IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 90-4484

ANN RHYNE, Plaintiff-Appellant,

versus

HENDERSON COUNTY, ET AL., Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Texas

( September 14, 1992 )

Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Ann Rhyne brings this action against Henderson County and its

sheriff, Charlie Fields, in his official capacity, under

, alleging that the County's failure to provide her son, Paul

Morrow, with reasonable medical care resulted in his suicide.1

Rhyne appeals a directed verdict and dismissal of state-law claims.

We find no substantial evidence that Henderson County failed to

provide the medical care required by the United States Constitution

1 The other defendants, the City of Athens, David Harris, police chief of the City of Athens, Lakeland Medical Center, have been dismissed from the case, and Ann Rhyne does not appeal their dismissal. and affirm. We also affirm the dismissal of Rhyne's state-law

claims.

I.

On Friday afternoon, May 30, 1986, Henderson County deputy

sheriff Jim Ellis arrested Paul Morrow and took him to Henderson

County jail. At 3:30 a.m., the deputy jailer on duty, Kevin

Harris, found Morrow hanging semi-conscious from the cell bars by

a make-shift rope that he had fashioned from a jail blanket in his

cell.

Morrow was taken to Lakeland Medical Center in Athens, Texas

by ambulance. While Morrow was at Lakeland, he telephoned his

mother and told her that he had attempted to commit suicide and

would try to kill himself again. Morrow was also examined by Dr.

David Callanan, who concluded that Morrow was a suicide risk.

Lakeland, however, lacked psychiatric facilities and Athens police

returned Morrow to Henderson County jail at about 5:30 a.m.

After Morrow returned to jail, Harris removed Morrow's clothes

except for his underwear and cuffed his hands to a waistband belt

to prevent further suicide attempts. Harris also placed Morrow in

a "book-in" cell close to the front of the jail where he could be

carefully watched and removed all blankets and mattresses from the

cell.

At 6:00 a.m., after Harris had been relieved by Deputy Jailer

DeWitt Loven, Chief Jailer Dennis Benton arrived at the jail.

Benton transferred Morrow to the misdemeanor tank and placed him in

a strait jacket. At about 7:25 a.m., Benton and Loven heard an

2 inmate yell that Morrow was trying to kill himself. Morrow had

removed his strait jacket and had attempted to hang himself with

the jacket.

On the advice of Chief Sheriff's Deputy Maureen Padgitt,

Benton called Henderson County Mental Health and Mental Retardation

to conduct a mental evaluation of Morrow and try to send him to a

hospital. Thomas Tinsley, the director of mental health at MHMR,

visited the jail at 8:30 a.m. and, after examining Morrow,

concluded that he should be committed to Rusk State Hospital on an

"emergency warrant" for psychological evaluation. Tinsley

possessed signed emergency warrants authorizing the emergency

detention of convicts at Rusk State Hospital for 24 hours on a

weekday and 72 hours on a weekend. Tinsley testified that the

County Court supplied him with such warrants, because it had

delegated to him the power of transferring convicts to Rusk in a

temporary emergency.

However, after talking to Deputy Sheriff Ellis, Tinsley

learned that Morrow had charges pending against him. The warrants

in Tinsley's possession, according to Tinsley's testimony at trial,

could not be used to commit pre-trial detainees. Morrow could not

be committed without a warrant, because Rusk State Hospital "could

not confine someone without some formal court order telling them

to." According to both Tinsley and Deputy Sheriff Padgitt, the

Sheriff's office could not transfer Morrow without a court order,

because the Sheriff's Office lacked authority to drop the charges

against Morrow.

3 Therefore, Tinsley advised Benton to maintain Morrow in

custody until Monday and then obtain a court order through the

District Attorney's office authorizing Morrow's transfer to the

maximum security unit at Rusk State Hospital. He apparently

believed that Morrow could be transferred for an evaluation of his

competence to stand trial. Tinsley also advised that Morrow be

watched carefully until Monday. Morrow promised Tinsley that he

would not attempt to take his life again, but Tinsley left the jail

with misgivings, fearing further attempts at suicide.

