                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3577
                                   ___________

Jerala Grayson, as personal              *
representative for the Estate of         *
Daniel Neal Grayson,                     *
                                         *
              Plaintiff/Appellant,       *
                                         * Appeal from the United States
       v.                                * District Court, Western District
                                         * of Arkansas.
Bob Ross, individually and in his        *
official capacity as a Crawford          *
County Sheriff,                          *
                                         *
              Defendant/Appellee,        *
                                         *
John McAllister, individually and in his *
official capacity as a Crawford County *
Deputy; Chris Porter, individually and *
in his official capacity as a Crawford   *
County Deputy,                           *
                                         *
              Defendants/Appellees,      *
                                         *
Roy Bass, individually and in his        *
official capacity as a Crawford County *
Deputy,                                  *
                                         *
              Defendant,                 *
                                         *
Michael Sharum, individually,            *
                                         *
              Defendant/Appellee.        *
                                    ___________
                              Submitted: November 18, 2005
                                 Filed: July 19, 2006
                                  ___________

Before ARNOLD, BEAM, and RILEY, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

       Daniel Neal Grayson (Grayson) died October 15, 2000, following self-
mutilation while incarcerated in the Crawford County Detention Center (jail). Jerala
Grayson (Appellant), as the personal representative of Grayson's estate, sued the
Crawford County Sheriff and three of the jailers in their individual and official
capacities. An amended complaint altered the list of defendants, adding arresting
officer Michael Sharum, in his individual capacity, and dismissing jailer Roy Bass.

       The suit alleged violations of Grayson's right to medical treatment and to due
process, as secured by the Fourth, Eighth and Fourteenth Amendments to the United
States Constitution, redressable under 42 U.S.C. § 1983, as well as violations of rights
secured by the Constitution of the State of Arkansas, redressable under the Arkansas
Civil Rights Act of 1993. The district court granted summary judgment in favor of
the Crawford County Sheriff, finding that the individual capacity claim failed because
it was undisputed that the Sheriff was not aware that Grayson was incarcerated until
Grayson had already seriously injured himself. Appellant does not appeal this finding.

       The district court also granted summary judgment in favor of the Sheriff and
the remaining jailers in their official capacities, finding that Appellant's claim for
failure to train or for unlawful policy or custom violations failed. The district court
ruled that Officer Sharum was entitled to qualified immunity, and granted summary
judgment in his favor. Finally, the district court granted qualified immunity to the two
remaining jailers, Chris Porter and John McAllister, for the decision to accept Grayson


                                          -2-
into the jail (intake), but not for their subsequent actions or the timeliness of
summoning medical attention (post-intake monitoring). The case proceeded to a jury
trial, resulting in a verdict in favor of Porter and McAllister.

       Appellant appeals the grant of qualified immunity to Sharum, the partial grant
of qualified immunity to Porter and McAllister, and the grant of summary judgment
on the official capacity claims as to the Sheriff, Porter, and McAllister. In addition,
Appellant contends that the jury was improperly instructed on the standard of care
under the Arkansas Civil Rights Act of 1993. Finally, Appellant questions the district
court's exclusion of evidence regarding the Arkansas State Jail Standards. We affirm
in part.

I.    BACKGROUND

       At oral argument, Appellant conceded that there was no Fourth Amendment
claim; thus, the facts regarding the arrest are merely provided as background. Because
the district court granted qualified immunity on the intake procedure, we view those
facts in the light most favorable to Appellant, the non-moving party. Robinson v.
White County, Ark., 2006 WL 1805978, at *4 (8th Cir. July 3, 2006). The claims for
post-intake monitoring proceeded to trial, and we recount the facts in the light most
favorable to the jury verdict. Smith v. Ferrel, 852 F.2d 1074, 1076 (8th Cir. 1988).

