Bame v. Iron County , 566 F. App'x 731 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT May 13, 2014
Elisabeth A. Shumaker
Clerk of Court
MILDRED BAME, as personal
representative of the Estate of Derald
William Jorgensen, Jr.,
Plaintiff - Appellee,
v. No. 13-4044
(D.C. No. 2:10-CV-00890-BSJ)
IRON COUNTY; MARK O. GOWER, (D. Utah)
individually and in his official capacity as
Sheriff of Iron County; CAPT. BRETT
ALLRED, individually and in his official
capacity; CPL. SHALAN SHAVER,
Defendants – Appellants
and
DEPUTY JEFFREY MALCOM; DEPUTY
JEFF SORENSON; DEPUTY HENRY
JOSEPH ARMBRUSTER, JR.; DEPUTY
KERRIE TURRILL; DEPUTY BRENT
BURR; DEPUTY ANNA TEEPLES,
Defendants.
ORDER AND JUDGMENT*
*
This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
(Continued . . . )
Before TYMKOVICH, O'BRIEN, and HOLMES, Circuit Judges.
Derald Jorgensen, Jr., committed suicide in the Iron County Jail while housed in a
cell specifically designated for inmates on suicide watch. His personal representative,
Mildred Bame, filed this 42 U.S.C. § 1983 action, claiming Eighth Amendment
violations against a number of entities and individuals seeking to hold them responsible
for his death. These entities and individuals moved for summary judgment based on
qualified immunity. The district judge entered summary judgment as to all but (1) Iron
County, (2) Sheriff Mark Gower, (3) Captain Brett Allred, the jail’s commander, and (4)
Corporal Shalon Shaver (collectively Defendants). Because we see no deliberate
indifference on the part of any of the jailer defendants we reverse as to them. We also
reverse as to the County because it cannot be liable absent an underlying constitutional
violation by the individual defendants.
I. BACKGROUND
A. Jail’s Suicide Prevention Policy and Procedures
The jail had a written suicide prevention policy in place at the time of Jorgensen’s
suicide. Under the policy, any officer may place an inmate on suicide watch if she is
concerned the inmate might be at risk for committing suicide. However, once placed on
notation B (unpublished). Id.
-2-
suicide watch, an inmate cannot be returned to the general population until cleared by a
mental health professional as safe.
The jail has two cells designated for inmates on suicide watch—B1 and B2. Both
are located in the booking area, the highest traffic area of the jail. Before being placed in
one of those cells, the inmate is searched, dressed in a suicide smock and given a suicide
blanket.1 The policy also requires the cell to be inspected for features which may pose a
risk to a suicidal inmate, such as “structural members to which a ligature can be tied—
bars, vent covers, grille, sprinkler heads, shower fixtures, light fixtures, bunk frames
[and] bunk ladders.” (Appellee’s App’x Vol. II at 367.)
The policy requires observation of suicidal inmates more frequently than those in
the general population, but it does not provide a specific frequency for observation.2 That
is because frequency is best determined on a case-by-case basis. The general population
(pursuant to an unwritten policy) is normally checked once an hour except at night, when
it is checked at 9:30 p.m. and then not until 11 p.m.3
1
A suicide smock is a non-restrictive gown-like garment which cannot be rolled
into a cord or torn. See Gray v. Wakefield, No. 3:CV-09-0979, 2013 WL 5491560, at *7
n.5 (M.D. Pa. Oct. 2, 2013) (unpublished); see also Stanfill v. Talton, 851 F. Supp. 2d
1346, 1356 n.3 (M.D. Ga. 2012). A suicide blanket is made out of heavy material which
an inmate cannot (or should not be able to) tear or use to choke himself. Perdue v. Union
City, Ga., No. CIVA 1:05CV00753 MHS, 2006 WL 2523094, at *3 n.3 (N.D. Ga. Aug.
28, 2006) (unpublished).
2
Two officers testified to the jail’s unwritten policy of checking on suicidal
inmates every thirty minutes, at a minimum.
3
It is unclear from the record whether the general population is checked hourly
after 11 p.m. or if the 11 p.m. check is the last check until morning.
-3-
The jail’s policy also requires the Officer-in-Charge to complete a Suicide
Prevention Monitoring (SPM) log for each inmate placed on suicide watch. This log is to
include, inter alia, the maximum time between surveillance rounds and any special
instructions. The Officer-in-Charge is to insure surveillance rounds are being made and
properly documented on the SPM log.
