Cope v. Coleman County

Case: 23-10414 Document: 61-1 Page: 1 Date Filed: 06/26/2024

United States Court of Appeals for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________

FILED June 26, 2024

No. 23-10414

____________ Lyle W. Cayce

Clerk Patsy K. Cope; Alex Isbell, as Dependent Administrator of, and on behalf of, the Estate of Derrek Quinton Gene Monroe and his heirs at law

Plaintiffs—Appellants, versus

Coleman County,

Defendant—Appellee. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 6:18-CV-15

______________________________

Before Smith, Haynes, and Douglas, Circuit Judges.

Per Curiam: *

This is the second appeal in this case, which concerns Derrek Monroe’s suicide at the Coleman County Jail in 2017. In the first appeal, we held that the individual defendants—Coleman County Sheriff Leslie Cogdill, Jail Administrator Mary Jo Brixey, and Jailer Jessie Laws—were entitled to qualified immunity. Cope v. Cogdill, 3 F.4th 198, 207 (5th Cir. 2021) (“Cope I”), cert. denied, 142 S. Ct. 2573 (2022). Plaintiffs now return to this court to appeal the district court’s grant of summary judgment on their municipal liability claims against Coleman County. For the reasons below, the district court’s judgment regarding Plaintiffs’ episodic-acts-or-omissions claim is AFFIRMED, but the judgment is VACATED and REMANDED for further proceedings regarding whether Plaintiffs have raised a genuine dispute of material fact as to their conditions-of-confinement claim.

I. Background

A. Factual Background On September 29, 2017, Monroe was arrested and booked at the Coleman County Jail. A medical screening form completed during intake indicated Monroe was thinking about killing himself, “wished [he] had a way to do it,” and had attempted suicide two weeks earlier. The form also indicated Monroe had previously been diagnosed with “some sort of schizophrenia” and received mental health treatment. During booking, Monroe told Coleman County Sheriff’s Deputy Ryan Tucker, “I want you to shoot me!” Tucker notified Sheriff Cogdill about the incident, and Cogdill helped Tucker finish the booking process.

Coleman County Jail has a “Mental Disabilities and Suicide Prevention Plan” (“Suicide Plan”), which establishes methods of supervision for suicidal detainees at various risk levels. According to that policy, people classified as low risk are checked every thirty minutes, people classified as moderate risk are checked every fifteen minutes, and people classified as high risk “receive [c]ontinuous or at least [five] minute observation.” When Monroe was first incarcerated at the jail, he was observed every thirty minutes, which suggests the jail initially categorized him as low risk.

After Monroe’s intake, an officer at the jail contacted Mental Health and Mental Retardation Services (“MHMR”). But Monroe had a seizure on his way to meet with the MHMR worker and was subsequently taken to the hospital. The hospital released him on the following day. Monroe was returned to the jail and placed in a cell with at least one other person. Shortly after returning, Monroe unsuccessfully attempted to hang himself using a bed sheet in his cell. 1 Laws observed Monroe’s suicide attempt and called for backup. Cogdill, Tucker, and Laws then moved Monroe into a cell by himself and dressed him in a safety smock. 2 Monroe’s new cell contained a telephone with a cord that was approximately two and a half feet long.

Later that afternoon, a MHMR crisis worker named Susan Quintana evaluated Monroe and recommended the jail place him on “highest suicide watch.” Quintana told Brixey and Laws about Monroe’s risk factors and suggested that Monroe be observed 100% of the time, particularly because he did not have a padded cell. She also talked with the sheriff about her recommendation. At the time, the jail allegedly did not have the capacity to constantly monitor a detainee. Monroe was observed every fifteen minutes that night, which aligns with the moderate risk category in the Suicide Plan.

The following day (Sunday, October 1, 2017), Laws started his shift at 7 A.M. Laws was the only officer at the jail that day, in accordance with an alleged Coleman County policy under which only one jailer is staffed at the jail during nights and on weekends. A witness who was also incarcerated in the jail that morning testified that he could hear Monroe saying for an hour, “I’m going to kill myself. I’m going to kill myself. Please help me.” The witness also heard Laws try to “talk [Monroe] down” and tell him everything was going to be alright.

