PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES BROWN, Administrator of the
Estate of Robert Brown,
Plaintiff-Appellant,

v.

G. W. HARRIS; NANCY SVEC; J. O.
OGDEN,                                                              No. 00-1127
Defendants-Appellees,

and

N. E. BISHOP; A. E. SMITH; R. G.
FIELDS,
Defendants.

Appeal from the United States Magistrate Court
for the Eastern District of Virginia, at Norfolk.
William T. Prince, Magistrate Judge.
(CA-99-187-2)

Argued: November 1, 2000

Decided: February 16, 2001

Before LUTTIG and TRAXLER, Circuit Judges, and
Alexander WILLIAMS, Jr., United States District Judge
for the District of Maryland, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Traxler and Judge Williams joined.

_________________________________________________________________
COUNSEL

ARGUED: Robert John Haddad, SHUTTLEWORTH, RULOFF,
GIORDANO & SWAIN, P.C., Virginia Beach, Virginia, for Appel-
lant. Matthew P. Dullaghan, Assistant Attorney General, OFFICE OF
THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee
Svec; Samuel Lawrence Dumville, Virginia Beach, Virginia, for
Appellees Harris and Ogden. ON BRIEF: Mark L. Earley, Attorney
General of Virginia, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellee Svec.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Decedent Robert Brown took his own life while detained by county
officials on a probation violation. Appellant James Brown, the dece-
dent's father and the administrator of his estate, brought state tort
claims and federal constitutional claims pursuant to 42 U.S.C. § 1983
against several officials who allegedly had custody of decedent either
prior to or at the time of Brown's suicide. The magistrate judge
granted judgment as a matter of law to the officials. For the reasons
that follow, we affirm.

I.

Decedent Robert Brown was taken into custody pursuant to an
arrest warrant issued by Nancy Svec, an employee of the Virginia
Beach Probation and Parole Department and Brown's probation offi-
cer. J.A. 117. The warrant was issued because Brown had failed a ran-
dom urinalysis drug test, J.A. 123, and had admitted during a
telephone conversation with Svec that he was taking 8-10 pills a day
and had attempted suicide the week prior by overdosing on unspeci-
fied pills. J.A. 126. This information led Svec to conclude that Brown
posed a danger to his parents and others. J.A. 128.

Svec accompanied Virginia Beach Police Officer Switzer to
Brown's parents' home to effectuate the arrest. J.A. 52-53. Pursuant

                  2
to a search, Svec and Switzer found pills on Brown's person, in his
bedroom, and in his car. J.A. 129-30. They then transported Brown
to the Virginia Beach General Jail for processing on a probation vio-
lation. J.A. 130.

When they arrived at the jail, Svec had a short conversation with
James Ogden, the supervisor of Central Processing for the jail. J.A.
46, 143. Svec testified at trial that she informed Ogden that Brown
"was suicidal, psychotic, [and subject to] volatile withdrawal" and had
attempted suicide the week before. J.A. 120, 144, 146, 158. Svec also
conveyed to Ogden that her primary concern was that Brown could
become "volatile" and possibly "attack people" as he withdrew from
drugs. J.A. 118, 135-36, 141-46, 158-59, 166. Specifically, Svec testi-
fied during her deposition -- portions of which were read verbatim
at trial (including this passage) -- that she believed she had also told
Ogden that Brown had "previously attacked a staff member while in
detox." J.A. 144. Ogden testified, by contrast, that Svec never
informed him that Brown was suicidal, only that he"has violent epi-
sodes while coming off of prescription drugs." J.A. 166. Ogden sub-
sequently placed Brown on "medical watch," which consisted of
continuous video surveillance of his cell. J.A. 164-65, 167-68.1 1

Three days following his arrival at Virginia Beach General Jail,
Brown hung himself in his cell by his shoe laces. J.A. 45-46.
Although Brown's cell was under video surveillance, Gwen Harris --
the officer responsible that day for monitoring Brown's cell as well
as 27 others by way of small video screens -- did not notice that
Brown had hung himself until after the "code" was called by someone
else. J.A. 45, 169-72. The undisputed medical testimony at trial estab-
lished that Brown had been deprived of oxygen for at least four min-
utes. J.A. 103. As a result, Brown was hospitalized and placed on a
ventilator. J.A. 133. He died seven days later. J.A. 46.

