UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CATHERINE L. HOY, Guardian for
Kevin A. Brown,
Plaintiff-Appellant,

v.

STEVE A. SIMPSON, Sheriff of
Loudoun County; DANIEL DONDERO;
                                  No. 97-1583
TRULA PEACH; LANCE SCHUL; JAMES
DRUMMOND; SHANNON M. DALY; THE
LOUDOUN COUNTY BOARD OF
SUPERVISORS; MICHAEL COX; JACK
BRADLEY; JEFFREY FRAGALA;
UNKNOWN SHERIFF'S DEPUTIES,
Defendants-Appellees.

CATHERINE L. HOY, Guardian for
Kevin A. Brown,
Plaintiff-Appellant,

v.

STEVE A. SIMPSON, Sheriff of
Loudoun County; DANIEL DONDERO;
                                  No. 98-2605
TRULA PEACH; LANCE SCHUL; JAMES
DRUMMOND; SHANNON M. DALY; THE
LOUDOUN COUNTY BOARD OF
SUPERVISORS; MICHAEL COX; JACK
BRADLEY; JEFFREY FRAGALA;
UNKNOWN SHERIFF'S DEPUTIES,
Defendants-Appellees.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-96-726-A)

Argued: April 9, 1999

Decided: June 25, 1999

Before LUTTIG and WILLIAMS, Circuit Judges,
and BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: James Paul Campbell, JAMES P. CAMPBELL & ASSO-
CIATES, Leesburg, Virginia, for Appellant. David Drake Hudgins,
HUDGINS, CARTER & COLEMAN, Alexandria, Virginia, for
Appellees. ON BRIEF: William J. Rold, New York, New York, for
Appellant. Paul T. Emerick, Jeffrey R. Dion, HUDGINS, CARTER
& COLEMAN, Alexandria, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Catherine L. Hoy brought this federal civil rights action, with pen-
dent state law tort claims, against Loudoun County, the Sheriff of

                     2
Loudoun County, and seven sheriff's deputies after her son Kevin
Brown suffered injuries while being detained at the Loudoun County
jail that left him in a persistent vegetative state. Hoy appeals the dis-
trict court's dismissal of her claims against the County and the Sher-
iff, and its entry of judgment, after a jury trial, in favor of the sheriff's
deputies.

I.

On the evening of Friday, March 22, 1996, thirty-three year old
Kevin Brown was arrested by police from the Town of Leesburg and
jailed at the Loudoun County Adult Detention Center ("Loudoun
County ADC" or "ADC") on a charge of public drunkenness. Brown
was well-known to officials at the ADC, having been held fourteen
times before on such charges. Brown was scheduled to be released at
8:00 a.m the next morning, but his release was delayed until the after-
noon as a result of his continued intoxication.

At approximately 6:30 a.m. on Sunday, March 24, the morning
after his release, Brown entered a 7-11 convenience store in Leesburg.
Brown was obviously intoxicated -- he was loud and verbally abu-
sive and was having trouble maintaining his balance. While in the
store, he began to vomit. A Leesburg police officer arrived on the
scene and again took Brown into custody on charges of public drunk-
enness. The officer transported Brown to the Loudoun County ADC,
where a magistrate signed a commitment card and ordered that Brown
be released by 6:00 p.m. that evening, provided he was sober.

Brown was booked at 8:00 a.m. and placed in a holding cell, where
he remained for the next twenty-two hours. Brown's exact condition
at the time of his booking and throughout this period was a matter of
some dispute at trial, but there is no doubt that he was highly intoxi-
cated and spent most, if not all, of that time either asleep or uncon-
scious. Sheriff's deputies at the ADC checked on Brown regularly
throughout the day and night of March 24 and the early morning of
March 25, and tried a number of times, unsuccessfully, to awaken
him.

