            IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                              No. 01-20205
                            Summary Calendar



BRUCE W. SMITH, Etc.; ET AL.,

                                               Plaintiffs,

BRUCE W. SMITH, Individually and as
Representative of the Estate of Justin Wayne
Smith, Deceased; WANDA G. SMITH,
Individually and as Representative of the
Estate of Justin Wayne Smith, Deceased,

                                               Plaintiffs-Appellants,

                                  versus

BYRON KEITH BLUE, Etc., ET AL.,

                                               Defendants,

BYRON KEITH BLUE, Acting Individually
and in his official capacity; ROBERT ALLEN
WYNN, acting individually and in his
official capacity; HARRIS COUNTY,

                                               Defendants-Appellees.


           Appeal from the United States District Court for
                   the Southern District of Texas
                    (USDC No. H-99-CV-1787)
   _______________________________________________________
                           April 12, 2002
Before REAVLEY, HIGGINBOTHAM and WIENER, Circuit Judges.

PER CURIAM:*

       Plaintiffs Bruce and Wanda Smith appeal from the district court’s grant of

summary judgment against them on their civil rights claims stemming from the suicide of

their son, Justin Smith, while in the custody of Harris County at a boot camp for juvenile

offenders. They have abandoned their claims under 42 U.S.C. § 1985 and the Texas Tort

Claims Act and do not appeal the dismissal of civil rights claims against defendant Wynn.

Only their 42 U.S.C. § 1983 claims against Harris County and Byron Blue, a shift

supervisor at the facility, are before us. After a de novo review of the record, we affirm.

A.     Byron Blue

       The district court granted Blue’s motion for summary judgment on qualified

immunity grounds. To determine whether a government official is entitled to qualified

immunity, we determine, “(1) whether the plaintiff has alleged a violation of a clearly

established constitutional right; and (2) if so, whether the defendant’s conduct was

objectively unreasonable in light of clearly established law at the time of the incident.”1

       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
         Jacobs v. West Feliciana Sheriff’s Dep’t., 228 F.3d 388, 393 (5th Cir. 2000). The
Smiths argue that qualified immunity should not even have been triggered in this case because
they claim that Blue had a non-discretionary obligation to make room checks every fifteen
minutes. Fifteen-minute checks of juveniles on temporary confinement were to be made by the
floor supervisor, not the shift supervisor. As a shift supervisor, Blue was responsible for making
regular checks on all temporary confinees every two hours. There is no evidence to contradict his

                                                2
In the present case, the Smiths have alleged an Eighth Amendment violation, arguing that

the Delta 3 facility and Blue failed to provide for Justin’s “basic human needs, including

medical care and protection from harm.”2

        However, they have failed to show that Blue’s conduct was objectively

unreasonable. In the Eighth Amendment context, officials are only liable for episodic

acts or omissions resulting in harm to a prisoner or detainee if they have “subjective

knowledge of the risk of serious harm to a [prisoner] but respond[] with deliberate

indifference.”3 The knowledge of the risk is measured subjectively, because “an

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.”4 In the absence of knowledge that there was a substantial risk Justin

would commit suicide, it is not possible to say that Blue’s alleged failure to check in on

Justin constituted deliberate indifference, and thus could not have been objectively

unreasonable in light of existing case law.5



statement, corroborated by Cheryl Hicks, that he checked rooms at 6:00 p.m. on September 2, his
last scheduled check before Justin hung himself.
        2
            Id. (quoting Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996) (en banc) (Hare
II)).
        3
            Id. at 394 (quoting Hare II, 74 F.3d at 650).
        4
            Farmer v. Brennan, 511 U.S. 825, 838 (1994).
        5
        See Hare v. City of Corinth, 135 F.3d 320, 328-29 (5th Cir. 1998) (Hare III) (“[J]ailers
must take measure to prevent inmate suicides once they know of the suicide risk.”) (emphasis
added).

                                                    3
       We agree with the district court that the plaintiffs have not created a disputed issue

of material fact as to Blue’s subjective knowledge of the risk that Justin would commit

suicide. The Smiths maintain that Blue had actual knowledge of the risk, because of past

instances in which Justin had manifested an intent to harm himself. As recently as

August 27, 1997 Blue had placed Justin in restraints after it was reported to him that

Justin had been found standing on a table or sink with a sheet. Blue marked a report that

he had used restraints because he thought Justin might hurt himself. Blue denies that he

thought the August 27 incident was an attempted suicide, stating in his affidavit that he

assumed Justin had been trying to cover a window with the sheet and that restraints were

needed to prevent Justin from continuing to climb on furniture or fixtures.

       Even if we assumed that the August 27 incident could only have been interpreted

by Blue as a likely suicide attempt, the district court correctly found that to be insufficient

to create a dispute as to whether on the evening of Justin’s suicide almost one week later,

Blue subjectively believed that there was a significant risk Justin would take his own life.

By August 28, Justin had been taken off close observation by other Delta 3 personnel.

Blue stated that since August 27 he had seen and interacted with Justin and he appeared

to be doing well. On the evening that he committed suicide, Justin was not on suicide

watch. He had been placed in “temporary confinement,” a disciplinary measure, before

Blue came on duty. Blue had no psychological training to judge suicide risk. There is no

evidence that on September 2, Justin said or did anything that would have made the risk

of suicide “obvious” to Blue. Finally, the Smiths have no response to Blue’s assertion

                                              4
that he did not think Justin could commit suicide by hanging himself because he thought

the sprinkler head Justin used was designed to prevent that exact occurrence.6

B.     Harris County

       Because there is no evidence that Harris County policymakers acted with

indifference, there is no liability on the part of the County.7 We note also that the

Smiths’ arguments that Harris County violated their son’s rights by “warehousing” him in

a facility lacking the ability to treat depression and other psychological problems, and that

Harris County deliberately attempted to shield itself from liability by building layer upon

layer of bureaucracy, are new on appeal and we decline to review them.8

       Accordingly, we affirm the judgment of the district court.




       6
        The Smiths in fact asserted as a theory in this case that the specially designed sprinkler
head was improperly installed.
       7
           See Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999).
       8
           See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).

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