                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1038
                                   No. 05-1096
                                   ___________

Kimberly Pietrafeso, as Personal       *
Representative of the Estate of Rocco  *
Pietrafeso, deceased,                  *
                                       *
     Plaintiff - Appellant/            * Appeals from the United States
     Cross Appellee,                   * District Court for the
                                       * District of South Dakota.
     v.                                *
Lawrence County, South Dakota, et al., *
                                       *
     Defendants - Appellees/           *
     Cross Appellants.                 *
                                ___________

                             Submitted: February 16, 2006
                                Filed: July 11, 2006
                                 ___________

Before LOKEN, Chief Judge, LAY and SMITH, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       Rocco Pietrafeso (Rocco) died following an acute asthma attack while detained
at the Lawrence County Jail in Deadwood, South Dakota. His widow, Kimberly, filed
this § 1983 action alleging that Lawrence County and four County officials -- Chief
Deputy Sheriff Joe Harmon, jail administrator Dale Larson, head jailer Bob Williams,
and jailer Roger Asheim -- were deliberately indifferent to Rocco’s serious medical
needs when they delayed medical treatment and denied prescribed medications. At
the close of the plaintiff’s case at trial, the district court1 granted defendants’ motion
for judgment as a matter of law. Kimberly Pietrafeso appeals. Reviewing de novo the
district court’s grant of judgment as a matter of law, we conclude that the evidence did
not permit reasonable jurors to find that any defendant was deliberately indifferent to
Rocco’s serious medical needs. See Spruce v. Sargent, 149 F.3d 783, 785 (8th Cir.
1998) (standard of review). Accordingly, we affirm.

                                            I.

       We briefly summarize the trial evidence, resolving factual conflicts in favor of
Pietrafeso. On Friday, July 28, 2000, Rocco was transferred from a correctional
facility in Sterling, Colorado, to the Lawrence County Jail, a holding facility for
pretrial detainees. The jail contracts with a local hospital for needed medical services.
Rocco arrived at the jail at 7:10 p.m. Jailer Asheim conducted the intake screening
interview, after receiving from the van driver an envelope marked with Rocco’s name,
inmate number, and the following notation in bold red letters:

                                  URGENT
                           Colo Inter-Correctional
                       Medical Summary Transfer Report
                    DELIVER TO MEDICAL DEPARTMENT
                                  AT ONCE

      In the interview, Rocco told Asheim that he suffered from a severe asthma
condition. Rocco said he was taking a “bunch” of medications, though he brought
with him to the jail only an Albuterol2 inhaler. Rocco did not tell Asheim that on July


      1
       The HONORABLE RICHARD H. BATTEY, United States District Judge for
the District of South Dakota.
      2
      Albuterol is a “beta 2 allergic drug” that treats asthma attacks by relaxing the
muscles in the bronchia airways so that air may pass through.

                                           -2-
20, just eight days earlier, he was sent to the Colorado prison’s emergency clinic
suffering from a severe asthma attack. Vance Siedenburg, the physician’s assistant
who treated Rocco at the prison clinic, testified that he exhibited “difficult breathing,
sweating profusely, anxiety level very high, secondary to inability to breathe.”
Siedenburg administered steroid and adrenaline medications to alleviate Rocco’s
constricted bronchia. Siedenburg testified that he last saw Rocco on July 25, when his
asthmatic condition had stabilized. Siedenburg prescribed two steroids, Prednisone
and Beconase; two anti-anxiety medications, Ativan and Vistaril; an antihistamine,
Zantac; Singulair; an Albuterol inhaler; and nebulizer treatments as needed.3
Siedenburg testified that the Colorado correctional officials did not consult him in
preparing the Medical Summary Transfer Report that accompanied Rocco to the
Lawrence County Jail in the red-lettered envelope.

      Asheim testified that Rocco was tired when he arrived at the jail but exhibited
no wheezing, difficulty breathing, or coughing during the intake interview. After
placing Rocco in a cell with his inhaler, Asheim called Chief Deputy Harmon to ask
permission to take Rocco and the red-lettered envelope to the hospital’s emergency
room so that the “bunch” of prescriptions could be filled. When Asheim advised that
Rocco was not having any problems and had his inhaler, Harmon told Asheim to call
the hospital, explain the situation, and see if the emergency room would fill
prescriptions without seeing Rocco. Asheim called the hospital and was told that no
prescriptions would be filled without seeing Rocco. Asheim then called head jailer
Bob Williams, explained the situation, and suggested that Rocco be taken to the
emergency room Saturday morning so that his prescriptions could be filled before the


      3
        Medical professionals testified that steroids are powerful anti-inflammatory
medications that help prevent the lungs from filling with mucous; anti-anxiety drugs
are useful because stress instigates and compounds asthma attacks; Zantac is a proton
inhibitor that reduces another instigating factor; and Singulair is an immune response
medication that enhances the effect of inhalers. A nebulizer is a machine similar to
a vaporizer that helps an asthma patient inhale medications deeper into the lungs.