At approximately 8:30 A.M., Monroe asked Laws for permission to shower. 3 Laws called Brixey, who told Laws to let Monroe shower and to get him a clean smock. Monroe went to the shower and back to his cell without incident, but he then became increasingly agitated. Laws reported that Monroe began to overflow his toilet, so Laws shut off the water to the cell and went to get a mop. Monroe began beating a plunger on his cell, and then beating the phone receiver against the phone. After sitting down momentarily, Monroe got up again, walked to the phone, and wrapped the phone cord around his neck. Jail surveillance video does not clearly show Monroe at that point, but his body appears to slump over. Meanwhile, Laws continued to mop while watching Monroe from outside the cell.

Laws reported that he “tried to talk [Monroe] down” and then notified Cogdill, Tucker, and Brixey. While waiting for backup, Laws did not enter Monroe’s cell, obtain a rescue breathing device, or call emergency medical services (“EMS”). 4 Laws later testified that his decision not to enter the cell alone aligned with his training and Coleman County Jail policy. Specifically, the Suicide Plan states that, if a suicide attempt is in progress, “[t]he correctional officer will enter the cell and attempt appropriate life saving techniques after backup-personnel have arrived.”

Approximately ten minutes after Monroe wrapped the cord around his neck, Brixey arrived at the jail. Brixey and Laws then entered Monroe’s cell together. Laws removed the cord from Monroe’s neck. Brixey called EMS and requested an ambulance, during which time Laws found Monroe’s pulse. Monroe did not appear to be breathing, so Brixey retrieved a breathing mask, which Laws began using on Monroe.

The paramedics arrived approximately five minutes after Brixey called EMS. Cogdill arrived around the same time. The paramedics took over administering emergency aid on Monroe and subsequently transported him to the hospital. Monroe died the following day. The plaintiffs’ expert opined that if the cord had been removed in “less than at least 5 minutes,” the damage to Monroe’s brain would have been “lessened and more likely reversible.”

Two years before Monroe’s suicide, the Texas Commission on Jail Standards (“TCJS”) issued a Technical Assistance Memorandum to all sheriffs and jail administrators in Texas, which reported that “four . . . suicide hanging deaths involving the use of telephone cords” had occurred in Texas jails over the previous eleven months (“Phone Cord Memorandum”). TCJS thus recommended that “ALL phone cords be no more than twelve (12) inches in length.” A former Coleman County sheriff testified that the Coleman County Jail’s policy manual was based on recommendations from TCJS and that TCJS approved the manual. But Cogdill testified that he had not seen the Phone Cord Memorandum before Monroe’s suicide. Cogdill also testified that, after being elected sheriff in 2016, he did not find any folder or computer containing previously issued TCJS memoranda.

B. Procedural History Patsy Cope, who is Monroe’s mother, filed suit under 42 U.S.C. § 1983 on behalf of herself and Monroe’s estate (collectively, “Plaintiffs”) against Cogdill, Brixey, Laws, and Coleman County (“County”). On a previous interlocutory appeal, we held that Cogdill, Brixey, and Laws (collectively, “Individual Defendants”) were entitled to qualified immunity, reversing the district court’s contrary decision. See Cope I, 3 F.4th at 202. The Supreme Court denied review. See Cope v. Cogdill, 142 S. Ct. 2573 (2022).

Plaintiffs’ claims against Coleman County then proceeded in the district court. Plaintiffs filed an amended complaint, which made additional allegations regarding their municipal liability claims and attempted to clarify that they were relying on both conditions of confinement and episodic acts or omissions as alternative theories of relief. Discovery ensued. The County then filed a motion for summary judgment, arguing that our grant of qualified immunity to the Individual Defendants in Cope I was fatal to Plaintiffs’ claims against the County. The district court granted the County’s motion. Plaintiffs filed a Motion for New Trial, or Alternatively, Motion to Alter or Amend Judgment, which the district court construed as a Federal Rule of Civil Procedure 59(e) motion and denied.

Plaintiffs timely appealed both the initial grant of summary judgment and the district court’s denial of the reconsideration motion.

II. Jurisdiction and Standard of Review The district court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction over the district court’s grant of summary judgment pursuant to 28 U.S.C. § 1291.

We review grants of summary judgment de novo. Wisznia Co. v. Gen. Star Indem. Co., 759 F.3d 446, 448 (5th Cir. 2014). In conducting this review, we “view all facts in the light most favorable to the nonmovant and draw all reasonable inferences in the nonmovant’s favor.” Id. Summary judgment is proper when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).

