           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                            July 7, 2008

                                       No. 07-10589                   Charles R. Fulbruge III
                                                                              Clerk

KENNETH ANDERSON, Individually and As Representatives of the Estate
of Kendrick Deshun Baines, Deceased; REGINA BROWN, Individually and
As Representatives of the Estate of Kendrick Deshun Baines, Deceased

                                                  Plaintiffs - Appellants
v.

DALLAS COUNTY TEXAS

                                                  Defendant - Appellee



               Appeal from the United States District Court for the
                        Northern District of Texas, Dallas
                                 3:05-CV-1248


Before KING, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiffs Kenneth Anderson and Regina Brown appeal the district court’s
summary judgment dismissal of their claims for (1) improper denial of medical
treatment to Kendrick Deshun Baines under 42 U.S.C. § 1983, and (2) the
negligent provision of clothing and other items to Kendrick Deshun Baines in




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                       No. 07-10589

violation of the Texas Tort Claims Act, TEXAS CIV. PRAC. & REM. CODE ANN. §
101.021. For the reasons stated below, we affirm the district court’s judgment.
                                  I. BACKGROUND
       Plaintiffs Kenneth Anderson and Regina Brown filed this action on behalf
of themselves and the estate of their deceased son, Kendrick DeShun Baines.
Baines committed suicide on July 24, 2003, while incarcerated in the Dallas
County Jail (the “Jail”). Baines was booked into the Jail on July 11, 2003, on
charges of resisting arrest, possession of marijuana, and driving without a
helmet. At book-in, Baines indicated that he had no medical problems, and he
had no observable injury or impairment that required medical attention. Baines
was assigned to the Kays facility, a minimum-security division of the Jail.
Baines’s pre-trial confinement at the Kays facility was uneventful, and, on July
17, 2003, he was convicted and sentenced to imprisonment. Baines was eligible
for release on July 29, 2003.
       However, on July 23, 2003, the day before his death, Detention Service
Officer (“DSO”) Brandon heard Baines threaten to kill himself unless he was
allowed to see his mother. In response to this threat, DSO Brandon took Baines
to the nurse’s station, where he was examined by Nurse Hill. Nurse Hill said
“she would place [Baines] on suicide watch and transfer him to closed behavioral
observation 03P01.” Baines was placed on suicide watch from the time he saw
Nurse Hill until approximately 6:00 p.m. that evening. A “suicide log” was kept
to record the fact that he was observed at regular intervals. An “incident report”
created by DSO Brandon at 6:22 p.m. also indicated that Baines had expressed
a suicidal intent. However, in violation of Jail policy, no formal order medically
authorizing the Jail officials to take suicide precautions was ever completed.1

       1
         If a doctor places an inmate on Suicide Prevention Status, a “Medical Authorization
for Suicide Precautions” form is to be completed and signed by the doctor. A copy of the
Medical Authorization must be attached to the inmate’s “buffcard,” which is itself attached to
the inmate’s file. Once an inmate is placed on Suicide Prevention Status, jailers must

                                              2
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       At around 6:00 p.m., Baines was transferred to the third floor of the West
Tower of the Lew Sterrett Justice Center (“West Tower”), a division of the Jail
designated as a behavioral observation facility. The third floor of the West
Tower mainly held mentally ill patients, although other inmates were sometimes
housed there due to overflow problems or because they were “troublemakers.”
Baines arrived at the West Tower and was brought to the third floor at
approximately 8:40 p.m. A buffcard was delivered along with Baines, but it did
not contain the words “suicide” or “suicidal” on it as was customary for suicidal
inmates. Moreover, neither the incident report created at the Kays facility,
which indicated that Baines had expressed suicidal intentions, nor the suicide
log accompanied Baines to the third floor.
       As a result, DSO Huff, who was working at the control center when Baines
arrived, was unaware that Baines had expressed an intent to commit suicide.
He did notice that Baines arrived without a mattress or bed roll, but assumed
that there were simply no mattresses or bed rolls available. Accordingly, DSO
Huff assigned Baines to a single cell with the jail-issued jumper Baines would
later use to kill himself. Later that evening, around 11:45 p.m., a female officer
from the Kay’s facility delivered DSO Brandon’s incident report, along with the
“suicide log,” to the West Tower’s third floor. DSO Teves received the report and
attached it to Baines’s buffcard. DSO Teves claimed that he never read it.
       The second watch, or shift, at the West Tower began at 6:00 a.m. on July
24, 2003, and ended at 2:30 p.m. DSOs Strange, Terry, and Vannucci were
assigned to the third floor. In addition, two physician assistants, Judd and




routinely monitor and observe the inmate, and the inmate is to be confined without items that
he can use to take his own life, such as a jail-issued jumper, mattress, bedroll, blankets, socks
and eating utensils. In lieu of a cloth jumper, suicidal inmates are provided with paper drapes
that tear too easily for inmates to use to harm themselves with.

