                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 06-2787
                                 ________________

Darin Winters, as Personal                 *
Administrator of the Estate of             *
Donald Winters,                            *
                                           *       Appeal from the United States
             Appellant,                    *       District Court for the
                                           *       Eastern District of Arkansas.
      v.                                   *
                                           *
Arkansas Department of Health and          *
Human Services; Keith Ferguson,            *
Sheriff, in his official capacity as       *
Sheriff of Benton County,                  *
Arkansas; John Selig, Chief                *
Executive Officer of DHS,                  *
                                           *
             Appellees.                    *

                                 ________________

                                 Submitted: March 14, 2007
                                     Filed: June 29, 2007 (Corrected 7/9/07)
                                 ________________

Before COLLOTON, HANSEN, and GRUENDER, Circuit Judges.
                       ________________

HANSEN, Circuit Judge.

      Mr. Darin Winters, as personal administrator of the estate of his father, the late
Mr. Donald Winters (whom we will refer to as "Mr. Winters"), brought suit alleging
claims pursuant to 42 U.S.C. § 1983; Title II of the Americans With Disabilities Act
of 1990 (ADA), 42 U.S.C. § 12132; and Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794, after his father died while a pretrial detainee in the county jail
on a state law charge of criminal trespass. The defendants remaining in the lawsuit
are the Arkansas Department of Health and Human Services (DHS), its chief
executive officer, and the Benton County Sheriff in his official capacity. Following
a bench trial, the district court1 entered a judgment for the defendants, accompanied
by a lengthy and thoughtful discussion of the facts, as well as a careful consideration
of the applicable law. See Winters v. Ark. Dep't of Health and Human Servs., 437 F.
Supp. 2d 851 (E.D. Ark. 2006). Darin Winters appeals.

       "[W]e review the district court's factual findings for clear error and its
conclusions of law de novo." Gibson v. Caruthersville Sch. Dist. No. 8, 336 F.3d 768,
772 (8th Cir. 2003). The district court's opinion provides a detailed discussion of all
the facts of this case, see Winters, 437 F. Supp. 2d at 855-88, which we will only
summarize. Mr. Winters was an acutely mentally ill person who died in a county jail
on January 1, 2003, while being held on a charge of criminal trespass. The district
court found that the cause of his death was a previously undiagnosed physical ailment
of "peritonitis due to a perforated ulcer that more likely than not perforated sometime
after his arrest on December 28, 2002." Id. at 876. The district court also found that
Mr. Winters' mental illness may have played a role in his death by rendering
meaningful communication with the medical professionals who treated him almost
impossible. Absent accurate information from the patient, the medical personnel were
denied information that might have aided in their ability to timely diagnose the
perforated ulcer.

      Mr. Winters also had "multiple blunt force injuries of head, trunk and
extremities including fractured ribs." Id. at 875. Mr. Winters himself caused the


      1
       The Honorable G. Thomas Eisele, United States District Judge for the
Eastern District of Arkansas.
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contusions, abrasions, and fractured ribs by striking his own head, torso, and
extremities against the holding cell's toilet and by resisting and struggling against
restraints. The evidence supports the district court's finding that these injuries were
not the cause of his death. The district court concluded that the Sheriff and his
deputies "did everything within reason to protect Mr. Donald Winters from injuring
himself." Id. at 876.

       On the evening of December 28, 2002, police officers were called because Mr.
Winters, who had a history of two prior psychotic episodes requiring hospitalization
and treatment, was persistently banging on a neighbor's door and would not leave.
The officers, aware of Mr. Winters' mentally ill condition, were unable to establish a
meaningful dialogue with him. They advised him to go home or he would be arrested
for criminal trespass, but Mr. Winters did not respond to the officers, except to tell
them that they were going to be executed. It was apparent that he was mentally ill and
would not go home.

      The officers arrested Mr. Winters on a charge of criminal trespass and
transported him immediately to the Bates Medical Center to have him examined and
admitted into the psychiatric ward. He had to be restrained during the examination
and did not communicate meaningfully concerning his health. The examining
physician would not admit him into Bates, even though Mr. Winters was considered
a danger to himself and others, because the psychiatric ward at Bates was not
equipped to handle violent and aggressive patients. The physician at Bates discharged
Mr. Winters to the custody of the police, and he was taken to the jail.

