                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    October 23, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT


    MARIE GASTON, Surviving Parent
    and Administratrix of the Estate of
    Jeffrey Ray Belden,

                Plaintiff-Appellant-
                Cross-Appellee,

    v.                                            Nos. 08-3028 & 08-3033
                                               (D.C. No. 2:04-CV-02368-DJW)
    WARREN PLOEGER, individually                          (D. Kan.)
    and as County Commissioner of
    Brown County, Kansas; GLEN
    LEITCH, individually and as County
    Commissioner of Brown County,
    Kansas; STEVE ROBERTS,
    individually and as County
    Commissioner of Brown County,
    Kansas; LAMAR SHOEMAKER,
    individually and as Sheriff of
    Brown County, Kansas; BRETT
    HOLLISTER; JOHN DOES, unknown
    and unidentified employee(s) of
    Brown County, Kansas; JANE DOES,
    unknown and unidentified employee(s)
    of Brown County, Kansas; BRANDON
    ROBERTS,

                Defendants-Appellees-
                Cross-Appellants.


                            ORDER AND JUDGMENT *

*
     After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
                                                                       (continued...)
Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.



      Jeffrey Ray Belden committed suicide on August 14, 2002, while he was

incarcerated as a pretrial detainee in Brown County, Kansas. Thereafter,

Mr. Belden’s mother, plaintiff-appellant Marie Gaston, brought this lawsuit on his

behalf asserting: (1) 42 U.S.C. § 1983 claims that various Brown County officials

were deliberately indifferent to the risk that Mr. Belden would commit suicide;

and (2) state-law negligence claims. Defendants moved for summary judgment on

the § 1983 claims based on qualified immunity and on the state-law claims based

on immunity. The district court granted the motion with respect to the § 1983

claims against County Commissioners Warren Ploeger, Glen Leitch, and Steve

Roberts, but denied the motion with respect to the § 1983 claims against Sheriff

Lamar Shoemaker, Sergeant Brett Hollister, and Officer Brandon Roberts. The

court also denied summary judgment as to all defendants on plaintiff’s state-law

claims.

      Sheriff Shoemaker and Sergeant Hollister then appealed the district court’s

decision denying them qualified immunity with regard to plaintiff’s § 1983


*
 (...continued)
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                        -2-
claims. In an unpublished order and judgment, another panel of this court

reversed the district court’s denial of qualified immunity for Sheriff Shoemaker

and Sergeant Hollister and remanded the case with a mandate for the district court

to enter summary judgment in their favor on plaintiff’s federal constitutional

claims. See Gaston v. Ploeger, 229 F. App’x 702, 704, 710-13 (10th Cir. 2007).

However, because Officer Brandon Roberts’ name did not appear in the text or

caption of the notice of appeal filed on behalf of Sheriff Shoemaker and Sergeant

Hollister, the panel concluded that it lacked jurisdiction to consider whether

Officer Roberts was entitled to summary judgment based on qualified immunity.

Id. at 708-09. Nonetheless, the panel noted that, “[o]f course, Officer Roberts

may again assert qualified immunity later in the [remand] proceedings. See

Langley v. Adams County, 987 F.2d 1473, 1481 n.3 (10th Cir. 1993). Nothing we

say here is meant to indicate any opinion about whether Officer Roberts is

entitled to qualified immunity.” Id. at 709 n.5.

      In the remand proceedings before the district court, plaintiff’s remaining

claims were her § 1983 claim against Officer Roberts and her state-law

negligence claims against all defendants. As expressly permitted by an amended

pretrial order that the district court entered following this court’s remand,

see Aplt. App., Vol. III, Tab 15 at 400, Officer Roberts then filed: (1) a motion to

dismiss all of plaintiff’s claims on the grounds of lack of personal jurisdiction and

statute of limitations; and (2) a second motion for summary judgment on

                                          -3-
plaintiff’s § 1983 claim based on qualified immunity. In addition, all of the

defendants filed a motion asking the district court to decline to exercise

supplemental jurisdiction over plaintiff’s state-law claims. In a thorough and

well-reasoned memorandum and order, the district court denied Officer Roberts’

motion to dismiss, but granted his second motion for summary judgment. See

Gaston v. Ploeger, No. 04-2368-DJW, 2008 WL 169814, at *1-6, *14 (D. Kan.