                                               3
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Cotten, from the University of Texas Medical Branch at Galveston (“UTMB”),2
were assigned to evaluate mentally ill inmates in the West Tower. Both Judd
and Cotten were aware that Baines was suicidal, but both also stated that they
were unaware that the Jail had failed to undertake necessary suicide
precautions. The physician assistants claimed that they requested to see Baines
at 9:00 a.m. and 11:00 a.m., but were unable to obtain an escort from the DSOs,
and decided not to proceed without one. The DSOs could not recall refusing an
escort. In either event, Jail policy permitted the physician assistants to proceed
without an escort; however, without an escort, the physician assistants could
only communicate with the inmates through the cell doors. Both Judd and
Cotten preferred to evaluate a patient with an escort because they were able to
open the door to the inmate’s cell and communicate more directly with him.
       Around 11:00 a.m. on the morning of July 24, 2003, DSO Terry realized
that Baines did not have a mattress or bedroll. This indicated to Terry that
Baines might be suicidal. Accordingly, Terry notified DSO Strange, who checked
Baines’s paperwork and learned that Baines was suicidal. Upon learning this,
DSO Strange asked Judd to see Baines. Judd, unaware that Baines was never
placed on suicide precautions, indicated that she would return about 12:30 or
1:00 p.m. to see Baines. At about 1:10 p.m., Judd went to the third floor control
center, and DSO Strange asked if she was ready to see Baines. Judd responded
that she had a list of other inmates whom she and Cotten wanted to see first.
This response did not make sense to Terry. Terry, therefore, checked on Baines
multiple times while Judd was seeing other prisoners.


       2
         The defendant contracted with UTMB for the provision of medical and mental health
care services to inmates confined in the Jail. Under the “Interlocal Agreement to Provide
Medical Services,” dated October 29, 2002, UTMB was the sole provider of medical services to
inmates of the Jail. UTMB agreed to provide medical services to inmates in accordance with
the standards of care established by the American Correctional Association, the Texas
Commission on Jail Standards, and the Texas Department of Protective and Regulatory
Services.

                                             4
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      After Judd finished visiting other prisoners on the third of floor of the
West Tower, at about 2:00 p.m., she returned to the control room where the
DSOs were eating lunch. She awaited Cotten’s return, who was visiting other
inmates on the third floor. At around 2:10 p.m., DSO Chatman, from the third
watch, who was relieving DSOs Strange, Terry, and Vannucci, escorted Judd
and Cotten to see Baines. Cotten received a telephone call on his cell phone at
approximately 2:11 p.m., and Judd and Chatman continued to proceed to
Baines’s cell. Upon arriving at Baines’s cell, Judd observed blood “all over”
Baines’s cell and could not tell if Baines was breathing. Baines was lying face
down in his cell, with his jail-issued jumper tied around his neck and what were
later determined to be three plastic spoons shoved down his throat. Judd left the
area to call for help and told Cotten to look in on Baines.
      Shortly thereafter, Judd returned with DSO Chatman, who had radioed
for supervisors and medical staff, and Dr. Gary Neller, a Jail psychiatrist, who
had arrived on the floor at that moment. DSO Chatman opened the cell door
and Dr. Neller entered the cell and attempted to find a pulse, which he could not.
Dr. Neller also observed that Baines’s body was cold. Nurses Daughety and
Sanders, responding to DSO Chatman’s call, also examined Baines and sought
to remove the jumper from around his neck. There is no indication in the record
that CPR was ever given, and the only witnesses deposed could not recall
whether it was performed. Neither the physician assistants nor the DSOs
performed CPR on Baines, and nothing in the record indicates that Dr. Neller
or Nurses Daughtey and Sanders (who were not deposed) did either. Ultimately,
Baines was taken to Parkland Hospital, where he was pronounced dead at 3:11
p.m. The next day, on July 25, 2002, the Dallas County medical examiner
performed an autopsy on Baines and determined that the cause of death was
self-inflicted ligature strangulation.



                                         5
                                      No. 07-10589

       On June 17, 2005, the plaintiffs filed a three-count complaint against
Dallas County. The plaintiffs sought damages for: (1) improper denial of
medical treatment in violation of 42 U.S.C. § 1983; (2) failure to reasonably
accommodate mentally handicapped inmates in violation of the Americans with
Disabilities Act (the “ADA”), 42 U.S.C. § 12132, and the Rehabilitation Act of
1973 (“Rehabilitation Act”), 29 U.S.C. § 794; and (3) the negligent provision of
clothing and use of a jail cell in violation of the Texas Tort Claims Act (the
“TTCA”), TEXAS CIV. PRAC. & REM. CODE ANN. § 101.021.
       On December 2, 2006, the defendant moved for summary judgment on all
counts. The defendant argued that the plaintiffs did not have standing to bring
the lawsuit, could not establish a claim under the ADA and the TTCA, and could
not prove that the defendant was deliberately indifferent to Baines’s medical
needs under § 1983 because the Jail and UTMB officials were, at most, negligent
in their provision of medical care. On February 5, 2007, the plaintiffs filed a
response and supporting evidence, including more than two-thousand pages of
documents—consisting primarily of deposition transcripts, affidavits, and
medical records for individuals not involved in this litigation—generated in
another lawsuit, Mims v. Dallas County, No. 3:04-CV-2754 (N.D. Tex.).3 The
plaintiffs requested that the district court take judicial notice of the Mims
documents, and attempted to rely on the documents to prove that the defendant
had consistently and knowingly underfunded and understaffed the Jail to the
detriment of inmates’ constitutional rights.             On February 19, 2007, the
defendant moved to strike many of the documents filed by the plaintiffs in
support of their response, including the documents generated in Mims. The
plaintiffs did not respond to the defendant’s objections.