      A.     The Arrest

       On October 15, 2000, a little after 2:00 p.m., Van Buren, Arkansas, Police
Officer Michael Sharum responded to an accident report involving a vehicle in a
creek. He found Grayson standing next to the creek, soaking wet, and reporting that
his vehicle was going to "blow up." Sharum tried to arrest Grayson for driving while
intoxicated, and Grayson became combative. Sharum, struggling to gain control of
Grayson, struck Grayson on the head with his duty weapon, and then Grayson

                                         -3-
cooperated with the arrest. Sharum placed Grayson in the back of his unit and
transported him to the jail.

      B.     The Intake

       Following the arrest, Sharum drove his vehicle into the sallyport at the jail. He
walked with Grayson into the jail and had Grayson sit on a bench in handcuffs.
Sharum told the jailers that he was "pretty sure" Grayson was under the influence of
some narcotic. Sharum also told the jailers that he would have to come back later to
perform a blood draw for a toxicology screening and asked that Grayson be changed
into dry clothing. While he was filling out a probable cause sheet, Sharum observed
Grayson calmly sitting on the bench, coherently answering questions from the jailers
about his name, address, date of birth, and social security number. Sharum also spoke
to Grayson's mother, who explained that Grayson had a history of methamphetamine
use. Sharum left the jail. At the time of their interactions, Sharum was not sure if
Grayson was actually experiencing any hallucinations, such as Grayson's reported
belief that his vehicle would "blow up." When Grayson arrived at the jail, he
appeared normal, was responsive and attentive, and did not display any signs that he
was having hallucinations.

        Grayson was brought to the jail at approximately 2:30 p.m., shortly before the
first shift ended at 3:00 p.m. Corporal Bobby Josenberger was supervising jailers Roy
Bass and Gena Bowles. When Gena Bowles first observed Grayson, he was sitting
quietly on a bench in handcuffs. She had a difficult time getting his attention. She
asked him if he had been doing drugs, and he replied that he had lost something.
Bowles initially refused to accept Grayson, and Sharum complained to her that taking
Grayson to the hospital would take a lot of time. Bowles told Josenberger that she
thought Grayson should not be booked into the jail, but should be taken to the
hospital. Bowles called Grayson's mother, and put his mother on the phone with
Josenberger.

                                          -4-
       After talking to Grayson's mother, Josenberger conferred with Sharum and
Corporal John McAllister. Because McAllister would be supervising the next shift
starting at 3:00 p.m., McAllister visually evaluated Grayson to determine whether to
accept him at the jail. He asked Grayson if he had been doing drugs, and Grayson told
McAllister that he had lost his straw. McAllister decided to book him into the jail,
stating that the jail had booked detainees in worse condition. Bowles told McAllister
that she thought that Grayson would become more intoxicated, but he assured her that
Grayson would be all right. McAllister was not informed that Grayson had been
struck in the head or that Grayson had claimed his vehicle was going to explode.

       Bass, McAllister, and a third jailer accompanied Grayson to the dressing room
inside the jail. Grayson complied with their instructions and changed into a dry prison
uniform by himself. At approximately 2:55 p.m., Bass, jailer Chris Porter, and
McAllister escorted Grayson to Cell 7, which was used as an observation cell for
prisoners who were intoxicated, to make sure that a jailer could readily observe him.

      C.     The Post-Intake Monitoring

       Jailers Chris Porter and Lacy Ree worked the afternoon shift that day, from 3:00
p.m. to 11:00 p.m., with McAllister supervising. When Grayson entered Cell 7, Porter
did not notice anything that caused him concern.

       Sharum returned to the jail at 4:30 p.m. to take Grayson's blood. Again, at that
time, Sharum observed that Grayson was not acting abnormally and Sharum did not
observe evidence that Grayson was hallucinating. Sharum read Grayson his rights on
implied consent for drug testing, and Grayson stated that he did not understand,
would not submit to testing, and did not want to sign anything. McAllister
accompanied Sharum to witness the reading of the implied consent form and noticed
that Grayson was acting like he did not want to be disturbed, a not-uncommon



                                         -5-
reaction to the implied consent form, but nothing about the event signaled that
Grayson needed to go to the hospital.