B. Jorgensen’s Suicide
This was an unfortunate event. On March 23, 2009, Jorgensen was arrested on a
state parole violation and booked into the Iron County Jail. On April 4, 2009, his wife
died. He was released until April 8 to attend the funeral. He obtained an extension of the
furlough but his lawyer failed to document the extension. Thus, when Jorgensen did not
report back to the jail on April 8, he was arrested. Because officers discovered two
empty pill bottles at the hotel where Jorgensen was arrested, he was placed on medical
watch at the jail.4
In the early morning hours of April 9, a jail officer noted Jorgensen was “acting
funny.” (Appellee’s App’x Vol. II at 279.) The officer informed Shaver, the Officer-in-
Charge at the jail, of Jorgensen’s behavior and suggested he be placed on suicide watch.
As Jorgensen was being outfitted in a suicide smock, pills were found on his person.
Jorgensen was placed in Cell B1.
4
We mention medical watch only for historical accuracy. It is a lower level of
monitoring than suicide watch, with which we are here concerned.
-4-
Later that day, at approximately 3:00 p.m., a mental health professional cleared
Jorgensen to be released from suicide watch. He was placed in the general population.
Approximately two hours later, he fell from his bunk and was taken to the hospital for
treatment. At the hospital and upon being transported back to the jail, he made various
suicidal-type statements to the transporting officers such as “I want all of this to be over,”
“I want to join my wife,” and “I need to talk to a counselor, I’m having bad thoughts.”
(Appellee’s App’x Vol. II at 315.) The transporting officers reported these statements to
Shaver. Though he insisted he was not suicidal, Jorgensen was placed on suicide watch
for the second time. He was strip searched, changed into a suicide smock (which he
resisted) and given two suicide blankets. After Shaver inspected the cell, Jorgensen was
again placed in Cell B1. He was not happy. Prior to entering the cell, he hit the cell door
with his fist.
An SPM log was prepared, presumably by Shaver. But, contrary to the jail’s
policy, the log did not set a maximum time between surveillance rounds or provide other
special instructions.5
Shaver remained in the booking area. She and other staff observed Jorgensen near
the cell door most of the time; Jorgensen also spoke with deputies. Shaver delivered his
dinner and also provided ice for his hand, which was swollen from hitting the cell door.
5
While the written policy does not set a maximum time, it requires the log to
establish one.
-5-
At approximately 8:30 p.m., Jorgensen requested to speak with someone. Shaver
contacted the Southern Utah Mobile Crisis Team, which sent volunteer Royce Houchen
to the jail.6 Shaver told Houchen about Jorgensen’s wife’s recent death. Houchen talked
with Jorgensen for about fifteen minutes. According to Houchen’s report to Shaver,
Jorgensen had talked about his problems and “would be all right.” (Appellants’ App’x
Vol. I at 79.)
At approximately 9:21 p.m., an officer responded to Jorgensen’s request for a roll
of toilet paper. At about 9:30 p.m., Shaver left the booking area to conduct a facility
count in which she and the other officers on duty verified every inmate was in his proper
location. The count lasted until approximately 9:50 p.m. Shaver then went to the squad
room to work on reports until 10:40 p.m. From 9:21 p.m. until 10:41 p.m., Shaver
believed other deputies were checking on Jorgensen because the cell was in the booking
area, the highest traffic area of the jail, and she could hear officers moving in and out of
doors near the booking area. In fact, no one checked on Jorgensen during this time
frame—a total of eighty minutes.7
6
Other than being a crisis center volunteer, Houchen’s credentials are not revealed
by the record.
7
There were four other jail employees present at the jail after the facility count at
9:30 p.m.: (1) Anna Teeples, who was hiding in the jail’s laundry room as part of canine
training occurring at the jail; (2) Kerrie Turrill, who was eating her lunch and working on
paperwork with Shaver; (3) Brent Burr, who was also eating his lunch and working on
paperwork in the lobby; and (4) Jeffrey Sorenson, who was manning Central Control by
opening and closing various secure doors throughout the jail as needed. Jeffrey Malcom,
a patrol officer, was also at the jail to conduct the canine training.
