                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 11-1178
                                    ___________

Sherry Luckert, Personal                 *
Representative of the Estate             *
of Troy Sampson, Deceased,               *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
     v.                                  * District Court for the
                                         * District of Nebraska.
Dodge County, a Nebraska                 *
Political Subdivision; Doug              *
Campbell, in his individual              *
and official capacity; Cynthia           *
Julian, R.N., in her individual          *
and official capacity,                   *
                                         *
             Appellants.                 *
                                    ___________

                               Submitted: November 16, 2011
                                  Filed: June 22, 2012
                                    ___________

Before RILEY, Chief Judge, BEAM and BYE, Circuit Judges.
                              ___________

RILEY, Chief Judge.

      Troy Sampson committed suicide while detained at the Dodge County Jail
(DCJ) in Fremont, Nebraska. Sampson’s mother, Sherry Luckert, acting as the
personal representative of Sampson’s estate, sued Dodge County and jail officials
under 42 U.S.C. § 1983, claiming they were deliberately indifferent to Sampson’s
medical needs, violating his due process rights. A jury found Dodge County and
DCJ’s director and nurse (collectively, appellants) liable and awarded Luckert actual
and punitive damages. The district court denied the appellants’ motion for judgment
as a matter of law, entered judgment in favor of Luckert, and awarded her attorney fees
and costs. We reverse the denial of judgment as a matter of law and vacate the awards
of damages and attorney fees and costs for Luckert.

I.    BACKGROUND
      A.      Facts1
              1.    Dodge County Jail
      On August 10, 2006, Troy Sampson committed suicide in his DCJ cell. DCJ,
which is now closed, held up to 42 inmates, all of whom either had not yet been
convicted of a crime or who were serving a sentence of less than one year. Sampson
was the third DCJ inmate to commit suicide and the twenty-first attempting to commit
suicide since 2000.

       Appellant Doug Campbell, appointed in 1995, was the director of DCJ at the
time of Sampson’s suicide. Among other responsibilities, Campbell was in charge of
training and scheduling staff and making sure the staff followed DCJ’s policies.

      To provide for the inmates’ medical needs, DCJ contracted with local
physicians, including Dr. Mohammad Shoaib, a Fremont area psychiatrist. DCJ also
employed a nurse, who, according to Campbell, served as the gatekeeper between the
inmates and the doctors. The nurse coordinated the inmates’ medical care, ensured
inmates received prescribed medications, and directed the jail staff concerning medical


      1
       “We recite the facts in the light most favorable to the jury’s verdict[].” Der v.
Connolly, 666 F.3d 1120, 1123 (8th Cir. 2012) (quoting White v. McKinley, 605 F.3d
525, 528 (8th Cir. 2010)) (internal quotation marks omitted).

                                          -2-
and suicide watches. In July 2006, approximately one month before Sampson was
detained there, DCJ hired appellant Cynthia Julian, a registered nurse since 1996, to
be DCJ’s full-time permanent nurse.

      At the time of Sampson’s suicide, Dodge County’s Corrections Policy &
Procedure Manual included a written Suicide Intervention Policy (Policy 12.4).
Implemented in December 1994, Policy 12.4 had not been revised before Sampson’s
suicide. At trial, Campbell and Julian acknowledged DCJ did not follow aspects of
Policy 12.4, including its identification of three suicide levels: (1) Alert, which
required close observation of the inmate and placement in the safety cell; (2) Warning,
which required visual checks of the inmate in intervals no longer than ten minutes
(ten-minute watch); and (3) Watch, which required visual checks of the inmate in
intervals no longer than twenty minutes (twenty-minute watch).

       Campbell testified DCJ instructed employees about Policy 12.4 during
orientation, but certain provisions of the policy, such as keeping a suicide notebook
and recording daily assessments, were not followed. Julian had not yet gone through
new employee orientation, or any formal suicide training, at the time of Sampson’s
suicide. Julian testified she could not remember whether she knew of Policy 12.4 at
that time. Julian also testified DCJ’s practice was to put inmates displaying suicidal
tendencies on either a fifteen-, twenty-, or thirty-minute watch.

               2.     Sampson’s Detention at DCJ
       When DCJ admitted Sampson on Sunday, July 30, 2006, Sampson answered no
when asked if he had ever attempted suicide or was thinking about committing suicide.
Luckert called DCJ and reported Sampson had attempted suicide two weeks earlier by
trying to hang himself. DCJ also learned Sampson was on anti-psychotic medication.
In light of this information, and because Sampson seemed mentally unstable, DCJ kept
Sampson in the booking area overnight and put him on a twenty-minute suicide watch.



                                         -3-
       Julian met with Sampson the next day. Julian noted Sampson complained of
post-traumatic distress disorder, depression, anxiety attacks, and psychosis. Julian
observed Sampson was “very anxious,” “tearful,” and had “flight of ideas,” meaning
he changed topics often. Julian testified Sampson denied he was suicidal, and Julian
did not believe Sampson was a danger to himself or others.

      That same day, Julian contacted Sampson’s psychiatrist, Dr. Stephen O’Neill,
who worked at the Norfolk Regional Center. Julian’s notes indicate Dr. O’Neill saw
Sampson about a week prior and had prescribed Klonopin and Cymbalta for Sampson.
Dr. O’Neill advised DCJ to put Sampson on suicide watch until he was “medically/
psychologically stable [and] back on [medication].” Julian kept Sampson on suicide
watch, but downgraded it from a twenty-minute watch to a thirty-minute watch.
Sampson officially remained on a thirty-minute suicide watch until he committed
suicide. DCJ records indicate jail staff missed multiple watches during Sampson’s
detention.2 Throughout Julian’s work day, she periodically observed Sampson.