       Porter was stationed at a desk located in a hallway common to all cells,
approximately fifteen to twenty feet from Cell 7. Porter checked on all men in the jail
at 3:05 p.m. and at 4:00 p.m. and noticed nothing unusual about Grayson. Until 5:00
p.m., Grayson was quiet and behaved normally.

      However, at 5:00 p.m., Grayson's behavior changed. He began to scream, a
behavior Porter characterized as not unusual for intoxicated inmates. Porter notified
McAllister, who responded to Cell 7. McAllister saw Grayson sitting on the floor
with his shirt off, screaming and rubbing his eyes with the palms of his hands.
McAllister called Grayson by his first name. Grayson stopped and agreed to relax and
calm down. McAllister left Cell 7 and instructed Porter to put Grayson on a fifteen-
minute watch. McAllister went to the front of the jail and telephoned the jail
administrator to let him know that there was an inmate screaming and rubbing his
eyes. The administrator told McAllister to keep an eye on the inmate, which
McAllister considered already accomplished by the fifteen-minute watch.

      At 5:15 p.m, Porter noted that Grayson had taken off his clothes and was still
screaming. At 5:23 p.m., Grayson was standing in Cell 7 and sweating. At 5:30 p.m.,
Porter noticed a small pool of blood on the floor. Grayson was bent over with his
back to the door, so Porter contacted McAllister.

      Sharum and Van Buren Police Officer Griffin came to the jail at the jailers'
request at 5:36 p.m. When Sharum arrived, Grayson was naked and covered in blood
and sweat. Sharum, Griffin, Porter, and McAllister entered Cell 7 together and
discovered that Grayson had succeeded in mutilating himself and was attempting to
harm himself further. McAllister pulled Grayson from Cell 7 into the hallway in a
face-down position and tried to restrain Grayson by lying across the back of Grayson's

                                         -6-
knees. While on top of Grayson, McAllister radioed Ree to summon an ambulance,
the Sheriff, and the jail administrator. Porter immediately tried to grab Grayson's hand
to prevent him from harming himself further. A prolonged struggle ensued, in which
Sharum's arm was broken, and his shoulder dislocated.

       According to the jail logs, an ambulance was called at 5:52 p.m., sheriff's
deputies arrived at 5:58 p.m., and the ambulance had arrived and medical technicians
were treating Grayson by 6:00 p.m. At 6:09 p.m., Grayson had stopped breathing and
at 6:22 p.m., he was transported out of the jail and to the Crawford County Emergency
Room. Grayson died of excited delirium as a result of acute methamphetamine
intoxication and physical struggle, with idiopathic cardiomyopathy as a contributing
condition.

II.   DISCUSSION

      A.     Qualified Immunity

       We review the district court's grant of summary judgment de novo, applying the
same standards as the district court. Robinson, 2006 WL 1805978, at *2. Because the
district court granted summary judgment based on qualified immunity, we also
employ the qualified immunity standard:

      "Government officials who perform discretionary functions are entitled
      to qualified immunity unless their alleged conduct violated clearly
      established federal constitutional or statutory rights of which a
      reasonable person in their positions would have known. We analyze
      [the] qualified immunity issue in two steps. First, we ask whether the
      facts as asserted by the plaintiff show the officer's conduct violated a
      constitutional right. If the answer is no, we grant qualified immunity. If
      the answer is yes, we go on to determine whether the right was clearly
      established. The relevant, dispositive inquiry in determining whether a


                                          -7-
      right is clearly established is whether it would be clear to a reasonable
      officer that his conduct was unlawful in the situation he confronted."

Id. at *3 (quoting Wright v. Rollette County, 417 F.3d 879, 884 (8th Cir. 2005), cert.
denied, 126 S. Ct. 1338 (2006)).