III. Municipal Liability and Cope I A municipality may be held liable for a constitutional violation “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). But “without an underlying constitutional violation, an essential element of municipal liability is missing.” Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 866–67 (5th Cir. 2012) (en banc) (alteration adopted) (quotation omitted). For example, in City of Los Angeles v. Heller, the Supreme Court held that a county could not be liable under § 1983 based on the actions of one of its police officers because a jury had already concluded that the police officer did not inflict any constitutional harm. 475 U.S. 796, 799 (1986) (per curiam); see also Bustos v. Martini Club Inc., 599 F.3d 458, 467 (5th Cir. 2010) (rejecting municipal liability in a similar situation).

The County argues—and the district court agreed—that Cope I concluded none of the Individual Defendants violated the Constitution, so Heller and its progeny resolve this case. 5 The law of the case doctrine ordinarily mandates that “an issue of fact or law decided on appeal may not be reexamined either by the district court on remand or by the appellate court on subsequent appeal.” United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004) (quotation omitted). Thus, according to the County, we are bound to conclude that the Individual Defendants did not cause any constitutional injury to Monroe, meaning the County cannot be liable under § 1983 based on the actions of the Individual Defendants. See Heller, 475 U.S. at 799.

The problem for the County is that it misreads Cope I. In order to overcome qualified immunity, a plaintiff must show: (1) the defendant violated the plaintiff’s constitutional rights, and (2) “the right at issue was clearly established at the time of [the] defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal quotation marks and citation omitted). The Supreme Court has made clear that courts may assess only the second prong if that resolves the issue, meaning we need not reach the question of constitutionality if we conclude there has been no violation of clearly established law. See id. at 236–37.

In Cope I, we reached the question of constitutionality only on the issue of Laws’s failure to call EMS. See 3 F.4th at 209 (“[W]e now make clear that promptly failing to call for emergency assistance when a detainee faces a known, serious medical emergency—e.g., suffering from a suicide attempt—constitutes unconstitutional conduct.”). On every other alleged constitutional violation for each Individual Defendant, we held only that the defendant had not violated clearly established law. See id. at 208 (“We conclude that Laws’s decision to wait for Brixey before entering the cell did not violate any clearly established constitutional right.”); id. at 211 (“We therefore conclude . . . that Brixey’s and Cogdill’s holding of Monroe in a cell containing a phone cord did not violate a clearly established constitutional right.”); id. (“Thus . . . no clearly established precedent suggested that Brixey and Cogdill could be liable under an episodic-acts theory for staffing the jail in line with Coleman County’s budget and policies.”). Accordingly, with the exception of Laws’s failure to call EMS, we have never before decided the constitutionality of the Individual Defendants’ actions in this case, which distinguishes this case from Heller and its progeny. 6

The district court therefore erred in holding that Cope I was fatal to Plaintiffs’ Monell claims. Nevertheless, we “may affirm on any ground raised below and supported by the record, even if the district court did not reach it.” Williams v. J.B. Hunt Transp., Inc., 826 F.3d 806, 810 (5th Cir. 2016). Accordingly, we turn next to the question of whether Plaintiffs have otherwise raised a genuine dispute of material fact as to their claims.

IV. Plaintiffs’ Claims against Coleman County When determining the appropriate standard for analyzing an alleged violation of a pretrial detainee’s constitutional rights, “we must first classify the challenge as an attack on a ‘condition of confinement’ or as an ‘episodic act or omission.’” Flores v. County of Hardeman, 124 F.3d 736, 738 (5th Cir. 1997) (quotation omitted). In this case, Plaintiffs assert both theories in the alternative, so we address each in turn. See Sanchez v. Young County, 866 F.3d 274, 279 n.3 (5th Cir. 2017) (“Sanchez I”) (per curiam) (stating “plaintiffs can bring a pretrial detainee case . . . under alternative theories of episodic acts and omissions by individual defendants or unconstitutional conditions of confinement”).

A. Episodic Claim To overcome summary judgment on their episodic claim against the County, Plaintiffs must raise a fact dispute as to whether (1) “County officials, acting with subjective deliberate indifference, violated [Monroe’s] constitutional rights,” 7 and (2) “the County employees’ acts resulted from a municipal policy or custom adopted with objective indifference to [Monroe’s] constitutional rights.” See id. at 280. To exhibit subjective deliberate indifference, a County employee must have “had subjective knowledge of a substantial risk of serious harm” and “responded to that risk with deliberate indifference.” See Cope I, 3 F.4th at 207 (quotation omitted). “Deliberate indifference is an extremely high standard to meet but can be satisfied by a wanton disregard for an inmate’s serious medical needs.” Id. (alteration adopted) (internal quotation marks and citation omitted).