       On July 31, Julian faxed information concerning Sampson to DCJ’s contract
psychiatrist, Dr. Shoaib. Julian advised Dr. Shoaib of Sampson’s current medications
and “long psychiatric history from the Norfolk Regional Center.”3 Julian received and

      2
        DCJ’s log sheets reflect one missed watch per day between August 2-4 and
five missed watches on both August 5 and 6. The log sheets show no missed watches
for the three days before or the day of Sampson’s suicide.
      3
       Dr. O’Neill wrote a synopsis of Sampson’s psychiatric history on August 1.
Julian testified she received this report on August 5. Dr. O’Neill also included
outpatient progress notes from July 19, 20, and 24, 2006. Dr. O’Neill listed the
following as Sampson’s diagnostic impression:

      Adjustment Disorder with Depressed Mood and Anxiety with
      Subsequent Worsening of Headaches; Posttraumatic Stress Disorder
      (from being abused in Mexican prison); Personality Change Secondary
      to Head Injury with Worsening of Pre-existing Antisocial and Paranoid

                                         -4-
reviewed Sampson’s medical records from the Norfolk Regional Center and advised
Dr. Shoaib she had requested that the Norfolk Regional Center forward Sampson’s
medical history to him. Julian requested Dr. Shoaib review the material and advise her
what medications Sampson should take and “what you feel would be best for this
patient.”

       On Tuesday, August 1, Dr. O’Neill prescribed medications for Sampson. That
same day, at Julian’s direction, DCJ moved Sampson out of the holding area and into
its general population. Julian testified she did so in part because she “didn’t want him
laying on the concrete floor,” and because she “wanted him in general population to
be around other people.” DCJ moved Sampson to a different cell on August 3 and
again on August 5. At least one of these moves appears to be at Sampson’s request.

      Dr. Shoaib saw Sampson on Thursday, August 3. Dr. Shoaib testified Sampson
“was very, very anxious, very agitated, psychotic” and “bizarre and unpredictable.”
Dr. Shoaib said that Sampson denied being suicidal, but Dr. Shoaib recommended
DCJ “keep [Sampson] on suicide watch until his behaviors settle[d] down and he
became less agitated.” Indicating Sampson was not suicidal or homicidal, Dr. Shoaib
changed Sampson’s prescriptions.

     Julian next saw Sampson on Monday, August 7, in response to two Requests for
Medical Care Sampson made on August 3 and August 6.4 Julian testified she did not


      Personality Disorder (can appear psychotic under stress); Cannabis
      Dependence (he likely does use to self-medicate for headaches);
      Personality Disorder, Not Otherwise Specified, with Antisocial and
      Paranoid Features; Probable Post Concussive Headaches, Secondary to
      Concussion and Head Injury (from being hit with pistol in 1998).
      4
       In his August 3 Request for Medical Care, Sampson wrote, “What are these
drugs you are giving me? Id [sic] like a drug fact sheet + side effect. Wish to see
Nurse[.] No Cymbalta! Could you please get an American psychiatrist that speaks

                                          -5-
see Sampson’s written requests until August 7, when she returned to the office from
a weekend off. Julian testified Sampson appeared “kind of glassy-eyed, foggy, [and]
overmedicated.” Julian advised Sampson he was taking the medications Dr. Shoaib
prescribed and that it would take one or two weeks before the side effects disappeared.
That same day, Julian contacted Dr. Shoaib and reported her observations of Sampson.
Dr. Shoaib ordered a reduction in the dosage of Sampson’s medication.

       At trial, Luckert’s counsel confronted Julian with Sampson’s Medication
Administration Record, which Julian had filled out, as well as the prescription orders
from Dr. Shoaib. Though not entirely clear from these documents, it appears Julian
failed to ensure Sampson was medicated in compliance with Dr. Shoaib’s orders. As
a result, it was reasonable for the jury to infer (1) DCJ gave Sampson higher than
prescribed doses of Risperidone (an antipsychotic drug) and Klonopin (an anti-anxiety
drug) from August 7 to August 10, and (2) failed to give Sampson Lunesta (a sleeping
aid) as prescribed for the entirety of his detention. Other documents demonstrate DCJ
failed to give Sampson one dose of Klonopin on August 1.

      Later on August 7, Sampson submitted another Request for Medical Care and
two Inmate Request forms. In all three requests, Sampson again asked DCJ to move
him to the safety cell or solitary confinement and stressed he wanted to be alone and
did not want a window or a television in his cell. The safety cell was a special cell that
was designed to be suicide resistant. Julian replied to Sampson’s requests the next
day, telling him DCJ did not have such a cell available. Another staff member
responded by writing, “The Safety Cell cannot be used at this time. When something


clear English or let me see my own psychiatrist.” On Sunday, August 6, before Julian
responded, Sampson submitted another Request for Medical Care, writing, “Need to
be transferred to Norfolk Regional Center to Dr. Stephen O’Niell [sic] or I will die
in here. My head is killing me. These meds are making me sick [and] confused.”
That same day DCJ officials reported Sampson said he was no longer going to eat and
did not eat one meal.

                                           -6-
opens up we will try and move you.” Campbell and Julian both testified the safety cell
was not available because another inmate had broken its glass window on August 3
and it had not yet been repaired.

       On Tuesday, August 8, a DCJ official transported Sampson to his bond hearing,
during which Sampson told the judge, “I’ve been trying to get into the Norfolk
Regional Center before this happened, and they were full, and then I went every
recourse to try and get help, and it seems like every door was shut in my face.” Later
that day, Luckert visited Sampson at DCJ. Luckert testified Sampson was tearful and
erratic. Luckert claimed before she left DCJ, she told a DCJ employee Sampson was
“definitely suicidal” and DCJ employees needed to watch him. That same day,
Sampson filled out another Request for Medical Care asking to see Dr. Shoaib on
Thursday. Julian responded to Sampson’s request the next day, telling Sampson he
had an appointment scheduled for Thursday, August 10.