After Tinsley left, Benton gave Morrow a blanket because

Morrow, still wearing nothing but his underwear, seemed cold. The

officers did not put the strait jacket back on Morrow, and he was

not put into the "book-in" cell in the front of the jail. Rather,

he was put into the misdemeanor tank, which was not clearly visible

from the front desk. Saturday morning passed uneventfully at the

jail. At some time during the morning, County Court Judge Winston

Reagan called the jail and spoke with Loven, the deputy jailer on

duty. Loven could not recall what was said during this call.

However, Loven did not mention Morrow's two suicide attempts to the

County Court judge.

Saturday morning was not so tranquil for Rhyne. Distraught

from her conversation with her son when he was at Lakeland, she

consulted with an attorney at 11:00 a.m. in an effort to have

Morrow committed to an institution where he could receive proper

psychiatric care. When visiting hours began at 1:00 p.m., Rhyne

visited Morrow in jail with her daughter, Ann Griffin. Morrow

4 cried during their interview and declared once more that he would

try to kill himself again. There is a factual dispute as to

whether either Griffin or Rhyne informed any jail employee that

Morrow had repeated his threat to kill himself.

Rhyne also called the Henderson County jail and asked Deputy

Jailer Loven for advice as to how Morrow could be transferred from

the jail to a hospital. Loven advised her to call Judge Winston

Reagan with whom he had spoken earlier that morning. Rhyne

explained that she had called the Judge at his home but that the

Judge's wife informed her that he was at the courthouse. Rhyne

asked Loven to help her reach Judge Reagan, but Loven declined.

Loven testified at trial that

"I could not take a stand [because] not being a psychologist, I could not say the boy was mentally disturbed or not. There was just nothing for me that I could legally do other than point her in the right direction on how to go through the legal steps to get it done."

Loven's notes recording his conversation with Rhyne stated that he

told her that "if I took any stand in the matter Paul could sue

me." After failing to obtain any assistance from Loven, Rhyne

decided to wait at her home until 9:00 p.m. when Judge Reagan was

due to arrive back at his house.

Events on Saturday evening, however, made Judge Reagan's

arrival moot. At about 7:15 p.m., Deputy Jailer Kluth heard an

inmate yell "he's doing it again." Kluth discovered Morrow once

more hanging from the prison bars by a strip of the jail's blanket

given to Morrow by Benton. Morrow was unconscious. Rhyne was

5 informed of this suicide attempt at 8:00 p.m. Morrow died in a

Tyler hospital nine days later, having never revived from his coma.

II.

The County contends that Rhyne cannot recover for her son's

wrongful death under § 1983 unless she proves that the County acted

with specific intent to deprive her of a familial relationship.

Otherwise, the argument continues, Rhyne would lack standing,

because she would have suffered no personal injury in her own right

as a result of the County's alleged violation of her son's

constitutional rights.

Rhyne does not seek to recover as a representative of her

son's estate for the injuries that her son incurred. There has

been no administration of her son's estate, and she has not brought

this action in her representative capacity. Rather, Rhyne seeks to

recover for her own injuries arising out of the wrongful death of

her son. The right to such recovery under § 1983 has "generated

considerable confusion and disagreement," Crumpton v. Gates,

(9th Cir. 1991), over which the circuits have

divided. Compare Jaco v. Bloechle,

(6th Cir.

1984) and Bell v. City of Milwaukee,

(7th Cir. 1984).

The Supreme Court has yet to decide this question. See Steven H.

Steinglass, Wrongful Death Actions and Section 1983, 60 Ind. L. J.

559, 565 (1985).

This court first addressed the issue of wrongful death

recovery under § 1983 in Brazier v. Cherry,

(5th

Cir. 1961). In Brazier, a widow sued for the wrongful death of her

6 husband, allegedly beaten to death by a County Sheriff and other

police officers. The widow sought damages to compensate the estate

for injuries incurred by her husband. She also sought compensation

for the pecuniary loss that she suffered from her husband's death.

Brazier,

n.1. This court held that

incorporated both Georgia's survival statute and Georgia's

wrongful death statute to provide full remedies for violations of

constitutional rights.

.

The Brazier court reasoned that, unless the decedent's cause

of action survived his death, the remedies provided by § 1983 would

fail when the injury is death. Id. at 407-09. The court

concluded that such an anomalous result indicated that the remedies

under § 1983 were deficient without the support of state law. The

court held that § 1983 incorporated Georgia's wrongful death and

survival statutes as remedies under § 1983. Id.