                                          -3-
local pharmacy closed at noon. Before leaving the jail, Asheim taped the unopened
red-lettered envelope to a conspicuous shelf in the control room.

      Rocco was not taken to see a doctor Saturday morning, and his prescriptions
remained unfilled. When Asheim came to work Saturday afternoon, Williams said he
did not remember being asked to do that. Asheim’s shift ended at 11:00 p.m.
Saturday. He could not sleep that night because he knew from a former girlfriend’s
experience that a person with severe asthma had a constant need for medications. On
Sunday morning, Asheim discussed the situation with Sheriff Rick Mowell, who said
that Rocco could wait until Monday or Tuesday to see a doctor since he was not in
apparent distress. Still concerned, Asheim then took the unopened red-lettered
envelope to physician’s assistant Kay Huhnerkoch at the hospital.

       Huhnerkoch opened the envelope and reviewed its contents. A Colorado Inter-
Correctional Medical Summary Transfer Report dated July 19, 2000, advised that
Rocco was last seen by a physician on July 10 and listed his current medications as
Albuterol, Ativan, and an antidepressant, Imipramine. The Report did not disclose
Rocco’s severe asthma attack on July 20, his treatment by physician’s assistant
Siedenburg, or the medications Siedenburg prescribed on July 25. The envelope also
contained a one-month “Hospital Pass” for “Breathing Treatment” every 4-6 hours.
Siedenburg described this document as a “kite” permitting a Colorado inmate to
access the prison clinic without further approval; it was not a prescription. After
reviewing these documents, Huhnerkoch advised Asheim that the inhaler was
sufficient for the weekend unless Rocco needed to use it more than three times in a
four-to-five-hour period, in which case he should be brought to the hospital’s
emergency room. Asheim returned to the jail with a note from Huhnerkoch to that
effect and personally told Rocco what the note said. Pietrafeso’s expert medical
witness at trial, a forensic pathologist, testified that Huhnerkoch’s note was prudent
because excessive use of an inhaler means that the Albuterol is not effectively treating
an asthma attack.

                                          -4-
       Asheim testified that Rocco was not wheezing or coughing or showing signs
of discomfort and did not ask for a doctor when Asheim explained Huhnerkoch’s note.
However, a cell-mate testified that Rocco’s physical condition deteriorated over the
weekend and that he repeatedly asked the jailers for his medications. Similarly,
Rocco’s sister testified that he called her repeatedly to report that his inhaler was not
working and that he needed more medication. She reported Rocco’s complaints to jail
administrator Larson on Monday, July 31.

      Rocco was taken to see a doctor at 9:30 a.m. on Tuesday, August 1. The doctor
reported:

      Rocco was seen today. He has a long-standing history of reactive airway
      disease and COPD. Recently he has been incarcerated and unfortunately
      he has just been able to get his Albuterol inhaler, which is keeping him
      relatively stable, but he is quite uncomfortable and needs a broader
      treatment program. He has noticed just a slight amount of green material
      when he is coughing but this is minimally so. . . . He has had anxiety
      background with Ativan and Imipramine. . . . He is at the point where
      he feels that he may need some systemic steroids, which he has been on
      in the past. He is not on any topical steroid at this point.

(Emphasis added.) The doctor prescribed three inhalers (Albuterol, Flovent, and
Salmeterol), Albuterol nebulizer treatments if needed, Ativan, Imipramine, and
Singulair. He noted, “I think this needs to be reviewed within a week to see that he
is stabilizing with this. If he is not, we may need to consider systemic steroids.”

