                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-3480
                                    ___________

Ronald Butler,                           *
                                         *
      Plaintiff - Appellant,             *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Robert Fletcher,                         *
                                         *
      Defendant - Appellee.              *
                                    ___________

                               Submitted: June 14, 2006
                                  Filed: October 13, 2006 (Corrected 11/1/06)
                                   ___________

Before LOKEN, Chief Judge, BEAM and ARNOLD, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       Ronald Butler was detained at the Ramsey County Adult Detention Center
(ADC) in St. Paul, Minnesota, pending criminal charges. After his conviction, Butler
was transferred to a prison, where he tested positive for tuberculosis (TB). He filed
this § 1983 damage action against Sheriff Robert Fletcher, alleging that Fletcher
violated Butler's Substantive Due Process rights by failing to adopt and implement
adequate safeguards protecting ADC inmates from TB infection. The district court1


      1
        The Honorable JOHN R. TUNHEIM, United States District Judge for the
District of Minnesota, based upon the Report and Recommendation of the Honorable
ARTHUR J. BOYLAN, United States Magistrate Judge for the District of Minnesota.
granted Fletcher’s motion for summary judgment, concluding that a reasonable jury
could not find that Fletcher acted with deliberate indifference to the serious health risk
TB poses to inmates and detainees. Butler appeals, arguing that the court erred in
applying the Eighth Amendment standard of deliberate indifference because Butler
was a pretrial detainee, that in any event he presented sufficient evidence of deliberate
indifference, and that the court committed procedural errors. Reviewing the grant of
summary judgment de novo, we affirm.

                                             I.

        Butler sued Sheriff Fletcher in his official capacity, so in essence, this is a suit
against Ramsey County. “A county is liable [under § 1983] if an action or policy
itself violated federal law, or if the action or policy was lawful on its face but led an
employee to violate a plaintiff’s rights and was taken with deliberate indifference as
to its known or obvious consequences.” Pietrafeso v. Lawrence County, 452 F.3d
978, 982 (8th Cir. 2006), quoting Board of County Comm’rs v. Brown, 520 U.S. 397,
407 (1997). Here, Butler alleges that he spent most of his time at ADC in two-person
cells and in larger holding cells, where as many as twenty-six short-term detainees
were held under deplorable sanitary conditions. He asserts that Fletcher’s policy of
placing short-term detainees in multi-person cells without an initial TB screening
inadequately protects ADC detainees from the serious health risk of TB. Butler has
neither alleged nor shown that any Ramsey County employee violated his rights.
Therefore, the § 1983 issue is whether the County’s policies for diagnosing and
treating TB in its detention facilities violated Butler’s constitutional rights.

      It is well known that TB is a serious disease harmful to the lungs and other
organs and that prisons are “high risk environments for tuberculosis infection.”
DeGidio v. Pung, 920 F.2d 525, 527 (8th Cir. 1990). Minnesota responded to this risk
by enacting detailed statutory provisions that require mandatory tuberculosis
screening of correctional facility inmates and employees. Minn. Stat. § 144.445.

                                            -2-
       To support his summary judgment motion, Sheriff Fletcher submitted affidavits
describing the nature of the TB health risk at ADC, the policies he has implemented
to avoid TB infections, and Butler’s period of detention. The affidavit of Dr. Neal
Holtan, a physician at the Ramsey County Public Health Department TB clinic,
explained that infected persons have either active TB, which is contagious, or inactive
TB, which is suppressed by the immune system and not contagious. TB is spread
when a person with active TB coughs, sneezes, or exhales. More than a few days
exposure is usually required to contract the disease. A person with active TB is no
longer contagious once treatment begins. Thus, in a prison setting, an inmate
diagnosed with active TB should be segregated from the general population for
treatment until the inmate is no longer infectious. Dr. Holtan further explained that
TB is diagnosed by conducting a Mantoux test, which identifies an infected individual
48-72 hours after the test is administered.2 After a person is infected, the TB
incubation period preceding a positive Mantoux test varies from two to twelve weeks.
If the Mantoux test is positive, a chest x-ray or sputum test will reveal whether the
person has active TB. See generally Center for Disease Control, Prevention and
Control of Tuberculosis in Correctional and Detention Facilities: Recommendations
from CDC, 55 Morbidity and Mortality Wkly. Rep. RR09, July 7, 2006, available at
http://www.cdc.gov/mmrw/mmrw_rr.html.