       3
          Mims was a lawsuit filed against Dallas County alleging that the defendant
systematically failed to provide adequate medical care at the Jail from at least 1998 through
2006. It did not involve the suicide of an inmate, however, and was settled before going to
trial.

                                             6
                                   No. 07-10589

      On April 18, 2007, the district court granted the defendant’s motion to
strike the Mims documents. The district court ruled that it did not have
authority to take judicial notice of the documents produced in Mims. The
district court cited Taylor v. Charter Medical Corp., 162 F.3d 827, 829 (5th Cir.
1998), for the proposition that it could only take judicial notice of an
“adjudicative fact” if the fact is not subject to reasonable dispute, in that it is:
(1) generally known within the territorial jurisdiction of the trial court; or (2)
capable of accurate and ready determination by resort to sources whose accuracy
cannot be questioned. However, the district court concluded that the “myriad of
‘facts’ contained in [the Mims] documents [were] neither generally known nor
reasonably indisputable.”
      In addition, although the district court held that the plaintiffs had
standing to bring the action, it granted the defendant summary judgment on all
counts. First, the district court held that the plaintiffs could not establish either
an Eighth Amendment condition-of-confinement case or an episodic-act-or-
omission case under § 1983. The plaintiffs could not establish a condition-of-
confinement case because the defendant “had policies in place making the
provision of psychiatric treatment to suicidal inmates a high priority[,]” and the
plaintiffs “acknowledg[ed] ‘that there was no greater priority in the routine
operation of the [J]ail then to provide for the prompt treatment of a suicidal
inmate who had not been yet placed on suicide prevention orders.’”
Furthermore, the plaintiffs could not establish an episodic-act-or-omission case
because not one single individual acted with deliberate indifference, inasmuch
as the only state actors who knew that Baines was suicidal and that Baines was
not placed on suicide precautions took steps to ameliorate the risk of harm to
Baines. Second, the district court held that the plaintiffs could not establish a
claim for disability discrimination under the ADA or Rehabilitation Act because
there was no proof that Baines was excluded from benefits or services at the Jail

                                         7
                                       No. 07-10589

solely because of any alleged disability. Third, the district court concluded that
the plaintiffs could not prove a TTCA claim because the defendant did not “use,”
within the meaning of the TTCA, any of the items that caused Baines’s death.
       On May 17, 2007, the plaintiffs filed this timely appeal. The plaintiffs do
not appeal the district court’s dismissal of the claim arising under the ADA and
Rehabilitation Act.
                                    II. DISCUSSION
A. Admissibility of Evidence
       Before considering the merits of the case, we shall address the plaintiffs’
contention that the district court erred in striking deposition testimony taken
in the Mims case.4 The plaintiffs argue that depositions taken in one case can
be used against the same party in another case so long as that party was
represented by counsel, and there is a substantial identity of issues. See, e.g.,
Nippon Credit Bank, Ltd. v. Matthews, 291 F.3d 738, 750-51 (11th Cir. 2002);
Gulf USA Corp. v. Fed. Ins. Co., 259 F.3d 1049, 1056 (9th Cir. 2001); Rule v. Int’l
Ass’n of Bridge, Structural & Ornamental Ironworkers, Local Union No. 396, 568
F.2d 558, 568-69 (8th Cir. 1977). According to the plaintiffs, the depositions
taken in Mims were admissible because: (1) the defendant was represented by
counsel in Mims; and (2) both Mims and the instant case involved injuries to
inmates at the Jail as a result of the defendant’s deliberate indifference to
inmates’ physical and mental health. Lastly, the plaintiffs state that the district
court need not have taken judicial notice of the Mims deposition testimony, and
that, in fact, the plaintiffs merely requested that the district court take judicial
notice “out of an abundance of caution and, essentially, as an afterthought.”




       4
         As noted above, in addition to deposition testimony, the district court also refused to
consider affidavits and medical records that were generated in the Mims case. However, the
plaintiffs do not specifically address any evidence other than the deposition testimony.

