                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                            F I L E D
                    In the                                   May 30, 2007
United States Court of Appeals                         Charles R. Fulbruge III
          for the Fifth Circuit                                Clerk
               _______________

                 m 06-11215
               Summary Calendar
               _______________




                JIMMY WHITT,
 INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE
  OF THE ESTATE OF JAMIE EARL WHITT, DECEASED,


                                    Plaintiff-Appellant,

                    VERSUS

             STEPHENS COUNTY;
              JAMES D. REEVES,
         SHERIFF OF STEPHENS COUNTY,
  INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
                      AND
     JOHN DOES NUMBERS 1 THROUGH 5,

                                    Defendants-Appellees,



         _________________________

   Appeal from the United States District Court
       for the Northern District of Texas
                 m 1:06-CV-22
     ______________________________
BEFORE DAVIS, SMITH, and OWEN,                            a suicide risk, so he confined him to a general
  Circuit Judges.                                         cell without any special instructions.1 A little
                                                          more than five hours after Jamie was admitted
JERRY E. SMITH, Circuit Judge.*                           to the jail, he was found dead in his cell, ap-
                                                          pearing to have hung himself with a leather
    Jimmy Whitt (“Whitt”) brought this 42                 belt he had tied to a pipe running along the
U.S.C. § 1983 action against Stephens Coun-               ceiling.
ty, James Reeves in his individual capacity and
as Sheriff of Stephens County, and five un-                                        II.
known employees for damages stemming from                     Whitt sued, alleging two alternative theo-
the death of his son, Jamie Whitt (“Jamie”), at           ries of liability: that the county and the indi-
the county jail. The county and Reeves filed a            vidual defendants had violated Jamie’s rights
joint motion for summary judgment based on                under the Fourth and Eighth Amendments to
qualified immunity, which was granted in part             receive appropriate treatment for a mental or
and denied in part. Whitt appeals, and we                 medical condition while in custody; and that
affirm.                                                   the individual defendants had harassed, as-
                                                          saulted, attacked, beaten, and tortured Jamie,
                        I.                                causing his death. The defendants jointly
    Jamie was arrested and jailed. Upon Jam-              moved to dismiss based on qualified immunity.
ie’s arrival, jailer Kyle Buce administered a             The district court granted the motion for
Mental Disability/Suicide Intake Screening                qualified immunity of the John Does and Sher-
Form adopted by the Texas Commission on                   iff Reeves in their individual capacity with
Jail Standards (“TCJS”). Jamie responded                  regard to the former claim of failure to provide
negatively when asked whether he had at-                  appropriate treatment and denied the motion
tempted suicide; had thoughts about killing               with regard to the latter claim.2 Whitt appeals
himself; was considering killing himself that             that order.
day; had ever had long periods without sleep;
or had had periods of particular excitement.                                     III.
Jamie answered affirmatively to only one ques-                We review a summary judgment de novo,
tion, whether he had “experienced a recent                using the same standard applicable in the dis-
loss or death [of] a family member or friend or           trict court. Olabisiomotosho v. City of Hous-
[whether he was] worried about major                      ton, 185 F.3d 521, 525 (5th Cir.1999). “After
problems other than [his] legal situation.”               consulting applicable law to ascertain the ma-
                                                          terial factual issues, we consider the evidence
   Buce also noted that Jamie appeared to be
in a good mood, was not acting in a strange
manner, and did not exhibit any signs of de-                 1
                                                               The TCJS has promulgated extensive pro-
pression. Buce concluded that Jamie was not
                                                          cedures for monitoring inmates who present a risk
                                                          of suicide. It is undisputed that these procedures
                                                          were not followed here.
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                             2
termined that this opinion should not be published             Whitt’s alternative allegation, that the defen-
and is not precedent except under the limited cir-        dants attacked and killed Jamie, is not at issue in
cumstances set forth in 5TH CIR. R. 47.5.4.               this appeal.

