     Case: 15-10708   Document: 00513766268     Page: 1   Date Filed: 11/18/2016




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

                                                                          FILED
                                                                     November 18, 2016
                                 No. 15-10708
                                                                       Lyle W. Cayce
                                                                            Clerk
RANDI HYATT, individually, as the next friend of her minor child C.W.H.,
and as the representative of the ESTATE OF JASON HYATT; LEA
WILKINS, as the representative of her minor child C.H.; ALEXIS HYATT;
VICKIE DEAR,

             Plaintiffs - Appellants

v.

BRIANNA THOMAS; CHARLES TURNER; MARK ADMIRE; BRANDY
CAUBLE,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Northern District of Texas


Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:

      The family of Jason Hyatt appeals the district court’s grant of summary
judgment in favor of Officer Brianna Thomas on their § 1983 claim related to
Hyatt’s suicide while in police custody.      Because we find that Thomas
responded reasonably to Hyatt’s known suicide risk, we hold that she was not
deliberately indifferent and thus was entitled to qualified immunity.        We
therefore AFFIRM the judgment of the district court.
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                                  No. 15-10708
                                        I
      On December 10, 2012, appellant Randi Hyatt, Jason Hyatt’s wife,
received a call from Hyatt’s coworkers, who informed her that Hyatt had left
work unexpectedly and that they were concerned about his wellbeing. Randi
called 911 and informed Thomas, a Callahan County, Texas jailer and
dispatcher, that her husband “was suicidal, had tried to commit suicide before,
and that [she] would not be calling the police if [she] did not think something
really bad was happening.” Thomas dispatched officers to perform a welfare
check, and Hyatt was soon located and placed under arrest under suspicion of
driving while intoxicated. When Thomas called Randi to inform her that Hyatt
had been stopped and to give her his location, Randi again stated that her
husband was suicidal. Randi arrived while her husband was being arrested
and informed the arresting officers that Hyatt “had tried to commit suicide
before and needed to be watched.”
      Hyatt was taken to the Callahan County jail, where Thomas, who was
trained in the assessment of suicide risk and screening for mental health issues
of inmates, booked him and completed a “Screening Form for Suicide and
Medical and Mental Impairments.” In response to Thomas’s questions, Hyatt
stated that he had been prescribed antidepressants but was not taking them
correctly, that he was feeling “very depressed,” and that he attempted suicide
two months earlier because he was off his medication; however, Hyatt
answered “No” when asked if he was “thinking about killing [himself] today.”
Thomas observed that he was under the influence of drugs and alcohol, and
noted “1/2 bottle of vodka, Xanax” in the “Comments” section of the form.
Despite his answers to the questionnaire, Thomas observed that Hyatt “came
across as very happy and generally in a good mood,” and later stated in an
affidavit that “[a]t no time did [she] consider him to be a suicide risk and at no
time did he exhibit any actions which would have made [her] consider him to
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                                  No. 15-10708
be a suicide risk.” Nevertheless, “due to his history of depression and suicide
attempts,” Thomas refused to issue Hyatt the thin sheet or hygiene items
typically given to prisoners when she processed him into the jail. On two prior
occasions, inmates at Callahan County jail had used the thin sheets to hang
themselves from bars in their jail cells.
      Hyatt was issued a standard jail uniform and placed in a cell under video
surveillance. However, a blind spot in surveillance-camera coverage prevented
officers from seeing the toilet area of the cell. When Thomas’s shift ended at
9:00 pm, she informed her shift relief, Jailer Charles Turner, about Hyatt’s
intoxication and history of suicide attempts and advised him “of the need to
keep an eye out for suspicious behavior.” Turner checked on Hyatt throughout
the night. Before his shift ended at 7:00 am, Turner made Hyatt breakfast and
delivered it to him. He later recalled that Hyatt “seemed normal and [was]
acting in a regular manner,” and that Hyatt “gave no indication of suicidal
tendencies.” Turner was relieved by Mark Admire around 7:00 am; he told
Admire that Hyatt had been booked for DUI and that his family would be in
soon to “bond him out of jail.” Shortly after his shift began, Admire was advised
by another jailer that Hyatt could not be seen from the video monitor.
Although the jailer suspected that Hyatt was using the bathroom, she
dispatched Admire to check on him.          At approximately 8:02 am, Admire
discovered that Hyatt had hanged himself in the cell bathroom with a plastic
garbage bag. EMS was contacted; personnel arrived at the jail at 8:12 am and
determined that Hyatt was dead.
      In 2014, Hyatt’s widow, mother, and children (collectively, the Hyatts)
filed suit under 42 U.S.C. § 1983, the Rehabilitation Act, and the Americans
with Disabilities Act against Callahan County; Callahan County Sheriff John
Windham; and five Callahan County Jailers, including Thomas. The plaintiffs
alleged, inter alia, that the defendants acted with deliberate indifference to
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                                  No. 15-10708
Hyatt’s right to protection from harm guaranteed by the Fourteenth
Amendment. The defendants filed a motion for summary judgment, asserting
that they were each entitled to qualified immunity. The defendants contended
that they did not fail to protect Hyatt from a known risk of suicide but rather
“took steps to protect him from same,” and argued that they did not
intentionally disregard Hyatt’s suicidal tendencies.
      The district court ultimately denied summary judgment as to Sheriff
Whindham but granted summary judgment as to the remaining individual
defendants. With respect to Thomas, the district court found:
      Plaintiffs have failed to direct the Court to specific facts that could
      be interpreted by a reasonable jury as showing that Defendant
      Thomas in fact drew the inference that Mr. Hyatt was an
      imminent or high risk for suicide (requiring an even higher level
      of care and observation than that which was being given him) or
      that Defendant Thomas deliberately ignored such a high level of
      risk.
The district court therefore concluded that no genuine issue of material fact
precluded Thomas from being entitled to qualified immunity. This appeal
followed.
                                        II
                              A. Standard of Review
      We review the district court’s summary judgment decision de novo and
apply the same standard that was used by the district court. Roberts v. City of
Shreveport, 397 F.3d 287, 291 (5th Cir. 2005).              Summary judgment is
appropriate if the record discloses “no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). “Only disputes over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine


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                                 No. 15-10708
if the summary judgment “evidence is such that a reasonable jury could return
a verdict for the [non-movant].” Id.
      “Qualified immunity protects officers from suit unless their conduct
violates a clearly established constitutional right.” Mace v. City of Palestine,
333 F.3d 621, 623 (5th Cir. 2003). Once a defendant asserts the qualified
immunity defense, “[t]he plaintiff bears the burden of negating qualified
immunity.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). “A plaintiff
seeking to overcome qualified immunity must show: ‘(1) that the official
violated a statutory or constitutional right, and (2) that the right was clearly
established at the time of the challenged conduct.’” Cass v. City of Abilene, 814
F.3d 721, 728 (5th Cir. 2016) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011)). Despite this burden-shifting, all reasonable inferences must be drawn
in the non-movant plaintiff’s favor. Brown, 623 F.3d at 253.
                            B. Deliberate Indifference
      The Supreme Court has held that “deliberate indifference to serious
medical needs of prisoners constitutes the ‘unnecessary and wanton infliction
of pain,’ proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S.
97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion
of Stewart, Powell, and Stevens, JJ.)). Although pretrial detainees like Hyatt
are not protected by the Eighth Amendment, we have held that “the State owes
the same duty under the Due Process Clause and the Eighth Amendment to
provide both pretrial detainees and convicted inmates with basic human needs,
including medical care and protection from harm, during their confinement.”
Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996) (Hare II).
      In Farmer v. Brennan, 511 U.S. 825, 837 (1994), the Supreme Court
explained that to be deliberately indifferent to an inmate’s needs in violation
of the Eighth Amendment, “the official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists, and
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                                 No. 15-10708
he must also draw the inference.”       Therefore, to avoid liability, “[p]rison
officials charged with deliberate indifference might show . . . that they did not
know of the underlying facts indicating a sufficiently substantial danger and
that they were therefore unaware of a danger, or that they knew the
underlying facts but believed (albeit unsoundly) that the risk to which the facts
gave rise was insubstantial or nonexistent.” Id. at 844.
      Furthermore, evidence that an official was aware of a substantial risk to
inmate safety does not alone establish deliberate indifference. As the Supreme
Court explained in Farmer, “prison officials who actually knew of a substantial
risk to inmate health or safety may be found free from liability if they
responded reasonably to the risk, even if the harm ultimately was not averted.”
511 U.S. at 844. We have further observed that, “while . . . 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.” Hare v. City of Corinth, Miss.,
135 F.3d 320, 328-29 (5th Cir. 1998) (Hare III) (quoting Rellergert v. Cape
Girardeau Cty., 924 F.2d 794, 797 (8th Cir. 1991)). What is clear is that, even
if an officer responds without the due care a reasonable person would use—
such that the officer is only negligent—there will be no liability. See Davidson
v. Cannon, 474 U.S. 344, 347 (1986).
                                       III
      On appeal, the Hyatts argue that the evidence, considered in the light
most favorable to them, suggests that Thomas: (1) knew that Hyatt was at
significant risk of committing suicide; and (2) ignored this risk when she failed
to withhold or remove obvious dangers from Hyatt’s cell and failed to follow
Callahan County’s “suicide prevention policy.” We will consider each of these
arguments in turn.


