                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                         __________________

                           No. 01-60716
                        __________________

WANDA LANGFORD, Administrator of the Estate of Michael Langford,

                                              Plaintiff-Appellant,

                              versus

    UNION COUNTY, MISSISSIPPI; JOE BRYANT, In His Individual and
     Official Capacity as former Sheriff of Union County; TOMMY
WILHITE, Sheriff, In His Official Capacity as Successor In Office
  to Joe Bryant; CARROLL THOMPSON, In His Individual and Official
 Capacity; MARGARET COUSAR, In Her Official Capacity as Successor
                to Carroll Thompson; JOHN DOES, #1-5,

                                            Defendants-Appellees.
_________________________________________________________________

           Appeal from the United States District Court
             for the Northern District of Mississippi
                          (3:00-CV-152-P)
_________________________________________________________________
                         October 18, 2002

Before REAVLEY, BARKSDALE, and CLEMENT, Circuit Judges.

PER CURIAM:*

     This appeal is from a FED. R. CIV. P. 12(b)(6) dismissal

(failure to state a claim).   Primarily at issue is whether, at the

Rule 12(b)(6) stage and under the requisite “heightened pleading”

standard for the qualified immunity defense in this § 1983 action,

allegations of an officer’s failure to maintain a suicide watch for

an involuntarily committed person (awaiting transfer to a mental


     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
health facility) are sufficient to preclude such immunity.                 Joe

Bryant and Carroll Thompson (individual capacity) were granted

qualified immunity against the federal law claims; Union County,

Mississippi, was dismissed on the federal law claims (the basis for

dismissal is unclear) and was granted absolute immunity against the

state law claims.   AFFIRMED IN PART; VACATED IN PART; and REMANDED.

                                    I.

     Wanda Langford alleged the following in her complaint and FED.

R. CIV. P. 7(a)     reply.     On   18     March    1999,   Michael   Langford

(Langford) was arrested by the Union County Sheriff’s Department

for being a threat (with firearm) to himself and his father.             While

in the Union County jail, Langford attempted to choke himself with

a t-shirt, necessitating a trip to the hospital.

     The   day   after   Langford’s       arrest,    his    father    initiated

commitment proceedings. As part of that process, Bryant, the Union

County Sheriff, arranged for Langford to be transported to a mental

health hospital for evaluation.           Pursuant to the evaluation, the

attending doctors certified that Langford should be committed to a

treatment facility.

     Langford was not then taken into custody; subsequently, Bryant

made several unsuccessful attempts to do so; but Langford fled in

fright on each occasion.      On 1 April, Bryant finally succeeded in

apprehending Langford.       That same day, the Union County chancery

court ordered him to be involuntarily committed to the state mental


                                      2
hospital because of the substantial threat he posed to himself and

others.

     As alleged:    Bryant ordered Thompson, the jail administrator,

to incarcerate Langford; he was placed on suicide watch; Bryant

and/or Thompson subsequently removed Langford from suicide watch;

Langford was provided with a laundry bag; and using the rope from

that bag, he hanged himself in his cell.

     The complaint against the County, Bryant, Thompson, and others

claimed, inter alia:         the County failed to implement adequate

policies and training regarding the care of persons in its custody

while awaiting transfer to a mental health hospital; Bryant was

deliberately indifferent to Langford’s serious medical needs; and

Thompson violated his constitutional duties to Langford.

     In   their   answers    and   subsequent    motions,      all   defendants

claimed immunity.     The magistrate judge stayed discovery except

that concerning those motions.            Toward that end, Mrs. Langford

noticed the depositions of Bryant, Thompson, and the County.

During    a   conference    to   settle   a   dispute   over    the   proposed

depositions, and pursuant to Rule 7(a) and Schultea v. Roth, 47

F.3d 1427 (5th Cir. 1995)(en banc), the magistrate judge ordered

Mrs. Langford to file a reply to the qualified immunity defense.

Mrs. Langford did not file a Rule 72(a) objection either to having

to file the reply or to not being then permitted to take the

noticed depositions.


                                      3
     After the reply was filed, and pursuant to Rule 12(b)(6), the

district court in mid-2001, inter alia, not only granted qualified

immunity to Bryant and Thompson against the federal claims, but

also dismissed the County regarding those claims (it is unclear

whether the basis was qualified immunity) and granted it immunity

against the state law claims.