Much of Brazier's discussion concerned the survival of the

decedent's claim, as opposed to the widow's right to recover for

her own injuries arising out of her husband's death. However, the

court held that both Georgia's wrongful death and survival statutes

were incorporated into federal law under § 1988, stating

"Since Georgia now provides both for survival of the claims which the decedent had for damages sustained during his lifetime as well as a right of recovery to his surviving widow and others for homicide, . . . we need not differentiate between the two types of actions. To make the policy of the Civil Rights Statutes fully effectual, regard has to be taken of both classes of victims. Section 1988 declares that this need may be fulfilled if state law is available. Georgia has supplied the law."

Brazier,

.

7 In Grandstaff v. City of Borger,

(5th Cir.

1985), this court allowed a father to recover for the loss of

society and companionship incurred by the wrongful death of his

son. In reaching this result, the Grandstaff court stated simply

that "[w]e look to Texas law for guidance on the damages

recoverable for [plaintiff's son's] death."

As Judge

Garwood's dissent in Grandstaff noted, the plaintiff in Grandstaff

was not recovering damages that were a "rough proxy for the

deceased's damages" but rather was recovering damages for an injury

that the parent suffered in his own right. Grandstaff,

n.* (Garwood, J., dissenting).

Under Brazier and Grandstaff, Rhyne has standing to recover

for her own injuries arising out of the wrongful death of her son.

There is no dispute that Rhyne is within the class of people

entitled to recover under Texas law for the wrongful death of a

child. See Tex. Civ. Prac. & Rem. § 71. Both Brazier and

Grandstaff hold that § 1988 incorporates this wrongful death

remedy into § 1983, allowing Rhyne to recover under § 1983 for her

own injuries resulting from the deprivation of her son's

constitutional rights.

Henderson County contends that Rhyne cannot have standing

unless she proves that the County intended to deprive her of her

familial association with her son in adopting those policies that

led to her son's death, pointing to Trujillo v. Bd. of County

Commissioners,

(10th Cir. 1985). The Trujillo court

held that the mother and sister of the decedent could not recover

8 under § 1983 for Trujillo's wrongful death unless they proved that

the defendants had been motivated by an intent to interfere with

the Trujillos' right of familial association in unconstitutionally

causing Richard Trujillo's death. Id. at 1190. The Trujillo court,

therefore, affirmed the district court's dismissal of the § 1983

action.

We recognize the strength of the argument that, unlike

survival statutes, wrongful death statutes arguably create new

causes of action and therefore ought not to be incorporated by

§ 1988. See Jaco,

; Martin A. Schwartz & John E.

Kirklin, 1 Section 1983 Litigation: Claims, Defenses, and Fees,

730-31 (2nd ed. 1991). But see Berry v. City of Muskogee,

, 1504-05 & n.21 (10th Cir. 1990) (noting that wrongful death

statutes "create new causes of action in the most technical sense"

but that they are essentially remedial, to enforce "substantive

right . . of decedent"); Steinglass, Wrongful Death Actions, 60

Ind. L.J. at 620-21 (suggesting that the "better view is that

courts should be able to use § 1988 to incorporate state wrongful

death actions in § 1983"). We also acknowledge that allowing suit

by the parent in her own right is not an inevitable companion of a

wrongful death statute. At the same time, Texas wrongful death law

provides Rhyne with the right to recover for her son's wrongful

death and she can recover for injury to herself caused by her son's

death. To be more precise, our decisions allow recovery by Rhyne

for her injury caused by the state's deprivation of her son's

constitutionally secured liberty interests. We need not say more

9 here because Rhyne was not entitled to go to the jury on the

question of whether there was a constitutional violation, as we

will explain.

III.

We apply Boeing v. Shipman,

(5th Cir.

1969) (en banc), viewing the directed verdict. We find no

substantial evidence of a deliberately indifferent policy of

Henderson County that deprived Morrow of reasonable medical care.

Rhyne alleges that Henderson County deprived her son of the

medical care required by the due process clause of the Fourteenth

Amendment. Pre-trial detainees are entitled to a greater degree of

medical care than convicted inmates. They must be provided with

"reasonable medical care, unless the failure to supply it is

reasonably related to a legitimate government objective." Cupit v.