Plaintiffs assert that Cogdill, Brixey, and Laws violated Monroe’s constitutional rights, and those violations resulted from County policy.8 Thus, the question of the County’s liability under an episodic-acts-or- omissions theory turns on the subjective deliberate indifference of the same officials granted qualified immunity in Cope I. 9 Under the law of the case doctrine, we generally cannot reexamine any issue of fact or law decided in Cope I. See Lee, 358 F.3d at 320. But, as discussed previously, Cope I did not reach the ultimate conclusion of whether the Individual Defendants violated Monroe’s constitutional rights, with the exception of Laws’s failure to call EMS. Plaintiffs also supplemented the record after Cope I with additional evidence regarding subjective deliberate indifference, which we must consider. Cf. Gene & Gene, L.L.C. v. BioPay, L.L.C., 624 F.3d 698, 702 (5th Cir. 2010) (stating one exception to the law of the case doctrine is when “the evidence on a subsequent trial was substantially different”). Still, Cope I’s analysis remains highly relevant.

We turn to an assessment of whether any County employee exhibited subjective deliberate indifference to Monroe’s safety, analyzing the actions of Cogdill, Brixey, and Laws in turn.

i. Sheriff Cogdill Cogdill knew that Monroe had attempted suicide on Saturday. There is also evidence that Cogdill knew about Monroe’s risk of suicide based on conversations with Deputy Tucker and the MHMR crisis worker.

Accordingly, we conclude that Plaintiffs have raised a fact dispute regarding Cogdill’s subjective knowledge of Monroe’s risk of suicide. But that does not end the inquiry.

Another key question in this and the prior appeal is whether Cogdill knew about the risk that long telephone cords pose to detainees at risk of suicide. In Cope I, we concluded that the existence of the Phone Cord Memorandum, by itself, was insufficient to create a fact dispute as to Cogdill’s subjective knowledge of the risk posed by the cord in Monroe’s cell. 3 F.4th at 210 n.11. Specifically, we noted:

[T]he Supreme Court has approved reliance on circumstantial evidence if the relevant risk “was longstanding, pervasive, well-documented, or expressly noted by jail officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus ‘must have known’ about it.” [Farmer v. Brennan, 511 U.S. 825, 842–43 (1994)] (internal quotation marks omitted). There is nothing like that here and certainly no evidence that . . . Cogdill ever received or reviewed the [Phone Cord Memorandum] prior to Monroe’s suicide.

Further, even at the summary judgment stage, it would go too far to infer that . . . Cogdill [was] aware of the Commission’s recommendations simply due to [his] employment in the Texas jail system at the time the memorandum was written—just because information is available to a defendant does not mean []he has been exposed to it.

Id. (alteration adopted).

There is still no record evidence that Cogdill had actual knowledge of the risk of the cord in Monroe’s cell. To the contrary, Cogdill testified that he did not see the Phone Cord Memorandum until after Monroe’s suicide. He also testified that he never paid attention to the cord in the cell or thought that it would be a safety risk before Monroe’s suicide. Nor is there evidence in the record that anyone in the Coleman County Jail had ever previously attempted suicide by strangulation with a telephone cord. See id. at 210.

After Cope I, Plaintiffs supplemented the record with additional evidence that they argue raises a fact dispute regarding whether Cogdill “must have known” about the substantial risk posed by the phone cord. See Farmer, 511 U.S. at 842–43. This evidence—which was not before the Cope I panel—includes: (1) testimony from Sheriff Wade Turner, Cogdill’s predecessor, that the County’s policies were based on TCJS recommendations; (2) TCJS’s written testimony that it sent the Phone Cord Memorandum to all sheriffs and county jail administrators in Texas; (3) a MHMR crisis worker’s testimony that the cord was an “obvious danger” and an objectionable “potential ligature”; and (4) a variety of public sources that Plaintiffs argue demonstrate the risk of placing a suicidal detainee in a cell with a long cord was obvious.

Plaintiffs must raise a fact dispute under a heavy burden, and the new evidence, even viewed in the light most favorable to Plaintiffs, does not sufficiently demonstrate Cogdill’s knowledge. TCJS may have distributed the Phone Cord Memorandum to all county sheriffs in 2015, but Cogdill was not sheriff at that time. Furthermore, Turner, who was sheriff in 2015, testified that he was not aware of the Phone Cord Memorandum. Although Turner testified that the Coleman County Jail’s policy manual was based on TCJS recommendations, there is no evidence that it included any limits on phone cords in cells. Cogdill also testified that he did not find any files or folders with TCJS memorandum when he became sheriff. Critically, then, there is no evidence—circumstantial or otherwise—that the Phone Cord Memorandum ever reached Cogdill.

