Whitt v. Stephens County, et al

United States Court of Appeals
Fifth Circuit
F I L E D
May 30, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-11215
Summary Calendar
_______________
JIMMY WHITT,
INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF JAMIE EARL WHITT, DECEASED,
Plaintiff-Appellant,
VERSUS
STEPHENS COUNTY;
JAMES D. REEVES,
SHERIFF OF STEPHENS COUNTY,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
AND
JOHN DOES NUMBERS 1 THROUGH 5,
Defendants-Appellees,
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 1:06-CV-22
______________________________

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BEFORE DAVIS, SMITH, and OWEN,
Circuit Judges.
JERRY E. SMITH, Circuit Judge.*
Jimmy Whitt (“Whitt”) brought this 42
U.S.C. § 1983 action against Stephens Coun-
ty, James Reeves in his individual capacity and
as Sheriff of Stephens County, and five un-
known employees for damages stemming from
the death of his son, Jamie Whitt (“Jamie”), at
the county jail. The county and Reeves filed a
joint motion for summary judgment based on
qualified immunity, which was granted in part
and denied in part. Whitt appeals, and we
affirm.
I.
Jamie was arrested and jailed. Upon Jam-
ie’s arrival, jailer Kyle Buce administered a
Mental Disability/Suicide Intake Screening
Form adopted by the Texas Commission on
Jail Standards (“TCJS”). Jamie responded
negatively when asked whether he had at-
tempted suicide; had thoughts about killing
himself; was considering killing himself that
day; had ever had long periods without sleep;
or had had periods of particular excitement.
Jamie answered affirmatively to only one ques-
tion, whether he had “experienced a recent
loss or death [of] a family member or friend or
[whether he was] worried about major
problems other than [his] legal situation.”
Buce also noted that Jamie appeared to be
in a good mood, was not acting in a strange
manner, and did not exhibit any signs of de-
pression. Buce concluded that Jamie was not
a suicide risk, so he confined him to a general
cell without any special instructions.1 A little
more than five hours after Jamie was admitted
to the jail, he was found dead in his cell, ap-
pearing to have hung himself with a leather
belt he had tied to a pipe running along the
ceiling.
II.
Whitt sued, alleging two alternative theo-
ries of liability: that the county and the indi-
vidual defendants had violated Jamie’s rights
under the Fourth and Eighth Amendments to
receive appropriate treatment for a mental or
medical condition while in custody; and that
the individual defendants had harassed, as-
saulted, attacked, beaten, and tortured Jamie,
causing his death. The defendants jointly
moved to dismiss based on qualified immunity.
The district court granted the motion for
qualified immunity of the John Does and Sher-
iff Reeves in their individual capacity with
regard to the former claim of failure to provide
appropriate treatment and denied the motion
with regard to the latter claim.2 Whitt appeals
that order.
III.
We review a summary judgment de novo,
using the same standard applicable in the dis-
trict court. Olabisiomotosho v. City of Hous-
ton, 185 F.3d 521, 525 (5th Cir.1999). “After
consulting applicable law to ascertain the ma-
terial factual issues, we consider the evidence
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
1 The TCJS has promulgated extensive pro-
cedures for monitoring inmates who present a risk
of suicide. It is undisputed that these procedures
were not followed here.
2 Whitt’s alternative allegation, that the defen-
dants attacked and killed Jamie, is not at issue in
this appeal.

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bearing on the issues, viewing the facts and the
inferences to be drawn therefrom in the light
most favorable to the nonmovant.” Id. “Sum-
mary judgment is properly granted if ‘the
pleadings, depositions, answers to interrogato-
ries, and admissions on file, together with the
affidavits, if any, show that there is no genuine
issue as to any material fact and that the mov-
ing party is entitled to judgment as a matter of
law.’” Id. (quoting FED. R. CIV. P. 56(c)).
“[G]overnment officials performing discre-
tionary functions generally are shielded from
liability for civil damages insofar as their con-
duct does not violate clearly established statu-
tory or constitutional rights of which a reason-
able person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). In
evaluating an assertion of qualified immunity,
we conduct a two-prong inquiry. McClendon
v. City of Columbia, 305 F.3d 314, 322 (5th
Cir. 2002) (en banc). First, we ask “whether
a constitutional right would have been violated
on the facts alleged.” Id. at 322-23. Second,
we ask whether the constitutional right was
“clearly established.” Id. at 323.
States owe a duty under the Due Process
Clause to provide pretrial detainees with basic
human needs, including medical care and pro-
tection from harm, during their confinement.
Hare v. City of Corinth, 74 F.3d 633, 650 (5th
Cir. 1996) (en banc). Liability will not attach
for an episodic act or omission “unless the of-
ficial had subjective knowledge of a substantial
risk of serious harm to a pretrial detainee but
responded with deliberative indifference to that
risk.” Id. This standard encompasses two
parts: (1) The prison official must have “ac-
tual knowledge of the substantial risk of sui-
cide,” and (2) the official must respond with
deliberate indifference. Id.
Whitt’s evidence, even taken in the light
most favorable to him, is plainly insufficient to
demonstrate that the individual officials had
actual knowledge that the decedent was a sui-
cide risk. Whitt relies on a single affirmative
answer on an intake screening exam, where
Jamie indicated that he had either recently lost
a family member or friend or was worried
about major problems other than his arrest.
Whitt has made no showing that all officers
would interpret an affirmative answer to this
question as evidence that the defendant was a
suicide risk.
“If officers of reasonable competence could
disagree on an issue, immunity should be rec-
ognized.” Malley v. Briggs, 475 U.S. 335,
341 (1986). No officers report observing any
troubling behavior from Jamie. Even if offi-
cers were negligent in failing to assess and
monitor Jamie properly, liability will not attach
for negligence.
The majority of Whitt’s evidence demon-
strates the failure of the individual officers and
the jail to follow protocols mandated by Texas
law and administratively adopted by the TCJS.
It is well established that violations of state
law are not actionable under § 1983.3
“[O]fficials sued for violations of rights con-
ferred by a statute or regulation, like officials
sued for violation of constitutional rights, do
not forfeit their immunity by violating some
other statute or regulation.” Davis v. Scherer,
468 U.S. 183, 194 n.12 (1984). The adminis-
trative protocols do not establish constitutional
rights to treatment for detainees, nor do they
so purport. Additionally, even if Whitt’s
evidence of insufficient training of jail officials
3 San Jacinto Sav. & Loan v. Kacal, 928 F.2d
697, 701 n.4 (5th Cir. 1991) (citing Jones v.
Diamond, 594 F.2d 997, 1011 (5th Cir. 1979)).

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might support liability against the county, it
will not support liability against the untrained
officers in their individual capacity.4
The motion to expedite the appeal or to
stay the trial is DENIED. The motion to
vacate the judgment is DENIED. The motion
to remand is DENIED. The judgment is
AFFIRMED.5
4 See City of Canton v. Harris, 489 U.S. 378,
388-89; Evans v. Marlin, 986 F.2d 104, 107 (5th
Cir. 1993).
5 After this appeal was filed, Whitt moved to
vacate the judgment and remand in light of newly-
discovered evidence that he claims may show that
jail officials were deliberately indifferent in failing
to resuscitate Jamie and in denying medical atten-
tion. Although we deny the motion to vacate, we
express no opinion on the merits of any motion that
might be filed pursuant to Federal Rule of Civil
Procedure 60(b). Our analysis is limited to exam-
ining Whitt’s claim that the prison officials had
actual knowledge that his son was a suicide risk
and that they could be liable under § 1983 for
failure to follow state administrative regulations.

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