At approximately 5:25 a.m. on March 25, near the end of his shift,
sheriff's deputy Bradley, who had failed in two attempts to rouse

                      3
Brown during the night, stopped by to check on him. Bradley testified
at trial that at this time he noticed that Brown was having difficulty
breathing, which was a change from his condition as Bradley had
observed it during the night. Bradley took immediate steps to aid
Brown and summon medical assistance. Shift commander Sergeant
Shannon Daly responded from less than ten yards away, and the two
men observed Brown vomiting or spitting what appeared to be clear
fluid, including some blood and mucus. Daly summoned a rescue
squad, which responded at approximately 5:35 a.m. The rescue squad
gave Brown oxygen and placed him on an EKG monitor, and admin-
istered an anti-narcotic drug and another drug to raise his blood sugar.
Brown was transported to Loudoun Hospital Center at 5:52 a.m., and
arrived at 5:55 a.m. Over the next few hours and days, Brown experi-
enced significant seizure activity and cerebral swelling, and was ulti-
mately diagnosed as having slipped into a persistent vegetative state.

Catherine Hoy, Brown's mother and guardian, brought this action
in the United States District Court for the Eastern District of Virginia
against Loudoun County, by its Board of Supervisors, Loudoun
County Sheriff Steve Simpson, and seven sheriff's deputies, seeking
damages and injunctive relief under 42 U.S.C. § 1983, on the grounds
that Brown's due process rights had been violated, and damages
under state law for both simple and gross negligence. The district
court denied defendants' motion to dismiss and permitted the parties
to proceed with extensive discovery. On cross-motions for summary
judgment at the close of discovery, the district court granted summary
judgment to the defendants on Counts III and IV (of seven) of the
complaint alleging the liability of the County and the Sheriff for fail-
ure properly to train the deputies and to adopt procedures for the care
of intoxicated detainees, and for the failure to provide an adequate
facility. Sheriff Simpson remained a party to the action under a
respondeat superior theory on the state law negligence and gross neg-
ligence counts (Counts VI and VII). Hoy's cross-motion for summary
judgment was denied, and she voluntarily dismissed Count V of her
complaint alleging the deputies' use of excessive force.

The case went to trial before a jury on the remaining four counts
alleging denial of medical treatment, deliberate indifference to medi-
cal needs, negligence, and gross negligence. The trial lasted five days,
during which the jury heard testimony from dozens of witnesses. At

                    4
the close of Hoy's case, the Sheriff and his deputies moved for judg-
ment as matter of law pursuant to Fed. R. Civ. P. 50. Pursuant to that
motion, the district court dismissed Count VII, the simple negligence
claim, because under Virginia law the County's sovereign immunity
from suit extended to the Sheriff and his deputies for negligent perfor-
mance of their discretionary governmental functions. Following the
presentation of their case, the defendants renewed their Rule 50
motion, which the district court denied in full. Three counts were thus
submitted to the jury: Counts I and II of the section 1983 action,
alleging "Denial of Medical Treatment" and"Deliberate Indifference
to Medical Needs," respectively, and Count VI, the state law gross
negligence claim. After deliberating for less than three hours, the jury
returned a unanimous verdict in favor of the defendants on all three
counts. The court then denied plaintiff's motion for a new trial.

While plaintiff's appeal of the jury verdict and the summary judg-
ment was pending, she filed a motion with this court under Fed. R.
Civ. P. 60(b) to amend the record and present argument related to
"newly discovered evidence." We held the appeal in abeyance and
remanded the case to the district court for a determination on the mer-
its of that motion, in which Hoy alleged that defendants had withheld
certain information pertaining to the Sheriff's compliance with Vir-
ginia Department of Corrections Standards in operating the ADC, and
to the involvement of the Loudoun County Board of Supervisors in
supervising the facility. Plaintiff argued that this evidence warranted
vacating the district court's award of summary judgment to the Sher-
iff and the County on Count III of the First Amended Complaint
alleging a failure by the Sheriff to train deputies and adopt proper pol-
icies for monitoring intoxicated detainees. The district court agreed,
ruling that evidence of the Sheriff's failure to comply with Depart-
ment of Corrections standards, of notice of deficiencies in training or
procedures, and of policymaking activity by the Board of Supervisors,
could have created genuine issues of material fact that would have
made the grant of summary judgment improper. The court vacated its
summary judgment order and re-opened discovery for a period of
forty-five days on the limited issues identified by Hoy in her motion.