       Under the first step of the qualified immunity analysis, determining whether
there has been a constitutional violation, the Fourteenth Amendment affords pre-trial
detainees at least as much protection as the Eighth Amendment does to convicted
prisoners; therefore, we employ the Eighth Amendment's deliberate-indifference
standard. Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir. 2005). Thus, Appellant
must show, (1) objectively, that the conditions of Grayson's confinement "posed a
substantial risk of serious harm" and, (2) subjectively, that the defendants "actually
knew of but disregarded, or were deliberately indifferent to, [Grayson's] health or
safety." Id. at 602. Under the first prong of the deliberate indifference standard, "an
objectively serious medical need or a deprivation of that need . . . must be either
obvious to the layperson or supported by medical evidence, like a physician's
diagnosis." Aswegan v. Henry, 49 F.3d 461, 464 (8th Cir. 1995).

      Under the second step of the qualified immunity analysis, we look to whether
it would be clear to a reasonable officer that his conduct was unlawful in the situation
he confronted. Robinson, 2006 WL 1805978, at *2.




                                          -8-
             1.     Michael Sharum

      Appellant conceded any Fourth Amendment claims. However, Appellant
contends that Sharum is not entitled to qualified immunity, because he declined to
take Grayson to the hospital.

                    a.    Violation of a Constitutional Right

       First, we consider whether Sharum was deliberately indifferent to an objectively
serious medical need to determine whether Sharum violated Grayson's constitutional
rights.1 Turning to step one of the deliberate indifference inquiry, we cannot say that
it would be obvious to a layperson that Grayson required immediate medical attention
at the time Sharum transported him to the jail, therefore he did not have an
"objectively serious medical need." Aswegan, 49 F.3d at 464. Sharum observed
Grayson's reactions to his vehicle in the water and used his service weapon to subdue
Grayson, but, once arrested, Grayson sat calmly in the back of the patrol car, followed
directions, answered questions posed, and remained quiet and seated on a bench inside
the jail.

       Under step two of the deliberate indifference inquiry, Sharum knew that
Grayson was likely under the influence of methamphetamine, but the record reflects
Sharum was unsure whether Grayson was hallucinating. Therefore, Sharum did not
subjectively know that Grayson required medical attention. Sharum was not
deliberately indifferent to Grayson's medical needs, and thus did not violate Grayson's
constitutional rights. Sharum is entitled to qualified immunity.


      1
        Sharum's admittedly callous remark to Bowles about the amount of time
involved in taking Grayson to the hospital is not a violation of Grayson's
constitutional rights. Even if the remark arguably pressured Bowles to accept Grayson
as an inmate, McAllister ultimately made the decision whether to book Grayson and
he did not hear the remark.

                                         -9-
                    b.     Clearly Established

       Even assuming that Sharum was deliberately indifferent to Grayson's
constitutional rights, it would not be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted, because Grayson's medical needs were not
objectively serious. Grayson had not been diagnosed by a physician, cf. Buckley v.
Rogerson,133 F.3d 1125, 1127 (8th Cir. 1998) (involving inmate in prison mental
hospital who "was diagnosed and treated for chronic schizophrenia or schizophrenia-
like psychosis"), nor did Grayson exhibit symptoms that were obvious to the
layperson. Cf. Coleman v. Rahija,114 F.3d 778, 784 (8th Cir. 1997) (discussing
symptoms of early labor, including bleeding, which were easily recognizable with
external examination). Grayson was initially combative when arrested, but once
Sharum subdued him, he was calm both in the patrol car and in the jail. Therefore,
Sharum is entitled to qualified immunity based on the intake.

             2.     Chris Porter

      Chris Porter was not involved in the decision to accept Grayson at the jail;
therefore, he could not have violated Grayson's constitutional rights based on
Grayson's intake and is entitled to qualified immunity for the intake.

             3.     John McAllister

                    a.     Violation of a Constitutional Right

      First, we consider whether McAllister was deliberately indifferent to an
objectively serious medical need. In determining whether Grayson had an objectively
serious medical need, absent a physician's diagnosis, we look to whether it would be
obvious to a layperson that Grayson required immediate medical attention.
Confronted with a calm, non-combative person sitting on a bench answering

                                          -10-
questions, a layperson would not leap to the conclusion that Grayson needed medical
attention, even if he were aware that Grayson had taken methamphetamine.