Appellant James Brown, decedent's father and the administrator of
his estate, filed a lawsuit against Svec, Ogden, and Harris (collec-
_________________________________________________________________

1 Ogden testified that had he known Brown was suicidal, he would
have had him "examined by medical," and placed in a paper gown. J.A.
161.

                   3
tively the "appellees") in the Eastern District of Virginia.2
                                                            2 The first
count of the amended complaint asserted a section 1983 action against
each of the appellees, alleging that they were deliberately indifferent
to Brown's serious medical needs in contravention of the Eighth
Amendment. J.A. 35-36. In count II, appellant alleged that the appel-
lees were grossly negligent under state law "in failing to supervise the
decedent's condition . . . and in generally completely abdicating their
responsibilities to the decedent." J.A. 36.

The parties consented to have the case tried before a magistrate
judge. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. Following a full
trial on the merits, the appellees filed a motion for judgment as a mat-
ter of law. The magistrate judge granted the motion, and entered judg-
ment for the appellees on all claims. J.A. 273. The magistrate judge
subsequently denied appellant's motion for reconsideration and for a
new trial. J.A. 366.

II.

The first issue on appeal is whether Brown's suicide barred the rep-
resentative of his estate from recovering on any derivative state
claims. Appellant brought wrongful death actions against Svec and
Ogden, and a separate gross negligence claim against Harris. Review-
ing the grant of judgment as a matter of law de novo, see Brice v.
Nkaru, 220 F.3d 233, 237 (4th Cir. 2000), we agree with the magis-
trate judge that, as a matter of law, appellant's evidence failed to
establish that Brown was of unsound mind when he took his own life.

In granting judgment as a matter of law on those claims, the magis-
trate judge held that Brown's actions constituted common law suicide,
and that any cause of action resulting from the suicide, an immoral
and illegal act under Virginia law, was barred. J.A. 270-71. Under
Virginia law, "[i]t is well settled that, as a general rule, `a party who
consents to and participates in an immoral or illegal act cannot
recover damages from other participants for the consequence of that
act.'" Wackwitz v. Roy, 418 S.E.2d 861, 864 (Va. 1992). As a result,
the Virginia Supreme Court held in Wackwitz that, because suicide is
_________________________________________________________________
2 The claims against two other jail officials were dismissed prior to
trial.

                   4
a common law crime, it "precludes recovery for injuries sustained as
a result of that act." Id. at 864.

Appellant's state claims seek damages for injuries resulting from
Brown's taking of his own life and consequentially are barred under
Wackwitz if Brown committed common law suicide. To commit sui-
cide at common law, a person must: (1) take his own life; (2) be "of
years of discretion"; and (3) be of "sound mind." See id. at 864-65.
A person is of "sound mind" if competent and sane. See Hill v.
Nicodemus, 979 F.2d 987, 990 (4th Cir. 1992) (applying Virginia
law). It is undisputed that Brown was not a minor when he took his
own life; therefore, unless Brown was incompetent or insane at the
time, appellant's state claims are barred.

Appellant does not dispute that suicide constitutes a per se bar to
recovery, but rather argues that there was sufficient evidence in the
record for the jury to conclude that Brown was of unsound mind.
Appellant relied exclusively on the testimony of Dr. Benjamin Carey
to establish that fact at trial. While Carey testified that Brown suffered
from bipolar disorder, we agree with the magistrate judge that his tes-
timony was insufficient to create a jury question regarding Brown's
competency or sanity for two reasons.

First, Carey assessed Brown's mental condition at a discrete point
in time, more than three months prior to Brown's death. J.A. 302,
306. Carey expressed no view about whether Brown was insane or
incompetent at the time he took his own life. Indeed, appellant failed
to proffer any contemporaneous assessment of Brown's mental condi-
tion. At best, therefore, Carey's testimony, and by extension appel-
lant's evidence, establishes only that Brown may have been insane or
incompetent at a given point in time more than three months prior to
his death. Wackwitz and Hill suggest, however, that a decedent's men-
tal soundness must be measured at the time of the self-destructive act.
See Hill, 979 F.2d at 990 (noting that insanity is measured "at a given
time"); Wackwitz, 418 S.E.2d at 865 (holding that a wrongful death
claim arising out of a suicide survived a motion to dismiss because
"the plaintiff alleged that her decedent was of unsound mind when he
killed himself"). As a result, Carey's testimony, standing alone, is
simply insufficient to overcome the legal presumption that Brown

                  5
was sane when he took his own life. See Hill, 979 F.2d at 990 (stating
that there is a presumption that a person is sane under Virginia law).