                                II.

     Although other defendants were also sued, the only remaining

defendants are Bryant and Thompson (only in their individual

capacity against the federal claims) and the County. Mrs. Langford

maintains:    Bryant and Thompson are not entitled to qualified

immunity against the federal claims; the County can never be

entitled to qualified immunity against such claims; and, for the

state law claims, the County is liable under state law pursuant to

respondeat superior.

     A Rule 12(b)(6) dismissal is reviewed de novo.   E.g., Lowery

v. Texas A & M Univ. System, 117 F.3d 242, 246 (5th Cir. 1997).   In

ruling on such a motion, the court:      does not look beyond the

pleadings; accepts all well-pleaded facts as true; and views the

facts “in the light most favorable to the plaintiff”.     Cinel v.

Connick, 15 F.3d 1338, 1341 (5th Cir. 1994), cert. denied 513 U.S.

868 (1994).   The motion may be granted “only if it appears that no

relief could be granted under any set of facts that could be proven




                                 4
consistent with the allegations”. Jackson v. City of Beaumont

Police Dep’t, 958 F.2d 616, 618 (5th Cir. 1992).

                                          A.

     For the federal law claims, qualified immunity was properly

granted for      Bryant     and    Thompson.          The   district   court   erred,

however, in dismissing those claims against the County.

                                          1.

     Concerning Bryant and Thompson’s qualified immunity defense

against    the    federal    claims,      “government        officials      performing

discretionary functions generally are shielded from liability for

civil damages insofar as their conduct does not violate clearly

established      statutory        or   constitutional        rights    of    which   a

reasonable person would have known”.                   Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982).        Needless to say, qualified immunity is “an

immunity from suit rather than a mere defense to liability”.

Mitchell   v.     Forsyth,    472      U.S.    511,    526   (1985)    (emphasis     in

original).       Such immunity protects an official not only against

standing trial, but also against incurring “the burdens of ‘such

pretrial matters as discovery’”.               McClendon v. City of Columbia,

2002 WL 2027329 at *4 (5th Cir. 2002) (en banc) (quoting Harlow,

457 U.S. at 817).

     Toward this end, when a public official is sued under § 1983

and claims qualified immunity, the plaintiff must comply with a

“heightened pleading” standard.                Schultea, 47 F.3d at 1433-34.


                                          5
This standard requires more than conclusory assertions.        “It

requires claims of specific conduct and actions giving rise to a

constitutional violation.”   Baker v. Putnal, 75 F.3d 190, 195 (5th

Cir. 1996). Of course, for Rule 12(b)(6) purposes, this heightened

pleading framework does not alter our acceptance of plaintiff’s

allegations as true; on the other hand, it does require specific

facts and not merely conclusions.

     The well-established analysis for qualified immunity is two-

pronged:   first, pursuant to existing law, plaintiff must assert a

violation of a clearly established constitutional right; second,

plaintiff must allege that defendant’s conduct was objectively

unreasonable in the light of clearly established law at the time of

the incident (because this case is at the Rule 12(b)(6) stage, the

allegations are tested). E.g., Behrens v. Pelletier, 516 U.S. 299,

309 (1996) (“At that earlier stage, it is the defendant's conduct

as alleged in the complaint that is scrutinized.”) (emphasis in

original); Siegert v. Gilley, 500 U.S. 226, 231 (1991); Hare v.

City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998).

     Schultea held that, in order for this heightened pleading

standard to be satisfied, a court may require the plaintiff to file

a Rule 7(a) reply addressing qualified immunity after it has been

raised by a defendant.   See also Crawford-El v. Britton, 523 U.S.

574, 598 (1998)(Rule 7(a) reply appropriate in qualified immunity

cases where improper motive is an element).      As the magistrate

                                 6
judge noted in ordering the reply, a district court has limited

discretion in not ordering one.             Schultea, 47 F.3d at 1434.

     The reply is to be specifically tailored to the qualified

immunity defense and must be pleaded with some particularity.                 Id.

at 1430-1431.        Concomitantly, the district court may preclude

discovery    until    the   “plaintiff      has   supported   his    claim   with

sufficient precision and factual specificity to raise a genuine

issue as to the illegality of defendant’s conduct”.                 Id. at 1434.