-6-
About 10:41 p.m., Shaver went to see Jorgensen. She could see only his feet
through the cell’s window. Because Jorgensen would not respond to her verbal
commands, she believed he was hiding from her. She called for assistance. Once
assistance arrived, Jorgensen was found hanging from a capped-off water pipe in the
wall.8 Jorgensen had pulled the pipe from the wall and had used the hem of the suicide
blanket as a ligature.9 Medical personnel arrived at the scene and declared Jorgensen
dead. Prior to Jorgensen’s suicide, the jail had never had an inmate commit suicide while
housed in a suicide watch cell; the only previous suicides at the jail (one in 1990 or 1991
and one in November 2006) had occurred while the inmates were housed in the general
population.
C. This Lawsuit
During the hearing on Defendants’ summary judgment motion, the judge became
concerned as to whether Cell B1 contains a blind spot preventing sufficient monitoring
8
In her appellate brief, Bame says it is disputed whether the water pipe is a
shower head or fire sprinkler head. It appears to be the latter. But, as Bame admits, the
distinction is immaterial. Most of the evidence in the record indicates the pipe was flush
with the wall. Only one individual testified to the contrary, saying the pipe protruded
from the wall; he did not indicate by how much.
9
An inspection of the cell after Jorgensen’s suicide revealed two screws used to
hold the floor drain to the floor were protruding a couple of millimeters from the top of
the drain. Fibers consistent with the torn suicide blanket were found in the top of the
screw heads. The inspection also revealed fibers on a rough edge of the concrete floor; it
is unclear whether those fibers were consistent with those of the torn suicide blanket.
While Bame mentioned the presence of these screws in the district court in arguing the
cell was inadequate to house a suicidal inmate, she does not suggest any liability based on
the existence of the screws or the rough concrete on appeal. We note these facts because
they suggest the means Jorgensen may have used to tear the suicide blanket.
-7-
from outside the cell. Defendants supplemented the record with evidence indicating the
cell does not have a blind spot.10 The judge denied the motion. He did not articulate his
reasoning but, based on his comments at the hearing, it appears he denied the motion as
to the County, Gower and Allred due to the layout of the suicide watch cell and as to
Shaver due to her failure to follow the jail’s suicide prevention policy, in particular, the
requirement the inmate be adequately monitored.
II. JURISDICTION
Bame claims we lack jurisdiction. She says Defendants mistakenly believe this
appeal is from the denial of qualified immunity when in fact it is from the denial of
summary judgment. And because the district judge drew his legal conclusion—denial of
summary judgment—from specific facts, Bame claims we lack jurisdiction to delve
behind the ruling and review the record to determine if the judge correctly found a
genuine dispute as to any material fact. See Fed. R. Civ. P. 56(a).
She is mistaken on both counts. Defendants raised the qualified immunity defense
in their motion for summary judgment. While the judge did not specifically rule on the
issue, he did cite the qualified immunity standard in a footnote in his order denying
summary judgment. He obviously decided Defendants were not entitled to the defense
and the correctness of that decision is the central issue in this appeal.
10
Bame objected to the supplemental materials. It is unclear whether the judge
considered them. For our purposes here, we assume the cell contains a blind spot,
making any objection to the supplemental materials irrelevant.
-8-
As to our jurisdiction, 28 U.S.C. § 1291 permits us to review “all final decisions of
the district courts of the United States.” An order denying summary judgment is
ordinarily not an immediately appealable final order under § 1291. Roosevelt-Hennix v.
Prickett, 717 F.3d 751, 753 (10th Cir. 2013). However, the denial of a summary
judgment motion resting on qualified immunity is immediately appealable to the extent it
involves an abstract issue of law. Fancher v. Barrientos, 723 F.3d 1191, 1198 (10th Cir.
2013). We may review (1) whether the facts the district judge found adequately
supported by the record are sufficient to show a legal violation and (2) whether the law
was clearly established at the time of the alleged violation. Lewis v. Tripp, 604 F.3d
1221, 1225 (10th Cir. 2010). However, if the district judge does not “identify the
particular charged conduct [he] deemed adequately supported by the record, we may look
behind the order denying summary judgment and review the entire record de novo to
determine for ourselves as a matter of law which factual inferences a reasonable jury
could and could not make.” Id.; see also Armijo By & Through Chavez v. Wagon Mound
Pub. Schs., 159 F.3d 1253, 1259 (10th Cir. 1998) (“[I]f the district court does not identify
the particular charged conduct that it deemed adequately supported by the evidence, a
court of appeals may have to undertake a cumbersome review of the record to determine
what facts the district court likely assumed.”) (quotations omitted).