Jan. 17, 2008). The court also declined to exercise supplemental jurisdiction over

plaintiff’s state-law claims, and it dismissed those claims without prejudice. Id.

at *16. Plaintiff is now appealing the grant of summary judgment in favor of

Officer Roberts and the dismissal of her state-law claims, and Officer Roberts is

cross-appealing the denial of his motion to dismiss. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm the grant of summary judgment in favor of Officer

Roberts on plaintiff’s § 1983 claim and dismiss his cross-appeal as moot. We

also affirm the dismissal of plaintiff’s state-law claims.

                                   I. Background.

      The background facts pertaining to Mr. Belden’s suicide, which are either

undisputed or viewed in the light most favorable to plaintiff’s case, are set forth

in detail in: (1) the order and judgment that was entered in the prior appeal to this

court, see Gaston, 229 F. App’x at 704-07; and (2) the memorandum and order

entered by the district court in January 2008, see Gaston, 2008 WL 169814,




                                          -4-
at *6-9. We will assume a working familiarity with the background facts

pertaining to Mr. Belden’s suicide, and we will not repeat those facts here.

                              II. Standard of Review.

      “This court reviews the district court’s summary judgment decision

de novo, viewing the evidence in the light most favorable to the non-moving

party; in this case, in [plaintiff’s] favor.” Herrera v. Lufkin Indus., Inc., 474 F.3d

675, 679-80 (10th Cir. 2007). Summary judgment is appropriate “if the

pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

      We review the district court’s decision to decline to exercise supplemental

jurisdiction over plaintiff’s state-law claims for an abuse of discretion. Exum v.

U.S. Olympic Comm., 389 F.3d 1130, 1139 (10th Cir. 2004). In accordance with

28 U.S.C. § 1367(c)(3), a district court has the discretion to decline to exercise

supplemental jurisdiction over a state-law claim if “the district court has

dismissed all claims over which it has original jurisdiction.” See also Smith v.

City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir. 1998)

(“When all federal claims have been dismissed, the court may, and usually

should, decline to exercise jurisdiction over any remaining state claims.”); Ball v.

Renner, 54 F.3d 664, 669 (10th Cir. 1995) (noting that, when a state-law claim is

no longer supplemental to any federal question claim, “the most common

                                         -5-
response to a pretrial disposition of federal claims has been to dismiss the state

law claim or claims without prejudice”).

        III. Qualified Immunity and Deliberate Indifference Standard.

      As noted above, Officer Roberts moved for summary judgment on

plaintiff’s § 1983 claim based on the doctrine of qualified immunity. When a

defendant in a § 1983 case has asserted qualified immunity, the burden shifts to

the plaintiff to establish that: (1) the defendant violated a constitutional right; and

(2) at the time of the incident, it was clearly established that the defendant’s

conduct amounted to a constitutional violation. See Saucier v. Katz, 533 U.S.

194, 201 (2001); Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007)

(en banc). Here, the district court granted summary judgment in favor of Officer

Roberts because it concluded that plaintiff had put forth insufficient evidence to

establish that Officer Roberts violated a constitutional right belonging to

Mr. Belden on the day he committed suicide. See Gaston, 2008 WL 169814,

at *14. As a result, the court did not need to address the second prong of the

qualified-immunity inquiry.

