                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                             No.    99-30901




           ELLIS N. RATCLIFF, SR.; FRANCES MAE TAYLOR,

                                                Plaintiffs - Appellants,

                                   VERSUS

                        WILLIS M. DANIEL, ET AL,

                                                                  Defendants,

 WILLIS M. DANIEL; SCOTT BRAUD; RANDALL W. METZ; STEVEN D. NEAL;
                      SPHERE DRAKE INS, PLC,

                                                    Defendants - Appellees.



          Appeal from the United States District Court
              For the Middle District of Louisiana
                            (96-CV-24)
                          June 29, 2000


Before DAVIS, DUHÉ, and DENNIS, Circuit Judges.

DUHÉ, Circuit Judge:1

     Plaintiffs-Appellants Ellis Ratcliff, Sr. and Frances Mae
Taylor (the “Appellants”), the parents of Ellis Ratcliff, Jr.

(“Ratcliff”) brought this Louisiana wrongful death and survivor

action against    Defendants-Appellees William Daniel, Scott Braud,

Randall   Metz,    Steven    Neal,     and     Sphere     Drake     Insurance

(collectively,    the   “Appellees”),       after    Ratcliff     died   while

     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this opinion should not be published and is not precedent except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.
imprisoned at West Feliciana Parish Jail.                 The district court

granted summary judgment in favor of the Appellees. We reverse and

remand.

                              FACTUAL BACKGROUND

     On a Friday, Ratcliff borrowed a friend's car to drive from

Baton Rouge to St. Francisville, La. to assist his family in

preparing for his grandmother's funeral.            En route back to Baton

Rouge, a West Feliciana Parish Sheriff's Deputy discovered that

Ratcliff was driving a stolen car and pulled him over.                 Deputy

Scott Braud (“Braud”) booked Ratcliff at the parish jail. Ratcliff

was upset and crying during the booking, apparently at the prospect

of missing his grandmother's funeral the next day. While Braud did

not indicate on the booking paperwork that Ratcliff posed a suicide

threat, Braud called Sheriff William Daniel (“Daniel”) to ask where

to put Ratcliff.        Daniel directed that Ratcliff be dressed in a

prison jumpsuit and placed in the “detox” cell.                   Daniel also

directed Braud and Deputy Steven Neal (“Neal”) to keep a very close

eye on Ratcliff.        The detox cell is the cell closest to the jail

control   room    and    is   in   a   location   where    the   deputies   can

continuously monitor the resident inmate.

     Ratcliff spent Friday night in the detox cell.              On Saturday,

Ratcliff asked Deputy Daigle (“Daigle”) if he could go to his

grandmother's funeral.         Daigle contacted the Sheriff who stated

that, due to the seriousness of the charges, such a trip would not

be possible.     By Saturday morning, Ratcliff had apparently stopped

crying but, according to Daigle, seemed somewhat upset.              Later on


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Saturday, Ratcliff was moved from the detox cell to cell D.                    Cell

D is more isolated than the detox cell, and the deputies can not

continuously watch an inmate housed in cell D.                    At all relevant

times, Ratcliff was the only inmate in cell D.                A number of other

inmates       stated,   in   deposition       testimony,   that     they   observed

Ratcliff crying and upset off and on during Saturday.

     About 3 p.m. on Saturday, Ratcliff was taken to the “lawyer's

room”    at    the   jail    for   interrogation     by    Deputy    Randall   Metz

(“Metz”).       During the interrogation, Ratcliff asked Metz if he

could be released to go to his grandmother's funeral and Metz

agreed to ask the Sheriff.          Ratcliff was returned to cell D by Metz

sometime between 4-4:30 p.m.

     In his deposition testimony, inmate John Hubbard (“Hubbard”)

stated that he saw something white flash in Ratcliff's cell about

4:20 p.m. Hubbard stated that, given how upset Ratcliff seemed, he

thought Ratcliff might have hanged himself, but he alerted no one.

About 4:35 p.m., inmate Isaac Washington allegedly heard a beating

sound in one of the other cells.              He testified that he hollered to

find out what was going on but got no response.               Around 4:40 p.m.,

an inmate, who was passing out dinner, found Ratcliff hanging from

a bed sheet in cell D.

     Deputies on the scene attempted to revive Ratcliff but to no

avail.    That evening Dr. Emil Laga (“Laga”) performed a coroner's

autopsy on Ratcliff.           His report listed the cause of death as

“acute asphyxiation, possibly resulting from hanging,” but the mode

of   death       was    listed     as     “undetermined,      pending       further


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investigation.”         At the time of the autopsy, Laga did not have

access to the sheet with which Ratcliff allegedly hanged himself.

       At the request of Ratcliff's family, Dr. Alfredo Suarez

(“Suarez”)      examined      Ratcliff's            body.    Suarez    found   that   the

ligature mark on Ratcliff's neck was a quarter inch wide, and that

the mark had a braided pattern.                 Suarez concluded that the markings

were most likely caused by a braided rope or cord, not a bed sheet.

