                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-1081
                                   ___________

Essalene Lambert, for herself            *
and for the benefit of Marsenio          *
Lambert, Khiry Smith, Toris              *
Lambert, Nikkita Lambert, A’Bria         *
Smith, Ashley Lambert, John Henry        *
Lambert, Jr., Clifton Lambert,           *
Raymond Lambert, Floristene              *
Owens, Bettye Murry, Earnestine          *
Jenkins, Diane Davis, Allie              *
Johnson, and Linda Lambert, Heirs        *
of the Estate of David Lambert,          *
Deceased,                                *
                                         *
                          Appellee,      *       Appeal from the United States
                                         *       District Court for the Eastern
             v.                          *       District of Arkansas
                                         *
The City of Dumas, Arkansas; Chief       *
Everett Cox, individually and as         *
Chief of Dumas Police Department;        *
Valerie Bradley, individually and as     *
a police officer of the City of Dumas;   *
Kevin Knight, individually and as        *
a police officer of the City of Dumas;   *
Randy Hilliard, individually and as      *
a police officer of the City of Dumas;   *
Michael Donigan, individually and as     *
a police officer of the City of Dumas;   *
Jane Doe No. 1; John Doe No. 1,          *
individually and as police officers      *
of the City of Dumas,                    *
                                       *
                           Appellants. *
                                   ___________

                              Submitted: June 18, 1999

                                Filed: August 9, 1999
                                    ___________

Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and KYLE,
District Judge.1


KYLE, District Judge.

      On May 14, 1997, David Lambert (“Lambert”) died in his jail cell at the Dumas,
Arkansas Police Department. Essalene Lambert and her family brought this case under
42 U.S.C. § 1983, seeking recovery for unlawful arrest, excessive force, and wrongful
death.2 The City of Dumas and members of its police department appeal the denial of
their motion for summary judgment on the issue of qualified immunity. For the reasons
set forth below, we affirm in part and reverse in part.


      At approximately 3:00 p.m. on May 14, 1997, Dumas Police Officers Randy
Hilliard, Michael Donigan, and Kevin Knight answered a call concerning an attempted



      1
             The Honorable Richard H. Kyle, United States District Judge for the
District of Minnesota, sitting by designation.
      2
              In her Complaint, the Appellee alleged wrongful death by means of
deliberate indifference and, alternatively, by intentional means. Only the Appellee’s
claim for wrongful death by deliberate indifference is currently before the Court.
(See Appellee’s Opp’n Mem. at 16.)
                                          -2-
burglary. Upon arriving at the address given by the caller, the officers encountered
Lambert outside the home of Ruthie Jordan (“Jordan”), the alleged victim of the
burglary. Although the Appellants claim that Lambert was arguing with Jordan, was
unstable on his feet, and was unintelligible in his speech, the Appellee presented
evidence that Lambert was engaged in friendly conversation with Jordan and was not
visibly intoxicated.3


      The Appellant officers placed Lambert under arrest for public intoxication.4
Although Lambert did not resist arrest, he was “violently shoved” and “kicked” into
the patrol car by the officers. At the police station, Lambert was given a blood alcohol
test, registering a blood alcohol level between .24 and .25. During the booking
procedure, a fight occurred between Lambert and four officers, resulting in Lambert
being sprayed with pepper spray or some other kind of chemical restraint. The officers
then carried Lambert to his cell, where he was again sprayed with some type of
chemical restraint. The four officers were identified as Officers Knight, Hilliard,
Donigan and Ashcraft.