      In the prior appeal to this court, we summarized the legal standards that

govern claims arising from prisoner suicides as follows:

             Although “neither prison officials nor municipalities can
      absolutely guarantee the safety of their prisoners[,t]hey are, . . .
      responsible for taking reasonable measures to [e]nsure the safety of
      inmates.” Lopez v. LeMaster, 172 F.3d 756, 759 (10th Cir. 1999)
      (internal citation omitted). Accordingly, a jailer violates the Eighth

                                           -6-
      Amendment if he shows deliberate indifference to a convicted
      inmate’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104,
      (1976); see also Farmer v. Brennan, 511 U.S. 825, 834 (1994).
      “Under the Fourteenth Amendment’s due process clause, pretrial
      detainees . . . are entitled to the same degree of protection as that
      afforded convicted inmates under the Eighth Amendment.”
      Frohmader [v. Wayne, 958 F.2d 1024, 1028 (10th Cir. 1992)];
      see also Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979).

             Claims arising from a failure to prevent prisoner suicide “are
      considered and treated as claims based on the failure of jail officials
      to provide medical care for those in their custody.” Barrie [v. Grand
      County, Utah, 119 F.3d 862, 866 (10th Cir. 1997)]. Thus, a plaintiff
      bringing such a claim must prove that his jailer was “deliberately
      indifferent to a substantial risk of suicide.” Id. at 869 (internal
      quotation marks omitted). “Deliberate indifference has objective and
      subjective components.” Callahan v. Poppell, 471 F.3d 1155, 1159
      (10th Cir. 2006). The objective component of the test is met if the
      harm suffered was sufficiently serious. Id. Obviously, suicide
      satisfies this requirement. See Collins v. Seeman, 462 F.3d 757, 760
      (7th Cir. 2006) (“[I]t goes without saying that suicide is a serious
      harm.”).

             The subjective component of the test requires a showing that
      the defendant acted with a culpable state of mind. In Farmer v.
      Brennan, the Supreme Court observed that the required mens rea lies
      “somewhere between the poles of negligence at one end and purpose
      or knowledge at the other . . . .” 511 U.S. at 836. The Court then
      held that “a prison official cannot be found liable . . . unless the
      official knows of and disregards an excessive risk to inmate health or
      safety; 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.” Id. at 837.

            The Court made clear that the defendant’s knowledge of a
      substantial risk may be proven by circumstantial evidence, including
      evidence “that the risk was obvious.” Id. at 842. However, the
      threshold for obviousness is very high.

Gaston, 229 F. App’x at 709-10 (parallel citations omitted).


                                        -7-
                                   IV. Analysis.

      As noted above, the district court initially concluded that neither Officer

Roberts nor Sergeant Hollister were entitled to qualified immunity on plaintiff’s

§ 1983 claims. In its subsequent memorandum and order granting summary

judgment in favor of Officer Roberts, the district court explained its initial

reasoning as follows:

      [T]his Court acknowledged that both Officer Roberts and Sergeant
      Hollister denied knowledge of Belden’s inclination toward suicide.
      With that said, however, the Court found there was a genuine issue of
      material fact regarding whether the risk of Belden committing suicide
      was so substantial or pervasive that knowledge by Officer Roberts
      and Sergeant Hollister could be inferred. More specifically, the
      Court concluded that the . . . evidence was sufficient for a jury to
      find that Belden was exhibiting strong signs of suicidal tendencies,
      that these two jail officials had actual – or inferred – knowledge of,
      or were wilfully blind to, the specific risk that Belden would commit
      suicide, and that these jail officials then failed to take steps to
      address that known and specific risk[.]

Gaston, 2008 WL 169814, at *11.

      As also noted above, Sergeant Hollister, Officer Roberts’ immediate

supervisor, appealed the district court’s decision that he was not entitled to

qualified immunity. On appeal, another panel of this court concluded that the

evidence in the record, viewed in the light most favorable to plaintiff, failed to

establish that Sergeant Hollister was deliberately indifferent to the risk that

Mr. Belden would commit suicide. The panel therefore reversed the district

court’s denial of qualified immunity for Sergeant Hollister and directed that


                                         -8-
summary judgment be entered in his favor. Because its analysis is dispositive of