Jones,

(5th Cir. 1987); Boston v. Lafayette County,

Mississippi,

(N.D. Miss. 1990).

The failure to provide pre-trial detainees with adequate

protection from their known suicidal impulses is actionable under

§ 1983 as a violation of the detainee's constitutional rights.

Burns v. City of Galveston, Texas, 905 F.2d at 104; Partridge v.

Two Unknown Police Officers of Houston,

(5th

Cir. 1986). There is no dispute about Morrow's suicidal

tendencies. He had attempted suicide twice and had been diagnosed

by Dr. Callanan as suicidal. Mr. Tinsley, the director of the

County MHMR, had recommended that Morrow be sent to Rusk State

Hospital because he was a high suicide risk.

10 There is also little question that a jury could find that the

jail staff was negligent in their care of Morrow. Despite Morrow's

obvious suicidal tendencies, the jail staff placed Morrow alone in

a cell where he could not be continuously observed. They also

unwittingly gave him the tool he used to hang himself.

Rhyne, however, cannot prevail by showing that the jail staff

failed to provide reasonable medical care. The suit is against

Henderson County.2 Rhyne must show that the County violated her

son's constitutional rights.

A municipality, of course, can act only through its human

agents, but it is not vicariously liable under § 1983. Oklahoma

City v. Tuttle,

,

(1985)

(plurality); Monell v. Department of Social Services,

(1978); Benavides v. County of Wilson, Texas,

(5th Cir. 1992). Henderson County can be held liable for its non-

policy-making employees' acts only if its employees were carrying

out Henderson County's policies when they acted. City of Canton,

Ohio v. Harris,

(1989). Therefore, Rhyne

may recover under § 1983 only if she shows that some County custom

or policy caused the Henderson County jail staff to deprive her son

of reasonable medical protection from his own suicidal tendencies.

Burns v. City of Galveston, Texas,

(5th Cir.

1990).

2 The action against Sheriff Fields in his official capacity is an action against the County. Kentucky v. Graham,

(1985).

11 A municipal "policy" must be a deliberate and conscious choice

by a municipality's policy-maker. City of Canton, Ohio v. Harris,

(1989) (quoting Pembaur v. City of Cincinnati,

(1986) (plurality)). While the municipal

policy-maker's failure to adopt a precaution can be the basis for

§ 1983 liability, such omission must amount to an intentional

choice, not merely an unintentionally negligent oversight. City of

Canton,

; Manarite v. City of Springfield,

(1st Cir. 1992).

The Supreme Court has held that municipal failure to adopt a

policy does not constitute such an intentional choice unless it can

be said to have been "deliberately indifferent." City of Canton,

. A failure to adopt a policy can be deliberately

indifferent when it is obvious that the likely consequences of not

adopting a policy will be a deprivation of constitutional rights.

Consider, for example, a municipality that arms its officers

with firearms, knowing to a moral certainty that the armed officers

will arrest fleeing felons. The municipality would be

deliberately indifferent in failing to train the officers properly

in the use of deadly force, because the likelihood of

unconstitutional consequences of the municipality's omission is

obvious.

at 1205 n.10.

With these principles in mind, we examine the policies accused

by Rhyne. We find the evidence insufficient to create a jury

question concerning whether Henderson County acted with deliberate

indifference in adopting policies regarding care of inmates known

12 to be suicidal. Put another way, a reasonable juror could not find

that Henderson County adopted policies creating an obvious risk

that pre-trial detainees' constitutional rights would be violated.

Rhyne describes four County policies that caused the jail

staff to fail to provide her son with reasonable medical care.

First, she contends that the Sheriff failed to adopt a policy of

continuously observing suicidal inmates, making their suicide more

likely. Second, Rhyne argues that the County did not adequately

train the jail staff to provide reasonable medical care for

detainees. Third, she argues that the County had a policy of

relying on the County MHMR or detainees' relatives to obtain the

necessary paperwork. Finally, Rhyne argues that the County acted

with deliberate indifference in relying exclusively on Rusk State

Hospital to provide psychiatric care for inmates.

