                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                   ___________

                             Nos. 99-2419/99-2420
                                 ___________

Alan Ray Yellow Horse,                   *
Special Administrator of the             *
Estate of Frederick Neal Yellow          *
Horse, deceased,                         *
                                         *
      Appellant/Cross-Appellee,          *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the
Pennington County, South Dakota;         * District of South Dakota.
Jill West, as Corrections Officer for    *
Pennington County; Peggy Severson,       *
as Deputy Sheriff of Pennington          *
County,                                  *
                                         *
      Appellees/Cross-Appellants.        *
                                    ___________

                            Submitted: May, 10, 2000

                                  Filed: September 5, 2000
                                   ___________

Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.
                            ___________

BEAM, Circuit Judge.
      Alan Ray Yellow Horse (the estate) appeals the district court's1 grant of summary
judgment in favor of the Pennington County defendants (the county) in this 42 U.S.C.
§ 1983 action. We affirm.

       Viewing the facts in the light most favorable to the estate, Alan Ray Yellow
Horse's decedent, his brother Frederick Yellow Horse (Yellow Horse), served a thirty-
day sentence for DUI in the Pennington County Jail. He was then transferred to the
Human Services Center in Yankton for alcohol treatment. On August 24, 1994, one
day before his discharge from the Human Services Center and transfer back to the
county jail, Yellow Horse attempted to commit suicide by cutting his wrist with a sharp
object. Yellow Horse was transferred back to Pennington County Jail the next day, and
was placed on a suicide watch. Yellow Horse was removed from the suicide watch on
August 27, returned to suicide watch on August 28, and was placed in a less secure
area of the jail when he was again removed from suicide watch on August 29. Both
times Yellow Horse was removed from suicide watch, Officer Peggy Severson decided
to take Yellow Horse off suicide watch without consulting a mental health expert and
without completing a suicide screening form. On September 6, 1994, two inmates
alerted Deputy Jill West to problems in Yellow Horse's cell. When West unlocked
Yellow Horse's cell, she discovered Yellow Horse had hanged himself. West
performed CPR to no avail, and Yellow Horse was later pronounced dead at the
hospital.

       The administrator of Yellow Horse's estate, Alan Ray Yellow Horse, brought this
section 1983 action, alleging the county and several officials violated Yellow Horse's
constitutional rights by failing to maintain adequate suicide prevention policies at the
jail and failing to adequately train its employees in suicide prevention. The estate also



      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.

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sued Severson and West in their individual capacities, alleging they were deliberately
indifferent to Yellow Horse's serious medical needs.

       The district court granted partial summary judgment on qualified immunity
grounds to Officer Severson and Officer West in their individual capacities. The
district court also dismissed a state law negligence claim as barred by a South Dakota
statute which provides the county officials and the county immunity from such suits.2
The court further found the administrator of decedent's estate had standing to bring this
action under section 1983. The district court later granted summary judgment to the
county and its officers in their official capacity, and dismissed the lawsuit. The court
found the county did not maintain customs or policies deliberately indifferent to a
substantial risk of inmate suicide. Instead, the court noted Pennington County Jail had
never previously had a successful suicide attempt and therefore did not have notice of
any alleged inadequacy in its suicide prevention procedures. Further, the court found
it was undisputed the county had a suicide prevention policy and that jailers were
subject to lengthy initial training on inmate suicide, were trained to assess suicide risks,
and were provided guidelines on how potentially suicidal inmates should be monitored.
Finally, the court found that the Pennington County Jail had been recently evaluated
and accredited by the American Correctional Association. In light of these several
factors, the court held that each shortcoming in the county's policies and training
alleged by the estate did not rise to the level of a constitutional violation.

       Yellow Horse appeals both orders, arguing that Severson and West were not
entitled to qualified immunity, and the county is not entitled to summary judgment. The
county cross-appeals the district court's determination that the estate had standing to
pursue the claim under the South Dakota wrongful death statute.




       2
           See S.D. Codified Laws § 3-21-8 (Michie 1994)

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       We review de novo the district court's grant of summary judgment, drawing all
inferences in favor of the non-moving party. See Jolly v. Knudsen, 205 F.3d 1094,
1096 (8th Cir. 2000). Summary judgment is appropriate when no genuine issue of
material fact exists and the moving party is entitled to judgment as a matter of law. See
Lindsey v. Jewels by Park Lane, Inc., 205 F.3d 1087, 1091 (8th Cir. 2000).