                                                      2
bearing on the issues, viewing the facts and the           Whitt’s evidence, even taken in the light
inferences to be drawn therefrom in the light           most favorable to him, is plainly insufficient to
most favorable to the nonmovant.” Id. “Sum-             demonstrate that the individual officials had
mary judgment is properly granted if ‘the               actual knowledge that the decedent was a sui-
pleadings, depositions, answers to interrogato-         cide risk. Whitt relies on a single affirmative
ries, and admissions on file, together with the         answer on an intake screening exam, where
affidavits, if any, show that there is no genuine       Jamie indicated that he had either recently lost
issue as to any material fact and that the mov-         a family member or friend or was worried
ing party is entitled to judgment as a matter of        about major problems other than his arrest.
law.’” Id. (quoting FED. R. CIV. P. 56(c)).             Whitt has made no showing that all officers
                                                        would interpret an affirmative answer to this
    “[G]overnment officials performing discre-          question as evidence that the defendant was a
tionary functions generally are shielded from           suicide risk.
liability for civil damages insofar as their con-
duct does not violate clearly established statu-           “If officers of reasonable competence could
tory or constitutional rights of which a reason-        disagree on an issue, immunity should be rec-
able person would have known.” Harlow v.                ognized.” Malley v. Briggs, 475 U.S. 335,
Fitzgerald, 457 U.S. 800, 818 (1982). In                341 (1986). No officers report observing any
evaluating an assertion of qualified immunity,          troubling behavior from Jamie. Even if offi-
we conduct a two-prong inquiry. McClendon               cers were negligent in failing to assess and
v. City of Columbia, 305 F.3d 314, 322 (5th             monitor Jamie properly, liability will not attach
Cir. 2002) (en banc). First, we ask “whether            for negligence.
a constitutional right would have been violated
on the facts alleged.” Id. at 322-23. Second,              The majority of Whitt’s evidence demon-
we ask whether the constitutional right was             strates the failure of the individual officers and
“clearly established.” Id. at 323.                      the jail to follow protocols mandated by Texas
                                                        law and administratively adopted by the TCJS.
    States owe a duty under the Due Process             It is well established that violations of state
Clause to provide pretrial detainees with basic         law are not actionable under § 1983.3
human needs, including medical care and pro-            “[O]fficials sued for violations of rights con-
tection from harm, during their confinement.            ferred by a statute or regulation, like officials
Hare v. City of Corinth, 74 F.3d 633, 650 (5th          sued for violation of constitutional rights, do
Cir. 1996) (en banc). Liability will not attach         not forfeit their immunity by violating some
for an episodic act or omission “unless the of-         other statute or regulation.” Davis v. Scherer,
ficial had subjective knowledge of a substantial        468 U.S. 183, 194 n.12 (1984). The adminis-
risk of serious harm to a pretrial detainee but         trative protocols do not establish constitutional
responded with deliberative indifference to that        rights to treatment for detainees, nor do they
risk.” Id. This standard encompasses two                so purport. Additionally, even if Whitt’s
parts: (1) The prison official must have “ac-           evidence of insufficient training of jail officials
tual knowledge of the substantial risk of sui-
cide,” and (2) the official must respond with
deliberate indifference. Id.                               3
                                                            San Jacinto Sav. & Loan v. Kacal, 928 F.2d
                                                        697, 701 n.4 (5th Cir. 1991) (citing Jones v.
                                                        Diamond, 594 F.2d 997, 1011 (5th Cir. 1979)).

                                                    3
might support liability against the county, it
will not support liability against the untrained
officers in their individual capacity.4

   The motion to expedite the appeal or to
stay the trial is DENIED. The motion to
vacate the judgment is DENIED. The motion
to remand is DENIED. The judgment is
AFFIRMED.5




   4
     See City of Canton v. Harris, 489 U.S. 378,
388-89; Evans v. Marlin, 986 F.2d 104, 107 (5th
Cir. 1993).
   5
      After this appeal was filed, Whitt moved to
vacate the judgment and remand in light of newly-
discovered evidence that he claims may show that
jail officials were deliberately indifferent in failing
to resuscitate Jamie and in denying medical atten-
tion. Although we deny the motion to vacate, we
express no opinion on the merits of any motion that
might be filed pursuant to Federal Rule of Civil
Procedure 60(b). Our analysis is limited to exam-
ining Whitt’s claim that the prison officials had
actual knowledge that his son was a suicide risk
and that they could be liable under § 1983 for
failure to follow state administrative regulations.

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