Second, Carey's testimony does not even prove that Brown was
incompetent or insane at the time Carey evaluated him. Under Vir-
ginia law, "[t]he term `insane' refers to one who is, at a given time,
an `idiot, lunatic, non compos mentis or deranged.'" Hill, 979 F.2d at
990 (citing Nelms v. Nelms, 374 S.E.2d 4, 8 (Va. 1988)). Even read-
ing Carey's testimony in a light most favorable to appellant, Brown's
bipolar disorder simply did not render him legally insane. Specifi-
cally, Carey testified that:

        [T]here was no evidence that [Brown] was psychotic or had
        a thought disorder. That he did not appear to have suicidal
        thinking, any suicidal intent or suicide plan. I thought his
        memory was grossly intact. He had limited insight, and his
        judgment was considered fair. So that was the mental status
        examination.

J.A. 290 (emphases added). In addition, Carey opined that people
with bipolar disorder can work in the job force and carry on ordinary
life activities. J.A. 301.

Of particular significance is Carey's opinion that Brown did not
suffer from a thought disorder and that his judgment was fair. Carey
clearly believed that people suffering from bipolar disorder can be
sane and competent and, in particular, that Brown could function in
society. As a result, appellant has not only failed to show that Brown
was insane or incompetent at the time he took his own life, but appel-
lant has also neglected to present evidence that Brown was ever
insane or incompetent as those terms are defined under Virginia law.33
_________________________________________________________________
 5720 35 7 3 Neither Hill or Wackw
                 itz provides a definition for the term "compe-

tent." In Hill, for example, we concluded that decedent was of sound
mind under Virginia law when she took her own life without specifically
addressing whether decedent was competent. See Hill, 979 F.2d at 987.
To the extent that competency is not equivalent to sanity, Carey clearly
foreclosed the possibility that Brown was incompetent under any reason-
able definition of that term; he specifically testified that Brown was able
to intelligently discuss his financial and legal difficulties and reasonably

                   6
In granting judgment as a matter of law on appellant's state claims,
the magistrate judge correctly noted that it would be inappropriate to
"permit [the jury] to speculate that just because [Brown] had bipolar
disorder that he was close to insan[e], that he had an unsound mind."
J.A. 276. Because appellant has failed to adduce any evidence that
Brown was an idiot, lunatic, non compos mentis, deranged, or other-
wise incompetent at the time he took his own life, we hold that the
magistrate judge did not err in granting judgment as a matter of law
to the appellees on appellant's state claims.44

III.

Appellant also argues on appeal that the magistrate judge errone-
ously granted judgment as a matter of law to the appellees on his sec-
tion 1983 claims.55 Appellant alleged in his amended complaint that
the appellees were deliberately indifferent to Brown's serious medical
_________________________________________________________________
articulate and understands "things." J.A. 305; cf. Bramblett v. Common-
wealth, 513 S.E.2d 400, 407 (Va. 1999) (recognizing that under Virginia
statute, a person is not competent to stand trial if"`there is probable
cause to believe that the defendant lacks substantial capacity to under-
stand the proceedings against him or to assist his attorney in his own
defense'"); Drewry v. Drewry, 383 S.E.2d 12, 15 (Va. Ct. App. 1989)
(stating that the presumption that a person is mentally competent to enter
into a contract can be overcome by "proof that when the person executed
the agreement he or she lacked the capacity to understand the nature and
consequences of the transaction").
4 While no published decision has applied Virginia's suicide bar to any
claim other than one for wrongful death, the Virginia Supreme Court
specifically stated in Wackwitz that such a bar applies in "both tort and
contract actions," in no way limiting its application to wrongful death
claims. 418 S.E.2d at 864. As a result, appellant's gross negligence claim
against Harris is also barred because it sought damages for injuries
resulting from Brown's illegal act of suicide, even though it was purport-
edly not brought pursuant to the Virginia wrongful death statute. See Va.
Code Ann. § 8.01-50.
5 Although the amended complaint arguably included a section 1983
claim against Harris, J.A. 35-36, appellant abandoned that claim at trial.
J.A. 267. As a result, we address only the federal claims brought against
Ogden and Svec.

