in denying
him qualified immunity on Sullivan’s claim that he was denied
assistance of counsel. Sullivan’s claim is based primarily on
Texas Health and Safety Code § 573.025(b)(1). This subsection
requires that a detainee be informed of a right to counsel within
24 hours after they are admitted to an inpatient facility. Based
on the undisputed evidence, however, plaintiff was advised of his
right to counsel within 24 hours after his detention, a fact that
the district court also recognized. Even if this obligation to
provide counsel under the state statute rises to a U.S.
Constitutional requirement, the statutory requirement was
satisfied. Because Sullivan was not charged with a criminal
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offense by the state, no Sixth Amendment right to counsel attached.
See McNeil v. Wisconsin, 501 U.S. 171, 175 (1991); U.S. v. Cooper,
949 F.2d 737, 741 n. 1 (5th Cir. 1991). Because neither the
district court nor Sullivan point to any clearly established
constitutional right to counsel, and we know of no such right, the
district court erred in denying Killgore qualified immunity on this
claim.
E.
Finally, Killgore argues that the district court erred in
denying him qualified immunity on Sullivan’s conspiracy claim.
Sullivan argued that Killgore conspired with Sullivan’s two
supervisors, Collins and McRae, to have Sullivan committed so as to
discredit him. It is unclear whether this conspiracy claim is
asserted under § 1985(3) or under state law. Any claim under §
1985(3) fails as a matter of law because to prevail under that
statute, Sullivan must prove a discriminatory animus based on race
or some other inherited or immutable class characteristic such as
gender, religion or national origin or based upon political
association or beliefs. Galloway v. State of Louisiana, 817 F.2d
1154, 1159 (5th Cir. 1987). Sullivan has produced no summary
judgment evidence that would serve as a basis for a conspiracy
claim.
Sullivan’s state law cause of action for conspiracy also fails
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because an essential element of a state law conspiracy claim is
that one of the co-conspirators commit an unlawful act. Therefore,
even if there is evidence of agreement between Killgore and Collins
or McRae to have Sullivan committed for a mental examination,
accomplishment of this objective was entirely justified, as
explained above, so that no proof of a wrongful act was presented.
Consequently, Killgore was entitled to official immunity on this
claim also.
III. Claims Against McRae & Collins
Sullivan’s supervisors, McRae and Collins, argue that the
district court erred in denying qualified immunity to them from
Sullivan’s § 1983 and state law claims based on their alleged
conspiracy to violate plaintiff’s rights.
The district court concluded from a number of unassociated
facts that the fact finder could infer that Collins and McRae
conspired to have Sullivan committed. These facts include: (1)
plaintiff caught Collin’s wife rummaging through the desk of a co-
employee who was fired for stealing shortly thereafter; (2) prior
to seeing Collins’s wife, plaintiff had a spotless work record; (3)
after seeing Collins’s wife, complaints began to be filed about
plaintiff; (4) Collins told plaintiff that he could “f@#% him” if
he wanted to and that if he liked him plaintiff had nothing to
worry about; (5) Collins and McRae were at the scene of the suicide
and did not think plaintiff needed help; (6) Collins did not tell
Killgore that the day before being committed a psychiatrist told
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Collins plaintiff was not suicidal; (7) Collins and McRae attempted
to force plaintiff to confess to the killing of his fiancé; and (8)
Collins and McRae went to plaintiff’s family and requested that
they sign papers to keep plaintiff at Glen Oaks Hospital, a request
that was refused.
Although these facts certainly indicate that the relationship
between Sullivan and his superiors was less than friendly, for
reasons stated above, we are satisfied that the evidence available
at the scene on June 21, 2000, justified the decision to take
Sullivan into custody and commit him for a mental screening. It is
important to note that Killgore was the decision maker rather than
Collins or McRae, and no evidence was presented that either Collins
or McRae had any significant input into that decision. The fact
that Collins did not tell Killgore that on June 20 a psychiatrist
had told Collins that plaintiff was not suicidal, even if true, was
not particularly relevant because that same psychiatrist, after
being advised of Sullivan’s conduct on June 21 reached a contrary
conclusion. Consequently the summary judgment evidence does not
support an inference that Collins and McRae conspired to violate
Sullivan’s state or federally protected rights. The district court
therefore erred in denying immunity to these two officers.
CONCLUSION
For reasons stated above, we conclude that the district court
erred in denying the motions for summary judgment filed by
Killgore, McRae and Collins based on qualified immunity for the §
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1983 claims presented by Sullivan. We also conclude that the
district court erred in denying these same defendant’s motions for
summary judgment on Sullivan’s state law claims based on “official
immunity”.
Consequently, we REVERSE the district court’s order denying
the defendants’ motion for summary judgment and RENDER judgment in
favor of the defendants, Kilgore, Collins, and McRae.
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