Officer Roberts’ current appeal, we quote and incorporate herein the entirety of

the panel’s reasoning regarding Sergeant Hollister:

             The magistrate judge denied Sergeant Hollister’s motion for
      summary judgment because “the evidence presented raises a genuine
      issue of material fact regarding whether Plaintiff can establish . . .
      (1) whether Defendant Hollister . . . had knowledge of the specific
      risk that Belden would attempt to commit suicide; or (2) whether the
      evidence demonstrates that the risk of Belden committing suicide
      was so substantial or pervasive that knowledge by [Sergeant
      Hollister] can be inferred.” He contends that the evidence in the
      record, viewed in the light most favorable to Ms. Gaston, cannot
      establish that he was deliberately indifferent to the risk that
      Mr. Belden would kill himself. We agree.

             The magistrate judge relied on the following evidence in
      reaching the conclusion that Sergeant Hollister was not entitled to
      qualified immunity: (1) Mr. Belden’s cellmates observed suicidal
      behavior and heard him discussing suicide; (2) Mr. Belden was not a
      disciplinary problem until the day of his death; (3) Mr. Belden
      received a letter from Ms. Renz on the day of his death and Sergeant
      Hollister was aware of the receipt and contents of the letter;
      (4) Sergeant Hollister had training in detecting suicidal inmates;
      (5) Sergeant Hollister placed Mr. Belden in a single-person cell;
      (6) Mr. Belden plugged the toilet in his new cell; (7) Officer Roberts
      told Sergeant Hollister about Mr. Belden’s continued insubordination
      between 4:00 and 6:40 p.m.; (8) Sergeant Hollister instructed Officer
      Roberts to remove the paper from Mr. Belden’s cell window and
      transfer him to Cell 14; (9) Cell 14 was the suicide watch cell; and
      (10) Sergeant Hollister never followed-up with Officer Roberts to
      check on the situation with Mr. Belden.

            Much of this evidence has no bearing on whether Sergeant
      Hollister knew that Mr. Belden was suicidal. For example, the
      magistrate judge noted that there was no evidence that Sergeant
      Hollister was aware of the suicidal behavior observed by
      Mr. Belden’s cellmates. Indeed, the inmates uniformly stated that
      they had not told any jail officials about their observations because

                                        -9-
they did not believe Mr. Belden was suicidal. Nevertheless, the
magistrate judge believed that a jury could find that:

      [I]f the jailers had been properly monitoring the inmates, the
      jailers would have heard Belden talk about suicide, would have
      observed Belden give away his food, would have watched
      Belden repeatedly rock back and forth on his bed, and would
      have noticed Belden tying his shoelaces together to test the
      ability of the shoelaces to hold his body weight.

This is hardly a proper inference to be drawn from the evidence
because it presumes that jailers have a constitutional duty to monitor
inmates constantly. However, jailers are neither obligated nor able to
watch every inmate at every minute of every day. The record is clear
that Sergeant Hollister and his colleagues were not aware of the
strange behavior described by Mr. Belden’s cellmates. Under these
circumstances, we would not permit a jury to infer that their failure
to notice contributed to the “higher degree of fault than negligence”
required for deliberate indifference. Berry v. City of Muskogee,
900 F.2d 1489, 1495 (10th Cir. 1990).

       With respect to the letter from Ms. Renz, Sergeant Hollister
testified that:

      A. He received a letter through the mail. It had been logged
      in by the jailers.

      Q. That letter, did anyone at the jail look at that before they
      gave it to him?

      A. Apparently so because the other dayshift jailer had
      mentioned it to me that . . . [Ms. Renz] wanted to know why he
      wouldn’t come to the window when she honked.

