United States Court of Appeals
Fifth Circuit
F I L E D
In the May 30, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 06-11215
Summary Calendar
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JIMMY WHITT,
INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF JAMIE EARL WHITT, DECEASED,
Plaintiff-Appellant,
VERSUS
STEPHENS COUNTY;
JAMES D. REEVES,
SHERIFF OF STEPHENS COUNTY,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
AND
JOHN DOES NUMBERS 1 THROUGH 5,
Defendants-Appellees,
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 1:06-CV-22
______________________________
BEFORE DAVIS, SMITH, and OWEN, a suicide risk, so he confined him to a general
Circuit Judges. cell without any special instructions.1 A little
more than five hours after Jamie was admitted
JERRY E. SMITH, Circuit Judge.* to the jail, he was found dead in his cell, ap-
pearing to have hung himself with a leather
Jimmy Whitt (“Whitt”) brought this 42 belt he had tied to a pipe running along the
U.S.C. § 1983 action against Stephens Coun- ceiling.
ty, James Reeves in his individual capacity and
as Sheriff of Stephens County, and five un- II.
known employees for damages stemming from Whitt sued, alleging two alternative theo-
the death of his son, Jamie Whitt (“Jamie”), at ries of liability: that the county and the indi-
the county jail. The county and Reeves filed a vidual defendants had violated Jamie’s rights
joint motion for summary judgment based on under the Fourth and Eighth Amendments to
qualified immunity, which was granted in part receive appropriate treatment for a mental or
and denied in part. Whitt appeals, and we medical condition while in custody; and that
affirm. the individual defendants had harassed, as-
saulted, attacked, beaten, and tortured Jamie,
I. causing his death. The defendants jointly
Jamie was arrested and jailed. Upon Jam- moved to dismiss based on qualified immunity.
ie’s arrival, jailer Kyle Buce administered a The district court granted the motion for
Mental Disability/Suicide Intake Screening qualified immunity of the John Does and Sher-
Form adopted by the Texas Commission on iff Reeves in their individual capacity with
Jail Standards (“TCJS”). Jamie responded regard to the former claim of failure to provide
negatively when asked whether he had at- appropriate treatment and denied the motion
tempted suicide; had thoughts about killing with regard to the latter claim.2 Whitt appeals
himself; was considering killing himself that that order.
day; had ever had long periods without sleep;
or had had periods of particular excitement. III.
Jamie answered affirmatively to only one ques- We review a summary judgment de novo,
tion, whether he had “experienced a recent using the same standard applicable in the dis-
loss or death [of] a family member or friend or trict court. Olabisiomotosho v. City of Hous-
[whether he was] worried about major ton, 185 F.3d 521, 525 (5th Cir.1999). “After
problems other than [his] legal situation.” consulting applicable law to ascertain the ma-
terial factual issues, we consider the evidence
Buce also noted that Jamie appeared to be
in a good mood, was not acting in a strange
manner, and did not exhibit any signs of de- 1
The TCJS has promulgated extensive pro-
pression. Buce concluded that Jamie was not
cedures for monitoring inmates who present a risk
of suicide. It is undisputed that these procedures
were not followed here.
*
Pursuant to 5TH CIR. R. 47.5, the court has de-
2
termined that this opinion should not be published Whitt’s alternative allegation, that the defen-
and is not precedent except under the limited cir- dants attacked and killed Jamie, is not at issue in
cumstances set forth in 5TH CIR. R. 47.5.4. this appeal.