        Sheriff Fletcher’s affidavit averred that he promulgated a detailed Policy and
Procedures Manual that governs the custody and treatment of persons detained at a
Sheriff’s Department facility. The Manual provides that detainees must receive an
initial medical screening within 24 hours of entering ADC. The booking deputy
documents this screening on a Ramsey County Medical Screening Form. In addition,
the Ramsey County Medical Director adopted a protocol for the diagnosis and


      2
       A standard dose of Tuberculin is injected into a patient’s forearm. The patient
is considered positive for TB if the injection site develops a “palpable, raised,
hardened area” measuring 10 mm or greater after 48 to 72 hours.

                                         -3-
treatment of TB that prescribes a two-step screening process. First, the protocol
provides that an “Intake Interview” shall be conducted:

      Inmates will be interviewed upon intake regarding whether they have
      any infectious diseases or symptoms suggestive of tuberculosis including
      cough, weight loss, fever, night sweats or loss of appetite. If the inmate
      reports or exhibits or acknowledges any symptoms suggestive of
      tuberculosis, Correctional Medical Staff will be notified as soon as
      possible and a chest x-ray will be taken within 72 hours.

Second, the protocol provides that a Mantoux test shall be administered within
fourteen days, as § 144.445, subd. 1, requires. If the test is positive, a chest x-ray is
taken. Whenever a chest x-ray suggests active TB, the inmate must be transferred to
the hospital and treated.

        The affidavit of Deputy Sheriff John St. Germain reported that Butler arrived
at ADC on July 7, 2001, and transferred to a two-person cell in the general inmate
population on July 10. On July 16, he was sent to a different Ramsey County
detention facility, where he was given a Mantoux test on July 21, two weeks after his
initial detention. The test result was negative. Butler returned to ADC on August 16,
was again sent to a different facility on September 6, and returned to ADC on October
18. On November 1, after transferring to a correctional facility to begin his prison
sentence, Butler tested positive for TB. Thus, although Butler was detained
continuously from his negative Mantoux test on July 21 until he tested positive on
November 1, he was housed at ADC only from August 16 to September 6 and from
October 18 to 31.

     The affidavit of Jane Berg, manager of the health care program provided by the
Ramsey County Public Health Department to the Sheriff’s Department, averred that
no ADC inmate “is known to have had an active case of tuberculosis since 1999.”



                                          -4-
       In response to the motion for summary judgment, Butler asserted that he was
not initially screened at ADC, that many inmates were not detained at ADC long
enough to receive a Mantoux test, and that conditions in the overcrowded holding
cells were “abhorrent.” He further alleged that the fact he contracted TB at ADC “is,
quite frankly, indisputable.” Butler also submitted an affidavit from former inmate
Charles Burns averring that, while incarcerated at ADC from October 26, 2001, to
February 13, 2002, Burns’s cell mate related that he had a positive Mantoux test
followed by a chest x-ray and was required to take antibiotics. Finally, Butler moved
for the appointment of counsel and to compel additional discovery.

       The magistrate judge issued a Report and Recommendation that Fletcher’s
motion for summary judgment be granted and Butler’s procedural motion be denied.
The magistrate judge reasoned that, because Fletcher promulgated policies for the
diagnosis and treatment of TB that complied with § 144.445 and were formulated with
input from the director of health care services, no reasonable fact-finder could find
that Fletcher acted with deliberate indifference to the serious health risk that TB poses
in a prison environment. When Butler failed to file timely objections to the Report
and Recommendation, the district court granted summary judgment and dismissed the
complaint with prejudice.

                                            II.