After taking sixteen depositions and filing a number of additional
discovery motions, Hoy filed a Second Amended Complaint alleging
in four new counts that Sheriff Simpson and the Loudoun County

                    5
Board of Supervisors were deliberately indifferent specifically by fail-
ing to train deputies to perform a proper medical screening and to
insure that the deputies' first-aid re-certifications were up to date, and
by allowing newly appointed deputies to be assigned for work in the
ADC. The complaint also included two new counts alleging liability
for simple and gross negligence as a result of these training and super-
visory deficiencies. Defendants moved to dismiss the Second
Amended Complaint under Fed. R. Civ. P. 12(b)(6), and the district
court granted the motion on the stated ground that plaintiff had failed
to plead sufficient facts to establish a claim of deliberate indifference.
Plaintiff now appeals the dismissal of her Second Amended Com-
plaint as well as the earlier judgment entered on the jury verdict.

II.

We consider first appellant's challenges to the judgment entered on
the jury verdict in favor of the defendant sheriff's deputies. Appellant
argues that the court erred by failing specifically to instruct the jurors
that the state-of-mind required to support a finding of deliberate indif-
ference could be established by circumstantial evidence and by giving
a qualified immunity instruction that "hopelessly confused" them.
Appellant also contends that she was prejudiced by the district court's
failure to comply with the requirement of Fed. R. Civ. P. 51 that it
advise the parties before closing argument of its proposed action on
their requested instructions. Finding no reversible error, we affirm the
jury verdict in favor of the sheriff's deputies.

A.

Appellant claims first that she is entitled to a new trial because the
district court's instructions on "deliberate indifference" were inade-
quate in light of the Supreme Court's decision in Farmer v. Brennan,
511 U.S. 825 (1994), defining that term for the purposes of establish-
ing a constitutional violation.1 In Farmer, the Supreme Court sought
_________________________________________________________________
1 Although Farmer v. Brennan considered the "deliberate indifference"
standard in the context of a prisoner's claim of a violation of the Eighth
Amendment's prohibition against cruel and unusual punishment, this
court has previously held that the same standard applies to due process

                     6
to clarify the deliberate indifference standard it had announced nearly
twenty years earlier in Estelle v. Gamble, 429 U.S. 97 (1976). Explic-
itly rejecting the "invitation to adopt an objective test for deliberate
indifference" along the lines of "civil-law recklessness," the Court
adopted instead a subjective standard focusing on the defendant's
conscious disregard of a substantial risk of harm. Farmer, 511 U.S.
at 836-37. Thus, the Court held that "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." Id.
at 838.

Appellant does not argue that the district court erred in instructing
the jury on this actual knowledge requirement. Rather, she contends
that the court erred by neglecting to explain to the jury, consistent
with the Court's admonition in Farmer, that the question whether the
official had the requisite knowledge "is a question of fact subject to
demonstration in the usual ways, including inference from circum-
stantial evidence, and a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that a risk was obvious."
Id. at 842 (internal quotations and citation omitted).

We find that the district court did not abuse its discretion in deny-
ing appellant's requested jury instructions on deliberate indifference,
because the court's instructions "adequately informed the jury of the
controlling legal principles without misleading or confusing the jury
to the prejudice of the [appellant]." Spell v. McDaniel, 824 F.2d 1380,
1395 (4th Cir. 1987). First, although the district court did not give the
specific instruction that appellant requested, it did give a standard
general instruction on the value of circumstantial evidence in estab-
lishing any contested fact. J.A. at 2828-29.

Second, with respect to the specific deliberate indifference charge
given, the district court began by essentially quoting to the jury the
Farmer standard:
_________________________________________________________________
claims brought by pre-trial detainees like Brown. Gordon v. Kidd, 971
F.2d 1087, 1094 (4th Cir. 1992). In any event, plaintiff has not chal-
lenged the applicability of the deliberate indifference standard to either
of the section 1983 counts of her complaint, in the district court or on
appeal. Rather, she contends only that the district court did not properly
instruct the jury as to the application of that standard.