      1.     Standing

        In its cross appeal, the county concedes that to the extent this case comprises a
survival action, the administrator of the estate has standing to assert a claim under
section 1983 as a result of the injuries to and the death of Yellow Horse. See Frey v.
City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995). However, the district court
liberally construed the complaint as stating both survival and wrongful death claims,
and found the estate had standing to bring both types of actions. The county argues the
estate does not have standing to bring a wrongful death action because the decedent's
civil rights claim is a personal cause of action cognizable only by the party whose civil
rights have been violated.3

      We have declined in the past to decide the precise issue of whether wrongful
death actions may be asserted by family members as section 1983 claims. See
Westcott v. Crinklaw, 133 F.3d 658, 660 (8th Cir. 1998) (record did not support
characterization of suit as one for wrongful death, so not need to decide standing issue);


      3
        In South Dakota, a wrongful death cause of action is brought in the name of the
decedent's personal representative and seeks compensation for the decedent's next of
kin for their pecuniary injury, rather than for an injury to the decedent himself. See
S.D. Codified Laws §§ 21-5-5, 21-5-7. In contrast, a survival action is the decedent's
own personal cause of action, which does not abate at decedent's death, but is brought
by a representative seeking damages the decedent could have obtained for injuries had
he survived. See Wiersma v. Maple Leaf Farms, 543 N.W.2d 787, 795 (S.D. 1996)
(Amundson J., dissenting); S.D. Codified Laws § 15-4-1.

                                           -4-
Frey, 44 F.3d at 671 (remanded to district court for full briefing and determination of
standing issue in context of Missouri survival and wrongful death statutes). We see no
need to decide the issue here either, because we construe the complaint as alleging only
a survival action. In the complaint, the estate alleges that as a result of defendants'
conduct, "Frederick Neal Yellow Horse, . . . prior to his untimely death, suffered
extreme mental anguish, severe pain and suffering, including the emotional distress of
knowing of his pending death, as well as other personal injuries, and his untimely and
wrongful death." The relief sought is not compensation for decedent's next of kin for
their pecuniary injury, but only damages for injuries to Yellow Horse. Accordingly, we
find Alan, as administrator of Yellow Horse's estate, had standing to assert a claim
under section 1983.

       2.     Qualified Immunity

      Whether qualified immunity shields a government official from suit is a question
of law, which we review de novo. See Liebe v. Norton, 157 F.3d 574, 576 (8th Cir.
1998). When qualified immunity is claimed, it is the estate's burden to show that a
material fact or question of law precludes summary judgment. See Williams v. Kelso,
201 F.3d 1060, 1064 (8th Cir. 2000). To prevail against the individual county officials,
the estate must establish a violation of a clearly established constitutional right, and that
no genuine issues of material fact exist as to whether a reasonable official knew her
actions amounted to a constitutional violation. See Liebe, 157 F.3d at 577.

        Yellow Horse had a clearly established constitutional right to be protected from
the known risks of suicide and to have his serious medical needs attended to. See id.
The question in this case is whether the jailers knew their actions amounted to a
constitutional violation. To prove knowledge by the jailers, the estate has to show the
jailers were deliberately indifferent to the known risk of suicide and Yellow Horse's
serious medical needs. See id. Deliberate indifference is established if the jailers


                                            -5-
"[knew] of and disregard[ed] an excessive risk to [Yellow Horse's] health or safety."
Farmer v. Brennan, 511 U.S. 825, 837 (1994).

       The estate cannot meet this burden. The estate complains Officer Severson
should have consulted a mental health professional and completed a suicide prevention
screening form before removing Yellow Horse from suicide watch. The record shows
that Severson's routine practice for removing someone from suicide watch was that she
would gather information by reviewing the contact journal, which contained
information on the eating, sleeping and social habits of the inmate, and then interview
and evaluate the inmate before removing him from suicide watch. The estate makes
much of Severson's failure to specifically recall taking Yellow Horse off suicide watch.
However, Severson's statement regarding this incident was taken a little over one year
after the suicide, and her deposition was taken more than four years after the
occurrence. Her failure to specifically remember taking Yellow Horse off suicide
watch is hardly surprising in light of the intervening time between the suicide and the
statements, and does not create a genuine issue of material fact. Severson testified that
if she did, in fact, remove Yellow Horse from the watch, the aforementioned process
would have been followed. The estate cannot show otherwise, and therefore cannot
meet its burden of establishing a material fact which would preclude summary judgment
in favor of Severson. See Kelso, 201 F.3d at 1064. Accordingly, we find Severson did
not exhibit deliberate indifference by disregarding an excessive risk to Yellow Horse's
health or safety. See Liebe, 157 F.3d at 578 (jailer who followed prison suicide
prevention policy had taken deliberate steps to prevent suicide and was not deliberately
indifferent); Rellergert v. Cape Girardeau County, 924 F.2d 794, 797 (8th Cir. 1991)
(same).

       The estate also asserts Officer West, the officer on duty at the time of the
suicide, was deliberately indifferent for failing to make more timely cell checks,
especially upon learning from other inmates that Yellow Horse was upset and talking
about "heaven" and "hell." The undisputed evidence shows West maintained her

                                          -6-
routine practice of checking the cells at regular intervals, and we find the inmates'
warnings were not enough to put her on actual notice of an excessive risk to Yellow
Horse's safety. Yellow Horse was no longer on suicide watch, and therefore Officer
West was not deliberately indifferent simply because she did not single out Yellow
Horse for more frequent cell checks. When West did find Yellow Horse, she
performed CPR in attempt to revive him. The record does not indicate West knew of
and disregarded an excessive risk that Yellow Horse would commit suicide.
Accordingly, the district court did not err in granting West and Severson qualified
immunity.