Since the judge did not explain his decision to deny qualified immunity, “it falls
on us to review the entire record, construing the evidence in the light most favorable to
[Bame] as the plaintiff, and to ask de novo whether sufficient evidence exists for a
-9-
reasonable jury to conclude [Defendants] trenched upon [Jorgensen]’s clearly established
rights.” Lewis, 604 F.3d at 1228. The dispositive facts are not in dispute.11
That said, a problem remains. Qualified immunity does not apply to the County.12
See Starkey ex rel. A.B. v. Boulder Cnty. Soc. Servs., 569 F.3d 1244, 1263 n.4 (10th Cir.
2009) (“Qualified immunity . . . is available only in suits against officials sued in their
personal capacities, not in suits against governmental entities or officials sued in their
official capacities.”). Therefore, the judge’s ruling as to the County must be limited to a
denial of summary judgment, which is normally not immediately appealable. Roosevelt-
Hennix, 717 F.3d at 753. But there is a limited exception.
We have the discretion to exercise pendent appellate jurisdiction over an otherwise
nonfinal and nonappealable order if it is “inextricably intertwined” with an appealable
decision or where review of the nonappealable decision is “necessary to ensure
meaningful review” of the appealable decision. Swint v. Chambers Cnty. Comm’n, 514
11
We are cognizant of Tolan v. Cotton, - - U.S. - -, No. 13-551, 2014 WL
1757856, at *1 (U.S. May 5, 2014) (reversing where circuit court, in holding police
officer was entitled to qualified immunity because he did not violate clearly established
law, “failed to adhere to the axiom that in ruling on a motion for summary judgment, the
evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn
in his favor”) (quotations omitted).
12
Although neither side draws the distinction, Gower and Allred were sued in both
their official and individual capacities. Because “[o]fficial-capacity suits . . . generally
represent only another way of pleading an action against an entity of which an officer is
an agent,” Kentucky v. Graham, 473 U.S. 159, 165 (1985), we will refer here simply to
the County but our reasoning would apply equally to the official capacity claims against
Gower and Allred. See Martinez v. Beggs, 563 F.3d 1082, 1091 (10th Cir. 2009) (“To the
extent Martinez brings a claim against [Sheriff] Beggs in his official capacity, it is the
same as bringing a suit against the county.”); Myers v. Okla. Cnty. Bd. of Cnty. Comm’rs,
151 F.3d 1313, 1316 n.2 (10th Cir. 1998) (same).
- 10 -
U.S. 35, 50–51 (1995); see also Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th
Cir. 1995). “[A] pendent appellate claim can be regarded as inextricably intertwined with
a properly reviewable claim on collateral appeal only if the pendent claim is coterminous
with, or subsumed in, the claim before the court on interlocutory appeal—that is, when
the appellate resolution of the collateral appeal necessarily resolves the pendent claim as
well.” Moore, 57 F.3d at 930.
Because, as we will explain, Bame has not shown the individual defendants to
have violated Jorgensen’s Eighth Amendment rights, the County cannot be held liable.
See Martinez v. Beggs, 563 F.3d 1082, 1091 (10th Cir. 2009) (“A county . . . cannot be
held liable for constitutional violations when there was no underlying constitutional
violation by any of its officers.”) (quotations omitted); Myers v. Okla. Cnty. Bd. of Cnty.
Comm’rs, 151 F.3d 1313, 1317 (10th Cir. 1998) (for a failure to train claim to succeed
against a county, the plaintiff must show an underlying constitutional violation by the
individual officers). The County’s appeal from the denial of summary judgment is
“inextricably intertwined” with the individual defendants’ qualified immunity appeal and
we have jurisdiction over it. See Moore, 57 F.3d at 930-31 (exercise of pendent appellate
jurisdiction proper over the City’s appeal from denial of summary judgment because
appeal was inextricably intertwined with city official’s appeal from the denial of qualified
immunity; resolving qualified immunity issue in favor of city official completely
resolved claim against the City).
- 11 -
We have resolved the matter of our jurisdiction and have simultaneously
foreshadowed our resolution of the claims against the individual defendants. We now
explain why reversal is necessary.
III. DISCUSSION
“We review de novo a district court’s decision to deny a summary-judgment
motion that asserts qualified immunity.” Eidson v. Owens, 515 F.3d 1139, 1145 (10th
Cir. 2008). “This court reviews summary judgments based on qualified immunity
differently than other summary judgments. When a defendant asserts qualified immunity
at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant
violated a constitutional right and (2) the constitutional right was clearly established.”
Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (quotations omitted). We
maintain the discretion to decide “which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case at
hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). Because Gower, Allred and
Shaver did not violate Jorgensen’s Eighth Amendment rights, we need not entertain a
“clearly established” debate.
Prison officials cannot absolutely guarantee the safety of their prisoners. Lopez v.
LeMaster, 172 F.3d 756, 759 (10th Cir. 1999). However, they must take reasonable
measures to ensure prisoner safety. Id.; see also Berry v. City of Muskogee, Okla., 900
F.2d 1489, 1499 (10th Cir. 1990). Claims arising from a failure to prevent a prisoner
suicide “are considered and treated as claims based on the failure of jail officials to
provide medical care for those in their custody.” Barrie v. Grand Cnty., Utah, 119 F.3d
- 12 -
862, 866 (10th Cir. 1997). Thus, for Bame to prevail on her Eighth Amendment claim,
she must show Gower, Allred and Shaver were “deliberately indifferent to a substantial
risk of suicide.” Id. at 869 (quotations omitted); see also Estelle v. Gamble, 429 U.S. 97,
104 (1976) (holding deliberate indifference to the serious medical needs of prisoners
constitutes an Eighth Amendment violation).
“Deliberate indifference has objective and subjective components.” Callahan v.
Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). The objective component requires the
harm suffered to be sufficiently serious. Id. Suicide qualifies. See Gaston v. Ploeger,
229 F. App’x 702, 710 (10th Cir. 2007) (unpublished)13 (citing Collins v. Seeman, 462
F.3d 757, 760 (7th Cir. 2006) (“[I]t goes without saying that suicide is a serious harm.”)).
The subjective component requires the defendant to have acted with a “sufficiently
culpable state of mind.” Self v. Crum, 439 F.3d 1227, 1230-31 (10th Cir. 2006)
(quotations omitted). “To prevail on the subjective component, the prisoner must show
that the defendants knew he faced a substantial risk of harm and disregarded that risk, by
failing to take reasonable measures to abate it.” Callahan, 471 F.3d at 1159 (quotations
omitted). “[A] prison official cannot be found liable . . . unless the official knows of and
disregards an excessive risk to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm
13
Unpublished opinions are not binding precedent. 10th Cir. R. App. P. 32.1(A).
We mention Gaston and the other unpublished decisions throughout this opinion because
of their persuasive and reasoned analysis.
- 13 -
exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837
(1994).
A. Corporal Shaver
Bame contends Shaver, as the Officer-in-Charge, knew Jorgensen was at a
substantial risk of committing suicide given the recent loss of his wife, his suicidal
statements and his placement on suicide watch (twice). Despite this known risk, Bame
tells us, Shaver failed to take reasonable measures to abate it by failing to (1) monitor
Jorgensen for eighty minutes or to assure others were doing so, (2) establish the
maximum time between surveillance rounds, or (3) provide special instructions as to
what care Jorgensen needed.
Obviously Shaver knew Jorgensen was a suicide risk as she placed him on suicide
watch. But her actions in response to that known risk do not amount to deliberate
indifference; they are far from it. Once Jorgensen made statements indicating he was
suicidal, Shaver placed him on suicide watch in Cell B1, a cell specifically designated as
a suicide prevention cell. Before doing so, she inspected the cell and stripped him of all
objects and clothing except a suicide smock and two suicide blankets, both of which are
specifically designed to prevent their use as a ligature. When he asked to speak to
someone, she called in Houchen, a crisis center volunteer, who said Jorgensen “would be
all right.” (Appellants’ App’x Vol. I at 79.) She monitored him for all but eighty
minutes. And during that time frame, she reasonably believed he was being observed by
other deputies because the cell is located in the booking area, the highest traffic area of
the jail. While she was ultimately wrong about continuing observation—no one checked
- 14 -
on Jorgenson for eighty minutes—her error amounts to negligence at the most. That is
insufficient to establish deliberate indifference. See Farmer, 511 U.S. at 835.