      On appeal, relying on Bell v. Wolfish, 441 U.S. 520 (1979), Butler primarily
argues that the district court erred in applying the Eighth Amendment standard of
deliberate indifference because, as a pretrial detainee, Butler was protected by the
Fourteenth Amendment’s guarantee of substantive due process. In Bell, a conditions
of confinement case, the Supreme Court explained that the Eighth Amendment
protects a convicted inmate from “cruel and unusual” punishment, whereas the Due
Process Clause restricts punishing a detainee prior to an adjudication of guilt.
Therefore, “[i]n evaluating the constitutionality of conditions or restrictions of pretrial

                                           -5-
detention . . . the proper inquiry is whether those conditions amount to punishment of
the detainee.” 441 U.S. at 535.

        Prior to Bell, the Supreme Court held that deliberate indifference to a prisoner’s
serious medical needs “constitutes the unnecessary and wanton infliction of pain
proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976)
(quotation omitted). After Bell noted the difference between Substantive Due Process
and Eighth Amendment protections, we have recognized it is an open question but
have repeatedly applied the deliberate indifference standard of Estelle to pretrial
detainee claims that prison officials unconstitutionally ignored a serious medical need
or failed to protect the detainee from a serious risk of harm. See Vaughn v. Green
County, 438 F.3d 845, 850 (8th Cir. 2006); Whitnack v. Douglas County, 16 F.3d
954, 957 (8th Cir. 1994) (collecting cases). Later Supreme Court decisions, while not
resolving the issue, are consistent with this approach. See County of Sacramento v.
Lewis, 523 U.S. 833, 850 (1998) (“Since it may suffice for Eighth Amendment
liability that prison officials were deliberately indifferent to the medical needs of their
prisoners, it follows that such deliberately indifferent conduct must also be enough to
satisfy the fault requirement for due process claims based on the medical needs of
someone jailed while awaiting trial.”); DeShaney v. Winnebago County Dept. of Soc.
Serv., 489 U.S. 189, 198-200 & n.5 (1989); Davidson v. Cannon, 474 U.S. 344, 358
(1986) (Blackmun, J., dissenting).

      Despite this substantial precedent to the contrary, Butler argues that the
deliberate indifference standard is improper because it does not afford pretrial
detainees “significantly greater protection under the Fourteenth Amendment than
prisoners enjoy under the Eighth Amendment.” He urges us to apply what he calls the
standard in Bell, determining whether alleged inadequacies in the procedures for
diagnosing TB-infected inmates were “reasonably related to a legitimate governmental
objective” and were not “excessive” in relation to that purpose. We reject this
contention for two reasons.

                                           -6-
       First, under Bell, the Substantive Due Process inquiry is whether the detainee
has been improperly punished. “The infliction of punishment is a deliberate act
intended to chastise or deter.” Wilson v. Seiter, 501 U.S. 294, 300 (1991) (quotations
omitted). The standard urged by Butler applies, in the absence of a showing of an
express intent to punish, “to determine whether a governmental act is punitive in
nature.” 441 U.S. at 537. By contrast, the governmental duty to protect at issue in
this case is not based on a pretrial detainee’s right to be free from punishment but is
grounded in principles of safety and general well-being: “when the State by the
affirmative exercise of its power so restrains an individual’s liberty that it renders him
unable to care for himself, and at the same time fails to provide for his basic human
needs -- e.g., food, clothing, shelter, medical care, and reasonable safety -- it
transgresses the substantive limits on state action set by the Eighth Amendment and
the Due Process Clause.” DeShaney, 489 U.S. at 200 (citations omitted). Pretrial
detainees and convicted inmates, like all persons in custody, have the same right to
these basic human needs. Thus, the same standard of care is appropriate.

        Second, the standard urged by Butler -- whether conditions of pretrial detention
are reasonably related to a legitimate governmental objective -- was applied in Bell
to determine whether an improper intent to punish may be inferred. Butler urges that
it be adopted in this case as a primary standard of care, without regard to Fletcher’s
intent to punish. Whether a condition is reasonably related to a legitimate government
purpose is a negligence standard. Since Bell, the Supreme Court has emphatically
(and repeatedly) declared that “liability for negligently inflicted harm is categorically
beneath the threshold of constitutional due process.” Lewis, 523 U.S. at 849. For
these reasons, we hold that deliberate indifference is the appropriate standard of
culpability for all claims that prison officials failed to provide pretrial detainees with
adequate food, clothing, shelter, medical care, and reasonable safety.