                    7
          [T]he plaintiff has the burden of showing that the defendant
          . . . had both been aware of facts from which the inference
          could be drawn that a substantial risk of serious harm
          existed and that the individual deputy sheriff also must have
          drawn such an inference.

J.A. at 2841. The district court did not stop there, however. It went
on to explain that the jury

          would have to determine . . . from all the facts and circum-
          stances of the case whether or not any one or all or a group
          of these deputies had that kind of subjective awareness of
          the known serious medical needs of Mr. Brown in order . . .
          to find that the deliberate indifference standard has been
          met.

J.A. at 2842 (emphasis added). Finally, the court went so far as to
instruct that

          deliberate indifference may be demonstrated by either actual
          intent or reckless disregard. A person acts recklessly by dis-
          regarding a substantial risk of danger that is either known to
          the person or which would be apparent to a reasonable per-
          son in that position.

J.A. at 2842 (emphasis added). Thus, the district court made clear that
the jury in determining a defendant's state-of-mind should consider
all of the facts and circumstances, including the obviousness of the
risk. Accordingly, we are satisfied that the district court's instruction
adequately informed the jury of the essential principles of the deliber-
ate indifference standard.

B.

Next, appellant argues that the district court erred by giving the fol-
lowing qualified immunity instruction, which was a variation of one
defendants had requested:

          Now a defendant in the position of a deputy sheriff is enti-
          tled to a qualified immunity only if he did not know what

                     8
          he did was in violation of federal law and if a competent
          public official would not have been expected at the time to
          know that the conduct was in violation of federal law. In
          deciding what a competent official would have known about
          the legality of the defendant's conduct, you may consider
          the nature of the defendant's official duties, the character of
          his official position, the information which was known to
          the defendant or not known to him, and the events which
          confronted him.

           You must ask yourself what a reasonable official in
          defendant's situation would have believed about the legality
          of the defendant's conduct. You should not, however, con-
          sider that, what the defendant's subjective intent was, even
          if you believe it was to harm the plaintiff. You may also use
          your common sense. If you find that a reasonable official in
          defendant's situation would believe his conduct to be law-
          ful, then this element will be satisfied.

J.A. at 2846-47 (emphases added).

Appellant argues that this instruction constituted reversible error
because its prohibition of any inquiry into subjective intent was
"hopelessly confusing" when considered in conjunction with the
deliberate indifference charge requiring the jurors to consider each
defendant's state-of-mind. In addition, appellant contends, the ques-
tion whether a defendant is entitled to qualified immunity is always
a question of law and thus should never be submitted to the jury. See,
e.g., Warlick v. Cross, 969 F.2d 303, 305 (7th Cir. 1992).

Although we find nothing inherently confusing about two separate
instructions that accurately convey that an alleged constitutional vio-
lation requires an inquiry into the defendant's subjective awareness
while a defense to liability for that violation does not, appellant's
related contention -- that qualified immunity should never be left to
the jury -- is less easily dismissed. For the instructions given in this
case would seem to allow the jury to find that an individual defendant
was in fact deliberately indifferent to Brown's serious medical needs,
but that he was immune from liability because a reasonable officer
would not know that such indifference constituted a violation of fed-

                    9
eral law. Appellant's argument, and it is not without support, is that
this latter conclusion would rest on a determination that it was not
"clearly established," in the particularized sense that our caselaw
requires, see DiMeglio v. Haines, 45 F.3d 790, 804 (4th Cir. 1995),
that deliberate indifference to an intoxicated pre-trial detainee's medi-
cal need would violate that detainee's constitutional rights to due pro-
cess. This determination, appellant contends, is for the court to make.
See, e.g., Warren v. Dwyer , 906 F.2d 70, 75 (2nd Cir. 1990) ("The
ultimate legal determination whether, on the facts found, a reasonable
police officer should have known he acted unlawfully is a question of
law better left for the court to decide.").

We need not decide whether allowing the jury to make this deter-
mination was error, however, because the jury's clear verdict that the
defendants were not deliberately indifferent precluded any consider-
ation of the qualified immunity question, and thus any error in giving
the instruction was harmless. See Stone v. Peacock, 968 F.2d 1163,
1166 (11th Cir. 1992) ("Even if a court improperly instructs the jury
on qualified immunity, however, the error does not require reversal
if it can be determined that the jury decided the case on the merits and
not on qualified immunity.").