      3
             In reviewing the denial of summary judgment, we view the record in a
light most favorable to the nonmovants. See Enterprise Bank v. Magna Bank, 92
F.3d 743, 747 (8th Cir. 1996); see also Fed. R. Civ. P. 56(b).
      4
              It is a class C misdemeanor for a person to appear in public “manifestly
under the influence of alcohol or a controlled substance to the degree and under
such circumstances that he is likely to endanger himself or other persons or
property, or that he unreasonably annoys persons in his vicinity.” Ark. Code Ann. §
5-71-212. A class C misdemeanor is punishable by a sentence not exceeding thirty
days. See Ark. Code Ann. § 5-4-401(b)(3).
                                          -3-
         At approximately 4:00 p.m., Officer Valerie Bradley, the jailer, came on duty.
At 4:30 p.m., while making her rounds through the jail, she told Lambert to quiet down
or he would “get some more.” Approximately fifteen minutes later, Officers Knight,
Hilliard, Donigan and Ashcraft went back to Lambert’s cell where another fight
occurred, again resulting in Lambert being sprayed with chemical restraint. No other
attempts were made by the officers to observe Lambert or to check on his condition.
Throughout this time, Lambert demanded to be released and to talk with the Dumas
chief of police. Lambert was not placed on a suicide watch or in a designated “drunk
tank.”


         At approximately 7:00 p.m., Officer Bradley discovered Lambert’s body hanging
by his jail jumpsuit from his cell door. Upon finding the body, jail officers immediately
called an ambulance. Lambert was pronounced dead upon arrival at the hospital. The
autopsy report ruled Lambert’s death a suicide.


         The Appellee brought the instant case under 42 U.S.C. § 1983, alleging unlawful
arrest, excessive force, and wrongful death by means of deliberate indifference and, in
the alternative, by intentional means. The Appellants moved for summary judgment,
arguing that they were entitled to qualified immunity. The district court denied the
motion, finding material facts to be in dispute on all counts. Addressing separately the
Appellants’ claim of qualified immunity, the court stated that “there is some evidence
that defendants should have known of Lambert’s suicidal tendencies, i.e., the March
28, 1994, incident at the jail when he attempted to swallow a crack pipe and crack




                                           -4-
cocaine.”5 The court further noted that Lambert’s attempt to swallow the crack pipe
was most probably “caused by his desire to destroy evidence.” Nevertheless, giving
the Appellee the benefit of every factual inference, the court found that the Appellants
were not protected by qualified immunity.


I.    Summary Judgment


      Summary judgment is proper if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(b). The
court views the evidence and the inferences which may be reasonably drawn from it in
the light most favorable to the nonmoving party. See Enterprise Bank v. Magna Bank,
92 F.3d 743, 747 (8th Cir. 1996); see also Adkinson v. G.D. Searle & Co., 971 F.2d
132, 134 (8th Cir. 1992). The moving party bears the burden of showing that there is
no genuine issue of material fact and that it is entitled to judgment as a matter of law.
See Enterprise Bank, 92 F.3d at 747; see also Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S. Ct. 2548, 2552 (1986). The nonmoving party must demonstrate the
existence of specific facts that create a genuine issue for trial; mere allegations or
denials are not enough. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106
S. Ct. 2505, 2514 (1986); Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir.

      5
              On an earlier occasion, in March 1994, Lambert had been arrested by
Dumas police for criminal trespass. While he was in handcuffs, the arresting
officers discovered a crack pipe in his pocket. At the police department, while the
officers were completing the paperwork on Lambert’s arrest, Lambert reached
across a counter, grabbed the crack pipe, and swallowed it. Fearing that he may
have injured himself by swallowing the crack pipe, the officers transported Lambert
to a hospital. Although the crack pipe was lodged in his esophagus or stomach,
Lambert was not injured and was returned to the police department.
                                           -5-
1995). Summary judgment is to be granted only where the evidence is such that no
reasonable jury could return a verdict for the nonmoving party. See Liberty Lobby, 477
U.S. at 250, 106 S. Ct. at 2511.