       On Thursday morning, August 10, Dr. Shoaib met with Sampson again and
evaluated Sampson’s condition. Dr. Shoaib observed Sampson had “calmed down”
since his last visit. Dr. Shoaib testified he asked Sampson if he was suicidal.
According to Dr. Shoaib, Sampson responded, “No Doc, it’s not that. I want to go to
Norfolk Regional Center. I do not belong [at DCJ]. I am not a criminal. I have a
mental problem and I have to be in Norfolk Regional Center.” Dr. Shoaib testified he
discussed various options with Sampson, including telling him that “if you are suicidal
I can send you to the hospital, you can be [in Emergency Protective Custody] and then
from there the hospital mental health board can commit you to the Norfolk Regional
Center.” According to Dr. Shoaib, Sampson again denied suicidal thoughts. Dr.
Shoaib testified he did not believe Sampson was suicidal at that time—August 10. Dr.
Shoaib adjusted Sampson’s prescription and asked that Sampson schedule another
appointment in two weeks.




                                         -7-
       Later that afternoon, Sampson attended a bible study. According to the
testimony of the volunteer study leader, another inmate asked whether a person who
committed suicide could still go to heaven. The leader testified that during the
resulting discussion, Sampson said everyone had thought about suicide at least once
during their life. The leader was not concerned about Sampson’s statement and did
not report the conversation to DCJ officials.

      At approximately 4:35 p.m. on August 10, staff discovered “Sampson hanging
by a bed sheet from the vent above the toilet.” Attempts to revive Sampson were
unsuccessful and he was pronounced dead.

       As required by Nebraska law, see Neb. Rev. Stat. § 29-1401(4), a grand jury
investigated Sampson’s death. The grand jury urged the Dodge County Board of
Supervisors to “review their policies and procedures, particularly in dealing with
medical watch inmates.” The grand jury called “for change in the style or type of
venting cover in individual cells” and made general recommendations, including
(1) the use of “cameras and other surveillance during these intensified suicide watch
periods”; (2) “more staffing” as a general deterrence; (3) increased training for staff,
“particularly in response to medical watch inmates”; and (4) modification of the
suicide watch forms. The grand jury also expressed concerns about “the entire
management of [DCJ], top to bottom” and the “workload of the jail nurse.”

       B.     Prior Proceedings
       On April 23, 2007, Luckert filed a 42 U.S.C. § 1983 civil rights claim against
the appellants. As relevant to this appeal, Luckert alleged Sampson’s due process
rights arising from the Eighth and Fourteenth Amendments were violated by (1) the
appellants’ deliberate indifference to Sampson’s serious medical needs; (2) Dodge
County’s custom or policy of failing to implement reasonable suicide prevention
practices; and (3) Dodge County’s failure to train its employees to observe and act
upon signs of a risk of suicide among its detainees (failure to train claim).


                                          -8-
       The appellants moved for summary judgment, arguing they were entitled to
qualified immunity because Luckert could not show they were deliberately indifferent
to the risk Sampson would commit suicide. The district court denied the appellants’
motion, finding the appellants were not entitled to qualified immunity because there
were factual questions for the jury to determine.

      The district court presided over a six-day trial in June 2010. At the close of
Luckert’s case, the appellants moved for judgment as a matter of law. See Fed. R. Civ.
P. 50(a). The district court denied the motion.

       On June 28, 2010, the jury returned a verdict in favor of Luckert and against all
of the appellants. The jury found both Julian and Campbell were deliberately
indifferent to Sampson’s serious medical needs. The jury found Dodge County was
liable “for a policy or custom of failing to implement reasonable suicide prevention
practices,” but found in favor of Dodge County on Luckert’s failure to train claim.
The jury awarded Luckert $750,000 in compensatory damages and $100,000 in
punitive damages—$75,000 against Campbell and $25,000 against Julian.

       On July 26, 2010, the appellants renewed their motion for judgment as a matter
of law pursuant to Rule 50(b), arguing “[t]he evidence adduced at trial is insufficient
to sustain the verdict by the jury that . . . Dodge County, through its policy, violated
Sampson’s constitutional rights” and “Campbell and Julian are entitled to qualified
immunity” as a matter of law. In the alternative, the appellants moved for a new trial
or to alter or amend the judgment. See Fed. R. Civ. P. 59(a) and (e).

       On November 10, 2010, the district court denied the appellants’ motion, finding
the evidence fully supported the “jury’s finding of deliberate indifference to serious
medical needs,” as well as the compensatory and punitive damage awards. The district
court entered judgment consistent with the jury verdict. On November 18, the district



                                          -9-
court awarded Luckert attorney fees and costs. See 42 U.S.C. § 1988(b). On
December 7, 2010, the appellants filed timely notice of appeal.

II.    DISCUSSION
       On appeal, the appellants contend the district court committed reversible error
by (1) denying their motion for judgment as a matter of law; (2) not issuing a remittitur
or striking punitive damages; (3) omitting proposed jury instructions; (4) permitting
certain expert testimony; (5) allowing improper conduct by Luckert’s attorney; and
(6) awarding Luckert attorney fees and costs.

       A.    Judgment as a Matter of Law
       The appellants challenge the district court’s denial of their motion for judgment
as a matter of law, claiming Julian and Campbell are entitled to qualified immunity
and there was insufficient evidence to show Dodge County’s practices or policies
violated Sampson’s due process rights.

       We review the district court’s denial of a motion for judgment as a matter of law
de novo, “using the same standards as the district court.” Howard v. Mo. Bone &
Joint Ctr., Inc., 615 F.3d 991, 995 (8th Cir. 2010). A motion for judgment as a matter
of law is proper only if “a reasonable jury would not have a legally sufficient
evidentiary basis to find for [Luckert].” Fed. R. Civ. P. 50(a). Our review is highly
deferential to the jury verdict and we do not weigh the evidence or question witnesses’
credibility in reaching our conclusion. See Howard, 615 F.3d at 995.