       Under step two of the deliberate indifference inquiry, McAllister was aware that
Grayson was likely under the influence of methamphetamine. However, he did not
know the amount of methamphetamine taken or the time that it was taken. Nor could
he readily determine the degree of Grayson's intoxication, because Grayson would not
answer questions about his drug use and, indeed, later refused to consent to a blood
draw. Grayson's behavior at the time of the intake did not suggest a high degree of
intoxication. Therefore, McAllister did not subjectively know that Grayson required
medical attention and was not deliberately indifferent to Grayson's medical need.

                    b.     Clearly Established

       Even assuming that McAllister's decision to override Bowles' objection to
accepting Grayson amounted to a violation of Grayson's constitutional rights, we must
also determine whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted. Though the Supreme Court has recognized
that "deliberate indifference to serious medical needs" violates the proscription against
cruel and unusual punishment, Estelle v. Gamble, 429 U.S. 97, 104 (1976), it would
not be clear to a reasonable officer that admitting Grayson to the jail was unlawful.

       At the time of the intake, Grayson had no obvious injuries. McAllister was
unaware that he had been struck in the head or that Grayson had been concerned about
exploding vehicles. His answers to questions were normal; he gave his name, address,
date of birth, and social security number as requested. When asked about taking
drugs, he said that he had lost his straw. He complied with the jailers and changed
into a dry uniform without assistance. Again, Grayson had not been diagnosed by a
physician, cf. Buckley,133 F.3d at 1127, nor did Grayson exhibit symptoms that were
obvious to a layperson. Cf. Coleman, 114 F.3d at 784. It would not be clear to a

                                          -11-
reasonable officer that it would be unlawful to accept into custody a calm, compliant
inmate who answered routine questions coherently, but became evasive when asked
about drug use. Therefore, McAllister is entitled to qualified immunity based on the
intake.

      B.     Official Capacity Claims

       We review de novo the district court's grant of summary judgment, employing
the same standard as the district court. Groves v. Metro. Life Ins. Co., 438 F.3d 872,
874-75 (8th Cir. 2006). Appellant's official capacity claims are tantamount to suing
Crawford County. Official-capacity liability under 42 U.S.C. § 1983 occurs only
when a constitutional injury is caused by "a government's policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). Because
Monell specifically rejected liability based solely on respondeat superior, id. at 691,
"[a] supervisor is not vicariously liable under 42 U.S.C. § 1983 for an employee's
unconstitutional activity." White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994). Rather,
official-capacity liability must be based on deliberate indifference or tacit
authorization. Id.

             1.     Failure to Train

        Liability for failure to train arises "only where the failure to train amounts to
deliberate indifference to the rights of persons with whom the police come into
contact." City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1988). Appellant argues
that the Crawford County Sheriff failed to train the jailers, but both McAllister and
Porter were trained in the Basic Jail Standards Training Course. Appellant has
advanced no evidence or case law that this training was deliberately indifferent to
Grayson's rights, and we decline to hold Sheriff Ross liable in his official capacity.



                                          -12-
             2.     Policy or Custom

       Policy or custom official-capacity liability is imposed by 42 U.S.C. § 1983 only
for "constitutional deprivations visited pursuant to governmental 'custom' even though
such a custom has not received formal approval through the body's official
decisionmaking channels." Monell, 436 U.S. at 690-91. Appellant argues that
Crawford County had a custom of booking inmates who were hallucinating and that
this custom deprived Grayson of his constitutional rights, pointing to the following
evidence: Bowles' initial refusal to book Grayson, McAllister's statement that inmates
had been booked who were more intoxicated, and Bowles' and Sharum's references
to other inmates who were paranoid, picking at their skin and feeling like they had
bugs crawling on them, as a result of methamphetamine use.

