       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT United States Court of Appeals
                                               Fifth Circuit

                                                               FILED
                                                             January 30, 2008
                             No. 07-30104
                                                       Charles R. Fulbruge III
                                                               Clerk
JOSEPH ANTHONY MATIS, SR, Individually and on Behalf of His Deceased
Son, Michael Anthony Wajda

                                      Plaintiff - Appellee
v.

LASHON NICHELLE JOHNSON

                                      Defendant - Appellant

v.

AVERY PETER JOSEPH, Sergeant; KEITH COXIE, Captain; LEON
WALKER, Major; ST JAMES YOUTH CENTER, ST JAMES PARISH

                                      Defendants - Appellees

******************************************************************
TONI LYNN ZELLER, Individually and on Behalf of Her Deceased Son,
Michael Anthony Wajda

                                      Plaintiff - Appellee
v.

LASHON NICHELLE JOHNSON

                                      Defendant - Appellant

v.

AVERY PETER JOSEPH, Sergeant; KEITH COXIE, Captain; LEON
WALKER, Major; ST JAMES YOUTH CENTER, ST JAMES PARISH

                                      Defendants - Appellees
                                       No. 07-30104



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:06-CV-534


Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Joseph Anthony Matis, Sr. and Toni Lynn Zeller filed suit under 42 U.S.C.
§ 1983 seeking damages as a result of the suicide of their sixteen-year-old son
Michael Anthony Wajda, who was in custody as a pretrial detainee at the St.
James Youth Center. The district court granted summary judgment based on
qualified immunity to all the individual defendants except for Nurse Lashon
Nichelle Johnson. Johnson filed this interlocutory appeal from the denial of
qualified immunity. Finding that we lack jurisdiction, we dismiss the appeal.
       Wajda was admitted to the St. James Youth Center on December 15, 2004,
after he was taken into custody on his father’s complaint that he was
ungovernable.        Wajda had a long and troubled psychological history.
Approximately thirteen months prior to his arrest, Wajda had tried to commit
suicide during a previous custodial stay at the same youth center. When he was
admitted again in December 2004, Wajda was taking medication for a bipolar
disorder. Nurse Johnson participated in Wajda’s admission and knew about
both the prior suicide attempt and the medication. Johnson did not, however,
place Wajda on suicide watch, nor did she complete a required history form
containing questions about prior treatment for mental conditions and prior
suicide attempts. If Wajda had been asked these questions and answered
affirmatively, he would have been referred for further evaluation by a social

       *
         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.

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                                   No. 07-30104

worker for placement on suicide watch. Nurse Johnson testified that Wajda
appeared to be happy and that she did not observe any signs of distress that
would indicate he was suicidal. The district court found, however, that Wajda
had exhibited signs of self-mutilation and that two witnesses said that he was
upset and fidgety. Johnson testified that self-mutilation was one sign for which
she had been trained to look as an indicator of suicidal tendencies. Wajda
hanged himself in his room approximately eight hours after being admitted to
the youth center.
      Johnson argues on appeal that the district court incorrectly held that she
had the ultimate burden of establishing the qualified immunity defense and
incorrectly treated qualified immunity as a question of fact. She also argues that
the plaintiffs failed to show an issue of fact that she was subjectively deliberately
indifferent to a risk that Wajda was suicidal and that her conduct was
objectively reasonable under the circumstances.
      On an interlocutory appeal from the denial of qualified immunity, we may
review the appeal only to the extent that it turns on the legal question whether
the defendant is entitled to qualified immunity on the facts that the district
court found were sufficiently supported in the record. Kinney v. Weaver, 367
F.3d 337, 347 (5th Cir. 2004) (en banc). In other words, we lack jurisdiction to
review whether any factual issues the district court found are genuine; we may
review only whether those questions are material. Thompson v. Upshur County,
245 F.3d 447, 455–56 (5th Cir. 2001).
      The test for qualified immunity asks whether the defendant violated a
federal constitutional right on the facts alleged and whether the right was
clearly established. McClendon v. City of Columbia, 305 F.3d 314, 322–23 (5th
Cir. 2002) (en banc). The defendant is entitled to qualified immunity if her
actions were objectively reasonable in light of the clearly established legal rules
at the time of the violation. Id. at 323.

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      A pretrial detainee has a clearly established right under the Due Process
Clause of the Fourteenth Amendment to be protected from known suicidal
tendencies. Flores v. County of Hardeman, 124 F.3d 736, 738 (5th Cir. 1997).
The key to proving a violation of this right is for the plaintiff to show that the
defendant acted with subjective deliberate indifference. Id. The deliberate
indifference standard requires a showing that the defendant knew the detainee
faced a substantial risk of serious harm, yet disregarded that risk by failing to
take reasonable measures to abate the risk. See Farmer v. Brennan, 511 U.S.
825, 847, 114 S. Ct. 1970, 1984 (1994).
      In the instant case, the district court explicitly stated that it must grant
the defendant qualified immunity unless the plaintiff demonstrated that the
defendant had subjective knowledge of a substantial risk of severe harm to the
pretrial detainee but responded to that risk with deliberate indifference.
Although the district court used language earlier in its opinion that the
defendant has the ultimate burden of establishing the qualified immunity
defense, the court did not hew to that statement and properly assigned the
burden to the plaintiffs. See Pierce v. Smith, 117 F.3d 866, 872 (5th Cir. 1997)
(“We do not require that an official demonstrate that he did not violate clearly
established federal rights; our precedent places that burden upon plaintiffs.”
(internal quotation marks and citation omitted)).
      Turning to the merits of the qualified immunity issue, the district court
held that a jury could determine that Nurse Johnson acted with deliberate
indifference because she had actual knowledge of Wajda’s prior suicide attempt
and failed to properly complete the intake form that would have revealed
Wajda’s suicide risk to other staff members. The district court also noted
Johnson’s knowledge of Wajda’s use of psychotropic medication for bipolar
disorder and signs of self-mutilation, as well as other testimony that Wajda was
upset and fidgeting, all of which tend to contradict Johnson’s claim that Wajda

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appeared happy. We also note evidence in the record that Wajda’s father stated
that he told the arresting officers that Wajda was suicidal. Wajda also told
Johnson that he had not taken his daily medication at the time of his admission
to the youth center.
      By concluding that a jury could find that Johnson acted with deliberate
indifference, the district court found a fact issue as to the defendant’s subjective
state of mind. See Farmer, 511 U.S. at 842, 114 S. Ct at 1981 (noting that a
prison official’s subjective state of mind is a question of fact). As noted above, we
do not have jurisdiction to review the district court’s assessment regarding the
sufficiency of the evidence. See Kinney, 367 F.3d at 346–47. We may consider
only whether the factual issues are material to the qualified immunity analysis.
See Meadours v. Ermel, 483 F.3d 417, 422 (5th Cir. 2007). We conclude that
Johnson’s knowledge of Wajda’s demeanor, physical condition, and prior suicide
attempt, and her reasons for failing to complete the intake form required by the
policy manual, present material issues as to her actual knowledge of Wajda’s
suicidal tendencies. The district court did not err in assessing the legal
significance of the evidence. See Kinney, 367 F.3d at 348.
      APPEAL DISMISSED.




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