Nor have Plaintiffs succeeded in demonstrating that the phone cord was such an obvious risk that Cogdill must have known about it. Many of the public documents submitted by Plaintiffs highlight isolated incidents of violence involving electronic cords occurring in places far from Coleman County, Texas. A subset of the documents pertains to suicides in Texas jails, but those reports are not numerous enough or otherwise so pervasive and relevant as to show that Cogdill must have known about the risk of the phone cord in Monroe’s cell. As we said in Cope I, “just because information is available to a defendant does not mean []he has been exposed to it.” 3 F.4th at 210 n.11.

Lastly, we cannot conclude that Cogdill’s actions clearly demonstrate a wanton disregard for Monroe’s safety. Cogdill placed Monroe on suicide watch after intake, and Monroe remained on suicide watch while incarcerated at the jail. After Monroe’s first suicide attempt, Cogdill moved him into a new cell without bedsheets, removed his clothing, and placed him in a safety smock. Cogdill was also available by phone on Sunday and arrived at the jail within sixteen minutes of receiving Laws’s phone call. These reasonable responses to Monroe’s risk of suicide, along with Cogdill’s belief—albeit unsound—that Monroe’s new cell contained no obvious ligatures, preclude a finding that Cogdill exhibited subjective deliberate indifference. See Farmer, 511 U.S. at 844.

ii. Jail Administrator Brixey Like Cogdill, Brixey did not have subjective knowledge about the risk of the phone cord, so she cannot have been subjectively deliberately indifferent to that risk. Brixey did have subjective knowledge about Monroe’s risk of suicide, as evidenced by her conversations with the intake officer and the MHMR crisis worker. But Brixey took reasonable steps to address that risk. After Monroe’s intake, Brixey placed him on suicide watch and ensured that the intake officer contacted MHMR and the magistrate. On Sunday morning, Brixey answered both of Laws’s phone calls and arrived at the jail within approximately seven minutes of learning about Monroe’s suicide attempt, which was approximately ten minutes after Monroe first wrapped the cord around his neck. After entering Monroe’s cell, Brixey immediately called EMS. We conclude that Brixey’s actions were reasonable responses to her knowledge of Monroe’s risk of suicide and do not clearly show a wanton disregard for Monroe’s safety. Cf. Olabisiomotosho v. City of Houston, 185 F.3d 521, 527 (5th Cir. 1999) (holding that two officers were not deliberately indifferent to a detainee’s medical needs where one went out of his way to get her inhaler and the other informed booking personnel that she had asthma).

iii. Jailer Laws In Cope I, we determined that Laws’s failure to call EMS violated the Constitution. See 3 F.4th at 209. However, we do not consider that constitutional violation here because it did not “result[] from a municipal policy or custom adopted with objective deliberate indifference.” See Sanchez I, 866 F.3d at 280. To the contrary, the County’s Suicide Plan states that “[i]f a Suicide attempt is in progress, the correctional officer or jailer will . . . call the Emergency Medical Service.” Because Laws’s failure to call EMS violated County policy, it cannot serve as a basis for municipal liability. See id. 10

Turning to Laws’s other actions, we conclude that they do not meet the extremely high standard of subjective deliberate indifference. On Saturday, Laws observed Monroe on the surveillance camera tying a knot in a bedsheet, and he intervened before Monroe seriously hurt himself. After backup arrived, Laws assisted in moving Monroe to a cell without bedsheets and placing him in a safety smock. Once Laws arrived for his shift the next morning, he observed Monroe at least every fifteen minutes and watched him continuously for some periods. During that time, one witness heard Laws trying to comfort Monroe. When Monroe wrapped the cord around his neck, Laws noticed immediately and called for backup within one minute. Laws called three other County employees, one of whom arrived within seven minutes of the phone call.

We note that “taking some reasonable precautions does not mean the officer, on the whole, behaved reasonably.” Converse v. City of Kemah, 961 F.3d 771, 779 (5th Cir. 2020). Nevertheless, in light of the reasonable measures Laws took to prevent Monroe’s suicide and his promptness in calling for backup, we conclude that his decision to follow County policy and wait for another officer to arrive before entering Monroe’s cell does not evince a wanton disregard for Monroe’s safety. Moreover, Laws’s failure to retrieve the breathing machine while waiting for backup can only be classified as negligence, see Cope I, 3 F.4th at 208 n.8, which is insufficient to support a deliberate indifference claim, see Hare v. City of Corinth, 74 F.3d 633, 642 (5th Cir. 1996) (en banc). Accordingly, outside of Laws’s failure to call EMS, he did not demonstrate subjective deliberate indifference to Monroe’s safety.