      Butler further argues that, even if deliberate indifference is the appropriate
standard of care, summary judgment was improperly granted because the record

                                           -7-
reveals a genuine issue of material fact whether Sheriff Fletcher knew ADC inmates
faced a substantial risk of serious harm from TB and “disregard[ed] that risk by failing
to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847
(1994). Once again, Butler would have us fashion a negligence standard of liability
by taking Supreme Court language out of context. Deliberate indifference has both
an objective and a subjective component. The objective component requires proof
that Butler was exposed to ADC inmates with active TB cases in a manner that created
an unreasonable risk of serious harm to his health. See Helling v. McKinney, 509
U.S. 25, 35 (1993). He presented sufficient evidence that he contracted TB at ADC
to survive summary judgment on this ground.

       The subjective component of deliberate indifference requires proof that Fletcher
“actually knew of and recklessly disregarded” this substantial risk of serious harm.
Pietrafeso, 452 F.3d at 983 (emphasis added); see Farmer, 511 U.S. at 837. In this
case, Butler challenged health care policies adopted and implemented by the County.
Those policies did not disregard the risk of tuberculosis infection at ADC. To the
contrary, as the district court noted, the policies specifically acknowledged the risk
and promulgated detailed procedures for the diagnosis, segregation, and treatment of
ADC inmates infected with active cases of TB. Butler asserted -- with virtually no
supporting evidence -- that the above-described initial screening procedures were not
implemented at ADC. Even if true, that would be evidence that certain ADC staff
negligently, or even deliberately, failed to implement lawful policies. It is not
evidence that the policies themselves were unconstitutional. Thus, the district court
properly dismissed this official capacity claim because the undisputed evidence
demonstrated that the County implemented policies addressing the serious health risk
that TB poses to ADC detainees. Sheriff Fletcher did not act with deliberate
indifference to this risk of harm, whether or not he might arguably have taken other
“reasonable measures to abate it.”




                                          -8-
                                         III.

       Butler’s claims of procedural error require little discussion. When the district
court granted Fletcher’s motion for summary judgment, it denied Butler’s motion to
compel additional discovery responses, namely, his medical records, information
about another detainee who allegedly tested positive for TB when transferred to prison
the same day as Butler, and information about the medical history of one of Butler’s
cellmates. The motion further asked the court to appoint counsel and to extend the
discovery deadline. We review the denial of this motion for abuse of discretion. See
Phillips v. Jasper County Jail, 437 F.3d 791, 794-95 (8th Cir. 2006) (appointment of
counsel); Life Plus Int’l v. Brown, 317 F.3d 799, 806-07 (8th Cir. 2003) (extending
deadlines); Toghiyany v. AmeriGas Propane, Inc., 309 F.3d 1088, 1093 (8th Cir.
2002) (compelling discovery). Although we do not agree with the magistrate judge
that the discovery requests were “largely duplicative,” we do agree that they were
“irrelevant” because neither the information sought -- nor the appointment of counsel
-- could have overcome the undisputed evidence that Sheriff Fletcher and the Ramsey
County Public Health Department promulgated policies and protocols that defeated
Butler’s official capacity claim as a matter of law. Thus, there was no abuse of
discretion.

       Finally, we reject the contention in Butler’s pro se brief that his right to
procedural due process was violated because he never received a copy of the
magistrate judge’s Report and Recommendation. He did not raise this issue in the
district court. Moreover, we appointed counsel to represent Butler on appeal and have
now reviewed de novo his challenge to the grant of summary judgment despite the
absence of an objection to the magistrate judge’s Report, a review our prior cases
expressly permit. See Taylor v. Farrier, 910 F.2d 518, 520 (8th Cir. 1990).

      The judgment of the district court is affirmed.
                     ______________________________

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