     The district court ruled that the claims against Bryant met

the first prong of this test by alleging Bryant’s “deliberate

indifference” to Langford’s safety. Non-prisoner detainees look to

the Fourteenth Amendment’s guarantees of procedural and substantive

due process rights with regard to “constitutional essentials” such

as safety and medical care.            Jacobs v. West Feliciana Sheriff’s

Dep’t, 228 F.3d 388, 393 (5th Cir. 2000).             The failure to provide

these essentials rises to the level of a constitutional violation

only when it is a product of deliberate indifference.               Hare v. City

of Corinth, Mississippi (Hare II), 74 F.3d 633, 643 (5th Cir.

1996)(en banc) (In the context of suicide prevention, the law is

clearly established that a defendant must not be deliberately

indifferent to serious medical needs of detainees.).

     Based    on     Hare   II,   it    would     appear   that     “deliberate

indifference” is the standard that must be satisfied by Mrs.

Langford. She maintains on appeal, however, that, because Langford

                                        7
was involuntarily committed, the officials’ conduct must be judged

against the lesser “professional judgment” standard provided in

Youngberg v. Romeo, 457 U.S. 307 (1982).     We decline to address

this issue because the record does not reflect that it was raised

in district court.    Nor is there any allegation in plaintiff’s

complaint and reply that addresses the officials’ professional

judgment.

     A similar failure to preserve an issue in district court is

related to plaintiff making no objection to the reply requirement

or to the stay of discovery, even though many of the relevant facts

are in the possession of Bryant and Thompson.   Therefore, we do not

address the appropriateness, for this case, of a dismissal prior to

limited discovery on the issue of qualified immunity.

     As a backdrop to her allegations, Mrs. Langford alleged in her

reply:   “prior to the ... commitment proceedings, ... Langford had

a long history of trouble as a result of his mental illness”; and

Bryant and Thompson “were well aware of this history”.         Mrs.

Langford alleged that Bryant and Thompson prevented Langford from

receiving the protection from self-inflicted harm that he required.

She alleged: (1) Bryant was deliberately indifferent to Langford’s

safety by failing to instruct his employees to maintain a suicide

watch; (2) Bryant and/or Thompson “apparently” removed Langford

from a suicide watch; and (3) Bryant and Thompson issued and/[or]

carried out and/or conveyed and/or failed to contradict/prevent the


                                 8
order that resulted in the laundry bag being given to Langford.                          In

conjunction with this final allegation, Mrs. Langford alleged that

providing    a   rope    (part    of    the       bag)    amounted        to    deliberate

indifference.

                                            a.

      Mrs.   Langford    alleged       in    her       complaint    that       Bryant   was

“deliberately indifferent to the safety of ... Langford by failing

to instruct his employees to maintain suicide watch”.                          She did not

allege that Thompson also failed to do so.

      This allegation against Bryant was sufficient to satisfy

Schultea’s    requirement       that   plaintiffs          state    allegations         with

particularity.      On    the    other      hand,       having     done    so    does   not

necessarily satisfy plaintiff’s burden for Rule 12(b)(6) purposes.

The   alleged    facts    must    show          that    the   failure      to     instruct

constitutes deliberate indifference.                   Hare II, 74 F.3d at 647-648.

      Mrs. Langford alleged in her reply:                     Bryant (and Thompson)

knew of Langford’s having “choked himself with his t-shirt and

[having] to be transported to the hospital” when Langford had been

arrested and jailed for being a threat with a firearm ; but, they

failed to properly supervise the jail employees when Langford was

next held in jail (the occasion of his suicide).                          Our court has

never held, however, that the failure to instruct employees to

maintain     a   suicide     watch,          alone,       constitutes           deliberate

indifference.


                                            9
                                        b.

       Mrs. Langford also alleged that Bryant or Thompson removed

Langford from suicide watch.          In her reply, Mrs. Langford stated:

“Apparently, at some time thereafter, Joe Bryant and/or Carroll

Thompson removed [Langford] from suicide watch”. (Emphasis added.)

First, the allegation allows for the possibility that either

Thompson or Bryant might have removed Langford from suicide watch.