       At 4:00 p.m. that afternoon, Larson picked up the prescribed medications at the
local pharmacy and delivered them to Asheim at the jail. Asheim brought them to
Rocco who said he needed to use the nebulizer. The nebulizer Asheim brought lacked
a mouthpiece and could not function. When Asheim returned with a mouthpiece,
Rocco was wheezing and in asthmatic arrest, but neither Rocco nor the jailers knew
how to mix the prescribed Albuterol solution. Rocco found a pre-mixed bottle of

                                          -5-
Albuterol solution in the nebulizer left by its previous user. After breathing the
nebulizer mist for a few minutes, he told Asheim it was not working. Asheim called
an ambulance which arrived at 4:30 p.m. and rushed Rocco to the hospital. Rocco
died of an acute bronchial asthma attack at 5:06 p.m.

        The forensic pathologist testified that the level of Albuterol in Rocco’s
bloodstream showed that he had taken far more than the prescribed dosage of that
“rescue” drug without overcoming the acute asthma attack. The pathologist further
testified that the Flovent and Salmeterol inhalers would not treat an acute attack
because these are maintenance drugs, not rescue drugs. “What would help him for the
acute attack would be the Prednisone,” the steroid Rocco had been given in Colorado.
Moreover, the pathologist explained, if an asthma patient’s Prednisone is abruptly
taken away, “you are going to be very likely to have a relapse and have another acute
attack.” He admitted on cross examination that Prednisone was not listed as a current
medication on the Colorado Medical Summary Transfer Report that accompanied
Rocco to the Lawrence County Jail.

                                          II.

       On appeal, Pietrafeso primarily argues that the district court erred in granting
Lawrence County judgment as a matter of law because there was sufficient evidence
for a reasonable jury to find that the County had “grossly inadequate” policies for
dealing with transferees’ urgent medical needs that reflected a deliberate indifference
to the constitutional rights of detainee Rocco Pietrafeso.

       In Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397,
407 (1997), the Supreme Court clarified the standards for municipal liability under
§ 1983. A county is liable if an action or policy itself violated federal law, or if the
action or policy was lawful on its face but “led an employee to violate a plaintiff’s
rights [and] was taken with ‘deliberate indifference’ as to its known or obvious

                                          -6-
consequences.” Here, Lawrence County’s policies and practices for providing
inmates with needed medical care were lawful on their face. Thus, Pietrafeso’s claim
that the policies were constitutionally inadequate required proof that at least one of the
individual defendants violated Rocco’s constitutional rights and caused the alleged
injury. See Golberg v. Hennepin County, 417 F.3d 808, 812-13 (8th Cir. 2005);
Olinger v. Larson, 134 F.3d 1362, 1367 (8th Cir. 1998).

       The Eighth Amendment protects prison inmates from deliberate indifference
to their serious medical needs. Though Rocco was a pretrial detainee, not an inmate,
Pietrafeso concedes that this substantive due process claim is governed by the same
deliberate indifference standard. To define deliberate indifference for these purposes,
the Supreme Court has adopted the criminal law subjective standard of recklessness --
“the official must both be aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he must also draw the inference.” Moore
v. Briggs, 381 F.3d 771, 773-74 (8th Cir. 2004), quoting Farmer v. Brennan, 511 U.S.
825, 837 (1994); see Vaughn v. Greene County, 438 F.3d 845, 850 (8th Cir. 2006).
“Deliberate indifference may include intentionally denying or delaying access to
medical care, or intentionally interfering with treatment or medication that has been
prescribed.” Vaughan v. Lacey, 49 F.3d 1344, 1346 (8th Cir. 1995). However, “[a]
showing of deliberate indifference is greater than gross negligence and requires more
than mere disagreement with treatment decisions.” Gibson v. Weber, 433 F.3d 642,
646 (8th Cir. 2006).

       Turning to the individual defendants in this case, head jailer Williams was
clearly entitled to judgment as a matter of law because Pietrafeso did not call him as
an adverse witness and thus there was no evidence that he actually knew of and
recklessly disregarded a substantial risk of serious harm to Rocco if his access to
prescribed medications was delayed over the weekend of July 29-30. The only
evidence against Williams was Asheim’s testimony that Williams forgot to take Rocco



                                           -7-
and the red-lettered envelope to a doctor on Saturday morning. At most, that is
evidence of negligence, not deliberate indifference.