The record is insufficient to support a jury question as to

the existence of a policy of inadequate training for the jail

staff. Admittedly, the staff's behavior on the weekend of Morrow's

suicide did not reflect skill and good judgment: the staff failed

to place Morrow in a cell where he would be readily visible, and

Chief Jailer Benton provided Morrow with the blanket with which

Morrow eventually hanged himself. However, there was no evidence

presented at trial concerning the level of training that the staff

possessed, the additional training they lacked, or why it would be

obvious that a constitutional violation would result from the

absence of the latter. There was also no evidence that any

incompetence was the result of inadequate training. Absent such

13 evidence, we cannot find a genuine fact question concerning the

existence of a policy of inadequate training. Benavides v. County

of Wilson,

(5th Cir. 1992).

We also cannot find evidence sufficient to create a jury

question that the County's failure to provide continuous

observation of known suicidal inmates constituted a deliberately

indifferent method of conducting suicide watches. We assume

arguendo that the jury could find from the evidence that Henderson

County's policy was not to place known suicidal inmates under

continuous observation but rather to check up on them every five to

ten minutes.

However, even if the jury could conclude that Henderson

County's policy did not involve continuous observation of suicidal

inmates, there is no evidence that such a policy was deliberately

indifferent. The County was not indifferent in the literal sense

of the word to the known risk of suicide: its policy, according

to testimony on which Rhyne relies, was to check on suicidal

inmates every ten minutes--about six times as often as non-suicidal

inmates were checked. This effort indicates not apathy, but

concern. Rellergert v. Cape Girardeau County, Missouri,

(8th Cir. 1991).

The periodic checks may have been inadequate. See Lindsay M.

Hayes, And Darkness Closes In: A National Study of Jail Suicides,

10 Crim. Just. & Behav. 461, 482 (1983) ("Inmates exhibiting

suicidal behavior should be placed in the general population of the

jail and/or kept under 24-hour 'eye contact' supervision").

14 Arguably the jury might conclude that the Sheriff was negligent in

not requiring more continuous observation, but that, of course, is

not enough under § 1983. Absent evidence that frequent periodic

checks were obviously inadequate, we cannot find a jury question as

to deliberate indifference.

There was no such evidence. Rhyne produced no evidence of

suicide attempts at the Henderson County jail that would have

alerted the Sheriff to the need for more frequent suicide checks.

There was also no evidence of objective jail standards requiring

continuous watches as opposed to checks every ten minutes. The

difference between frequent periodic checks and "continuous

observation" is one of degree. Without evidence showing that the

higher level of care was obviously necessary, we cannot see how the

jury could conclude that the lower level of surveillance was

deliberately indifferent.

We find no jury question as to whether Henderson County's

failure to obtain commitment orders for pre-trial detainees is

deliberately indifferent. We assume arguendo that the jury could

find that Henderson County had a policy of refraining from

obtaining such orders, instead relying on the County MHMR or the

inmates' parents to deliver the needed emergency warrant for

commitment. However, there was no substantial evidence that such

a policy would obviously lead to the violation of pre-trial

detainees' constitutional right to reasonable medical care.

It is significant that Sheriff Field's policy was not simply

to ignore the needs of suicidal inmates. On the contrary, the

15 undisputed evidence shows that the Sheriff had a policy of taking

affirmative steps to obtain psychiatric care for jail inmates. He

arranged to have the County MHMR examine suicidal inmates, make

recommendations about their treatment, and obtain court orders for

inmates in need of commitment. Unfortunately, on the weekend of

Morrow's suicide, Mr. Tinsley had access only to court orders for

the commitment of convicts, not pre-trial detainees. The reliance

on the County MHMR in this particular case, therefore, had the

apparently unforeseen consequence of impeding Morrow's access to

Rusk State Hospital.

The reliance on MHMR to commit suicidal inmates, by itself,

raises no question of deliberate indifference. Commitment to

mental institutions may deprive inmates of constitutionally

protected liberty interests. Vitek v. Jones,

(1980). Jail staff lacking psychiatric training might

understandably be wary of applying to the courts directly to place

an inmate in a mental institution--even an obviously suicidal

inmate like Paul Morrow. Benavides,

(Sheriff is

not deliberately indifferent in relying on doctors' certification

of jailers' fitness for police work).