The district court, in consultation with the parties, prepared verdict
forms that expressly and unambiguously asked the jurors to state their
finding whether each defendant had violated Kevin Brown's constitu-
tional rights. Thus, the jury received individual verdict forms for each
defendant that read as follows:

          We, the Jury, unanimously find that the plaintiff, Catherine
          L. Hoy, guardian for Kevin A. Brown, has proven by a pre-
          ponderance of the evidence that [the defendant] violated the
          civil rights of Kevin Brown by denying him medical treat-
          ment for a known serious medical need.

          We, the Jury, unanimously find that the plaintiff, Catherine
          L. Hoy, guardian for Kevin A. Brown, has proven by a pre-
          ponderance of the evidence that [the defendant] violated the
          civil rights of Kevin Brown by being deliberately indifferent
          to a known serious medical need.

                     10
          We, the Jury, unanimously find that the plaintiff, Catherine
          L. Hoy, guardian for Kevin A. Brown, has proven by a pre-
          ponderance of the evidence that [the defendant] was grossly
          negligent in her handling of Kevin Brown.

The jury answered each question with respect to each defendant by
checking the box marked "No." Further, after the verdicts were read,
the jury was polled at plaintiff's counsel's request, and each juror
without hesitation confirmed that these were his verdicts as to each
individual defendant. These verdicts clearly demonstrate that the
jurors were persuaded by the defense the sheriff's deputies put on --
a defense which emphasized not the deputies' assertion of qualified
immunity from suit (which as best we can tell was never mentioned
by either party), but rather, as the district court noted at a post-trial
hearing, "the deliberate indifference concept . .. and an argument
about whether or not the catastrophic injuries to Mr. Hoy were, in
fact, a result of all of this long sleep or a result of the status epilectus
related to the significant alcohol history that he had." J.A. at 2879.2
Because the jury concluded that there was no deliberate indifference,
and thus had no cause to consider the subsequent question of whether
the defendants were entitled to qualified immunity, the district court's
instruction on that defense, even if given in error, was harmless. Cf.
Harwood v. Partredereit AF 15.5.81, 944 F.2d 1187, 1192-3 (4th Cir.
1991) ("When a jury is instructed on two theories of liability, one
which is proper and the other which is not, the court must remand the
case for a new trial unless it is reasonably certain that the jury's ver-
dict was not influenced by the erroneously-submitted. . . theor[y]."
(citation and internal quotations omitted) (alteration in original)).

If any confirmation were needed of the jury's determination that
defendants were not deliberately indifferent to Brown's serious medi-
cal needs, it can be found in the jury's equally unequivocal resolution
_________________________________________________________________
2 In returning in less than three hours with unanimous verdicts indicat-
ing its wholesale acceptance of this defense, the jury demonstrated a
view of the evidence presented at trial that was obviously shared by
Judge Brinkema, who told counsel that plaintiff had presented "a weak
case," and that the court had given plaintiff the"benefit of the doubt" by
not granting defendant's motion for judgment as a matter of law at the
end of plaintiff's case. J.A. at 2871.

                      11
of the state law gross negligence claim, as to which no immunity
defense was either applicable or given. In sending the gross negli-
gence claim to the jury, the court gave the following instruction:

          [N]egligence is the failure to use ordinary care. Ordinary
          care is care a reasonable person would have used under the
          circumstances of this case.

          Gross negligence is a higher degree of negligence, and you
          must remember that throughout your deliberations. Gross
          negligence is that degree of negligence which shows such
          indifference to others as constitutes an utter disregard of
          caution, amounting to a complete neglect of the safety of
          another person. It is such negligence as would shock fair-
          minded people, although it is something less than willful
          recklessness.