Admittedly, Shaver failed to follow several of the jail’s suicide prevention
policies: she did not establish the maximum time between surveillance rounds or verify
he was being observed. But such violations alone do not necessarily imply acts of
deliberate indifference. See Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th Cir. 1993)
(“[A] failure to adhere to administrative regulations does not equate to a constitutional
violation.”); see also Hostetler v. Green, 323 F. App’x 653, 657-58 (10th Cir. 2009)
(unpublished). This is especially true where no evidence suggests how Shaver knew or
should have known Jorgensen might be able to commit suicide while housed in a suicide
prevention cell with only two suicide blankets and dressed in a suicide suit. The jail had
never had a suicide occur in such a cell.14 And there is no evidence she knew or should
have known the capped-off water pipe could be pulled out of the wall and used as a
hanging tree or a suicide blanket could be ripped and used as a ligature.
14
The absence of a prior suicide in a suicide watch cell goes to Shaver’s notice of
a substantial risk. In Daniels v. Glase, the plaintiff’s husband committed suicide while
housed at the county jail. No. 97-7115, 1999 WL 1020522 (10th Cir. Nov. 3, 1999)
(unpublished). She sued the sheriff alleging, among other things, he inadequately staffed
the jail, which resulted in her husband’s suicide. We rejected this argument. Id. at *5.
While only one officer was on duty at the jail at the time of the suicide, we noted there
had been no prior suicide attempts or successful suicides at the jail. Id. “No other facts
suggest that the jail had experienced problems of any kind arising from jail staffing levels
or training of jail personnel, nor that [the sheriff] was aware of problems arising from his
staffing levels or other jail procedures.” Id.
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In summary, Shaver may have known Jorgensen presented as a suicide risk, but
there is no evidence the risk was excessive or the suicide watch cell contributed to the
risk. Moreover, considering the totality of the circumstances, her administrative
oversights do not demonstrate a conscious disregard of the risk; to the contrary, she took
reasonable steps to abate it.
B. Sheriff Gower and Captain Allred
Liability under § 1983 must “be predicated on a violation traceable to a defendant-
official’s ‘own individual actions.’” Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir.
2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Thus, “government officials
may not be held liable for the unconstitutional conduct of their subordinates under a
theory of respondeat superior.” Id. (quotations omitted). Personal involvement,
however, “does not mean . . . direct participation is necessary.” Id. A government
official can be held liable (in a § 1983 suit) for a constitutional violation under a theory of
supervisory liability but only if the plaintiff shows: “(1) the defendant promulgated,
created, implemented or possessed responsibility for the continued operation of a policy
that (2) caused the complained of constitutional harm, and (3) acted with the state of
mind required to establish the alleged constitutional deprivation.” Dodds v. Richardson,
614 F.3d 1185, 1199 (10th Cir. 2010).
Bame claims Gower, as sheriff, and Allred, as the jail’s commander, violated the
Eighth Amendment rights of all at risk prisoners, Jorgensen included, by authorizing Cell
B1 to be used as a suicide watch cell. She says, correctly, both are responsible for
implementing and enforcing the jail’s policies, in particular its suicide prevention policy.
- 16 -
The policy requires suicide watch cells to be stripped of all features likely to be used by
an inmate to commit suicide.15 According to Bame, their approval was constitutionally
improper in light of their knowledge of the capped-off water pipe (which had been
15
The policy provides:
Procedure: Cell Furnishings
A. Observation cells should be inspected to find features which may
require attention before the cells can be used to house suicide risks.
B. There are a variety of cell features which have been used by prisoners to
commit or attempt suicide, including:
1. structural members to which a ligature can be tied—bars, vent
covers, grille, sprinkler heads, shower fixtures, light fixtures, bunk
frames, bunk ladders;
2. electrical—outlets, wiring, conduit, extension cords, appliances;
and
3. toilets—drowning.
C. Improve the safety and suicide resistance of observation cells.
1. Where feasible, modifications should be considered to observation
cells to reduce the features which may be exploited by suicidal
prisoners (E.g., using breakaway wall hooks and shower rods;
removing ladders to upper bunks, electrical outlets; installing
tamper-resistant lighting and suicide-resistant vent grilles).
2. Elimination of places to tie a ligature is no guarantee that a
prisoner cannot commit suicide.
3. While it is unrealistic to assume that a cell can be rendered suicide
proof, the inability to suicide proof cells can be offset to some extent
with effective supervision and prisoner management.
(Appellee’s App’x Vol. II at 366-68 (footnotes omitted).)
- 17 -
attractive to inmates housed in the cell in the past), the cell’s blind spot preventing
sufficient monitoring, and the lack of a surveillance camera in the cell.