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                                 No. 15-10708
               A. Thomas’s Subjective Awareness of Risk of Harm
      In support of their contention that Thomas “knew Mr. Hyatt was at
significant risk of committing suicide,” the Hyatts point to evidence that she
knew about Hyatt’s recent suicide attempt and his history of depression; that
she was told by Randi that Hyatt was suicidal; and that she did not issue him
certain items “due to his history of depression and suicide attempts.” We agree
that, taken in the light most favorable to the Hyatts, this evidence could lead
a reasonable jury to conclude that Thomas was subjectively aware of a
substantial risk that Hyatt would attempt to commit suicide.
      “Whether a prison official had the requisite knowledge of a substantial
risk is a question of fact subject to demonstration in the usual ways, including
inference from circumstantial evidence.” Farmer, 511 U.S. at 842. Thomas
reported that, “due to his history of depression and suicide attempts,” she
refused to issue Hyatt the thin sheet or hygiene items typically given to
prisoners when she processed him into the jail. Furthermore, she informed her
shift relief, Jailer Turner, of Hyatt’s intoxication and history of suicide
attempts and advised him “of the need to keep an eye out for suspicious
behavior.” Despite Hyatt’s statement that he was not presently considering
suicide and Thomas’s averment that she did not consider him to be a suicide
risk, one could reasonably draw the inference from Thomas’s actions that she
was aware of a risk that Hyatt would harm himself if given the opportunity.
See Flores v. Cty. of Hardeman, Tex., 53 F.3d 1280, 1280 (5th Cir. 1995)
(unpublished) (finding genuine issue of material fact as to officer’s knowledge
of detainee’s suicidal tendencies, despite statement from officer and other
officials that detainee “had not shown such tendencies,” where officer placed
detainee in observation cell, denied him sheets and a blanket, and took other
added precautions).


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                                 No. 15-10708
      We next must consider whether, viewing the evidence in the light most
favorable to the Hyatts, a jury could find that Thomas was aware of a
“sufficiently substantial” risk to Hyatt’s safety. Although Hyatt indicated that
he did not want to kill himself, he stated that he was feeling “very depressed,”
and Thomas was aware that he had a history of depression, that he had
recently attempted suicide, and that his wife believed that he was suicidal. A
reasonable jury could infer that, as an officer trained in the assessment of
suicide risk and screening for mental health issues of inmates and likely aware
that the prison had had recent experience with detainee suicides, Thomas
appreciated that Hyatt presented a significant risk of suicide. Taken in the
light most favorable to the Hyatts, the evidence thus creates a genuine dispute
as to whether Thomas was subjectively aware of Hyatt’s substantial risk of
suicide.
      Thomas argues that the Hyatts cannot satisfy the awareness-of-risk
requirement without evidence that she had some knowledge that the plastic
bag Hyatt used to hang himself was present in his cell. However, the Hyatts
are not required to demonstrate that Thomas was aware of the particular
means that Hyatt would ultimately use to hurt himself, only of the substantial
risk that he might try to hurt himself. The Supreme Court made this point
clear in Farmer, when, considering a claim of deliberate indifference to the risk
of inmate-on-inmate violence, it observed:
      [A] prison official [may not] escape liability for deliberate
      indifference by showing that, while he was aware of an obvious,
      substantial risk to inmate safety, he did not know that the
      complainant was especially likely to be assaulted by the specific
      prisoner who eventually committed the assault. The question
      under the Eighth Amendment is whether prison officials, acting
      with deliberate indifference, exposed a prisoner to a sufficiently
      substantial “risk of serious damage to his future health,” and it
      does not matter whether the risk comes from a single source or
      multiple sources, any more than it matters whether a prisoner
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      faces an excessive risk of attack for reasons personal to him or
      because all prisoners in his situation face such a risk.
511 U.S. at 843. In Hernandez ex rel. Hernandez v. Texas Department of
Protective & Regulatory Services, we cited Farmer and held that “[a]lthough
deliberate indifference is determined by a subjective standard of recklessness,
this court has never required state officials to be warned of a specific danger.”
380 F.3d 872, 881 (5th Cir. 2004) (internal citation omitted) (emphasis added).
Thomas’s awareness of the substantial risk that Hyatt would attempt suicide
if given the opportunity would therefore satisfy the awareness requirement.
                      B. Thomas’s Response to Risk of Harm
      A prison official acts with deliberate indifference only if “he knows that
inmates face a substantial risk of serious bodily harm . . . [and] disregards that
risk by failing to take reasonable measures to abate it.” Gobert v. Caldwell,
463 F.3d 339, 346 (5th Cir. 2006); see also Rhyne v. Henderson Cty., 973 F.2d
386, 391 (5th Cir. 1992) (“The failure to provide pre-trial detainees with
adequate protection from their known suicidal impulses is actionable under
§ 1983 as a violation of the detainee’s constitutional rights.”). Although “we
cannot say that the law is established with any clarity as to what those
measures must be,” Hare III, 135 F.3d at 328-29 (quoting Rellergert, 924 F.2d
at 797), we conclude that in this case, Thomas responded reasonably to Hyatt’s
risk of suicide. She withheld from Hyatt the most obvious means for self-harm
and placed him under continuous, if ultimately imperfect, video surveillance.
Thomas also took care to inform her relieving officer that Hyatt was a potential
suicide risk and that he needed to be observed; it was not until after that officer
was relieved that Hyatt hanged himself. It is uncontested that she had no
knowledge of the presence of the plastic bag in Hyatt’s cell. Thomas’s failure
to inspect Hyatt’s cell and retrieve the plastic bag, and any other potential
ligatures, was perhaps negligent, see Estate of Pollard v. Hood Cty., Tex., 579