                                               8
                                  No. 07-10589

During oral argument, the plaintiffs further conceded that the district court did
not have the authority to take judicial notice of the Mims documents.
      A district court’s decision not to consider evidence offered in opposition to
a motion for summary judgment is reviewed under an abuse of discretion
standard. Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999) (citation
omitted). However, we need not consider whether the Mims documents were
admissible in this case because the plaintiffs did not preserve their argument for
appeal. This court does “not consider arguments or evidence that was not
presented to the district court.” Benefit Recovery, Inc. v. Donelon, 521 F.3d 326,
329 (5th Cir. 2008) (citing Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307
(5th Cir. 1998)). There is no bright-line rule governing whether a matter was
sufficiently raised below. N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 142 n.4 (5th
Cir. 1996) (citation omitted). But even raising an argument is, standing alone,
insufficient. Benefit Recovery, Inc., 521 F.3d at 329 (citing FDIC v. Mijalis, 15
F.3d 1314, 1327 (5th Cir. 1994)). “If a litigant desires to preserve an argument
for appeal, the litigant must press and not merely intimate the argument during
the proceedings before the district court. If an argument is not raised to such a
degree that the district court has an opportunity to rule on it, we will not
address it on appeal.” Mijalis, 15 F.3d at 1327 (citation omitted); see also
Connelly v. Tex. Dep’t of Criminal Justice, 484 F.3d 343, 346 n.1 (5th Cir. 2007)
(citation omitted) (holding that citing to a case in a brief to the district court
without asserting that its holding applies is not enough to preserve the issue for
appeal).
      Here, while the plaintiffs may have requested the district court to take
judicial notice of the documents “out of an abundance of caution,” the plaintiffs
were responsible for framing the issue as one of judicial notice, as opposed to
admissibility under the Federal Rules of Civil Procedure. More importantly, the
defendant filed an objection to the evidence, and the plaintiffs neither responded

                                        9
                                  No. 07-10589

to that motion nor elsewhere explained why the evidence was admissible.
Because the plaintiffs never argued that the evidence was admissible on the
basis of identity of issues and parties, they cannot do so on appeal.
B. Cruel and Unusual Punishment
      We review a grant of summary judgment de novo, viewing all the evidence
in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor. See Crawford v. Formosa Plastics Corp., 234
F.3d 899, 902 (5th Cir. 2000) (citations omitted). “Summary judgment is proper
when the evidence reflects no genuine issues of material fact and the non-
movant is entitled to judgment as a matter of law.” Id. (citing FED. R. CIV. P.
56(c)). “A genuine issue of material fact exists ‘if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.’” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “Even if we do not
agree with the reasons given by the district court to support summary judgment,
we may affirm the district court’s ruling on any grounds supported by the
record.” Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007) (citation
and internal quotation marks omitted).
      “There are three elements to establish liability through a Section 1983
action. There must be (1) a deprivation of a right secured by federal law (2) that
occurred under color of state law, and (3) was caused by a state actor.” Victoria
W. v. Larprenter, 369 F.3d 475, 482 (5th Cir. 2004) (citation omitted). “Section
1983 imposes liability for violations of rights protected by the Constitution, not
for violations of duties of care arising out of tort law.” Baker v. McCollan, 443
U.S. 137, 146 (1979). Deliberate indifference to a prisoner’s serious medical
needs in violation of the Eighth Amendment’s prohibition against cruel and
unusual punishment is actionable under § 1983. Victoria W., 369 F.3d at 483
(citation omitted).



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                                       No. 07-10589

       The Eighth Amendment’s prohibition against cruel and unusual
punishment imposes duties on prison officials to take reasonable measures to
guarantee the safety of inmates. Farmer v. Brennan, 511 U.S. 825, 832 (1994)
(citations omitted); see Hare v. City of Corinth, 74 F.3d 633, 644 (5th Cir. 1996)
(en banc) (“Whether the State’s obligation is cast in terms of a duty to provide
medical care or protection from harm, its ultimate constitutional duty is ‘to
assume some responsibility for [the] safety and general well-being’ of persons
whose state-occasioned confinement renders them unable to fend for
themselves.” (citation omitted)).5          While the original aim of the Eighth
Amendment was to proscribe inhumane techniques of punishment, the Supreme
Court “has extended it to encompass ‘broad and idealistic concepts of dignity,
civilized standards, humanity, and decency.’” Victoria W., 369 F.3d at 483 (citing
Estelle v. Gamble, 429 U.S. 97, 102 (1976)). It is now clear that a failure to
provide adequate protection against a prisoner’s known suicidal impulses is
actionable. Evans v. City of Marlin, 986 F.2d 104, 107 (5th Cir. 1993) (citation
omitted).
       To determine the appropriate standard to apply, however, we must first
classify the challenge as an attack on either a condition of confinement, or an
episodic act or omission. See Flores v. County of Hardeman, 124 F.3d 736, 738
(5th Cir. 1997) (citation omitted).          A condition-of-confinement action “is a
constitutional attack ‘on general conditions, practices, rules or restrictions’” of
confinement. Id. (citation omitted). It includes claims such as where an inmate
“complains of the number of bunks in a cell or his television or mail
privileges . . . .” Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997) (en banc). If the



       5
         Hare is a pre-trial detainee case, not a prisoner case. Id. at 635. Unlike convicted
prisoners, pre-trial detainees’ claims arise under the Due Process Clause; however, this court
applies the same standard of review to both types of cases. Id.; see also Gibbs v. Grimmette,
254 F.3d 545, 548 (5th Cir. 2001) (citation omitted).