Mrs.    Langford     compounded       this     generality      with   the     term

“apparently”.      Also, as discussed above, Mrs. Langford alleged in

her    complaint    that   Bryant     merely     “fail[ed]    to   instruct    his

employees    to    maintain   suicide    watch”.       This    contradicts    the

subsequent allegation that it was Bryant who removed Langford from

suicide watch.      The sum of these vagaries — “and/or”, “apparently”

and the contradictory allegations about the failure to instruct —

leads to the conclusion that Mrs. Langford failed to plead with

sufficient    specificity      that     either     Bryant     or   Thompson   was

deliberately indifferent by removing Langford from suicide watch.

                                        c.

       Mrs. Langford alleged in her reply that Langford’s “jailers”

(not named) were deliberately indifferent to his serious medical

needs “[w]hen ... Langford was given a rope with which to hang

himself”.    She alleged that Thompson and Bryant “issued and/[or]

carried out and/or conveyed and/or failed to contradict[/prevent]

the order which resulted in the laundry bag being given to ...


                                        10
Langford”.    In short, Mrs. Langford alleged that the officials may

have simply “allowed” the delivery of the bag and did not allege

that either Bryant or Thompson was present when it was given to

Langford.     This falls far short of specifically alleging facts

necessary for deliberate indifference.

       In sum, under existing law, plaintiff has failed to satisfy

the first prong to defeat qualified immunity:     she has failed to

assert a constitutional violation by either Bryant or Thompson.

See, e.g., Jacobs, 228 F.3d at 397 (“The fact that [a defendant

officer] did not make the decision that [the decedent pretrial

detainee] should have a blanket would seem to militate in favor of

finding qualified immunity....”); see also DeShaney v. Winnebago

County Dep’t of Social Servs., 489 U.S. 189, 198 n.5 (1989) (“mere

negligent or inadvertent failure to provide adequate care is not

enough”); Rhyne v. Henderson County, 973 F.2d 386, 394 (5th Cir.

1992) (mere negligence not enough to establish a constitutional

violation).

       The district court ruled that Mrs. Langford satisfied the

first prong of the qualified immunity test for Bryant, but not

Thompson. Accordingly, for Bryant, it reached the second prong and

found his conduct not objectively unreasonable.   Because, however,

Mrs. Langford failed to assert the violation of a constitutional

right by Bryant, we need not reach his objective reasonableness vel

non.


                                 11
                                   2.

     Mrs. Langford contends that, in dismissing the federal claims

against the   County,    the   district    court   ruled   the   County   was

eligible for qualified immunity; and reasoned that its conduct was

negligence at most.       Therefore, according to Mrs. Langford’s

reading of the district court’s ruling, it held the County entitled

to qualified immunity.

     Of course, it is more than well-settled that local governments

do not enjoy such immunity. Leatherman v. Tarrant County Narcotics

Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993).

Along this line, we question Mrs. Langford’s reading of the basis

for the district court’s ruling.           In its immunity motion, the

County contended, inter alia:      “The Plaintiff has failed to state

a claim upon which relief can be granted”.         It is true the district

court stated the following: “Since the defendants in this instance

are Union County and Union County employees, they may be entitled

to qualified immunity under § 1983”.         (Emphasis added.)     However,

when the court ruled with respect to the County, it stated:               “At

the most, the county may have been guilty of negligence, which is

not a basis for § 1983 liability”.        Therefore, it is not clear that

the district court dismissed the federal claim against the County

on the basis of qualified immunity.

     In any event, complaints against local governments need not

meet heightened pleading standards. Id. at 168. Instead, as stated


                                   12
in FED. R. CIV. P. 8(a)(2), plaintiffs need only present “a short

and plain statement of the claims showing that the pleader is

entitled to relief”.   Id.

     In order, through § 1983, to state a claim under federal law

against the County, plaintiff must allege: (1) a constitutional or

federal right was violated; (2) the deprivation was committed by a

person acting under color of state law; and (3) “an official policy

or custom” of the County “was a cause in fact” of the violation.

Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.

1994) (quoting Monell v. Dep’t of Social Servs. of the City of New

York, 436 U.S. 658, 690-91 (1978)).     Similarly, a claim is stated

in failure-to-train cases when a constitutional violation is a

highly predictable consequence of that failure.        E.g., Bd. of

County Comm’rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397,

409 (1997).   Of course, a local government cannot be held liable

through respondeat superior for claims brought under § 1983.