II.    Qualified Immunity

       We review issues of qualified immunity de novo. See Liebe v. Norton, 157 F.3d
574, 576 (8th Cir. 1998). “Qualified immunity shields government officials from suit
unless their conduct violated a clearly established constitutional or statutory right of
which the reasonable person would have known.” Yowell v. Combs, 89 F.3d 542, 544
(8th Cir. 1996) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738
(1982)).   This Court has established a three-part test to determine whether a
government official is protected by qualified immunity: (1) the plaintiff must assert a
violation of a constitutional or statutory right; (2) that right must be clearly established;
and (3) taking all facts in a light most favorable to the plaintiff, there must be no
genuine issues of material fact as to whether a reasonable official would have known
that the alleged action violated that right. See id. The issue of whether summary
judgment on grounds of qualified immunity is appropriate from a particular set of facts
is a question of law. Greiner v. City of Champlin, 27 F.3d 1346, 1352 (8th Cir. 1994).
“But if there is a genuine dispute concerning predicate facts material to the qualified
immunity issue, there can be no summary judgment.” Id.


III.   The Appellants Are Not Entitled to Summary Judgment Regarding the
       Appellee’s Claim for Unlawful Arrest.

       The Appellee alleges the violation of a clearly established constitutional right.
The Fourth Amendment to the Constitution protects the right of the people to be
                                             -6-
“secure in their persons . . . against unreasonable searches and seizures . . . .” U.S.
Const. amend. IV. The Fourth Amendment includes the right to be free from arrest
without probable cause. See Ripson v. Alles, 21 F.3d 805, 807-08 (8th Cir. 1994).


      The Appellee asserts that Lambert was arrested without probable cause, solely
due to his prior interactions with the Dumas police. She alleges that the Dumas police
had become “antagonistic” toward Lambert due to their prior relationship with him and
that the officers were predisposed to arrest Lambert. Moreover, she has presented
evidence that Lambert was not visibly intoxicated and that neither his speech nor his
actions provided the officers with probable cause to arrest him. Consistent with
summary judgment standards, the Court assumes the Appellee’s factual allegations to
be true. Taking these allegations as true, the Court finds that any officer of reasonable
competence would have known that no probable cause existed to arrest Lambert.6 By
arresting him without probable cause, the officers would have known that they were
acting unlawfully.


      The Appellants dispute the Appellee’s factual claims, and contend that Lambert
was unable to stand under his own control and that his speech was slurred and
unintelligible. Such observations would have provided the officers with probable cause
to arrest Lambert. This factual dispute, however, presents a genuine issue of material


      6
             The Appellants’ reliance on the results of a “Portable Breath Test”
given to Lambert after the arrest is misplaced. (See Appellants’ Supp. Mem. at 3-
4.) The relevant inquiry is whether the arresting officers had probable cause to
arrest Lambert at the time of the arrest, not whether the officers’ decision to arrest
Lambert can be justified by information learned after the arrest. See Peterson v.
City of Plymouth, 60 F.3d 469, 473-77 (8th Cir. 1995).
                                           -7-
fact for trial. The district court, therefore, was correct in concluding that the Appellants
were not entitled to summary judgment on the basis of qualified immunity.


IV.    The Appellants Are Not Entitled to Summary Judgment with Respect to the
       Appellee’s Claim of Excessive Force.

       The Appellants contend that they are entitled to qualified immunity with respect
to the Appellee’s claim of excessive force, arguing that Lambert suffered only minor
injuries as a result of the force used by them, which were not sufficiently serious to
support an excessive force claim. (See Appellants’ Supp. Mem. at 4-5; Appellants’
Reply Mem. at 4.)


       This Court has specifically rejected the “significant injury” requirement proposed
by the Appellants. See Dawkins v. Graham, 50 F.3d 532, 535 (8th Cir. 1995).7
“Assuming without deciding that [a plaintiff bringing an excessive force claim against
police officers] must have suffered some minimum level of injury to proceed . . ., we
conclude that the necessary level of injury is actual injury.” Id. In Dawkins, we
concluded that the plaintiffs had suffered “actual injury” because one plaintiff had
sustained bruises and a facial laceration, another sustained bruised knees and elevated
blood pressure, and a third suffered from posttraumatic stress disorder. See id. In the
instant case, the Appellants have conceded that Lambert suffered “[a] single small cut
of the lateral right eyelid and small scrapes of the right posterior knee and upper calf