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                                       No. 15-10708
F. App’x 260, 266 (5th Cir. 2014), but “negligent inaction by a jail officer does
not violate the due process rights of a person lawfully held in custody of the
State,” Hare II, 74 F.3d at 645; see also Jacobs v. W. Feliciana Sheriff’s Dep’t,
228 F.3d 388, 395 (5th Cir. 2000) (“[T]o be considered deliberately indifferent
to a known suicide risk, an officer’s acts must constitute at least more than a
mere ‘oversight.’”). Finally, although failure to properly execute a suicide
prevention policy may amount to deliberate indifference, see Estate of Pollard,
579 F. App’x at 266, in this case, considering the steps that Thomas did take,
any potential noncompliance with Callahan County’s policy would have been
at most negligent. 1 We therefore hold that, while not ideal, her failure to
exercise even greater care to avoid Hyatt’s suicide did not amount to deliberate
indifference. See Farmer, 511 U.S. at 844; Davidson, 474 U.S. at 347.
                                             IV
       America faces an epidemic of suicide by individuals in custody.
According to the Bureau of Justice Statistics, suicide has been the leading
cause of death in jails every year since 2000. Margaret Noonan et al., U.S.
Dep’t of Justice, Mortality in Local Jails and State Prisons, 2000–2013—
Statistical Tables 1 (2015), available at http://www.bjs.gov/content/pub/pdf/
mljsp0013st.pdf. In 2013, more than a third of jail inmate deaths were due to
suicide. Id. In 2015, there were 33 suicides in county jails in Texas. Dana
Liebelson & Ryan J. Reilly, Sandra Bland Died One Year Ago, Huffington Post
– Highline (July 13, 2016), http://highline.huffingtonpost.com/articles/en/




       1Our conclusion is based in large part on the fact that the practical force of Callahan
County’s policy is unclear from the record. For example, the policy states: “When an inmate
has been identified as demonstrating a need for mental health care services, he/she will be
referred to MHMR services and the local magistrate will be notified as prescribed in the
Health Services Plan.” However, the policy does not describe how, when, or by whom an
inmate is to be identified as demonstrating such a need.

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                                 No. 15-10708
sandra-bland-jail-deaths/. Yet preventing detainee suicides is far from
impossible. Brazos County, Texas, makes an effort to keep people with mental
health issues out of jail, diverting individuals to mental health facilities
instead of charging them with a crime. The county jail also screens inmates
twice, first with an officer and then with a nurse. As a result, the jail, which
houses roughly 650 inmates, has had only one suicide in the past decade. Id.
      It is clear that more can and must be done to address suicides in prisons
and jails.   Nevertheless, “[d]eliberate indifference is an extremely high
standard to meet.” Domino v. Texas Dep’t of Crim. Justice, 239 F.3d 752, 756
(5th Cir. 2001).    Officer Thomas took measures to prevent Jason Hyatt’s
suicide: she withheld from him the most obvious potential ligature, placed him
under video surveillance, and directed her relieving officer to keep a close
watch over him. Although these measures were ultimately, and tragically,
insufficient, we cannot say that they constitute deliberate indifference. The
judgment of the district court granting summary on grounds of qualified
immunity is therefore AFFIRMED.




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