****

Plaintiffs have failed to identify any constitutional violation committed by a County employee that resulted from County policy. Thus, we affirm the district court’s grant of summary judgment on Plaintiffs’ episodic claim.

B. Conditions-of-Confinement Claim When a plaintiff brings a jail suicide claim under alternative theories of episodic acts and omissions or unconstitutional conditions of confinement, courts determine which theory applies based on an assessment of the facts alleged. See, e.g., Olabisiomotosho, 185 F.3d at 526; see also Sanchez I, 866 F.3d at 279 & n.3. 11 Here, Plaintiffs argue that several unconstitutional County policies caused Monroe’s death, including: (1) staffing only one jailer on nights and weekends (“Staffing Policy”); (2) instructing jailers not to enter an occupied cell alone and to wait to intervene until help arrives (“Do-Not- Enter Policy”); and (3) maintaining lengthy phone cords in jail cells (“Phone Cord Policy”). 12 According to Plaintiffs, the Staffing and Do-Not-Enter Policies create conditions at the Coleman County Jail under which no at-risk detainee experiencing a medical emergency at night or over the weekend can receive immediate attention, and the Phone Cord Policy increases the likelihood of a suicidal detainee experiencing a medical emergency under such conditions. Plaintiffs thus argue that these three County policies have a “mutually enforcing effect” resulting in the deprival of all pretrial detainees’ constitutional rights to adequate medical care and protection from known suicidal tendencies. See Sanchez v. Young County, 956 F.3d 785, 791, 795 (5th Cir. 2020) (“Sanchez II”) (quotation omitted). 13 In other words, “the conditions themselves constitute the harm,” Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997) (en banc), regardless of any individual’s act or omission. 14

Under that theory, as in other conditions cases, the Staffing, Do-Not- Enter, and Phone Cord Policies impose “durable restraints or impositions on inmates’ lives” that transcend a single act or omission by an officer. See Garza v. City of Donna, 922 F.3d 626, 633 (5th Cir. 2019); see also Shepherd v. Dallas County, 591 F.3d 445, 453 (5th Cir. 2009) (holding a claim alleging constitutionally inadequate medical care due to “poor or non-existent procedures and understaffing of guards and medical personnel” was a conditions claim); cf. Scott, 114 F.3d at 53–54 (concluding a claim was episodic where the plaintiff challenged a policy of having only one staff member on duty, but the harm—sexual assaults committed by the jailer on duty—was determined to be “an episodic event perpetrated by an actor interposed between [the plaintiff] and the city”). Plaintiffs seek damages for the harm to a single detainee, but—in contrast to episodic claims—the alleged cause of the harm is the broader “conditions, practices, rules, or restrictions.” See Sanchez II, 956 F.3d at 791 (quotation omitted); cf. Shepherd, 591 F.3d at 452 (stating that, in episodic claims, “the focus of the claim is one individual’s misconduct” 15). We thus conclude that Plaintiffs properly asserted a conditions claim, and the district court should have considered it as such. 16

Accordingly, we vacate and remand for the district court to consider in the first instance whether Plaintiffs have raised a genuine dispute of material fact on their conditions claim. See Sanchez I, 866 F.3d at 279 (vacating and remanding under similar circumstances “[i]n deference to the trial court’s responsibility to review the record in the first instance”).

V. Conclusion The district court erred in concluding that Cope I foreclosed Plaintiffs’ claims against the County in this case. Nevertheless, for the reasons set forth herein, the district court’s judgment regarding Plaintiffs’ episodic-acts-or- omissions claim is AFFIRMED. However, we VACATE and REMAND the district court’s judgment for further proceedings regarding whether Plaintiffs have raised a genuine dispute of material fact as to their conditions- of-confinement claim.

Jerry E. Smith, Circuit Judge, dissenting:

The majority correctly affirms the summary judgment for plaintiffs’ “episodic act or omission” claims. But it commits egregious error in vacating the summary judgment on the so-called “conditions-of-confinement” claim. That claim, as a matter of law, does not exist, and the summary judgment should be affirmed in full. I respectfully dissent.

Derrek Monroe attempted suicide by strangulation and died after jailers failed to render timely emergency assistance. Given those facts, plain- tiffs’ Monell claim can be classified as nothing other than an attack on “epi- sodic acts or omissions.”