       7
             In support of their proposed “significant injury” requirement, the
Appellants rely exclusively on Shillingford v. Holmes, 634 F.2d 263, 264 (5th Cir.
1981). The Fifth Circuit, however, expressly abandoned the “significant injury”
requirement for excessive force claims in Harper v. Harris County, 21 F.3d 597, 600
(5th Cir. 1994).
                                            -8-
. . . .” (Appellants’ Supp. Mem. at 4-5.) Assuming -- as we did in Dawkins -- that a
plaintiff bringing an excessive force claim must show “actual injury,” we conclude that
the Appellee’s evidence satisfies such a requirement.


      Again, the Appellants dispute the Appellee’s factual claims regarding the amount
and degree of force used. Such a factual dispute, however, establishes a genuine issue
of material fact for trial precluding summary judgment for the Appellants on their claim
of qualified immunity with respect to the Appellee’s claim of excessive force.


V.    The Appellants Are Entitled to Qualified Immunity with Respect to
      Appellee’s Claim of Wrongful Death Due to Conditions of Confinement.

      The Appellants contend that they are entitled to qualified immunity with respect
to the Appellee’s claim of wrongful death due to the conditions of confinement. A
prisoner’s Eighth Amendment rights are violated if prison officials exhibit deliberate
indifference to the prisoner’s serious medical needs. See Estelle v. Gamble, 429 U.S.
97, 104-105, 97 S. Ct. 285, 291 (1976); see also Farmer v. Brennan, 511 U.S. 825,
828, 114 S. Ct. 1970, 1974 (1994) (holding that a prison official’s deliberate
indifference to a substantial risk of serious harm to an inmate violates the Eighth
Amendment). The right to have medical needs addressed includes the right to be
protected from a known risk of suicide. See Liebe v. Norton, 157 F.3d 574, 577 (8th
Cir. 1998). Qualified immunity does not protect a prisoner’s jailers if they are shown
to have acted with “deliberate indifference to the risk of [the prisoner’s] suicide.”
Rellergert v. Cape Girardeau County, 924 F.2d 794, 796 (8th Cir. 1991). A defendant
cannot be found liable under the “deliberate indifference” standard, however, unless
that defendant “knows of and disregards an excessive risk to inmate health or safety.”

                                          -9-
Farmer, 511 U.S. at 837, 114 S. Ct. at 1979. “The deliberate standard is met only if
there were a ‘strong likelihood, rather than a mere possibility,’ that self-infliction of
harm would result.” Bell v. Stigers, 937 F.2d 1340, 1343 (8th Cir. 1991) (quoting
Edwards v. Gilbert, 867 F.2d 1271, 1276 (11th Cir. 1989)). A showing that a jailer
was negligent in failing to recognize a prisoner’s suicidal tendencies is insufficient to
satisfy this standard. Bell, 937 F.2d at 1343.


      The district court denied the Appellants’ motion for summary judgment on the
Appellee’s conditions-of-confinement claim because it found that “there is some
evidence that the defendants should have known of Lambert’s suicidal tendencies . .
. .” This conclusion, however, is irrelevant to the liability vel non of the Appellants
because it applies an incorrect legal standard. To establish liability for a conditions-of-
confinement claim under the Eighth Amendment, the Appellee must show that the
officers had actual knowledge of a substantial risk of harm to Lambert and then
disregarded that knowledge.        A finding of negligence is insufficient, because
“deliberate indifference” involves a subjective standard of culpability. See Farmer, 511
U.S. at 837, 114 S. Ct. at 1979.