      Q. Did you ever observe that letter?

      A. I don’t remember.

The letter is not in the record, and nothing in the record further
illuminates its contents. Nevertheless, the magistrate judge
seemingly presumed that it was a “Dear John” letter. This is pure

                                  -10-
speculation that finds no support in the record. According to Deputy
Brammer, Ms. Renz arrived at the hospital soon after Mr. Belden was
taken there. She told the emergency room physician that she had
spoken with Mr. Belden the day before and that “[h]e told her that he
loved her but did not make any suggestion that he might be
particularly depressed or suicidal.” From this evidence, a jury would
have no basis for inferring that there was anything amiss in
Mr. Belden’s relationship with Ms. Renz, let alone that the
defendants were aware of it and deliberately indifferent to its effect
on his mental state.

        Sergeant Hollister admitted that Mr. Belden was generally
a well-behaved inmate prior to August 14, 2002, and he agreed that
a sudden shift in behavior can be a harbinger of suicide. However,
he testified unequivocally that Mr. Belden’s behavior did not
dramatically change on the day he ended his life, and he viewed
Mr. Belden’s conduct as a disciplinary issue only. He explained:
“I didn’t know he was suicidal. . . . [H]e was just being
uncooperative because he didn’t want to be removed from that cell
because I believe that that [sic] window had been altered to get
contraband into the facility, so he didn’t want to move because of
possibly getting contraband.” Sergeant Hollister further testified
that, in light of his drug history, Mr. Belden could be expected to be
angry about being moved into a cell in which he would not be able to
receive contraband. Still, “[h]e wasn’t that upset when I moved him.
He argued the point. He said well I don’t want to move. . . . He was
never out of control. He did not yell or scream.”

       Nevertheless, Sergeant Hollister later ordered Officer Roberts
to move Mr. Belden to Cell 14, the suicide watch cell. He also chose
not to call Officer Roberts to verify that his orders had been carried
out because “I didn’t believe there would be a problem with him
later. If he had a second jailer or an officer [with Officer Roberts]
I didn’t feel there was going to be a problem. He had already
complied when two people were there.”

       Certainly, a jury would be entitled to disbelieve Sergeant
Hollister’s testimony. However, the rigorous deliberate indifference
standard requires knowledge that an inmate is suicidal or a risk that
is so obvious and substantial that knowledge can be inferred. We
would not permit a jury to infer knowledge simply from the fact that

                                 -11-
      Sergeant Hollister instructed Officer Roberts to move Mr. Belden to
      Cell 14 because it is undisputed that Cell 14 was not solely used as a
      suicide watch cell. Moreover, the record contains no evidence that
      Mr. Belden’s behavior was unusual for an inmate, especially an
      inmate who had been deprived of his access to contraband and moved
      to an isolated cell without a working television. Sergeant Hollister’s
      suicide prevention training left him sensitive to clues of possible
      suicide, but there is no evidence that Mr. Belden exhibited any of
      these tendencies. He simply was not an obvious suicide risk.
      Because there is no evidence that Sergeant Hollister considered
      Mr. Belden suicidal, he could not have been deliberately indifferent
      to the risk of suicide. Accordingly, we conclude that he is entitled to
      qualified immunity.

Gaston, 229 F. App’x at 710-12 (citations to prior record on appeal omitted).

      Following this court’s remand back to the district court, Officer Roberts

filed his second motion for summary judgment based on qualified immunity. In

light of this court’s grant of summary judgment in favor of Sergeant Hollister, the

district court granted the motion, reasoning as follows:

             Upon consideration of Brandon Roberts’ second motion for
      summary judgment, and applying the analysis set forth by the Court
      of Appeals in its opinion to the undisputed facts, the Court has no
      choice but to find that Brandon Roberts, like Sergeant Hollister, is
      entitled to qualified immunity. In support of this conclusion, the
      Court refers to the following unequivocal findings by the Tenth
      Circuit in its opinion: First, a jailer does not have a constitutional
      duty to monitor inmates constantly, and thus it would be improper to
      permit a jury to infer that a jailer’s failure to notice contributed to
      the “higher degree of fault than negligence” required for deliberate
      indifference. Second, there is no evidence to suggest the letter from
      Belden’s fiancé was a “Dear John” letter, and thus a jury would have
      no basis for inferring that there was anything amiss in Belden’s
      relationship with his fiancé, let alone that any jailer was aware of it
      and deliberately indifferent to its effect on Belden’s mental state.
      Third, given the deliberate indifference standard requires knowledge
      that an inmate is suicidal or a risk that is so obvious and substantial