Bame’s argument about the water pipe, the blind spot, and the lack of a
surveillance camera all sound remarkably like the tort of negligent design, a state remedy,
not a constitutional violation. See Gaw v. State of Utah ex rel. Dep’t of Transp., 798 P.2d
1130, 1136-41 (Utah Ct. App. 1990) (negligent design of intersection). In any event,
Gower and Allred’s approval of Cell B1 as a suicide watch cell does not state a
constitutional violation.
Both Gower and Allred knew Cell B1 had contained a sprinkler head. They also
knew the sprinkler head had been used in the past by inmates housed in the cell. But the
prior use was to cause trouble—breaking the sprinkler head to flood the cell—not to
facilitate suicide. Indeed, it was the use of the sprinkler head to flood the cell which led
to it being capped off. Gower and Allred testified they believed the cap was flush with
the wall. Neither considered it a potential instrumentality of suicide. There is simply no
evidence showing either to have known or had reason to know the capped-off water pipe
could be pulled from the wall and used as a structural member for a hanging.
The alleged blind spot in Cell B1 is a red herring. Assuming there was a blind
spot in the cell (a charitable assumption), it had nothing to do with the lack of monitoring
by jail personnel. Bame has not explained how Gower or Allred’s approval of a jail cell
with a blind spot as a suicide prevention cell caused Jorgensen’s suicide. See Daniels v.
Glase, No. 97-7115, 1999 WL 1020522, at *5 (10th Cir. Nov. 3, 1999) (unpublished)
(concluding no constitutional violation was shown where plaintiff failed to demonstrate
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the failure to fill out a medical evaluation form or the jail’s staffing level caused the
inmate’s suicide). If anything, the suicide resulted from a failure of frequent monitoring,
which, as we have explained, did not amount to deliberate indifference.
Bame has another argument relating to the blind spot but we decline to accept the
suggestion that the failure to have a surveillance camera in Cell B1 constitutes a
constitutional violation. She does not cite any legal authority for this proposition and we
have not uncovered any. Indeed, “jailers have [no] constitutional duty to monitor inmates
constantly. [J]ailers are neither obligated nor able to watch every inmate at every minute
of every day.” Gaston, 229 F. App’x at 711.
Charitably construing her brief, Bame may also be suggesting that Gower and
Allred were deliberately indifferent to a substantial risk of Jorgensen’s suicide in
particular.16 But Gower did not know Jorgensen was an inmate at the jail let alone that he
had been placed on suicide watch. While Bame claims Allred knew Jorgensen had been
placed on suicide watch, the undisputed facts show Allred knew Jorgensen had been
placed on suicide watch in the early morning hours of April 9 (the first time) but was not
aware Jorgensen was returned to suicide watch later that evening (the second time). In
16
In her brief, Bame states: “From the record evidence, a jury reasonably could
conclude Defendant Allred was negligent and that his negligence played a causative role
in Mr. Jorgensen’s death.” (Appellee’s Br. at 24.) The quote is quite revealing. Bame
would have us treat a claimed Eighth Amendment violation as a simple tort. That is
simply wrong. As noted above, negligence is not enough. See Farmer, 511 U.S. at 835.
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this case, neither Gower nor Allred knew of a specific and excessive risk of harm to
Jorgensen on the night of his suicide.17
REVERSED AND REMANDED. We DENY Defendants’ motion to file
Volume II of their appendix under seal.18 We GRANT IN PART Defendants’ motion to
strike Bame’s appendix. Those portions of Bame’s appendix which were not filed with
the district court are STRICKEN. We have not considered this evidence. In all other
regards, the motion is DENIED.19
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
17
Moreover, because we have concluded Shaver did not violate Jorgensen’s
constitutional rights, neither Gower nor Allred can be held liable under a theory of
supervisory liability. See Martinez, 563 F.3d at 1092.
18
Volume II is the jail’s suicide prevention policy and has been provisionally
sealed. It will remain sealed for 20 days, during which Defendants may renew their
motion saying chapter and verse what specifically needs to be sealed and why redaction
is inadequate. At the end of the 20 days, the Clerk of this Court will unseal Volume II
unless the panel has entered a supplemental sealing order.
19
As to those portions of Bame’s appendix which were filed under seal or were
the subject of a protective order in the district court, we will consider sealing them if,
within 20 days, Defendants move to seal, providing convincing reasons and explaining
why redaction is insufficient. See supra n.18.
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