       “[T]he Eighth Amendment prohibition on cruel and unusual punishment
extends to protect prisoners from deliberate indifference to serious medical needs.”
Vaughn v. Greene Cnty., Ark., 438 F.3d 845, 850 (8th Cir. 2006). “[A] risk of suicide
by an inmate is a serious medical need.” Gregoire v. Class, 236 F.3d 413, 417 (8th
Cir. 2000). “Because [Sampson] was a pretrial detainee, [his] claims are analyzed
under the Fourteenth Amendment’s Due Process Clause rather than the Eighth

                                          -10-
Amendment.” Vaughn, 438 F.3d at 850. “Under the Fourteenth Amendment, pretrial
detainees are entitled to at least as great protection as that afforded convicted prisoners
under the Eighth Amendment.” Id. (quoting Owens v. Scott Cnty. Jail, 328 F.3d 1026,
1027 (8th Cir. 2003) (per curiam) (internal quotation marks omitted)). In short,
Sampson “had a clearly established constitutional right to be protected from the known
risks of suicide and to have his serious medical needs attended to.” Yellow Horse v.
Pennington Cnty., 225 F.3d 923, 927 (8th Cir. 2000).

               1.    Qualified Immunity
       Our first task is to decide whether Julian and Campbell are entitled to qualified
immunity. Qualified immunity is a legal question for the court, not the jury, to decide
in the first instance, based either on the allegations or, if material facts are in dispute,
on the facts found by the jury. See Littrell v. Franklin, 388 F.3d 578, 584-85 (8th Cir.
2004) (explaining “[t]he law of our circuit is clear . . . . [that] qualified immunity is a
question of law for the court, rather than the jury, to decide”). Whether the official’s
conduct constitutes deliberate indifference is a question of fact for the jury. See Davis
v. Hall, 375 F.3d 703, 719 (8th Cir. 2004).

       Qualified immunity shields government officials performing discretionary
functions from civil liability unless their conduct “violate[s] clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Ambrose v. Young, 474 F.3d 1070, 1077 (8th Cir. 2007) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (internal quotation marks omitted)). “Officials
are not liable for bad guesses in gray areas; they are liable for transgressing bright
lines.” Id. (quoting Davis, 375 F.3d at 712 (internal quotation marks omitted)).
Qualified immunity “provides ample protection to all but the plainly incompetent or
those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).




                                           -11-
        In the jail suicide context, qualified immunity is appropriate when a plaintiff
“has failed to show . . . that his jailers have acted in deliberate indifference to the risk
of his suicide.” Rellergert v. Cape Girardeau Cnty., Mo., 924 F.2d 794, 796 (8th Cir.
1991). “[P]rison supervisors such as [Campbell] cannot be held liable under § 1983
on a theory of respondeat superior.” Langford v. Norris, 614 F.3d 445, 460 (8th Cir.
2010). “Supervisors can, however, ‘incur liability . . . for their personal involvement
in a constitutional violation, or when their corrective inaction amounts to deliberate
indifference to or tacit authorization of the violative practices.’” Id. (quoting Choate
v. Lockhart, 7 F.3d 1370, 1376 (8th Cir. 1993)).

       Because Julian and Campbell were aware of a report Sampson recently had
attempted suicide, the dispositive question is “whether the measures taken were so
inadequate as to be deliberately indifferent to the risk.” Rellergert, 924 F.2d at 796.
“The suicide [itself] is not probative of that question” because “tying the suicide to
proof of deliberate indifference is tantamount to requiring jailers to provide suicide-
proof institutions,” and to ensure against suicide ever happening. Id. This is not the
constitutional test. Instead, we must objectively “consider[] the measures taken in
light of the practical limitations on jailers to prevent inmate suicides.” Id. “Simply
laying blame or fault and pointing out what might have been done is insufficient. The
question is not whether the jailers did all they could have, but whether they did all the
Constitution requires.”5 Id. at 797. “In evaluating an official’s response to a known
suicide risk, we should be cognizant of how serious the official knows the risk to be.”
Gregoire, 236 F.3d at 418.




      5
       The dissent focuses heavily upon what Julian failed to do. See post 18 to 21.
While what Julian did not do is relevant to the inquiry, our precedent is clear that,
because jail officials such as Julian “did not have the benefit of twenty-twenty
hindsight, as we do now,” our primary focus is on “those precautionary measures
which were undertaken.” Liebe v. Norton, 157 F.3d 574, 578 (8th Cir. 1998).

                                           -12-
       An objective review of the evidence that is deferential to the verdict reveals the
preventative measures taken by DCJ were not so inadequate as to constitute
constitutional deliberate indifference. Sampson was detained at DCJ for fewer than
twelve days. At no point during Sampson’s incarceration before his successful suicide
on August 10 did Sampson attempt suicide or claim to be suicidal. DCJ learned from
Luckert that Sampson recently attempted suicide. In response, Julian, a registered
nurse, twice saw and assessed Sampson and arranged for two appointments with
DCJ’s psychiatrist, Dr. Shoaib, including a session on the morning of Sampson’s
suicide. Julian also contacted Sampson’s psychiatrist, Dr. O’Neill, to gather
information about Sampson’s condition. Julian received and reviewed Sampson’s
Norfolk Regional Center medical records and Dr. O’Neill’s written synopsis report on
Sampson. Julian responded in writing to each of Sampson’s Requests for Medical
Care and called Dr. Shoaib when she observed Sampson might be over-medicated.
Despite the fact neither Julian nor Dr. Shoaib believed Sampson posed a serious risk
to himself or others, DCJ kept Sampson on a thirty-minute suicide watch for the
entirety of his detention. Even though Julian and Dr. Shoaib both were mistaken as
to the risk of suicide, Julian’s actions do not indicate Julian was apathetic or
unconcerned with Sampson’s condition. See Rellergert, 924 F.2d at 797
(“Indifference is apathy or unconcern.”).