J.A. at 2848 (emphases added). In contrast, in charging the jury on
deliberate indifference, the district court set a higher standard for lia-
bility, emphasizing that the section 1983 claims required either a
showing that the individual defendants acted with subjective
awareness of a serious medical need, defined as one that "is so obvi-
ous that a layperson would easily recognize the necessity for a doc-
tor's attention," J.A. at 2842, or with willful recklessness:

          Mere negligence is not enough . . . . Another way of think-
          ing about deliberate indifference to a serious medical need
          is when the treatment is so grossly incompetent, inadequate,
          or excessive as to shock the conscience or to be intolerable
          to fundamental unfairness. Deliberate indifference may be
          demonstrated by either actual intent or reckless disregard
          . . . . An act is reckless if done in conscious disregard of its
          known probable consequences.

J.A. 2842-44 (emphasis added).

This latter instruction tracked Farmer, in which the Supreme Court
emphasized that liability under a section 1983 deliberate indifference
claim required at the very least a finding of exactly this type of willful

                     12
recklessness, akin to the concept of recklessness commonly applied
in the criminal law context. Farmer, 511 U.S. at 837. In doing so, the
Court explicitly declined to adopt as the Eighth Amendment standard
the model of "civil-law recklessness" reflected in the district court's
"gross negligence" instruction. See id.3

Thus, the jurors, in rejecting appellant's state law claim of gross
negligence, found that she had not demonstrated even the civil law
recklessness that the Supreme Court held in Farmer was insufficient
to support a constitutional claim of deliberate indifference. It is no
surprise, then, that the jury also found that the defendants were not
deliberately indifferent to Brown's serious medical needs under a
standard that required a finding not only of a substantial risk of seri-
ous harm, but also that the defendants had actual knowledge of that
risk and consciously disregarded it.4

Accordingly, we are satisfied that the jury's verdicts rested, as their
verdict forms unambiguously state, on a finding that no constitutional
violation had occurred, and that any error in giving the qualified
immunity instruction was therefore harmless.
_________________________________________________________________

3 Indeed, the Supreme Court noted that the very term "gross negli-
gence" was generally synonymous with the civil law recklessness that
the Court held could not support a finding of a constitutional deprivation.
Farmer, 511 at 836 n.4.

4 Alternatively, the jury may have found that the defendants were
grossly negligent, but that their gross negligence was not a proximate
cause of Mr. Brown's injuries. J.A. at 2847. Indeed, defense counsel
argued persuasively in his closing arguments that"Kevin Brown's medi-
cal emergency had nothing to do with his handling at the jail," J.A. at
2790, and that the plaintiff had not proven that"Brown would be any
better off today if the deputies had acted differently." J.A. at 2791. A jury
finding that the plaintiff had failed to establish proximate cause for pur-
poses of the gross negligence claim would necessarily serve to defeat
plaintiff's constitutional claims as well. See J.A. at 2844 (jury instruc-
tions) ("Now the third element in a civil rights action is proximate cause.
And by the way, proximate cause also runs through the state cause of
action for gross negligence, so this will help you on both of those.").

                     13
C.

Finally, appellant argues that she is entitled to a new trial because
the district court failed to comply with the requirement of Fed. R. Civ.
P. 51 that it inform the parties before closing arguments of its pro-
posed actions on their requested instructions.5 According to appellant,
her counsel was "blind-sided" by the court's instructions, and thus
unable properly to object to the court's assertedly erroneous deliber-
ate indifference and qualified immunity charges. Although we agree
with appellant that the district court erred in failing to inform the par-
ties with some degree of specificity before closing argument which
instructions it intended to give, we again do not believe that appellant
has demonstrated prejudice entitling her to a new trial.

The district court informed counsel, several days before closing
arguments, of its intention

          to rely on Devitt and Blackmar on the standard jury instruc-
          tion in terms of the civil rights statute. I'm going to use my
          standard instructions, which are a humanized version of
          Devitt and Blackmar.