                  7
needs in violation of the Eighth Amendment. J.A. 35-36. Appellant
contends that we should reverse the grant of judgment as a matter of
law because there was ample evidence in the record to support every
requisite element of his section 1983 claims. We disagree.

Preliminarily, for the purpose of determining the constitutional
predicate for appellant's claims, we admit to some uncertainty about
whether Brown was a pretrial detainee or a convicted prisoner. The
question is whether Brown, who was being held on a probation viola-
tion, could be "punished" under the Eighth Amendment. The Supreme
Court has stated that "the State does not acquire the power to punish
with which the Eighth Amendment is concerned until after it has
secured a formal adjudication of guilt in accordance with due process
of law." Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977).
Although the state had already "secured a formal adjudication of
guilt" for the crime underlying Brown's probation, it had not yet
secured "a formal adjudication" that Brown had violated his probation
and should be returned to state custody. And, if Brown was a pretrial
detainee rather than a convicted prisoner, then the Due Process Clause
of the Fourteenth Amendment, rather than the Eighth Amendment,
"mandates the provision of medical care to detainees who require it."
Hill, 979 F.2d at 991 (emphasis added). In any case, we need not
resolve whether Brown was a pretrial detainee or a convicted prisoner
because the standard in either case is the same-- that is, whether a
government official has been "deliberately indifferent to any [of his]
serious medical needs." Belcher, 898 F.2d at 34.

In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court set
forth the relevant framework for evaluating constitutional claims
premised upon a prison official's "deliberate indifference" to "a sub-
stantial risk of serious harm to an inmate." See id. at 828.6
                                                            6 First, a
_________________________________________________________________
6 We recognize that Farmer was decided after Belcher and addressed
only the duties of "prison officials" under the Eighth Amendment. Far-
mer, however, merely defined the term "deliberate indifference," a stan-
dard previously employed by the Supreme Court in Estelle v. Gamble,
429 U.S. 97 (1976), and its progeny. See Farmer , 511 U.S. at 829. Far-
mer in no way undermined our holding in Belcher that the same "deliber-
ate indifference" standard applies to both inmates and pretrial detainees.
Indeed, other circuits have imported the Farmer framework into cases

                  8
constitutional violation occurs only where the deprivation alleged is
"objectively, sufficiently serious." Id . at 834. For a claim based on a
failure to prevent harm, a person must show that he is being detained
or incarcerated "under conditions posing a substantial risk of serious
harm." Id. A substantial risk of suicide is certainly the type of "serious
harm" that is contemplated by the first prong of Farmer. Cf. Gordon
v. Kidd, 971 F.2d 1087, 1094 (4th Cir. 1992) (applying the deliberate
indifference standard to the conduct of government officials when a
prisoner suffers from a "serious psychological condition[ ]" such as
being suicidal); Buffington, 913 F.2d at 120 (same).

Second, an official must have "a `sufficiently culpable state of
mind.'" Farmer, 511 U.S. at 834. In prison-conditions cases, the req-
uisite state of mind is "deliberate indifference." See id. In rejecting an
objective standard of liability in favor of the subjective standard of
"deliberate indifference," the Supreme Court stated that,

        a prison official cannot be found liable under the Eighth
        Amendment for denying an inmate humane conditions of
        confinement unless the official knows of and disregards an
        excessive risk to inmate health or safety; the official must
        both be aware of facts from which the inference could be
        drawn that a substantial risk of serious harm exists, and he
        must also draw the inference.
_________________________________________________________________
involving pretrial detainees. See Zentmeyer v. Kendall County, Illinois,
220 F.3d 805, 810-11 (7th Cir. 2000); Johnson v. Meltzer, 134 F.3d
1393, 1398 (9th Cir. 1998); Wyant v. Okst, 101 F.3d 845, 856 (2d Cir.
1996); Hare v. City of Corinth, MS, 74 F.3d 633, 643 (5th Cir. 1996).
And, the fact that Farmer refers only to"prison officials" is of no
moment because we have held that the "deliberate indifference" standard
applies in cases involving police officers and other government officials.
See Buffington, 913 F.2d at 120 (applying the"deliberate indifference"
standard to the actions of police officers); Belcher, 898 F.2d at 34
(explaining that government officials cannot be deliberately indifferent
to the serious medical needs of a detainee). Indeed, other circuits have
held the same following Farmer. See,e.g., Davis v. Brady, 143 F.3d
1021, 1024-26 (6th Cir. 1998); Lancaster v. Monroe County, Alabama,
116 F.3d 1419, 1425 n.6 (11th Cir. 1997).