       The evidence against Chief Deputy Harmon and Jail Administrator Larson also
failed to prove subjective deliberate indifference. Harmon never saw Rocco while he
was detained at the jail. Asheim called Harmon Friday evening to discuss the red-
lettered envelope and the missing “bunch” of medications. When Asheim advised that
Rocco had an inhaler and exhibited no problem during the intake interview, Harmon
saw no need to take Rocco to the hospital emergency room and told Asheim to try to
get the prescriptions filled by phone. That one conversation did not prove deliberate
indifference. Larson, too, did not see Rocco over the weekend. Pietrafeso argues that
Larson must have opened the red-lettered envelope because, when Rocco’s sister
called the jail on Monday, Larson knew that Rocco needed Albuterol nebulizer
treatments every four to six hours. But by Monday, Huhnerkoch had reviewed the
envelope’s contents and advised that Rocco did not require emergency care before
seeing a doctor unless his need to use the Albuterol inhaler became too frequent.
Thus, before Rocco saw the doctor on Tuesday morning, Larson acted in accordance
with Huhnerkoch’s advice. Regarding the tragic events of Tuesday afternoon,
Pietrafeso does not argue that Larson was guilty of deliberate indifference in obtaining
and delivering Rocco’s medications to the jail just before Rocco suffered the fatal
attack.

      That leaves Pietrafeso’s case against jailer Asheim. It is undisputed that
Asheim knew Rocco was a severe asthmatic with a constant need for medications.
Asheim had personal contact with Rocco every day that he was detained at the jail,
including Sunday. Though Asheim denied it, we must credit the cell-mate’s testimony
that Rocco repeatedly asked the jailers for his medications and that his condition
progressively worsened over the weekend. But the evidence is undisputed that
Asheim went to great lengths to have Rocco’s prescriptions filled. Most significantly,
Asheim took the red-lettered envelope to physician’s assistant Huhnerkoch on

                                          -8-
Sunday, Asheim’s day off, and then visited Rocco at the jail to tell him of
Huhnerkoch’s advice. Rocco’s sister testified that, over the weekend, “I believe
[Asheim] was trying to do everything that he could.” During the frantic minutes on
Tuesday afternoon when Rocco suffered the fatal attack, Asheim could be faulted for
bringing a nebulizer without a mouthpiece, for not knowing how to prepare the
nebulizer solution, and for allowing Rocco to inhale a prior user’s solution. But
Asheim was trying to treat the attack, not ignore it. This may be evidence of
negligence, but it was not deliberate indifference.

       The evidence viewed in the light most favorable to Pietrafeso shows
unnecessary delay in getting the red-lettered envelope to a medical professional who
could determine if Rocco had an immediate need for medications in addition to his
inhaler. But when the envelope was opened by Huhnerkoch on Sunday morning, it
contained an outdated list of “current medications” that did not include those
prescribed by Siedenburg the previous week, when Rocco suffered a severe asthma
attack at the Colorado prison. Thus, the Lawrence County medical team and jailers
never knew that, before he arrived from Colorado, Rocco had been taking Singulair,
Vistaril, and two steroids whose abrupt discontinuance could be dangerous. Rocco’s
autopsy revealed an excessive level of Albuterol in his bloodstream, confirming that
he had access to that rescue drug and overused it because it was not working
effectively. The sequence of events ended in tragedy, arguably due to the
unintentional negligence of correction officials at the Colorado prison and the
Lawrence County jail. But that is not enough to support a § 1983 claim of deliberate
indifference to serious medical needs. Accordingly, the district court did not err in
granting defendants judgment as a matter of law at the close of Pietrafeso’s case.

      The judgment of the district court is affirmed. Appellees’ cross appeal is
dismissed as moot.




                                         -9-
LAY, Circuit Judge, concurring.

       A prison official is deliberately indifferent to a prisoner’s serious medical needs
only if he is “aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Farmer
v. Brennan, 511 U.S. 825, 837 (1994). “In addition, prison officials who actually
knew of a substantial risk to inmate health or safety may be found free from liability
if they responded reasonably to the risk, even if the harm ultimately was not averted.”
Id. at 844. I write separately merely to emphasize that Rocco’s death, while
undisputably tragic and possibly avoidable, was not the result of deliberate
indifference by the defendants.

       From Sunday on, all the defendants were following the advice of medical
professionals. The medical professionals who treated Rocco were working without
the proper documentation of Rocco’s medical history, including notation of the steroid
medication prescribed to prevent another attack. The fault in this case appears to be
that of the institution from which Rocco was transferred, not the institution in which
he ultimately died. Misinformation, not deliberate indifference, was the ultimate
cause of his death.
                          ______________________________




                                          -10-