Suarez also noted that, in a hanging, the ligature mark usually

runs in an upward “V” pattern across the neck, whereas the mark on

Ratcliff's neck was horizontal - as if Ratcliff had been strangled

from behind.         Suarez concluded that the injuries on Ratcliff were

more consistent with strangulation by a rope or cord than a hanging

with    bed   sheets.         In    his    deposition,        Suarez   concluded      that

Ratcliff's death was most likely the result of a homicide.

       When Laga finally obtained the sheet with which Ratlciff had

allegedly hanged himself, he noticed that the sheet could not be

twisted in such a manner that would leave a mark as narrow as that

on Ratcliff's neck.           Furthermore, the sheet did not have any blood

or vomit stains, which was unusual.                   He also noted that a bed sheet

would not leave such a distinctive braided pattern.                       Laga further

noted    that       hanging    by   a     bed       sheet   normally   would   leave     a

circumferential ligature mark and a bruise on the back of the neck

where the sheet was tied.                 On Ratcliff the ligature mark ended

abruptly      and    there    was   no     knot       imprint.    Like   Suarez,      Laga

concluded that it was unlikely Ratcliff had died by hanging himself

with a bed sheet.


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                               PROCEEDINGS

      The Appellants initially brought a 42 U.S.C. § 1983 action

against the Appellees.        The district court granted Appellees'

motion for summary judgment, and the decision was upheld without

substantive comment by this court.         See Ratcliff v. Daniel, No. 95-

30654 (5th Cir. April 9, 1996).

      Appellants then filed this wrongful death and survivor action.

In this action, they advance two theories of liability against the

Defendants. First, they contend that Ratcliff was either killed by

one or more of the Appellees, or by someone given access to

Ratcliff by the Appellees.         Under this theory, Appellants claim

that the Appellees are liable for negligently failing to protect

Ratcliff   from    harm.    Alternatively,      Appellants   contend     that

Ratcliff may have committed suicide.            Under the second theory,

Appellants contend that the Appellees were negligent in failing to

monitor Ratcliff and take steps to prevent him from committing

suicide.

      The Appellees moved for summary judgment, and their motion was

referred to a magistrate judge.       The magistrate judge's report and

recommendation determined that there were a number of genuine

issues of material fact in dispute, and therefore the motion should

be   denied.      The   district   court    originally   agreed   with   the

magistrate's report and denied the motion for summary judgment.

Seven months later, however, the district court, acting on its own

motion, decided to reconsider its earlier decision denying the

Appellees' motion.


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       After a hearing on the matter, the district court granted

Appellees' motion for summary judgment.             Regarding the Appellants'

strangulation claim, The court concluded that “there is absolutely

no   evidence   in   the   record   that      any   of    the    named   defendants

strangled the decedent.”         Nor, the court held, was there evidence

that    the   Appellees    had   given       someone     other   than    the   named

Defendants access to Ratcliff.           With regard to Appellees' failure

to protect Ratcliff from self-inflicted injury, the court concluded

that there was no evidence in the record indicating the Appellees

had reason to believe that Ratcliff was suicidal.

                                  DISCUSSION

       We review a grant of summary judgment de novo, viewing the

facts and inferences in the light most favorable to the party

opposing the motion.       See Hall v. Gillman, Inc., 81 F.3d 35, 36-37

(5th Cir. 1996).      Summary judgment is appropriate if the record

discloses “that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of

law.”   Fed. R. Civ. P. 56(c); accord Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).            Courts must also determine whether an

inference or circumstantial evidence might suffice to create a

factual dispute.     Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th

Cir. 1986).     The district court's function at the summary judgment

stage is not to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for trial.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

       We first note that the Appellants make only negligence claims


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before this court and not intentional tort claims: (1) They claim

the   Appellees     are   liable   for    negligently      failing   to    protect

Ratcliff from harm; (2) they claim that Appellees are negligent in

failing to    monitor     Ratcliff      and   failing   to   prevent      him   from

committing suicide.         A plaintiff may prove a negligence claim

through circumstantial evidence.             See Cangelosi v. Our lady of the

Lake Reg'l Med. Ctr., 564 So.2d 654, 664 (La. 1989) (The Louisiana

Supreme Court held that in a circumstantial evidence case the

plaintiff must produce evidence from which the factfinder can

reasonably conclude that his injuries, more probably than not, were

caused   by   the    negligence    of    a    particular     defendant.         “The

plaintiff, however, does not have to conclusively exclude all other

possible explanations for his injuries, because the standard is not

proof beyond a reasonable doubt.”).

      As we noted, circumstantial evidence taken as a whole is often

sufficient to produce an issue of material fact and therefore make

summary judgment unnecessary.           We find that to be the situation in

this case.    The testimony of the two doctors certainly produces an

issue of material fact as to whether the Appellees negligently

failed to protect Ratcliff from harm by others than himself.                     The

testimony of the deputies and inmates stating that Ratcliff was

upset and unhappy creates an issue of material fact as to whether

the Appellees were negligent in failing to monitor Ratcliff to

protect him from harming himself.             This is not a case that should

be disposed of through summary judgment.            In a case like this, the

jury is free to believe or not to believe and to choose among the


                                         7
circumstantial evidence presented.   The district court on summary

judgment cannot accept some evidence and reject other evidence, but

a jury can.

     For these reasons, we reverse the district court and remand.

     REVERSED and REMANDED.




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