       Construing the evidence in favor of the verdict, a reasonable jury could
conclude Julian (1) negligently downgraded Sampson from a twenty-minute to a
thirty-minute suicide watch; (2) failed to recognize or chose to ignore missed watches,
although no missed watches occurred in the last four days of Sampson’s detention; (3)
failed to give Sampson one dose of prescribed medicine nine days before Sampson’s
suicide; (4) failed to act quickly or adequately upon Sampson’s requests for a new cell,
which was not readily available; (5) failed to implement a reduction in Sampson’s
prescribed medicine; and (6) failed to tell Dr. Shoaib about Luckert’s report that
Sampson had attempted suicide two weeks before his detention. While these failures
may constitute poor judgment, negligence, or possibly even gross negligence, they do

                                          -13-
not constitute deliberate indifference when viewed in the context of the “affirmative,
deliberative steps” Julian took to prevent Sampson’s suicide. See Liebe, 157 F.3d at
578; see also Drake v. Koss, 445 F.3d 1038, 1042 (8th Cir. 2006) (“Deliberate
indifference is akin to criminal recklessness and requires something more than mere
negligent misconduct.”); Gibson v. Weber, 433 F.3d 642, 646 (8th Cir. 2006) (“A
showing of deliberate indifference is greater than gross negligence.”); Choate, 7 F.3d
at 1374 (explaining “deliberate indifference requires a highly culpable state of mind
approaching actual intent”); see also Minix v. Canarecci, 597 F.3d 824, 828-29, 833
(7th Cir. 2010) (concluding a nurse’s decision to remove a pretrial detainee from a
suicide watch and from medical segregation despite knowing the inmate had twice
attempted suicide, once in the previous month, did not show deliberate indifference,
even if the decision showed poor judgment); but cf. Miller v. Tobiasz, No. 11-3233,
___ F.3d ___, ___, 2012 WL 1871649, at *1, 3-4 (7th Cir. May 24, 2012) (affirming,
on interlocutory review, the district court’s denial of a prison nurse’s qualified-
immunity-based motion to dismiss because the nurse’s omission of information
relating to an inmate’s previous suicidal behavior on his jail intake form could
constitute deliberate indifference). Julian is entitled to qualified immunity.

       As to Campbell, the evidence does not paint an impressive picture of his
performance as DCJ director. Campbell delegated to Julian significant responsibility
for suicide intervention before DCJ formally trained her on relevant suicide policies
and procedures. Further, DCJ’s actual practice in dealing with suicide intervention,
for which Campbell was ultimately responsible, did not reflect DCJ’s written policy.
DCJ allowed for a thirty-minute suicide watch, which provided less frequent
observation than the watches detailed in Policy 12.4. Also, DCJ did not keep a
“suicide notebook,” or maintain certain documentation procedures referenced in
Policy 12.4. It would be reasonable to expect Policy 12.4 either to be followed or be
modified to reflect DCJ’s actual practices. But these acts and omissions do not rise
to the level of constitutional deliberate indifference.



                                        -14-
       Failure to follow written procedures does not constitute per se deliberate
indifference. If this were so, such a rule would create an incentive for jails to keep
their policies vague, or not formalize policies at all. And the record in this case does
not show any evidence, nor are we aware of any precedent, from which jail officials
would know a thirty-minute suicide watch—as opposed to a twenty-minute watch—is
constitutionally impermissible, or that keeping a suicide notebook is constitutionally
required. See generally Rellergert, 924 F.2d at 797 (“While we conclude that the law
is clearly established that jailers must take measures to prevent inmate suicides once
they know of the suicide risk, we cannot say that the law is established with any clarity
as to what those measures must be.”).

        Under Campbell’s management, DCJ had in place a practice where inmates at
risk of committing suicide were identified, put on suicide watch, and given on-site
medical attention by a registered nurse and, if necessary, a contract psychiatrist. See
id. at 834 (recognizing that evidence casting doubt on a supervisor’s performance did
“not support an inference [the supervisor] condoned any unconstitutional practice by
. . . employees”). As a result, Sampson remained on suicide watch throughout his
detention and received medical attention from Julian and Dr. Shoaib, including on the
same day as his suicide. Campbell is entitled to qualified immunity. See Gregoire,
236 F.3d at 418 (“Even if an official knows of a risk of suicide, and suicide does
occur, the official is entitled to qualified immunity if he could reasonably believe that
his response to the risk was not deliberately indifferent (or reckless) to that risk.”).

             2.    Dodge County Liability
       Finally, we must consider whether Dodge County is entitled to judgment as a
matter of law. “A claim against a county is sustainable only where a constitutional
violation has been committed pursuant to an official custom, policy, or practice.”
Johnson v. Blaukat, 453 F.3d 1108, 1114 (8th Cir. 2006) (citing Monell v. Dep’t. of
Soc. Servs. of N.Y.C., 436 U.S. 658, 690-91 (1978)). And this custom, policy, or
practice must be “the ‘moving force’ behind the violation.” Patzner v. Burkett, 779

                                          -15-
F.2d 1363, 1367 (8th Cir. 1985) (quoting Monell, 436 U.S. at 694). “Moreover, the
plaintiff must show not only that a policy or custom existed, and that it was causally
related to the plaintiff’s injury, but that the policy itself was unconstitutional.” Id. at
1367 (citing Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981)).