After Tinsley informed the deputies that he lacked the court

orders needed for commitment of pre-trial detainees, the deputies

arguably should have taken the initiative in contacting a judge to

commit Morrow. Their failure to do so may have been the result of

Sheriff Fields' failure to install a back-up mechanism for

obtaining court commitment orders. Arguably, Sheriff Fields was

16 negligent in failing to anticipate that MHMR might be unable to

obtain warrants for the emergency commitment of pre-trial

detainees.

However, absent some evidence--past experience with suicidal

inmates, past failure of MHMR, objective jail standards, etc.--that

MHMR would obviously be unable to deliver the required court orders

on request, the Sheriff's failure to provide such a back-up process

cannot be described as a deliberate policy choice. Rhyne failed to

provide such evidence. There was no evidence that MHMR had ever

failed to deliver commitment orders when needed in the past. There

was also no evidence that any prisoner had ever committed suicide

at the Henderson County jail because he could not be moved promptly

to Rusk State Hospital. At most, Rhyne's evidence raises a fact

question as to whether the Sheriff had been guilty of a negligent

oversight. Such negligence cannot be the basis for § 1983

liability.

Rhyne contends that the County irrationally distinguished

between pre-trial detainees and convicts. According to Rhyne, the

County had a policy of obtaining emergency warrants for convicts

but not for pre-trial detainees. However, this inference is

unwarranted, because there is no evidence that Sheriff Fields or

any other jail personnel were aware, prior to the weekend of

Morrow's suicide, that MHMR could obtain emergency warrants only

for convicts and not for pre-trial detainees. The evidence shows,

at most, that Henderson County deliberately relied on MHMR to

obtain the needed paperwork without providing a back-up system for

17 obtaining the needed process and that this reliance misfired in the

individual case of Paul Morrow.

Rhyne finally argues that Henderson County was deliberately

indifferent to pre-trial detainees' reasonable medical needs

because it relied exclusively on Rusk State Hospital for inmate

psychiatric care. Rhyne argues that reliance on Rusk State

Hospital was deliberately indifferent because Rusk State Hospital

required commitment orders before it would accept jail inmates for

psychiatric treatment. This argument is essentially a restatement

of her argument that Henderson's County's failure to obtain

commitment orders was deliberately indifferent. Given that there

was no deliberate indifference in failing to obtain the court

order, ipso facto there can be no deliberate indifference in

relying on a hospital that required the court order.

IV.

In addition to her § 1983 claim, Rhyne brought what was then

a pendent state-law claim against the County under the Texas Tort

Claims Act, Tex. Civ. Prac. & Rem. Code § 101.001 et seq., alleging

that Henderson County was responsible for the wrongful death of her

son because of their negligent use of County property--the sheet,

blanket, and jail facilities used by Morrow in his suicide. The

district court dismissed Rhyne's pendent state-law claims without

prejudice, giving as a reason only that "[t]he Court exercises its

discretion in declining to consider the pendent state law claims."

Federal court jurisdiction over pendent state-law claims is

now governed by

, which provides that

18 "in any civil action in which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution."

(a) (West Supp. 1992). Under § 1367(c)(3), "the

district court may decline to exercise supplemental jurisdiction

over a claim under subsection (a) if--. . . (3) the district court

has dismissed all claims over which it has original jurisdiction."

The district court has properly dismissed all of the federal

questions that gave it original jurisdiction in this case.

Therefore, we find that the district court's dismissal of the

state-law claims was proper under

(c)(3).

AFFIRMED.

GOLDBERG, Circuit Judge, concurring specially:

"Experience is the name everyone gives to their mistakes."3

I concur in Judge Higginbotham's well-written, well-reasoned,

opinion because I too agree that the plaintiff's case suffered from

critical evidentiary deficiencies. Plaintiff did not sustain her

burden of proving that this defendant-municipality acted with

deliberate indifference towards the mental health needs of pretrial

detainees. These jail officials undertook commendable efforts to

provide, what they believed to be, reasonable mental health care.

3 Oscar Wilde, Lady Windmere's Fan, Act III (1892).

19 Their efforts fell short, and, as a result, a man in their custody

succeeded in taking his own life.