Monell, 436 U.S. at 689.

     With regard to an “official policy” being a “cause in fact”,

it suffices for plaintiff to allege a failure to adopt a policy “if

the need to take some action to control the agents of the local

governmental entity ‘is so obvious and the inadequacy [of existing

practice] so likely to result in the violation of constitutional

rights, that the policymak[er] ... can be reasonably said to have

been indifferent to the need’”.      Burge v. Parish of St. Tammany,

                                13
187 F.3d 452, 471 (5th Cir. 1999) (emphasis added) (quoting City of

Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989)).

       Concerning   a    failure   to        train,    City      of     Canton    held:

“Consequently,      while    claims     ...     alleging         that    the     [local

government's] failure to provide training to ... employees resulted

in the constitutional deprivation [plaintiff] suffered ... are

cognizable under § 1983, they can only yield liability against a

[local government] where [its] failure to train reflects deliberate

indifference to the constitutional rights of its inhabitants”. 489

U.S.   at   392.     “Only   where    a      failure        to   train    reflects   a

‘deliberate’ or ‘conscious’ choice by a [local government] — a

‘policy’ as defined by our prior cases — can [it] be liable for

such a failure under § 1983.”         Id. at 389.

       In her complaint, Mrs. Langford alleged:

            Michael Langford died ... as a direct result
            of the failure of Union County to have
            sufficient policies and training concerning
            care of persons in the custody of Union
            County, ... the deliberate indifference of
            Union County and its employees for the safety
            of ... Langford, and the negligence of Union
            County and its employees.

(Emphasis added.)       She also alleged:        “Union County, Mississippi,

through its Sheriff and Board of Supervisors, did not have in

effect adequate policies regarding the care of persons committed to

its care    while   awaiting    transfer       to     the    State    mental     health

hospital”; and, similarly, the County “did not have in effect

adequate policies regarding training of its employees as to the

                                        14
care of   persons   committed   to   its   care   while   awaiting   [such]

transfer”.

     Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 199 (5th

Cir. 1994)(emphasis added), cert. denied, 514 U.S. 1017 (1995),

held dismissal of a § 1983 claim against a school district was

proper because “plaintiff had not pled that [the district’s]

actions, custom, or policy caused [a student’s] death”. Therefore,

the school district could not be held liable for a constitutional

violation. Id.   Johnson distinguished the requirements for stating

a claim against a local government (pleading) from the requirements

for stating one against an official in his individual capacity

(pleading facts sufficient to overcome qualified immunity). Id.

See also Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002)

(contrasting requirements for asserting claims against officials in

their official, versus their individual, capacity).

     In sum, Mrs. Langford’s federal law claim against the County

is sufficient to withstand a Rule 12(b)(6) motion.         Therefore, the

dismissal of the claim pursuant to that Rule was in error.

                                      B.

     The district court held the County was entitled to absolute

immunity from state tort claims for failure to enact sufficient

policies or training concerning the care of persons in its custody.

See MISS. CODE ANN. § 11-46-9(e) (“A governmental entity and its

employees acting within the course and scope of their employment or

                                     15
duties shall not be liable for any claim ... arising out of an

injury caused by adopting or failing to adopt a statute, ordinance

or regulation.”).

     Plaintiff did more, however, than allege Union County failed

to enact policies.   She also claimed negligence on the part of its

employees:   “Union County, through its employees, also acted with

gross negligence and reckless disregard ...”; and “[a]s a direct

and proximate result of said negligence ... Langford died....”

     Under Mississippi law, a governmental entity is not immune if

its employees failed to use ordinary care in performing their

duties.   L.W. v. McComb Separate Mun. Sch. Dist., 754 So. 2d 1136,

1141-42 (Miss. 1999) (citing MISS. CODE ANN. § 11-46-9(1)(b)).

     Therefore, the Rule 12(b)(6) dismissal was in error for the

state law claims against Union County.

                                III.

     For the foregoing reasons, the judgment is AFFIRMED for the

federal law claims against Bryant and Thompson, in their individual

capacity; VACATED for the federal and state law claims against

Union County; and REMANDED for further proceedings consistent with

this opinion.

                AFFIRMED IN PART; VACATED IN PART; AND REMANDED




                                 16