J.A. at 2651. While appellees may be correct that Rule 51 does not
require the court to provide counsel with the exact words it intends
to use in instructing the jury, see, e.g., Dunn v. St. Louis-San Fran-
cisco Ry. Co., 370 F.2d 681, 683 (10th Cir. 1967) ("The court may
inform counsel in general terms suitable to this purpose, and need not
. . . do so in a sentence-by-sentence outline."), it is also undoubtedly
true that the rule does require, at the very least, that the court make
_________________________________________________________________
5 Rule 51 provides as follows:

          At the close of the evidence or at such earlier time during the
          trial as the court reasonably directs, any party may file written
          requests that the court instruct the jury on the law as set forth in
          the requests. The court shall inform counsel of its proposed
          action upon the requests prior to their arguments to the jury . . . .
          No party may assign as error the giving or the failure to give an
          instruction unless that party objects thereto before the jury retires
          to consider its verdict, stating distinctly the matter objected to
          and the grounds of the objection.

                     14
clear in advance which instructions in substance it intends to give.
See, e.g., Jones v. Southern Pacific R.R., 962 F.2d 447, 451 (1st Cir.
1992) ("It is enough that counsel be apprised of the substance of the
instructions." (emphasis added)). To hold otherwise would undermine
the manifest purpose of the provision, which courts have identified as
"promot[ing] intelligent advocacy by opposing counsel," and allowing
counsel to "pattern their closing arguments on the points of law that
will be explained to the jury in the final charge." Estate of Stuart
Lutren v. Chesapeake and Ohio Railroad, 592 F.2d 941, 945 (6th Cir.
1979); see Wiedersum Assocs. v. National Homes Constr. Corp., 540
F.2d 62, 66 (2nd Cir. 1976). Where, as here, the defendants have
requested a qualified immunity instruction, a vague statement that the
court intends to "rely on Devitt and Blackmar on the standard jury
instruction in terms of the civil rights statute" cannot adequately serve
this purpose, as the statement gives no indication at all whether the
court intends to give some variant of that particular requested instruc-
tion (which, according to the treatise to which the court referred, is
to be given in "relatively rare and limited" circumstances).

Nonetheless, "noncompliance with [Rule 51] does not warrant a
new trial unless material prejudice is shown to exist." Hardigg v.
Inglett, 250 F.2d 895, 897 (4th Cir. 1957). Given the provision's pur-
pose, material prejudice from the court's failure to comply with Rule
51's notice requirement is generally established by a showing that the
error "hinder[ed] [counsel] in their ability to present summations
which fully dealt with the issues to be placed before the jury."
Wiedersum Assocs., 540 F.2d at 66. However, appellant does not
argue before this court that her counsel's closing argument was
adversely affected by the court's failure to comply with the rule.
Rather, she contends only that counsel was prejudiced in his ability
properly to object to the instructions that were actually given.
Because we have determined, see infra, that any error in the instruc-
tions was harmless, we must also conclude, a fortiori, that appellant
was not materially prejudiced by her counsel's asserted inability prop-
erly to object to those instructions.6 Accordingly, because appellant
_________________________________________________________________
6 In light of the district court's deviation from the terms of the rule, we
have, in an abundance of caution, reviewed appellant's specific claims of
instructional error despite her counsel's arguable failure to preserve these

                    15
has not even suggested that her counsel's summation suffered as a
result of the court's non-compliance with Rule 51 and because the
instructions in question did not themselves constitute reversible error,
we do not find the material prejudice that would entitle appellant to
a new trial.7

For these reasons, we affirm the judgment that the sheriff's depu-
ties did not violate Brown's constitutional rights.

III.

Hoy also appeals the district court's dismissal of the federal civil
rights claims in her Second Amended Complaint alleging that the
Sheriff and the County violated Brown's constitutional rights by fail-
ing properly to train the deputies or to provide adequate procedures
for the screening and care of intoxicated detainees. The district court
dismissed the complaint on the specific ground that plaintiff had not
"adequately ple[d] sufficient facts to sustain a case involving deliber-
ate indifference to the degree that a constitutional violation occurred,"
_________________________________________________________________
exceptions with the degree of specificity the rule also requires. See, e.g.,
Jerlyn Yacht Sales, Inc., 950 F.2d 60, 66 (1st Cir. 1991) ("[S]imply refer-
ring by number to a request filed prior to the charge is not sufficient to
preserve an objection to the court's failure to give the requested instruc-
tion."). We have done so out of recognition that an additional conse-
quence of the court's refusal to advise the parties in advance of its
proposed action on their requested instructions was to leave plaintiff's
counsel scrambling at the last moment to determine which of the parties'
instructions the court actually gave, and in what form, so that counsel
could properly frame and preserve her objections before the jury retired.
7 We note that the district court, in defending its "practice" of refusing
to advise counsel any more specifically of its intentions with respect to
requested instructions, commented that this practice had "not yet been
addressed or criticized by the Court of Appeals." J.A. at 2899. The fact
that we find no reversible error in this case should not be confused with
an absence of "criticism" of a practice that we believe falls considerably
short of the mandatory requirements of the Federal Rules of Civil Proce-
dure and which, in some future case, will inevitably result in exactly the
material prejudice to one or another party that the rule was designed to
prevent.