                   9
Id. at 837. Farmer expressly equated the "deliberate indifference"
standard applied in Eighth Amendment cases with the"subjective
recklessness" standard of criminal law. See id. at 839-40; Rich v.
Bruce, 129 F.3d 336, 340 n.2 (4th Cir. 1997). We noted in Rich that
"[t]rue subjective recklessness requires knowledge both of the general
risk, and also that the conduct is inappropriate in light of that risk."
129 F.3d at 340 n.2.

Significantly, an official "who actually [knows] of a substantial risk
to inmate health or safety may be found free from liability if [he]
responded reasonably to the risk, even if the harm was not ultimately
averted." Farmer, 511 U.S. at 844. The Court went on to note that,
"[w]hether one puts it in terms of duty or deliberate indifference,
prison officials who act reasonably cannot be found liable under the
Cruel and Unusual Punishments Clause." Id.

While the Court left open the question of whether the "reasonable
response" prong of Farmer is part of the state of mind requirement
or whether it instead stems from the duty to "ensure reasonable
safety," id., this prong nonetheless protects officials who act reason-
ably in response to a known risk. To the extent that the "reasonable
response" prong is part of the state of mind requirement, an official
who responds reasonably to a known risk has not"disregard[ed] an
excessive risk to inmate health or safety," Farmer, 511 U.S. at 837,
and has therefore not acted with deliberate indifference. See, e.g.,
Hamilton v. Leavy, 117 F.3d 742, 748 (3d Cir. 1997) ("If a prison
official responds reasonably to a risk to an inmate's safety, he or she
cannot be found to have acted with a sufficiently culpable state of
mind."); Doe v. Welborn, 110 F.3d 520, 524 (7th Cir. 1997) (stating
that the "reasonable response" prong of Farmer is simply "another
way of saying that a plaintiff has the burden of proving the subjective
(knowing disregard) component of the test elaborated in Farmer.").

We hold that the district court did not err in granting judgment as
a matter of law to Ogden and Svec because even if they had knowl-
edge that Brown posed a potential suicide risk, they did not disregard
an excessive risk to Brown's health or safety because they responded
reasonably to the risk that they knew. We will specifically address the
liability of each in turn.

                  10
A.

In reviewing a grant of judgment as a matter of law, we must view
the facts in a light most favorable to the non-moving party, in this
case the appellant. See Connor v. Schrader-Bridgeport Int'l, Inc., 227
F.3d 179, 184 (4th Cir. 2000). Thus, in reviewing whether the magis-
trate judge correctly granted judgment as a matter of law to Ogden,
we must credit Svec's testimony that she informed Ogden that Brown
was suicidal and had attempted suicide the week before.

Even if Ogden was told that Brown presented a suicide risk and
drew the inference under Farmer that "a substantial risk of serious
harm exist[ed]," 511 U.S. at 837, he avoids liability if he responded
reasonably to the risk of which he knew. 511 U.S. at 844. In deter-
mining the substantiality of the risk that Ogden knew, and the reason-
ableness of his response to it, we must consider everything that he
was told and observed. Although we assume that Ogden knew that
Brown presented a suicide risk of some kind, the record also indicates
that he knew that Svec's greatest concern was Brown's withdrawal
from his drugs, and in particular, his resulting volatility. J.A. 118,
141-44, 158-59, 166.

It is undisputed that Ogden responded by immediately placing
Brown on "medical watch," which established constant video surveil-
lance of Brown's cell. Although Ogden failed to place him in a paper
gown or have him examined by "medical" -- which is what he ordi-
narily would have done with a suicidal detainee-- his failure to take
these additional precautions does not create a jury issue under Farmer
if his actions were nonetheless reasonable in response to the risk of
which he actually knew. See Liebe v. Norton, 157 F.3d 574, 577 (8th
Cir. 1998) (noting that under Farmer, a court must focus on the pre-
cautionary actions actually undertaken by an official in response to a
risk of suicide, not those actions which could have been taken). It was
reasonable for Ogden to respond by placing Brown on"medical
watch" because from what he knew, the risk of medical or other psy-
chological problems was just as likely, or even more predominant
than, the risk of suicide. And, of course, placing Brown on continuous
video surveillance also reduced the risk of suicide itself. As a result,
we cannot say that placing Brown on "medical watch" was anything
other than a deliberate and reasonable response to the risk that he

                  11
knew. See Rellergert v. Cape Girardeau County, Missouri, 924 F.2d
794, 797 (8th Cir. 1991) (stating that a policy which places inmates
with suicidal tendencies on nearly constant watch is an affirmative
and deliberate step to prevent suicides); see also Lewis v. Richards,
107 F.3d 549, 553 (7th Cir. 1997) (stating that summary judgment
might have been inappropriate under the "deliberate indifference"
standard if the defendants had simply refused to do anything).