      3.     Pennington County

       The estate also appeals the district court's grant of summary judgment in favor
of the county and the officers in their official capacities. In a section 1983 action, a
municipality may only be held liable for constitutional violations which result from a
policy or custom of the municipality. See Monell v. New York City Dep't of Soc.
Servs., 436 U.S. 658, 691 (1978).

       The estate claims the county failed to maintain adequate suicide prevention
policies. Specifically, the estate alleges the county's policies were inadequate regarding
the procedure for removing a prisoner from suicide watch, how to supervise suicidal
prisoners, and the failure to provide "refresher" suicide prevention courses for jail
employees. The estate's complaints can be characterized and analyzed as failure to
train claims. See Liebe, 157 F.3d at 578 (alleged failure of county to have adequate
suicide prevention policies in place appropriately analyzed under failure to train
standard set forth in City of Canton v. Harris, 489 U.S. 378, 388 (1989)). A
municipality may be liable for failure to train its employees when that failure can be
shown to be deliberate indifference to the rights of others. See Canton, 489 U.S. at
389.


                                           -7-
        The undisputed facts show that: (1) before officers are released to work on their
own, they are required to complete training courses which include suicide prevention;
(2) at the time of the suicide, in September 1994, Pennington County Jail was
accredited by the American Correctional Association, which requires jails to have a
suicide intervention policy; and (3) in July 1994, the county held a training session at
the jail regarding suicide prevention. The county's suicide prevention policy provided
that during a new inmate's intake procedures, the inmate was to be screened for
possible suicide indicators such as drug or alcohol abuse, mental illness, or other
strange behavior. Inmates who were already in jail and subsequently became suicidal
could also be placed on suicide watch by any officer. Only a supervisor could remove
an inmate from suicide watch, and before doing so, the supervisor would interview the
inmate and review the inmate's records to determine if he had been eating, socializing,
etc. Correctional officers on duty were to check on an inmate on suicide watch every
thirty minutes. Officers were trained to note significant events such as deaths in the
family, divorces, and unfavorable court rulings which might trigger suicidal tendencies
in inmates. The policy was reviewed annually by the officers, and also periodically
reviewed by prison medical staff. In light of these facts, we find the district court was
correct in holding the county's policy did not show deliberate indifference to the rights
of others. The policy was reasonable and comprised an effort to prevent suicides rather
than deliberate indifference to the possibility of suicides. See Liebe, 157 F.3d at 579;
Rellergert, 924 F.2d at 797.

      Accordingly, we affirm the judgment of the district court.

JOHN R. GIBSON, Circuit Judge, dissenting.

      I respectfully dissent. To me, the record in this case demonstrates there is a
genuine issue of material fact as to whether defendants were deliberately indifferent to
Yellow Horse's known risk of suicide, and the district court erred in granting summary
judgment.

                                          -8-
      While undergoing alcohol treatment at the Health Services Center in Yankton,
Yellow Horse tried to hang himself using an electrical cord on August 1, 1994. On
August 24, he tried to kill himself by cutting his wrist. He told doctors he felt guilty
and depressed about authorizing the termination of his mother’s life support systems
one year previously. Shortly after returning to the Pennington County Jail, Yellow
Horse asked one of the staff members about the best way to kill oneself. He talked
about cutting his wrists and asked the staff member "which way was better, across the
arm or up the arm." This resulted in Yellow Horse's placement on suicide watch until
August 27. On August 28, he was again placed on suicide watch only to be removed
two days later. None of the decisions about removing Yellow Horse from suicide
watch were made by or in consultation with a mental health professional, nor did
Pennington County's policy on suicide prevention prescribe procedures for removing
an inmate from suicide watch.

       On September 6, 1994, the day of Yellow Horse's death, an inmate told Jill
West, the correctional officer on duty in Yellow Horse's cell block, that Yellow Horse
had been crying and talking about heaven and hell. However, West did not place
Yellow Horse on suicide watch, increase the frequency of her cell checks, or take any
other responsive action until later that evening when two inmates called for her
assistance, asserting there was a problem in Yellow Horse's cell. By the time West
went to Yellow Horse's cell to investigate, he had already committed suicide by
hanging himself.

       From the time Yellow Horse returned to the Pennington jail on August 25 until
the time of his September 6 suicide, he was not screened for potential suicide risk or
evaluated by a qualified mental health professional even though county correctional
officers knew that Yellow Horse had twice attempted suicide in the past month and that
Yellow Horse talked about committing suicide at the Pennington jail.


                                          -9-
     To me, these facts are sufficient to require denial of the motion for summary
judgment and to remand the case for trial.

      A true copy.

            Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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