                    16
and that "principles of qualified immunity as well as the concepts of
sovereign immunity" dictated this result. We affirm the dismissal of
the federal civil rights claims, but do so on different grounds than
those relied upon, or alluded to, by the district court. Rather, we
affirm the dismissal of these claims because the jury's finding that the
sheriff's deputies inflicted no constitutional injury on Brown removed
any basis for liability of the County or the Sheriff under section 1983.

Municipal governments cannot be held liable under section 1983
on the basis of respondeat superior. See Monell v. New York City
Dep't of Social Servs., 436 U.S. 658, 694 (1978). Rather, in order to
establish municipal liability, a plaintiff must show the existence of a
"direct causal link between a municipal policy or custom and the
alleged constitutional deprivation." Canton v. City of Harris, 489 U.S.
378, 384 (1989). Where the claim against the municipality is that its
failure, or the failure of its policymakers, to provide proper training
resulted in the alleged constitutional deprivation, liability will lie only
where the "city's failure to train reflects deliberate indifference to the
constitutional rights of its inhabitants." Id . at 392.

The district court, in granting the motion to dismiss, focused only
on the question whether appellant had sufficiently pled this necessary
causal link. That is, the district court dismissed the claims after con-
cluding that appellant had not alleged facts that could establish that
the county's failure to train the sheriff's deputies reflected "deliberate
indifference" to the constitutional rights of its inhabitants. Id. at 392.
While we are dubious that such a determination could legitimately be
made as a matter of law from the four corners of the complaint, we
nonetheless affirm the judgment of dismissal. In light of the jury ver-
dict, herein affirmed, that none of the individual sheriff's deputies
was deliberately indifferent to Brown's serious medical needs, and
thus that he suffered no constitutional deprivation, there simply is no
basis for municipal liability even if appellant could establish that the
county was deliberately indifferent under Canton v. Harris. See City
of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam)
("[N]either Monell v. New York City Dept. of Social Services . . . nor
any other of our cases authorizes the award of damages against a
municipal corporation based on the actions of one of its officers when
in fact the jury has concluded that the officer inflicted no constitu-
tional harm."); Giancola v. State of West Virginia Dept. of Pub.

                     17
Safety, 830 F.2d 547, 550 (4th Cir. 1987) ("If the officers' actions
were in compliance with constitutional standards, there is no liability
on the part of . . . the employing entities."); Hinton v. City of Elwood,
Kan., 997 F.2d 774, 782 (10th Cir. 1993) ("A municipality may not
be held liable where there was no underlying constitutional violation
by any of its officers."). Accordingly, we affirm dismissal of the sec-
tion 1983 claims against Loudoun County and the Sheriff.

IV.

Finally, while we readily affirm the dismissal of the pendent state
law negligence and gross negligence claims against the County on
sovereign immunity grounds, see Mann v. County Board, 199 Va. 169
(1957), we cannot do so, at least without further explanation, with
respect to those same claims brought against the Sheriff in his indi-
vidual capacity. Neither the district court in its order from the bench
nor appellees in their briefs on appeal has attempted to explain why
these state law claims against the Sheriff should not survive the
motion to dismiss under Virginia tort law. Accordingly, we vacate the
dismissal of the pendent state law claims against Sheriff Simpson and
remand for consideration of their proper disposition.

CONCLUSION

For the reasons stated herein, we affirm in part and vacate in part
the judgment of the district court, and remand for further proceedings.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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