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                                  No. 07-10589

plaintiff complains of a condition of confinement, the court assumes that “by the
municipality’s promulgation and maintenance of the complained of condition,
[the municipality] intended to cause the alleged constitutional deprivation.”
Flores, 124 F.3d at 738 (citation omitted).
      Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998), is an example of
a condition-of-confinement case. There, the disabled prisoner complained that
he was unable to bathe for over two months because the prison did not
accommodate his disability. Id. at 1024. As a result, the prisoner was forced to
clean himself using toilet water, which ultimately caused a fungal infection and
blisters requiring medical treatment. Id. The complained-of condition was
unsanitary conditions that deprived the prisoner of a basic human need and
exposed him to health risks. Id. at 1025. Another example is Burleson v. Texas
Department of Criminal Justice, 393 F.3d 577, 589 (5th Cir. 2004). In that case,
the prisoner complained that while working as a welder in a prisoner work
program he was never warned that the welding electrodes were radioactive. Id.
at 581. The court treated the claim as a condition-of-confinement case because
the defendant sought to impose liability on the state for a prison practice that
exposed him to carcinogens, as opposed to the actions of its officers. Id. at 589;
see also Victoria W., 369 F.3d at 489 (challenging a policy that required a
pregnant prisoner to receive a court order before being granted supervised
release in order to obtain an abortion).
      In contrast, an episodic-act-or-omission claim occurs “where the
complained-of harm is a particular act or omission of one or more officials . . . .”
Scott, 114 F.3d at 53 (citation omitted). In Scott, the en banc court distinguished
an episodic-act-or-omission claim from a condition-of-confinement claim by
explaining that:
            In an “episodic act or omission” case, an actor usually is
            interposed between the detainee and the municipality,


                                        12
                                  No. 07-10589

            such that the detainee complains first of a particular
            act of, or omission by, the actor and then points
            derivatively to a policy, custom, or rule (or lack thereof)
            of the municipality that permitted or caused the act or
            omission.
Id.; see also Gibbs, 254 F.3d at 548 n.2 (citation omitted) (stating that the
episodic act standard is applied when the alleged constitutional violation is a
particular act or omission by an individual that points to a derivative policy or
custom of the municipality).
      Importantly, this court has not permitted plaintiffs to conflate claims
concerning a prison official’s act or omission with a condition-of-confinement
complaint. Thus, in Flores, the plaintiffs brought a suit for failure to provide
adequate mental health care against the defendants after the plaintiffs’ decedent
committed suicide. 124 F.3d at 737. The decedent was initially placed on
suicide watch by the county sheriff who knew the decedent and felt the decedent
was acting strangely. Id. However, the next day, the sheriff removed those
precautions because the decedent had never threatened his own life and, in the
sheriff’s opinion, began to act normally. Id. The plaintiffs attempted to raise
both an episodic-act-or-omission case (based on the sheriff’s failure to set up
special procedures to monitor against the decedent’s potential suicide), and a
condition-of-confinement case (based on the county’s alleged failure to
adequately staff and train the jail officials). Id. at 738. This court did not
permit the plaintiffs to proceed under both theories. Id. Where the sheriff’s
actions were interposed between the county and the decedent, it was clear that
the case was one for an episodic act or omission. Id.
      A similar result occurred in Sibley v. Lemaire, 184 F.3d 481, 485 (5th Cir.
1999).   There, a mentally-impaired inmate brought an action against the
defendants after he intentionally injured his own eyes. The plaintiff claimed
that the defendants were responsible for perpetuating a policy—restraining


                                        13
                                  No. 07-10589

violent prisoners with shackles—that did not distinguish between sane and
mentally ill prisoners, and thereby denied mentally disturbed patients
reasonable medical care. Id. at 487. If the defendants had a policy that
distinguished between sane and mentally ill patients, the plaintiff claimed, the
guards would have realized that his mental illness was worsening and prevented
him from causing himself harm. Id. This court rejected that argument, holding
that the appropriate analysis was not whether the conditions of confinement
were responsible for the plaintiff’s injuries. Id. Rather, the case was a claim
based on an episodic act or omission—specific officers’ failure to prevent the
inmate from harming himself. Id. at 487-88.
      In the instant case, the plaintiffs argue that they should be able to proceed
under either theory. The defendant, by contrast, argues that the plaintiffs’ case
is an episodic-act-or-omission case. We shall first, therefore, evaluate whether
the plaintiffs may proceed on a condition-of-confinement theory.
      The plaintiffs claim that they can proceed on a condition-of-confinement
theory because they are challenging as constitutionally inadequate the policies
and customs of the Jail, namely, the: (1) funding of the Jail, (2) staffing of the
Jail; (3) monitoring of Jail operations; and (4) provision of medical care at the
Jail. The plaintiffs offer various items of evidence in support of their contention
that the medical care provided at the Jail was inadequate, and that the
defendant knew that the care was inadequate.          Most of the evidence the
plaintiffs focus on in their briefs in support of these allegations are documents
generated in the Mims case that we cannot consider. But the plaintiffs also rely
on other evidence, such as: (1) a report that was provided to the Dallas County
Commissioners in 1998, the “Dallas County Jail Psychiatric Services Task Force
Report,” wherein it was concluded that “basic resources must be increased in
order to permit a minimally sufficient standard of psychiatric care to be