       The jury found Dodge County liable for failing to implement reasonable suicide
prevention practices. Luckert highlights six claimed deficiencies in Dodge County’s
practices, which Luckert argues support the verdict: (1) “failure to treat inmates who
have been identified as mentally ill”; (2) “failure to supervise staff”; (3) “failure to
monitor and properly administer [Sampson’s] medication”; (4) “inadequate
recordkeeping”; (5) “falsification of [Sampson’s] records”; and (6) “failure to
investigate and correct deficiencies after [Sampson’s] death.” None of these alleged
deficiencies demonstrate Dodge County had a custom, policy, or practice violating
Sampson’s constitutional rights and causing Sampson’s suicide. Some of these claims
are unsupported by the evidence, others did not contribute to causing Sampson’s
suicide, and some occurred after Sampson’s suicide and thus are not probative to the
issue at hand. See, e.g., Liebe, 157 F.3d at 580 (reasoning “focus on the County’s lack
of corrective actions after the suicide misses the mark . . . . [because] failure to act
occurring after the date of suicide does not show that the County was deliberately
indifferent to the risk of a suicide . . . nor does it show that the County tacitly
authorized any unconstitutional conduct”). Luckert effectively has shown flaws in
Dodge County’s practices, but has not demonstrated the “continuing, widespread,
persistent pattern of constitutional misconduct” necessary to find the county liable.
Jenkins v. Cnty. of Hennepin, Minn., 557 F.3d 628, 634 (8th Cir. 2009) (quoting
Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999) (internal quotation marks
omitted)). “While we expect that jailers will learn from their failures in preventing
suicide, they are not constitutionally liable for every failure, only those where they are
deliberately indifferent to the risk of suicide.” Gregoire, 236 F.3d at 419. Dodge
County is entitled to judgment as a matter of law.



                                           -16-
III.   CONCLUSION
       Because all of the appellants are entitled to judgment as a matter of law, it is
unnecessary to address their remaining claims. We reverse the district court’s denial
of the appellants’ motion for judgment as a matter of law and vacate the district court’s
award to Luckert of compensatory and punitive damages, as well as attorney fees and
costs.

BYE, Circuit Judge, dissenting.

                                           I.

       "Judgment as a matter of law is appropriate only when all of the evidence points
one way and is susceptible of no reasonable inference sustaining the position of the
nonmoving party." Howard v. Mo. Bone & Joint Ctr., Inc., 615 F.3d 991, 995 (8th
Cir. 2010) (internal quotation marks and citation omitted). Thus, our only task in
reviewing a district court's denial of a motion for judgment as a matter of law is "to
determine whether there is sufficient evidence to support the jury's verdict." Baker v.
John Morell & Co., 382 F.3d 816, 828 (8th Cir. 2004) (internal quotation marks and
citation omitted). We "must not engage in a weighing or evaluation of the evidence."
Id. We must not consider questions of credibility. Id. This is the governing standard
of review in this case—a standard the majority undeniably has chosen to ignore by
concluding the evidence presented at trial is insufficient to overcome the appellants'
qualified immunity defense. Because I decline to join the majority in substituting its
judgment for that of the jury, I respectfully dissent.

       I am compelled to begin by emphasizing what I believe are the crucial aspects
of the procedural posture in this case. As the majority notes, the appellants first
asserted the defense of qualified immunity at the summary judgment stage. The
district court denied their motion, finding genuine issues of material fact existed. The
appellants did not challenge the court's decision through an interlocutory appeal.

                                          -17-
Rather, the case proceeded to trial where, after six days of evidence presentation, the
jury found in favor of Luckert and against the appellants, who then moved for
judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure.
The district court denied that motion as well, concluding the evidence presented at
trial, when viewed in the light most favorable to the verdict, "fully support[ed] the
jury's finding of deliberate indifference to serious medical needs." Order Den. Mot. J.
as a Matter of Law, Nov. 10, 2010, at 4. It is the district court's denial of their
post-verdict motion which the appellants are now challenging on appeal. The United
States Supreme Court has been clear on what the governing standard of review at this
stage of the proceedings must be. As the Court recently explained, when "defendants
continue to urge qualified immunity [in a post-verdict motion], the decisive question
. . . is whether the evidence favoring the party seeking relief is legally sufficient to
overcome the defense." Ortiz v. Jordan, 131 S.Ct. 884, 889 (2011) (citing Fed. R. Civ.
P. 50). In reviewing the appellants' challenge, therefore, we are bound to consider
only whether the evidence presented at trial is sufficient to overcome their defense of
qualified immunity. Based on the record before us, I am convinced the evidence is not
only sufficient, it is indeed, overwhelming.

                                          II.

      A.     Julian.

      Purporting to be conducting "[a]n objective review of the evidence that is
deferential to the verdict[,]" ante at 13, the majority concludes no reasonable jury
could have found Julian's conduct was the equivalent of deliberate indifference.
However, allow me to offer this verdict-deferential recitation of the evidence
regarding Julian. Despite her knowledge as to Sampson having attempted to commit
suicide two weeks prior and being mentally unstable based on her own personal
observation, Julian downgraded Sampson's suicide watch from twenty to thirty
minutes. Policy 12.4, however, provides visual checks of inmates on suicide watch,

                                         -18-
such as Sampson, must be conducted at intervals no longer than twenty minutes. In
fact, Policy 12.4 does not even allow visual observation of suicidal inmates at intervals
longer than twenty minutes. Yet, Julian not only downgraded, but also kept Sampson
on thirty-minute suicide watches until the very instant he actually committed suicide.
Policy 12.4 also required Julian to consult with a shift supervisor before downgrading
an inmate's suicide watch.6 Julian failed to consult anyone. Policy 12.4 required
Julian to observe and assess inmates on suicide watch on a daily basis. The record
here clearly concludes Julian failed to personally observe Sampson for eight entire
days.