Fortunately, the policymakers in charge can learn from their

mistakes and take the necessary additional steps to insure the

safety of pretrial detainees in need of mental health care. Other

municipalities should also take heed of the tragic consequences

which are likely to ensue in the absence of adequate safety

measures to deal with detainees displaying suicidal tendencies.4

What we learn from the experiences of Henderson County is that

when jailers know a detainee is prone to committing suicide, a

policy of observing such a detainee on a periodic, rather than on

a continuous, basis, will not suffice;5 that vesting discretion in

4 Ours is not the first case involving a detainee suicide. See, e.g., Bowen v. City of Manchester, --- F.2d ---,

(1st Cir. June 5, 1992); Barber v. City of Salem,

(6th Cir. 1992); Simmons v. City of Philadelphia,

(3d Cir. 1991); Colburn v. Upper Darby Township,

(3d Cir. 1991); Rellergert v. Cape Girardeau County,

(8th Cir. 1991) Buffington v. Baltimore County,

(4th Cir. 1990); Popham v. City of Talladega,

(11th Cir. 1990); Lewis v. Parish of Terrebonne,

(5th Cir. 1990); Cabrales v. County of Los Angeles,

(9th Cir. 1988), reinstated,

(9th Cir. 1989), cert. denied,

(1990); Partridge v. Two Unknown Police Officers of Houston,

(5th Cir. 1986). 5 See Simmons,

, 1071 n.28 (3d Cir. 1991) (opinion of Becker, J.) ("[T]he City's police directives concerning the fifteen minute checks, the double celling of detainees, and the removal of personal articles do not, in and of themselves, preclude the City's constitutional liability for a policy or custom tainted by deliberate indifference."); Lewis,

(evidence was sufficient to support jury verdict that warden was deliberately indifferent when he placed detainee in solitary confinement knowing that detainee had suicidal tendencies and should not be left alone); cf. Colburn v. Upper untrained jail personnel to assess the need for, and administer,

mental health care, will not be responsive to the medical needs of

mentally ill detainees;6 and that delegating the task of providing

mental health care to an agency that is incapable of dispensing it

on the weekends will endanger the well-being of its emotionally

disturbed detainees.7 We need not remind jailers and

municipalities that the Constitution works day and night, weekends

and holidays -- it takes no coffee breaks, no winter recess, and no

summer vacation.

So the plaintiff in this case did not prove that Henderson

County adopted its policy of handling suicidal detainees with

deliberate indifference to their medical needs. But that does not

Darby Township,

(3d Cir. 1991) (no deliberate indifference where detainees monitored continuously by means of a video camera and a closed circuit television); Rellergert v. Cape Girardeau County,

(8th Cir. 1991) (no deliberate indifference where "policy used by the Sheriff's office ... represent[ed] affirmative and deliberate steps to prevent suicides by subjecting suicidal inmates to nearly constant watch."). 6 Cf. Colburn,

(municipal policy not deliberately indifferent because detainees were provided with any necessary medical attention, and a crisis intervention officer, trained to handle emergency situations including suicides, was on call during each shift); Cabrales v. County of Los Angeles,

(9th Cir. 1988) (medical understaffing at the jail amounted to a policy of deliberate indifference), reinstated,

(9th Cir. 1989), cert. denied,

(1990). 7 See Cabrales,

("Access to medical staff has no meaning if the medical staff is not competent to deal with the prisoners' problems."); cf. Colburn,

(no deliberate indifference where trained personnel were on call during every shift).

21 insulate Henderson County, or any other municipality, from

liability in future cases. Jailers and municipalities beware!

Suicide is a real threat in the custodial environment. Showing

some concern for those in custody, by taking limited steps to

protect them, will not pass muster unless the strides taken to deal

with the risk are calculated to work: Employing only "meager

measures that [jailers and municipalities] know or should know to

be ineffectual" amounts to deliberate indifference.8 To sit idly

by now and await another, or even the first, fatality, in the face

of the Henderson County tragedy, would surely amount to deliberate

indifference.

Comforted somewhat, and certainly hopeful, that jailers and

municipalities everywhere can learn from the mistakes of Henderson

County, I concur.

8 See Simmons,

n.28 (rejecting the dissent's position that "the implementation of some measures intended to reduce the risk of suicides in the City's lockups negates the possibility that the City policymakers could be found to have been anything more than negligent in addressing the medical needs of ... suicidal detainees.").

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