                                        14
                                   No. 07-10589

delivered to inmates”; and (2) a United States Department of Justice report,
following an investigation of the Jail in February and March, 2006, which
concluded that inmates at the Jail had inadequate access to healthcare. The
defendant does not address this evidence because it maintains that this is not
a condition-of-confinement case.
      We agree. The plaintiffs admit that the defendant had policies in place
that, if followed, would have prevented Baines’s suicide. Fundamentally, the
plaintiffs assert that Baines would not have been able to commit suicide if
suicide precautions had been enacted in accordance with Jail policy. The
plaintiffs ultimately take issue with the DSOs’ and physician assistants’ failure
to follow those policies and procedures. This is a classic episodic-act-or-omission
case. See Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999)
(“[The inmate’s] complaint turns on [the officers’] alleged failure to take better
care of her, . . . to medically screen her and secure her to treatment. Such a
complaint perfectly fits the definition of the episodic omission.”). The plaintiffs
attempt to create a condition-of-confinement claim by also alleging that the
individuals’ failure to follow the procedures resulted from other county practices,
namely, inadequate funding and staffing. But even if true, taken together, the
state actors were still “interposed between the detainee and the municipality,
such that the detainee complains first of a particular act of, or omission by, the
actor and then points derivatively to a policy, custom, or rule (or lack thereof) of
the municipality that permitted or caused the act or omission.” Scott, 114 F.3d
at 53 (holding that even though the plaintiff asserted that under-staffing caused
her injury, her actual complained-of harm was sexual assault, an episodic act).
Because the plaintiffs cannot prove that Baines was subjected to cruel and
unusual punishment without first proving that a state actor deprived him of his
constitutional rights, the plaintiffs’ case is an episodic-act-or-omission case.

                                        15
                                    No. 07-10589

      To proceed on their § 1983 claim, then, the plaintiffs must prove that a
genuine issue of material fact exists concerning their episodic-act-or-omission
claim. To establish county liability for a failure to protect under an episodic-act-
or-omission theory, a plaintiff must show that: (1) a county employee violated
his clearly established constitutional rights with subjective deliberate
indifference; and (2) the violation resulted from a county policy or custom
adopted or maintained with objective deliberate indifference. Scott, 114 F.3d at
54 (citations omitted).
      A prison official acts with subjective indifference if: (1) he knows that an
inmate faces a substantial risk of serious bodily harm; and (2) he disregards that
risk by failing to take reasonable measures to abate it. Gobert v. Caldwell, 463
F.3d 339, 346 (5th Cir. 2006) (citation omitted); see also Farmer, 511 U.S. at 836
(“It is, indeed, fair to say that acting or failing to act with deliberate indifference
to a substantial risk of serious harm to a prisoner is the equivalent of recklessly
disregarding that risk.”); Gibbs, 254 F.3d at 549 (“To prove deliberate
indifference, [an inmate] must show that the state official knew of and
disregarded an excessive risk to the inmate’s health or safety.” (citation
omitted)); Sibley, 184 F.3d at 489 n.7 (“We note here the difference between
negligence and deliberate indifference. A reasonably prudent man may well
have deemed it necessary [to take certain precautions]. To be deliberately
indifferent, however, the deputies would have had to have chosen not [to take
those precautions] with the expectation that some harm would result to [the
inmate].”). Put differently, the plaintiff must show both that the employee was
aware of facts from which an inference of an excessive risk to the prisoner’s
safety could be drawn, and that the employee actually drew an inference that




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such potential for harm existed. Bradley, 157 F.3d at 1025 (citing Farmer, 511
U.S. at 837).
      Obviously, “[d]eliberate indifference is an extremely high standard to
meet.” Gobert, 463 F.3d at 346 (citation and internal quotation marks omitted).
The Supreme Court has justified this standard by explaining that:
            An act or omission unaccompanied by knowledge of a
            significant risk of harm might well be something society
            wishes to discourage, and if harm does result society
            might well wish to assure compensation. The common
            law reflects such concerns when it imposes tort liability
            on a purely objective basis. . . . But an official’s failure
            to alleviate a significant risk that he should have
            perceived but did not, while no cause for commendation,
            cannot under our cases be condemned as the infliction
            of punishment.
Farmer, 511 U.S. at 837-38. Therefore, the Court has cautioned that “courts
should be careful to ensure that the requirement of subjective culpability is not
lost. It is not enough merely to find that a reasonable person would have known,
or that the defendant should have known . . . .” Id. at 843 n.6.
      If a plaintiff is unable to show that a county employee acted with
subjective deliberate indifference, the county cannot be held liable for an episodic
act or omission.     See City of L.A. v. Heller, 475 U.S. 796, 799 (1986);
Olabisomotosho, 185 F.3d at 529; Flores, 124 F.3d at 739. Even if an officer
acted with subjective deliberate indifference, however, the plaintiff must still
show that the county employee’s act resulted from a county policy adopted or
maintained with objective deliberate indifference to the inmate’s rights. See
Scott, 114 F.3d at 54 (citations omitted); see also Evans, 986 F.2d at 108 (holding
that police officer’s failure to implement procedures for the safe incarceration of
inmates that resulted in a prisoner’s suicide did not create municipal liability).