       Bowles refused to book Grayson because "he just wasn't there," but could not
offer a more specific explanation. McAllister's statement that inmates more
intoxicated than Grayson had been booked is hardly surprising, considering that
Grayson was coherent, compliant and cooperative when he was booked. Finally,
having inmates in custody experiencing symptoms of the after-effects of
methamphetamine use does not evidence an official practice of booking inmates who
were hallucinating without providing medical care. Appellant did not present
evidence that these other inmates posed a danger to themselves or were not medically
evaluated. Because there were no facts supporting a policy or custom of denying care
to inmates' serious medical needs, we affirm the grant of summary judgment on the
official capacity claims.




                                         -13-
      C.     The Arkansas Civil Rights Act of 1993

       At trial, the jury found that Porter and McAllister were not deliberately
indifferent to Grayson's constitutional rights. While the instructions2 are consistent
with federal Eighth and Fourteenth Amendment protections for pre-trial detainees, see


      2
       The jury was instructed as follows:

      The Plaintiff claims that the constitutional rights of Daniel Grayson were
      violated after he was arrested and booked into the Crawford County
      Detention Facility. You are instructed as a matter of law that Mr.
      Grayson had the constitutional right to be provided with medical care if
      there was a known, serious need for medical care.

      Your verdict must be for the Plaintiff and against the Defendants if all of
      the following elements have been proved by a preponderance of the
      evidence. First, that Daniel Grayson had a serious need for medical
      treatment; second, that the Defendants were aware of Daniel Grayson's
      serious need for such medical care; third, that the Defendants, with
      deliberate indifference, failed to provide the medical care needed; and
      fourth, that as a direct result, Daniel Grayson was damaged.

      If any of the above elements has not been proved by the preponderance
      of the evidence, then your verdict must be for the Defendants.

      A serious medical need is one that has been diagnosed by a physician as
      requiring treatment, or one that is so obvious that even a lay person
      would easily recognize the necessity for a doctor's attention.

      Deliberate indifference is established only if there is actual knowledge
      of a substantial risk that Daniel Grayson required medical treatment and
      if the Defendants disregarded that risk by intentionally refusing or failing
      to take reasonable measures to deal with the problem. Mere negligence
      or inadvertence does not constitute deliberate indifference.

Trial Tr., vol. 3, at 495-96.

                                         -14-
Crow, 403 F.3d at 601, the Arkansas Constitution may require a different standard of
care. Though we have previously determined that deliberate indifference applies
"under article II, section 9 of the Arkansas Constitution," which prohibits cruel and
unusual punishment and thus "essentially mirrors the Eighth Amendment of the
United States Constitution," Hufford v. Ross, No. 98-3772, slip op. at 3 (8th Cir. May
26, 1999) (per curiam) (unpublished), we decline to extend the deliberate indifference
standard to all claims brought by pre-trial detainees and hereby direct the Clerk of
Court to certify the following question to the Supreme Court of Arkansas: Does the
conscious indifference standard announced in Shepherd v. Washington County, 962
S.W.2d 779 (Ark. 1998), afford greater protection to pre-trial detainees than the
federal deliberate indifference standard?

       D.    The Arkansas State Jail Standards

       We review the district court's evidentiary rulings for abuse of discretion.
United States v. Bistrup, 449 F.3d 873, 882 (8th Cir. 2006). "Jail standards, although
helpful and relevant in some cases, do not represent minimum constitutional
standards." Johnson v. Busby, 953 F.2d 349, 351 (8th Cir. 1991) (per curiam). The
district court did not abuse its discretion by excluding the Arkansas State Jail
Standards.

III.   CONCLUSION

       We affirm the district court's grant of qualified immunity to Sharum, partial
grant of qualified immunity to Porter and McAllister, grant of summary judgment on
the official-capacity claims, and exclusion of evidence regarding the Arkansas State
Jail Standards.

      The Clerk of Court is directed to certify the following question to the Supreme
Court of Arkansas: Does the conscious indifference standard announced in Shepherd

                                        -15-
v. Washington County, 962 S.W.2d 779 (Ark. 1998), afford greater protection to pre-
trial detainees than the federal deliberate indifference standard?
                         ______________________________




                                       -16-