                                        -12-
      that knowledge can be inferred, the Court of Appeals held it would
      not permit a jury to infer knowledge that Belden was suicidal simply
      from the fact that Sergeant Hollister instructed Officer Roberts to
      move Belden to Cell 14. More specifically, the Court of Appeals
      found Cell 14 was not solely used as a suicide watch cell and that the
      record contains no evidence that Belden’s behavior was unusual for
      an inmate.

             Although made in support of the decision that Officer Hollister
      is entitled to qualified immunity, there is no question that each of the
      findings made by the Tenth Circuit in its opinion apply just as
      equally to Defendant Brandon Roberts. Although this Court
      previously made contrary findings under the facts presented and the
      applicable law, these findings are not now cognizable given the
      Court’s obligation under the Tenth Circuit’s mandate to accept and
      apply the Court of Appeals’ determination. Accordingly, this Court
      finds that Brandon Roberts is entitled to qualified immunity and
      summary judgment will be granted in his favor with regard to
      Plaintiff’s 42 U.S.C. § 1983 claims.

Gaston, 2008 WL 169814, at *14 (footnote omitted).

      We fully agree with the district court’s well-reasoned analysis, and we

reject out of hand plaintiff’s argument that the district court erred in allowing

Officer Roberts to file a second motion for summary judgment. See Langley,

987 F.2d at 1481 n.3 (stating that “qualified immunity can be raised at any time

and a district court may enter summary judgment on that ground ‘at any point

before trial’ at which it is appropriate”) (quoting Mee v. Ortega, 967 F.2d 423,

430 n.5 (10th Cir. 1992)). That said, we commend plaintiff’s counsel for the

quality of the briefs submitted to this court on plaintiff’s behalf. Nonetheless, as

defense counsel has succinctly argued, the deliberate indifference standard

presents an insurmountable hurdle for plaintiff’s claims against Officer Roberts:

                                         -13-
      [P]laintiff’s [appellate] argument[s] center[] around her accusations
      of what Officer Roberts should or should not have done with regard
      to removing the paper from Mr. Belden’s window, whether he
      notified dispatch of the need for a deputy to assist him, whether he
      interviewed other inmates, and exactly how long the paper covered
      Mr. Belden’s cell window. This second guessing is wholly
      irrelevant, however, to the issue of whether Officer Roberts was
      deliberately indifferent to a known risk that Mr. Belden would
      commit suicide. A conclusion that Officer Roberts should have done
      more is insufficient, because the constitutional claims require a
      showing much higher than what is required for mere negligence.
      “[A]n official’s failure to alleviate a significant risk that he should
      have perceived but did not, while no cause for commendation, cannot
      under our cases be condemned as the infliction of punishment.”
      Farmer, 511 U.S. 838.

Aplees. Br. at 28-29.

      Finally, the district court did not abuse its discretion in declining to

exercise supplemental jurisdiction over plaintiff’s state-law negligence claims.

After the district court granted summary judgment in favor of Officer Roberts,

there were no remaining federal question claims in the case, and plaintiff has

never sought to establish diversity of citizenship jurisdiction with regard to

her state-law claims. Under those circumstances, 28 U.S.C. § 1367(c)(3)

expressly permits a district court to decline to exercise supplemental jurisdiction

over any remaining state-law claims, and we have repeatedly recognized that this

is the preferred practice. See, e.g., Smith, 149 F.3d at 1156; Ball, 54 F.3d at 669.




                                         -14-
     The judgment of the district court is AFFIRMED. Officer Roberts’

cross-appeal is DISMISSED as moot.


                                               Entered for the Court


                                               Bobby R. Baldock
                                               Circuit Judge




                                     -15-