      Prior to the Supreme Court’s decision in Farmer, we had held that a plaintiff
could show “deliberate indifference” in a conditions-of-confinement case by
demonstrating that the defendant “knew or should have known” of a risk of harm to the
plaintiff. See Jensen v. Clarke, 73 F.3d 808, 810-11 (8th Cir. 1996) (explaining the
change in Eighth Amendment jurisprudence brought about by Farmer). In Randle v.
Parker, 48 F.3d 301 (8th Cir. 1995), we made clear that the “knew or should have
known” standard “is nothing more than a common-law tort standard, and has no place

                                           -10-
in Eighth Amendment jurisprudence.” Id. at 304. As we held in Randle, “the objective
standard of culpability is out, and Eighth Amendment conditions-of-confinement cases
. . . must be decided on the basis of a subjective standard of culpability.” Id.


      In the instant case, the Appellee has presented no evidence upon which a
reasonable finder of fact could conclude that any of the Appellants was actually and
subjectively aware of any risk that Lambert may inflict harm upon himself. At no time
during his incarceration did Lambert threaten to commit suicide or otherwise indicate
that he might commit suicide. Lambert was never classified as a suicide risk. The only
conceivable prior indication that Lambert was predisposed to harm himself was the
April 1994 incident when Lambert swallowed a metal crack pipe. (See supra note 5.)
The Appellee has failed, however, to present evidence that any of the Appellants were
present when this incident occurred more than three years earlier, or had any
knowledge of this incident.


      As the Supreme Court held in Farmer, a prison 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 considered as the infliction of punishment.”
Farmer, 511 U.S. at 838, 114 S. Ct. at 1979. Because the Eighth Amendment outlaws
cruel and unusual “punishment” rather than cruel and unusual “conditions,” the Court
rejected the objective standard for imposing liability under the Eighth Amendment. The
Appellee argues that the Appellants should have known of the risk that Lambert posed
to himself. Regardless of the correctness of this contention, she has failed to show that




                                          -11-
any of the Appellants actually knew of this risk.8


      Even if the Appellee could show that one or more of the Appellants had actual
knowledge of the 1994 incident with the crack pipe, we would find this evidence
insufficient to show that the officers knew that Lambert had present suicidal intentions
upon arrest in May 1997, or that there was a “strong likelihood . . . that self-infliction
of harm would result.” Bell, 937 F.2d at 1343. More than three years had elapsed
between the April 1994 crack pipe incident and the May 1997 arrest and confinement,
and any inference of suicidal tendencies that could be drawn from the 1994 incident
would be extremely tenuous. We have serious doubts, therefore, regarding whether the
Appellee’s evidence would constitute grounds for a reasonable finder of fact to
conclude that an officer -- even one who was aware of the 1994 incident -- possessed
actual knowledge that Lambert presented a risk of harm to himself.


      Moreover, even if the 1994 incident could have allowed the officers to infer that
Lambert had present suicidal intentions upon his arrest in May 1997, the Appellee has
presented no evidence that any of the Appellants in fact drew that inference. The fact
that the Appellants failed to prevent Lambert’s suicide is not by itself evidence of


      8
               During oral argument, Appellants’ counsel raised the argument that any
of the individual Appellant officers who were not involved in Lambert’s arrest are
entitled to summary judgment on that claim. This argument -- although certainly
sound as a matter of law -- does not appear to have been raised before the district
court, and it was not briefed by the parties on appeal. Moreover, based upon the
record currently before us, we are unable to determine which officers were involved
in the arrest and which were not. Accordingly, we leave to the district court the
fact-specific determination of which individual Appellants -- if any -- are entitled to
dismissal.
                                           -12-
deliberate indifference. Absent knowledge of a detainee’s suicidal tendencies, failure
to prevent suicide does not constitute deliberate indifference. See Jensen, 73 F.3d at
810-11.


      Accordingly, we affirm the district court’s denial of the motion for summary
judgment with regard to the arrest and the alleged use of excessive force. We reverse
the district court with regard to the Appellee’s claim of wrongful death due to the
conditions of confinement. The case is remanded to the district court for further
proceedings consistent with this opinion.


      A true copy.


             Attest:


                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -13-