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A county acts with objective deliberate indifference if it promulgates (or fails to
promulgate) a policy or custom despite “the ‘known or obvious consequences’ that
constitutional violations would result.” Piotrowski v. City of Houston, 237 F.3d
567, 579 (5th Cir. 2001) (citing Bd. of Comm’rs of Bryan County v. Brown, 520
U.S. 397, 403 (1997)). “In addition to culpability, there must be a direct causal
link between the municipal policy and the constitutional deprivation.” Id. at
580. The policy or custom must have been the “moving force” behind the
constitutional violation. Forgan v. Howard County, 494 F.3d 518, 522 (5th Cir.
2007) (citing Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 690-91
(1978)).
      Here, the plaintiffs argue that the district court erred in granting
summary judgment because genuine disputes of fact exist. First, the plaintiffs’
assert that state actors were deliberately indifferent to Baines’s medical needs
because: (1) the physician assistants, Cotten and Judd, knew that Baines was
suicidal and yet refused to see him in a timely manner; (2) DSOs Strange, Terry,
Vannucci and Teves knew that Baines was suicidal but failed to obtain a doctor’s
orders authorizing suicide prevention watch; and (3) the individuals who found
Baines lying on the floor and those who attended to him afterwards failed to
perform CPR on him. The plaintiffs point out that if either Cotten and Judd had
evaluated Baines, or if the DSOs had obtained authorization for a suicide
prevention watch, the items that Baines used to kill himself would have been
removed from his cell. Furthermore, according to the opinion of plaintiffs’
expert, Dr. David Thomas, “[i]f CPR had been initiated at the time [Baines] was
found, in reasonable certainty, Mr. Baines would be alive today.”
      Second, the plaintiffs assert that the state actors’ failure to act reasonably
was the result of the defendant’s policies and practices, including the defendant’s
alleged policy and custom to: (1) permit mentally ill patients to remain in

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custody without any mental health treatment; (2) permit mentally ill inmates
to retain dangerous materials; (3) fail to timely administer medications; (4)
permit mentally ill patients to be housed with clothing or other items that could
be used to harm themselves; (5) delay treating mentally ill patients; (6) under-
staff and under-fund the operation of the Jail; and (7) provide improper
oversight and coordination of healthcare providers.
      We find that the plaintiffs have not presented evidence sufficient to create
a genuine issue of fact. We shall consider the undisputed facts in two parts:
(1) before Baines acted to take his own life, and (2) after Baines was discovered
lying on his cell floor, seemingly without a pulse.
      With regard to the events proceeding Baines’s suicide, we agree with the
district court that the evidence does not establish that any state actor acted with
deliberate indifference. The physician assistants, Judd and Cotten, could only
have been aware of a substantial risk to Baines’s health if they knew both that
Baines was suicidal and that suicide prevention precautions had not been
imposed. Neither Judd nor Cotten was aware that an excessive risk of harm
existed that Baines would commit suicide because neither was aware that
suicide precautions had not been taken. See Gibbs, 254 F.3d at 550 (“Because
the defendants did not know of any diagnosed active cases of tuberculosis that
could have infected [the inmate], they did not act with subjective deliberate
indifference by refusing to administer the skin test.”). In addition, while DSOs
Terry, Strange, and Vannucci were aware that a substantial risk of harm
existed, they did not ignore the risk of harm to Baines. The DSOs checked
Baines’s file after realizing that he did not have a mattress or bedroll, requested
that the physician assistants evaluate Baines and periodically checked in on
Baines themselves. See Olabisiomotosho, 185 F.3d at 527 (holding that the
arresting officer was not deliberately indifferent to the pre-trial detainee’s

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medical needs where he informed the booking personnel of the detainee’s
asthma). Finally, the evidence does not show that DSO Teves knew that Baines
was suicidal or otherwise knowingly ignored the risk of harm to Baines. See
Gibbs, 463 F.3d at 349 (stating that the municipal employee must disregard a
substantial health risk about which he knew).
      While the staff at the Jail collectively may have acted negligently, or even
grossly negligently, by ignoring Jail procedures, no single individual deliberately
ignored an excessive risk of harm. See Gobert, 463 F.3d at 352 (“We agree that
a trier of fact might find negligence . . . . However, deliberate indifference to a
serious medical need could not be sustained and cannot as a matter of law
support a finding of a violation of [the inmate’s] constitutional right to be free of
cruel and unusual punishment.”); Evans, 986 F.2d at 108 (citation omitted) (“At
most, these policies were not strictly followed on the night of [the decedent’s
suicide.] Had they been she would not have had access to the hose [she killed
herself with]. The proximity of the hose to her cell may have been negligence,
but the negligent act of an official will not support liability under § 1983.”).
Accordingly, we conclude that the Jail officials did not act with deliberate
indifference in failing to prevent Baines from acting to take his own life.
      Second, with regard to the alleged omissions of the state actors after
Baines was found lying on the floor of his cell—namely, the failure to perform
CPR—we find that there is no evidence that the omission was the result of a
policy or custom of the defendant.        We assume for purposes of summary
judgment that CPR was never performed until paramedics arrived, and that the
failure to perform CPR contributed to Baines’s death. Indeed, the plaintiffs’
expert, Dr. Thomas, offered the only opinion in the record on this subject, and
he stated that “CPR could have revived [Baines] and allowed him to survive.”