The standard for analyzing a pretrial detainee’s constitutional claim turns on its categorization as a challenge to an “episodic act or omission” or, instead, to a “condition of confinement.” Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997) (en banc). The former deals with claims “where the complained- of harm is a particular act or omission of one or more officials.” Id. The latter, by contrast, includes only those claims in which the alleged harm is caused by a policy’s “mere existence”—that is, its “very promulgation and maintenance.” Id. at 53–54.

So, for valid conditions-of-confinement claims, the alleged harm must occur without the fault of any “specific jail employees’ acts or omissions.” Estate of Henson v. Wichita Cnty., 795 F.3d 456, 464 (5th Cir. 2015) (cleaned up). In other words, a policy’s “mere existence” must be sufficient to bring about the alleged harm. Scott, 114 F.3d at 53. 1 Only then can it be said that it was the policy itself that “cause[d] the pretrial detainee’s alleged constitu- tional deprivation.” Shepherd v. Dallas Cnty., 591 F.3d 445, 455 (5th Cir. 2009) (quoting Hare, 74 F.3d 633, 644–45 (5th Cir. 1996) (en banc)).

Plaintiffs’ conditions-of-confinement claim fails that test. Monroe’s death occurred after a jail employee (1) acted unconstitutionally and (2) vio- lated county policy.

(1) In Cope v. Cogdill, 3 F.4th 198 (5th Cir. 2021) (“Cope I”), a prior panel determined that Jessie Laws’s failing timely to call for emergency medi- cal assistance “was [] unreasonable and an effective disregard for the risk to Monroe’s life,” id. at 209. Cope I therefore concluded that Laws’s response “constitute[d] unconstitutional conduct.” Id.; see also Op. at 14. That deter- mination and that conclusion are issues “decided on appeal [that] may not be reexamined . . . by the appellate court on subsequent appeal.” United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004) (quotation omitted).

(2) Laws was not acting as a mere “dispenser of intended conditions or restrictions” when he engaged in that unconstitutional conduct. Hare, 74 F.3d at 645. Quite the opposite. As the majority expressly concedes, “[his] failure to call EMS violated County policy.” Op. at 15 (emphasis added). So Laws’s response was wholly unrelated to the County’s “imple- ment[ing] . . . an identifiable intended condition or practice.” Hare, 74 F.3d at 645.

Given (1) and (2), just one conclusion can possibly follow: Monroe’s death did not occur without the fault of a “specific jail employee for his acts or omissions.” Estate of Henson, 795 F.3d at 464 (cleaned up). To put it another way: None of the three policies—in isolation or combination—is sufficient to bring about the actual harm Monroe suffered by virtue of its “very promulgation and maintenance.” Scott, 114 F.3d at 53. Consequently, the complaint’s factual allegations foreclose plaintiffs’ conditions-of- confinement claim.

Yet, somehow, the majority concludes to the contrary. In so doing, it runs roughshod over longstanding and well-settled Fifth Circuit precedent, preferring instead to invent a rule from whole cloth.

Under the majority’s new rule, a conditions claim can rest on any pol- icy that merely “imposes durable restraints or impositions on inmates’ lives that transcend a single act or omission.” Op. at 17 (cleaned up). Events are characterized based on the alleged “focus of the claim”—i.e., per its theory, a claim is episodic if the allegations “focus” on “one individual’s miscon- duct.” Op. at 18 (cleaned up). That is grave error.

For starters, the majority’s rule is strictly prohibited by our circuit’s time-honored rule of orderliness. Unavoidable is the majority’s conflict with legions of our circuit’s panel and en banc holdings—so much so that its own citations prove the point.

Take, for example, its describing Scott. As stated by the majority, Scott concluded that a claim faulting “a policy of having only one staff member on duty . . . [for] sexual assaults committed by the jailer on duty” was episodic. Op. at 18 (citing Scott, 114 F.3d at 53–54). That’s because the staffing poli- cy’s mere implementation is insufficient to bring about Scott’s alleged harm. 2 She would not have suffered harm had the jailer not “breached his constitutional duty,” Hare, 74 F.3d at 645, by “entering [her] cell[] and sexually assault[ing] her,” Scott, 114 F.3d at 52.