       After Mr. Winters injured himself by beating his head, chin, and elbows against
the toilet, officers placed Mr. Winters in a detoxification cell from which they could
monitor his actions by video. He appeared before a magistrate judge on the evening
of Sunday, December 29, 2002. The magistrate judge found that probable cause



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supported the criminal trespass charge, set bail at $500, and ordered Mr. Winters to
appear in the Benton County District Court on January 5, 2003.

       The next morning, Monday, December 30, 2002, Mr. Winters began standing
on a bench in the detox cell and exposing himself in front of the window. He was also
masturbating and smearing feces around the cell. He managed to take off a suicide
smock and continued exposing himself. Mr. Winters refused to eat or drink water,
accusing the officers of giving him acid. His son Darin visited him and convinced
him to drink three or four cups of water, but after drinking it, Mr. Winters held his
right side and complained that it was acid. The officers advised Darin that he could
take his father out of the jail if he would assume responsibility for him, but Darin
indicated that he was unable to handle his father in this condition. He signed a
petition for the involuntary commitment of Mr. Winters that day.

       On Tuesday, December 31, 2002, following an involuntary civil commitment
hearing, the presiding judge committed Mr. Winters to the Arkansas State Mental
Health System. Because no regional inpatient facility could accommodate an acutely
mentally ill patient, the court specified that Mr. Winters would be sent to the Arkansas
State Hospital in Little Rock for seven days of evaluation and assessment to determine
whether treatment for mental illness would be appropriate. The officers then
transported Mr. Winters directly to the Ozark Guidance Center, which was the
designated local receiving facility. Ozark staff determined that no beds were currently
available at the State Hospital in Little Rock, or at any other state facility that accepts
mental health commitments, and accordingly, they placed Mr. Winters' name on a
waiting list for admittance to the State Hospital. A physician at Ozark administered
two injections to calm Mr. Winters, and after an examination, returned him to the
custody of the officers, noting that Mr. Winters appeared to be severely dehydrated.
Mr. Winters fell asleep on his return to the county jail to await placement in the State
Hospital.



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        As soon as the jail's physician learned of the possible dehydration, officers
transported Mr. Winters back to the emergency room at Bates Medical Center. The
examining physician found Mr. Winters to be mildly dehydrated and administered two
liters of fluids. The physician found no significant dehydration and no indication of
any serious medical problem. He was aware that the staff at Ozark had already
evaluated Mr. Winters, and Bates was not equipped or staffed to deal with acutely
psychotic patients. Accordingly, when the physician concluded that Mr. Winters was
in a stable physical condition, he released him to the custody of the Sheriff.

       Early the next morning, on January 1, 2003, Mr. Winters refused to take the
medicine that had been prescribed for him at Ozark. He appeared to be sleeping on
a mat in the middle of the cell, fully clothed, from 8 to 10 a.m. Around 2:30 p.m., he
was observed naked in the cell and on his knees leaning over. He was sitting up
around 3:30 p.m. but was discovered on his side and with no pulse around 4:20 p.m.
Attempts to revive him were unsuccessful.

         Experts testified about the need for more psychiatric beds in inpatient facilities.
A private inpatient facility known as Highland Hall had previously accepted patients
who came to Ozark Guidance Center needing psychiatric services, but its doors closed
in April 2002 due to financial considerations. After this facility closed, there were
inadequate local facilities to attend to the needs of acutely mentally ill patients, and
the State Hospital became overburdened as regional facilities closed. Expert
testimony indicated that absent an appropriate inpatient facility capable of taking on
the patients from this region, Ozark had no choice but to return patients to jail if the
State Hospital had no open beds. Several task force reports indicated that the state
government was aware of the problems created by the shortage of beds for mentally
ill citizens. The state legislature appropriated funds for some 16 additional beds after
Mr. Winters' death, but experts opined that this remained inadequate to meet existing
needs.