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Moreover, we assume, arguendo, that the prison officials acted with subjective
deliberate indifference by failing to perform CPR on Baines.
      Nevertheless, we conclude that the prison officials’ failure to perform CPR
cannot create county liability. See Forgan, 494 F.3d at 523 (holding that
municipality could not be liable where the plaintiff failed to show how a policy
or lack of a policy led to the inmate’s suicide).        The defendant’s “Medical
Procedures Suicide Detection and Prevention Policy,” in place at the time of
Baines’s death, mandated that if an inmate attempted suicide, medical
authorities must be summoned immediately and “basic first aid procedures”
must be initiated.     Although we assume basic first procedures were not
performed, this was in violation of county policy. See Evans, 986 F.2d at 108 n.6
(“The failure to follow procedural guidelines, standing alone, does not implicate
constitutional liability.” (citation omitted)).
      Furthermore, while the plaintiffs make generalized claims that a county
policy led to Baines’s death, the plaintiffs never identify what specific policy was
the moving force behind the Jail officials’ alleged failure to timely perform CPR.
See Forgan, 494 F.3d at 522 (stating that conclusory statements attacking
suicide prevention policies or claiming that officers could have been better
trained are insufficient). The failure to fully staff the Jail, even if true, cannot
be said to be the reason CPR was not performed because the undisputed facts
show that medical officials promptly responded to the discovery of Baines. The
only theory that might be connected is the failure to train adequately Jail
officials, but there is no evidence in the record indicating that Jail officials failed
to perform CPR due to inadequate training. Nor is there evidence in the record
that the defendant should have known that its training inadequately instructed
its employees either how or when to perform CPR on inmates. See Rivera v.
Houston Indep. Sch. Dist., 349 F.3d 244, 249 (5th Cir. 2003) (holding that

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municipal liability could not exist where the municipality did not have
constructive knowledge of the complained-of custom); Thompson v. Upshur
County, 245 F.3d 447, 463 (5th Cir. 2001) (“Our precedent makes clear that
deliberate indifference on the part of a policymaker cannot generally be shown
from a single violation of constitutional rights or expert testimony.” (citation
omitted)); Scott, 114 F.3d at 54 (holding that the city had no reason to know that
its policy created a substantial risk of harm to female inmates because the same
procedures had been followed without incident since the late 1970s).
Accordingly, the alleged failure to perform CPR does not create county liability
in this case.
C. The TTCA Claims
      The plaintiffs also alleged that the defendant was negligent in the use of
Baines’s jail-issued plastic spoons and clothing. The plaintiffs argue that the
district court erred in determining that the defendant did not “use” the items
within the meaning of the TTCA because the defendant provided Baines with
the items for feeding and clothing purposes. The plaintiffs contend that this
constitutes “use” for purposes of the TTCA because Baines had no choice in the
items that were provided to him by the defendant. Since the items were
dangerous for a suicidal inmate to possess, the plaintiffs submit that a fact issue
concerning their TTCA claim exists.
      A Texas governmental unit is generally immune from tort liability.
Forgan, 494 F.3d at 520 (citing Tex. Dep’t of Criminal Justice v. Miller, 51
S.W.3d 583, 586-87 (Tex. 2001)). Section 101.021(2) of the TTCA, however,
waives governmental immunity for personal injury or death caused by a
condition or use of tangible personal property if the governmental unit would,
were it a private person, be liable to the claimant under applicable Texas law.
§ 101.021(2); see also San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 245

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                                   No. 07-10589

(Tex. 2004) (citation omitted); Evans, 996 F.2d at 108-09 (citation omitted). In
evaluating a claim under the TTCA, the threshold question is whether the
government’s actions constituted a condition or use of personal property.
Forgan, 494 F.3d at 520.
      We agree with the district court that the defendant’s mere issuance of the
plastic spoons and clothing to Baines did not constitute a “use” of real property.
In Cowan, the Texas Supreme Court held that merely providing a state hospital
patient his personal property that he later used to hang himself with did not
constitute a “use” of those items. 128 S.W.3d at 246-47. This court has since
noted that the TTCA permits waiver of liability only “if death or injury results
from (1) the direct use of property by a state actor, or (2) a defective condition of
state-issued property, even if actively employed by a third-party at the time of
injury.” Forgan, 494 F.3d at 521. Moreover, we held that a Texas municipality
does not waive its sovereign immunity when an inmate uses state-issued
clothing to cause his own death, absent an allegation that the clothing was in a
defective condition. Id. Because the plaintiffs did not offer evidence that the
jail-issued items Baines used to commit suicide were defective, the district court
correctly determined that the TTCA’s waiver of sovereign immunity does not
apply to this case.
                               III. CONCLUSION
      For the reasons stated above, we AFFIRM the district court’s judgment.




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