      In addition, the following is what else Julian failed to do. She failed to report
DCJ staff did not administer Sampson his medications on at least one occasion and,
more importantly, missed his suicide watches on a number of occasions. As the
majority notes, albeit in a footnote, DCJ log sheets clearly showed Sampson had one
missed suicide watch per day for the period between August 2 and August 4, and five
missed suicide watches again on August 5 as well as again on August 6. Julian knew
about these missed watches. She did absolutely nothing to correct them.

      Julian also failed to adjust Sampson's medications as instructed and directed by
Dr. Shoiab. The record shows she continued to administer Cymbalta (an anti-
depressant) and Klonopin (an anti-anxiety medication) to Sampson after Dr. Shoiab
ordered her to discontinue these medications. At the same time, she did not reduce the
dosage of Sampson's anti-psychotic medication and did not administer Lunesta (a

      6
          Policy 12.4(D)(3) provides:

      Either the Nurse or the on-duty Shift Supervisor may place an individual
      on a suicide level or upgrade that level as necessary. However, the
      nurse and the shift supervisor must agree to downgrade the suicide level
      or remove the inmate form a suicide level altogether . . . .

      (Emphasis added.)

                                          -19-
sleep aid) as directed by Dr. Shoiab. In addition, Julian never informed Dr. Shoiab
about her failure to reduce Sampson's prescribed medications—a fact deeply
troublesome because of Dr. Shoiab's testimony as to his assumption the medications
and dosages had been changed as he directed when ordering further adjustments to
Sampson's prescriptions on August 10.

       In finding Julian was deliberately indifferent to Sampson's serious medical
needs, the jury also had the following evidence to consider. Julian did not tell
Dr. Shoiab Sampson had attempted to commit suicide as recently as two weeks prior.
She did not communicate to Dr. Shoiab any of Sampson's requests for solitary
confinement, his increasingly frantic notes, or his refusal to eat. The following is the
type of information Julian found too insignificant, or perhaps too irrelevant, to pass
on to Sampson's treating physician. On August 6, Sampson submitted a request for
medical care, stating: "Need to be transferred to Norfolk Regional Center to
Dr. Stephen Oneil [sic] or I will die in here. My head is killing me. These meds are
making me sick and confused." During that same day, Sampson announced he would
stop eating. The next day, August 7, Sampson again requested a "safety cell or
solitary confinement. NO TV. I wish to be alone." He further wrote: "The T.V.
makes me go crazy please move me for the last time, im gonna loose [sic] it, no T.V.
please." Later that day, Sampson submitted another medical request form, pleading:
"Dr. Mohamed please put me in isolation with no TV by myself. The T.V. is making
me go insane, put me in solitary confinement A.S.A.P. please. Need medication . . . ."
Julian did not communicate any of these pleas to Dr. Shoiab. She simply wrote a
cryptic note to Sampson: "No cells like that available. Sorry. We are full." As a
result, Sampson remained in the general population, per Julian's directions, where on
August 10 he hung himself from the air vent utilizing a bed sheet. See Coleman v.
Parkman, 349 F.3d 534, 540 (8th Cir. 2003) (stating the placement of a suicidal inmate
in a cell with exposed bars and a bed sheet is an unreasonable response to the inmate's
serious medical needs, which violates the "common sense rule").



                                         -20-
       Based on the record before us, it cannot be said the evidence presented at trial
is insufficient to overcome Julian's qualified immunity defense. While a different jury
may have found Julian's conduct did not rise to the level of deliberate indifference, I
cannot say no reasonable jury could have found Julian's actions and inactions showed
she was deliberately indifferent to Sampson's serious medical needs. See Ortiz, 131
S.Ct. at 889; Howard, 615 F.3d at 995 (stating that on appeal of a denial of a motion
for judgment as a matter of law, "we must give great deference to the jury's verdict"
and should overturn only if the evidence presented at trial is "susceptible of no
reasonable inference sustaining the [verdict]") (internal quotation marks omitted). I
would therefore affirm the district court's denial of Julian's motion for judgment as a
matter of law.

      B.     Campbell.

        "Supervisors, in addition to being liable for their own actions, are liable when
their corrective inaction amounts to 'deliberate indifference' or to 'tacit authorization'
of the violative practices." Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989).
The majority concludes that while "the evidence does not paint an impressive picture
of [Campbell's] performance as DCJ director . . . [his] acts and omissions do not rise
to the level of constitutional deliberate indifference." Ante at 14-15. Construed in the
light most favorable to the jury verdict, however, the evidence presented at trial does
indeed show otherwise.

       The evidence convincingly shows Campbell knew Sampson had attempted to
commit suicide just two weeks prior and recorded this attempt in the "passbook." A
grand jury investigating another inmate's suicide in 2001, however, had determined
the "passbook" was an inadequate way of communicating potential problems with
inmates among DCJ staff. Moreover, a "passbook" was not what Policy 12.4 required
of Campbell and his staff. Rather, Policy 12.4 required the completion of a "suicide
level form" upon a determination an inmate is potentially suicidal—a form, which was

                                          -21-
to be placed in a "suicide notebook" and was to be updated on a daily basis.7 Yet, the
evidence shows that during Campbell’s eleven-year tenure as DCJ's director, he never
enforced, or even knew of, these Policy 12.4 requirements. In fact, as the evidence at
trial clearly revealed, in November 2008—over two years after Sampson's
suicide—Campbell still did not know what a "suicide notebook" was. As a result of
Campbell's failure to enforce these provisions of Policy 12.4, DCJ staff did not follow
the proper procedures relating to suicide intervention. In addition, while Campbell
knew Policy 12.4 authorizes only ten- and twenty-minute watches for suicidal inmates,
he tacitly authorized his staff members to administer thirty-minute watches, in direct
violation of Policy 12.4. Campbell was also aware that between the years 2000 and
2006 twenty-one inmates had attempted suicide, three of whom were successful. Yet,
he failed to make a single revision to DCJ's suicide prevention policy because, in his
own words, he was "just not . . . able to get around to rewriting that one." Not only
was he unable "to get around to rewriting" Policy 12.4, he was also unable to explain
during the trial how, if at all, his staff received training in suicide prevention.