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        The district court ruled in favor of the defendants, finding no official capacity
liability on the part of the Sheriff or the director of the DHS because their actions were
not the proximate cause of Mr. Winters' death, and there was no policy or custom to
deprive acutely mentally ill citizens of placement in inpatient mental health treatment
facilities. See Grayson v. Ross, 454 F.3d 802, 810-11 (8th Cir. 2006) (stating the
standard for official-capacity liability under § 1983). The district court found that the
Sheriff's officers had done everything they could to protect Mr. Winters from injuring
himself and that they were not deliberately indifferent to his serious medical needs.
Neither the Sheriff nor the doctors who had examined Mr. Winters had suspected that
a delay in admitting him to the State Hospital would adversely affect either his
physical or mental health.

       The district court also found no liability under the ADA or the Rehabilitation
Act for failure to provide mental health services. While the failure to provide
reasonable medical care to a pretrial detainee on the basis of a disability could be
considered discrimination, the district court found that there was no evidence that Mr.
Winters had been denied medical care. The Sheriff's Office had attempted to obtain
care and proper placement for Mr. Winters on three occasions. The district court
rejected as inapplicable the plaintiff's argument based on Olmstead v. L.C. ex rel.
Zimring, 527 U.S. 581 (1999) (plurality), that Mr. Winters did not receive an
appropriate placement under the ADA because jail is not the least restrictive
placement for a person with a mental illness. The Olmstead case dealt with
discrimination arising from isolating persons with mental illness in an institution when
the state's own treatment professionals have determined that a community setting
would be appropriate. See 527 U.S. at 602. The district court properly distinguished
the situation at hand, noting that Mr. Winters was awaiting transfer to the State
Hospital for a decision about his appropriate placement, and the staff at Ozark had
returned him to the custody of the Sheriff until there was an open bed at the State
Hospital because no other treatment facility could take him. (He was still under an
order requiring him to post bail on the trespass charge.) No treatment professionals

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had yet had the opportunity to evaluate him or recommend a placement for him and
consequently, the least restrictive placement standard did not come into play. See
Winters, 437 F. Supp. 2d at 892-96.

       On appeal, Darin Winters asserts that his father did not receive a proper
placement under the ADA because incarceration is not the least restrictive
environment for a mentally ill patient and that the actions and omissions of the
appellees amounted to deliberate indifference under § 1983. At oral argument, Darin
Winters' counsel clarified that he is not appealing the district court's decision that Mr.
Winter's death was not caused by deliberate indifference. Instead, he asserts that the
officials were deliberately indifferent and discriminated against Mr. Winters while he
was incarcerated prior to his death.

        No party to this suit suggests that jail is an appropriate treatment facility for a
mentally ill person. The district court agreed that county "jails should not become our
mental hospitals by default," but aptly recognized that the solution to the problem of
an inadequate number of available mental health treatment facilities requires decisions
of how to best allocate available resources, and those decisions belong to the
legislative branch. Id. at 904. In this case, although Mr. Winters was arrested on a
criminal charge, the Sheriff's Office immediately sought treatment for him and
attempted to transport him to an appropriate facility on several occasions. Mr.
Winters was not denied admittance to the State Hospital on the basis of his disability,
but for a lack of available space. While a policy of same-day or immediate admission
into an appropriate mental health facility may be desirable in the best of all worlds,
it is not mandated by the ADA, the Rehabilitation Act, or the Constitution, and it may
not always be feasible given a state's limited resources. We agree with the district
court's conclusion that Mr. Winters was not discriminated against on the basis of his
disability.




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       Additionally, the district court correctly concluded that there was no deliberate
indifference to Mr. Winters' serious medical needs, and neither was there a policy or
custom to deprive mentally ill citizens of treatment. The Sheriff's officers attempted
to get Mr. Winters into a treatment facility and took measures to protect him from
personal injury when he began harming himself. We agree with the district court's
conclusion "that the Sheriff had no option but to maintain custody of Donald Winters
in order to protect him and others because neither Ozark Guidance Center, Bates
Hospital, Darin Winters or the [Arkansas State Hospital] would accept custody of
him." Id. at 897.

       Having carefully reviewed the record, we conclude that the district court's
findings of fact are not clearly erroneous and that the district court's analysis is
correct, thorough, and well-reasoned. Accordingly, we affirm the judgment of the
district court. See 8th Cir. R. 47B.
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