2
bearing on the issues, viewing the facts and the Whitt’s evidence, even taken in the light
inferences to be drawn therefrom in the light most favorable to him, is plainly insufficient to
most favorable to the nonmovant.” Id. “Sum- demonstrate that the individual officials had
mary judgment is properly granted if ‘the actual knowledge that the decedent was a sui-
pleadings, depositions, answers to interrogato- cide risk. Whitt relies on a single affirmative
ries, and admissions on file, together with the answer on an intake screening exam, where
affidavits, if any, show that there is no genuine Jamie indicated that he had either recently lost
issue as to any material fact and that the mov- a family member or friend or was worried
ing party is entitled to judgment as a matter of about major problems other than his arrest.
law.’” Id. (quoting FED. R. CIV. P. 56(c)). Whitt has made no showing that all officers
would interpret an affirmative answer to this
“[G]overnment officials performing discre- question as evidence that the defendant was a
tionary functions generally are shielded from suicide risk.
liability for civil damages insofar as their con-
duct does not violate clearly established statu- “If officers of reasonable competence could
tory or constitutional rights of which a reason- disagree on an issue, immunity should be rec-
able person would have known.” Harlow v. ognized.” Malley v. Briggs, 475 U.S. 335,
Fitzgerald, 457 U.S. 800, 818 (1982). In 341 (1986). No officers report observing any
evaluating an assertion of qualified immunity, troubling behavior from Jamie. Even if offi-
we conduct a two-prong inquiry. McClendon cers were negligent in failing to assess and
v. City of Columbia, 305 F.3d 314, 322 (5th monitor Jamie properly, liability will not attach
Cir. 2002) (en banc). First, we ask “whether for negligence.
a constitutional right would have been violated
on the facts alleged.” Id. at 322-23. Second, The majority of Whitt’s evidence demon-
we ask whether the constitutional right was strates the failure of the individual officers and
“clearly established.” Id. at 323. the jail to follow protocols mandated by Texas
law and administratively adopted by the TCJS.
States owe a duty under the Due Process It is well established that violations of state
Clause to provide pretrial detainees with basic law are not actionable under § 1983.3
human needs, including medical care and pro- “[O]fficials sued for violations of rights con-
tection from harm, during their confinement. ferred by a statute or regulation, like officials
Hare v. City of Corinth, 74 F.3d 633, 650 (5th sued for violation of constitutional rights, do
Cir. 1996) (en banc). Liability will not attach not forfeit their immunity by violating some
for an episodic act or omission “unless the of- other statute or regulation.” Davis v. Scherer,
ficial had subjective knowledge of a substantial 468 U.S. 183, 194 n.12 (1984). The adminis-
risk of serious harm to a pretrial detainee but trative protocols do not establish constitutional
responded with deliberative indifference to that rights to treatment for detainees, nor do they
risk.” Id. This standard encompasses two so purport. Additionally, even if Whitt’s
parts: (1) The prison official must have “ac- evidence of insufficient training of jail officials
tual knowledge of the substantial risk of sui-
cide,” and (2) the official must respond with
deliberate indifference. Id. 3
San Jacinto Sav. & Loan v. Kacal, 928 F.2d
697, 701 n.4 (5th Cir. 1991) (citing Jones v.
Diamond, 594 F.2d 997, 1011 (5th Cir. 1979)).
3
might support liability against the county, it
will not support liability against the untrained
officers in their individual capacity.4
The motion to expedite the appeal or to
stay the trial is DENIED. The motion to
vacate the judgment is DENIED. The motion
to remand is DENIED. The judgment is
AFFIRMED.5
4
See City of Canton v. Harris, 489 U.S. 378,
388-89; Evans v. Marlin, 986 F.2d 104, 107 (5th
Cir. 1993).
5
After this appeal was filed, Whitt moved to
vacate the judgment and remand in light of newly-
discovered evidence that he claims may show that
jail officials were deliberately indifferent in failing
to resuscitate Jamie and in denying medical atten-
tion. Although we deny the motion to vacate, we
express no opinion on the merits of any motion that
might be filed pursuant to Federal Rule of Civil
Procedure 60(b). Our analysis is limited to exam-
ining Whitt’s claim that the prison officials had
actual knowledge that his son was a suicide risk
and that they could be liable under § 1983 for
failure to follow state administrative regulations.
4