       The jury also learned as to one of the successful suicide attempts prior to
Sampson being executed in the exact manner as was Sampson's suicide—the inmate
hung himself from his cell's air vent with a bed sheet. Yet, Campbell took no
corrective measures to ensure the safety of DCJ's vent system. He knew the safety
cell—the only cell designed to be suicide resistant—was unavailable from August 3
to August 10, the day on which Sampson committed suicide. Yet, he offered no
substitutes for a suicide-resistant cell, effectively forcing Sampson to remain in a
general population cell where he had access to both a bed sheet and an air vent. See


      7
       Policy 12.4 provides that "[i]f correctional personnel or another staff person
is aware of an inmate who has made a suicide threat/gesture or if there is a reason to
believe that an inmate is potentially suicidal," the staff must notify the shift
supervisor immediately. The responsibility to place the inmate on an appropriate
suicide watch, fill out the form, place it in the suicide notebook, and update it on a
daily basis lies with either the nurse or the shift supervisor.

                                         -22-
Turney v. Waterbury, 375 F.3d 756, 761 (8th Cir. 2004) (concluding prison official's
actions exhibited deliberate indifference because, among other facts, the official failed
to investigate an earlier suicide attempt and placed the inmate "in a cell alone with a
bed sheet and exposed ceiling bars").

       Based on this evidence, a reasonable jury could have concluded Campbell was
deliberately indifferent to the needs of suicidal inmates, including the serious medical
needs of Sampson. Accordingly, because the evidence presented at trial was sufficient
to overcome Campbell's qualified immunity defense, I would also affirm the district
court's denial of his motion for judgment as a matter of law. See Ortiz, 131 S.Ct. at
889; Hathaway v. Runyon, 132 F.3d 1214, 1220 (8th Cir. 1997) ("Judgment as a
matter of law is proper only when there is a complete absence of probative facts to
support the conclusion reached so that no reasonable juror could have found for the
nonmoving party.") (internal quotation marks and citation omitted).

      C.     Dodge County.

       "A plaintiff may establish municipal liability under § 1983 by proving that his
or her constitutional rights were violated by an 'action pursuant to official municipal
policy' or misconduct so pervasive among non-policymaking employees of the
municipality 'as to constitute a "custom or usage: with the force of law.'" Ware v.
Jackson Cnty., Mo., 150 F.3d 873, 880 (8th Cir. 1998) (quoting Monell v. Dep't of
Soc. Servs., 436 U.S. 658, 691 (1978)). "Custom or usage" may be shown by "[t]he
existence of a continuing, widespread, persistent pattern of unconstitutional
misconduct by the governmental entity's employees." Ware, 150 F.3d at 880. The
majority concludes Dodge County is entitled to judgment as a matter of law because
the evidence presented at trial is insufficient to demonstrate the "'continuing,
widespread, persistent pattern of constitutional misconduct' necessary to find the
county liable." Ante at 16 (quoting Jenkins v. Cnty. of Hennepin, Minn., 557 F.3d
628, 634 (8th Cir. 2009)). Based on the evidence before it, however, the jury in this

                                          -23-
case was entitled to infer that a pattern of constitutional misconduct existed and was
allowed to flourish ad infinitum.

       Without question, Dodge County's Corrections Policy & Procedure Manual does
include a written Suicide Intervention Policy (Policy 12.4). The record shows,
however, that in a six-year span under this policy, there were three suicides and
twenty-one suicide attempts. The record also clearly demonstrates neither the County
nor its employees took any action to improve or revise the policy. On the contrary,
despite the high number of suicide attempts and actual suicides, Policy 12.4 has not
been revised since it was first implemented going all the way back to 1994. More
importantly, certain provisions of Policy 12.4 were never followed or enforced. For
instance, both Campbell and Julian admitted DCJ employees did not follow the three
suicide levels identified in Policy 12.4 as: (1) Alert, which requires close observation
and placement in a safety cell for inmates who have recently attempted to commit
suicide, such as Sampson; (2) Warning, which requires visual checks no more than ten
minutes apart, possible restriction of items in inmate's cell, and possible isolation of
inmates who display strong signs indicating suicide or who have a history of
attempting suicide; and (3) Watch, which requires visual checks in intervals no longer
than twenty minutes. Additionally, Campbell did not enforce, and DCJ employees did
not follow, Policy 12.4's directives for the completion a "suicide level form" for
suicidal inmates, the maintenance of a "suicide notebook," and the performance or
recording of daily assessments for inmates placed on suicide watch. In fact, Campbell
did not even know whether or how new employees receive training on Policy 12.4.

       "[T]he existence of written policies of a defendant are of no moment in the face
of evidence that such policies are neither followed nor enforced." Ware, 150 F.3d at
882. The evidence presented at trial unequivocally established that essential
provisions of Policy 12.4, such as establishing the appropriate level of suicide watch
and maintaining proper documentation for suicidal inmates, were neither followed by
DCJ employees nor enforced by its director, Campbell, for more than a decade. Based

                                         -24-
on this evidence, a reasonable, conscientious jury did infer a pattern of
unconstitutional misconduct so "continuing, widespread, [and] persistent" on the part
of Dodge County's employees "as to constitute a 'custom or usage' with the force of
law." Id. at 880. Accordingly, the evidence was clearly sufficient to support the jury's
finding Dodge County had "a policy or custom of failing to implement reasonable
suicide prevention practices"—a finding which precludes the County from asserting
the qualified immunity defense. The district court therefore properly denied the
County's motion for judgment as a matter of law.

                                          III.

      Because I decline to substitute this court's judgment for that of the jury, I must
respectfully dissent.
                      ______________________________




                                         -25-