Per that description, Scott is legally indistinguishable from the matter at hand. None of the three policies identified in the complaint—in isolation or combination—was sufficient to cause Monroe’s harm by virtue of its “very promulgation and maintenance.” Scott, 114 F.3d at 53. So too with Scott’s policy of staffing one jailer. Like the jailer in Scott, Laws had to act unconstitutionally and contravene jail policy for Monroe to suffer the harm he experienced.

So, the very caselaw the majority cites fatally undercuts its conclusion. Its attempt to distinguish Scott is utterly futile. It musters just one—that the claim at issue in Scott was episodic because “the harm . . . was determined to be ‘an episodic event.’” Op. at 18.

That makes negative sense, as the distinction is internally contra- dictory. Just two pages earlier, the majority expressly (and correctly) states that a claim’s categorization turns on facts internal to the complaint. See Op. at 16 (“determin[ing] which theory applies based on an assessment of the facts alleged” (citation omitted)).

But that’s all but ignored by the majority when it comes time to dis- tinguish Scott. Now, dispositive are qualities inherent to the type of harm experienced. So, for reasons unstated and still unknown, the majority regards sexual assault harms—but not suicides—as just the kind of harm that is “episodic.”

Never mind that the basis for such a distinction undoubtedly turns on facts external to the complaint. But that’s the least of the problems with this imagined distinction.

The majority’s distinction, if true, would render incomprehensible this very case. To defend the proposition that a claim’s categorization turns on the qualities of an alleged harm, the majority must accept the premise that any one particular harm gives rise to either an episodic or conditions-of- confinement claim—but not both. 3

That mires the majority in a factual quandary from which it cannot escape. In Cope I, this court considered plaintiffs’ episodic claims alleging the exact same harm before us now. Cope I held, under an episodic-acts theory of liability, that such harm was the result of Laws’s failing timely “to call for emergency assistance [for] a detainee . . . suffering from a suicide attempt.” 3 F.4th at 209.

The upshot is blissfully ironic. Under the majority’s reasoning, Cope I’s holding—which is binding on this panel as law of the case—would foreclose the possibility of plaintiffs’ conditions-of-confinement claim.

The majority can pick its poison. It can admit that a complained-of harm’s qualities have no bearing on determining a claim’s categorization. Or it can stick to its guns and insist that certain harms—such as sexual assaults— are cognizable only as “episodic harms.” Picking the former concedes that Scott is indistinguishable, thereby placing the majority into an irreconcilable conflict with en banc precedent. Choosing the latter places suicides in the episodic-harm category, rendering the majority opinion internally contradic- tory. So, either way, the majority cannot avoid the inescapable conclusion— that plaintiffs’ conditions-of-confinement claim must fail.

The destruction that is sown by the majority extends well beyond the facts of this case. Its reasoning effectively eliminates the objective deliberate- indifference requirement for episodic claims.

Recall that the majority suggests that events can be characterized based on the “source of the harm” on which a claimant’s allegations “focus.” Op. at 18. That effectively categorizes claims solely on the basis of ipse dixit—now, to raise a conditions claim, claimants need do nothing more than artfully “allege[]” that the “source of the[ir] harm is [a] broader condi- tion[], practice[], rule[], or restriction[].” Id. (quotation omitted). 4

But that cannot be, for the legal analysis applicable to each of the two categories of claims is wholly distinct. 5 Only conditions-of-confinement claims permit “the jury reasonably [to] presume that the government acted with the requisite intent to punish.” 6 Shepherd, 591 F.3d at 455. For episodic-acts claims, however, “intentionality is no longer a given,” because a jail employee can act with subjective deliberate indifference to a detainee’s constitutional rights independently of any intent to punish on part of the gov- ernmental unit. See Hare, 74 F.3d at 649 n.4.

Under the majority’s newly-announced rule, claimants are but one artful pleading away from recasting their episodic claims into ones chal- lenging conditions of confinement. The majority has therefore granted claimants, armed with nothing but their own ipse dixit, the benefit of pre- suming that the governmental body intended any and all harms caused by any and all of its employees’ episodic acts and omissions.

That is plainly impermissible, as it holds municipalities liable for the constitutional violations of its employees absent any showing of its acting with “objective deliberate indifference to the detainee’s constitutional rights.” 7

In sum, the majority has gone out of its way to keep on life-support plaintiffs’ supposed conditions-of-confinement claim—notwithstanding its obvious lack of merit. Worse, the majority disposes of longstanding and well- established Fifth Circuit precedent and runs amok on the rule of orderliness. Worse still, it leaves us with an inscrutably vague rule that holds gov- ernmental entities liable for the subjective deliberate indifference of its employees.

I respectfully dissent.