In the end, if we assume that Ogden was told that Brown was suici-
dal, he simply took less action than he could have, and by his own
admission, should have. J.A. 160-61. That does not, however, either
negate the reasonableness of his response or mean that he acted with
"deliberate indifference." At most, Ogden's failure to take additional
precautions was negligent, and not deliberately indifferent, because
by placing Brown on constant video surveillance, he simply did not
"disregard[ ] an excessive risk to [Brown's] health or safety." Far-
mer, 511 U.S. at 837 (emphasis added). Negligence, however, does
not give rise to a constitutional claim when the operative standard is
"deliberate indifference." See Grayson v. Peed, 195 F.3d 692, 695
(4th Cir. 1999) ("Deliberate indifference is a very high standard -- a
showing of mere negligence will not meet it."). As a result, we hold
that there was no basis for a reasonable factfinder to conclude that
Ogden acted with deliberate indifference to the risk which he knew.

B.

We now turn to the issue of whether Svec was entitled to judgment
as a matter of law on appellant's section 1983 claim. The magistrate
judge granted judgment as a matter of law to Svec on the basis that
Brown was never in her custody and that, therefore, Svec owed him
no duty. See Pinder v. Johnson, PFC, 54 F.3d 1169, 1175 (4th Cir.
1995) (en banc) ("Without any such limitation imposed on her liberty,
Deshaney indicates [plaintiff] was due no affirmative constitutional
duty of protection from the state."). We need not reach that question,
however, because we hold that even if Brown was in Svec's custody,
she acted reasonably in response to the risk which she knew.

In reviewing the judgment in favor of Svec, we must credit
Ogden's testimony and assume that Svec did not inform Ogden about
Brown's suicidal tendencies and his previous suicide attempt. J.A.
160. Appellant argues that a reasonable factfinder could conclude,

                  12
based on that failure, that Svec acted with "deliberate indifference."
We disagree.

Like Ogden, Svec took deliberate, precautionary steps to reduce the
risk that Brown would commit suicide. First, Officer Switzer and
Svec removed drugs from Brown's person, bedroom, and car prior to
releasing him to the jail's custody, thereby eliminating his access to
the instrumentality that he used to attempt suicide previously. J.A.
129-30, 141-42. Second, even if Svec did not tell Ogden that Brown
was suicidal, it is undisputed that she at least told him that Brown
"has violent episodes while coming off his prescription drugs," which
was indisputably her primary concern at the time. J.A. 135, 166. In
response to that warning, Ogden informed Svec that Brown would be
placed "on camera," which was, as stated above, a deliberate step in
ensuring Brown's safety. J.A. 167.

As with Ogden, Svec's actions must be measured in light of the
risk that she knew. Based on her trial testimony and her deposition
testimony read at trial, Svec knew the following when she spoke with
Ogden: (1) she "didn't have any concerns" about the suicide because
"[Brown] had no longer taken the pills and didn't have access to the
pills" after she removed them, J.A. 141-42; (2) her "main concern" at
the time was Brown's volatility resulting from drug withdrawal, J.A.
135; (3) she issued the arrest warrant because she believed that Brown
posed a "danger to his parents and others," J.A. 128; and (4) Brown
would be placed "on camera" while in jail, J.A. 167. While Svec
could have taken the extra step of informing Ogden about Brown's
suicidal tendencies, we cannot say that her failure to do so was delib-
erately indifferent in light of what she knew both about the risk and
the precautionary actions undertaken to protect Brown, including her
own. Therefore, we conclude that Svec's actions were reasonable, and
that no reasonable factfinder could have found her"deliberately indif-
ferent."

CONCLUSION

For the reasons stated herein, we affirm the judgment of the magis-
trate judge.

AFFIRMED

                  13
