Barrie v. Grand County, Utah
119 F.3d 862
10th Cir.
1997
Check Treatment

*1 to set the con- ruptcy decision aside court’s BARRIE, Representa- that ground it had been Deborah Personal on the

firmed sale tive of the of Alan Charles as to Estate a mistake the terms entered under deceased; Ricks, the Natural Alice Moth- an not abuse of discre- agreement Ricks; er and heir of Alan Charles Mason, (justifying tion. See Cheiliegh Ricks, child the minor entered, inter avoidance of a sale when Ricks, by heir of Alan Charles inadvertence, mistake, improvi- through Litem, Becky through Ad her Guardian dence). Freeman, Plaintiffs-Appellants, C COUNTY, UTAH, political GRAND sub- challenges to decisions Golfland’s other Utah; division of the James D. State bankruptcy court and district court Nyland, County, Utah; Sheriff of Grand finding are the factual that Golfland that Sheriff, Walker, Deputy Archie Grand warranties was

waived the environmental County, Neal, Utah; Deputy Kim Sher- assuming even clearly erroneous and iff, Utah; David Grand Knut- changed terms of the Golfland son, County Commissioner; Grand sale, remedy would have been to proper Torres, Manuel Grand Commis- go origi- allow forward the sale to under sioner; Cunningham, and Sam Grand presented bankruptcy nal court. terms County Commissioner, Defendants-Ap- pellees. arguments these We have considered No. 96-4027. it was or an persuaded error set aside abuse the sale. The of discretion Appeals, United Court of States argument whether regarding Golfland had Tenth Circuit. environmental warranties is irrel-

waived the July evant, finding, uphold, which we given agreement not been as to there had Similarly bank- terms of the sale. ruptcy original not enforce the court could there

terms the sale because had been no terms,

agreement original as as to the dem- testimony of by the Mr. Monson.

onstrated ap-

Accordingly the motion dismiss the

peal moot is DENIED and the district affirming the vacation

court’s order

bankruptcy court of the confirmed sale is

AFFIRMED. *2 Zaccheo, Nelson,

Michael P. Christian W. Richards, Brandt, Nelson, Miller & Salt Lake UT, City, Plaintiffs-Appellants. for Lambert, Porter, Dale J. Karra J. Chris- Jensen, UT, tensen City, & Salt Lake Defendants-Appellees. KELLY, BRISCOE,

Before Judge, Circuit McWILLIAMS, Judge, Circuit Senior Judge. Circuit McWILLIAMS, Judge. Senior Circuit 27, 1991, On October Alan Charles Ricks county jail committed suicide in Grand County, Utah. On October Deborah Barrie, sister of Alan personal Ricks and the representative estate; Ricks, of Ricks’ Alice Ricks; the mother and heir of Cheiliegh Ricks, Ricks, the minor child and heir of filed a civil rights action in the United States District Court for the District of Utah. Juris- §§ diction was based on 42 U.S.C. 1983 and 1988. Named as defendants were the follow- Utah, ing: County, political Grand subdivi- Utah; sion of the State of Nyland, James D. County; the sheriff of Grand Archie Walker Neal, deputy and Kim sheriffs for Grand County; and Grand Knutson, David Manuel Torres and Sam Cunningham. complaint, plaintiffs, their under

heading Allegations,” “General Factual al- (1) leged as follows: Ricks was arrested Utah, Grand without warrant deputies of the Grand Sheriffs office p.m. on October at about 6:00 County jail, was arriving taken to the Grand 26, 1991; p.m. there about 7:00 on October (2) booked, being placed after Ricks was jail’s p.m., “drunk tank” at about 7:30 deputy noting, Walker inter Ricks (3) alcohol; drinking deputy had been Walk- permitted possession er Ricks to retain wearing the clothes he was at the time of his pair pants included of sweat containing long a 38-ineh cloth cord cinch (4) pants; waist of sweat cell by the p.m., 11:15 sic was that the owed made around Ricks was check of detainee, thereafter, incident, and, pre-trial about 1:00 defendants without Neal, “deliberately to Ricks’ 27,1991, deputy while not to be indifferent” a.m. on October facts, check, safety, background observed Ricks making a routine about, developed by discovery, not show though fully Walker did moving in his cell and *3 (5) time; that the conduct of the defendants rose Ricks at that and speak did 27, 1991, the level of “deliberate indifference.” Coun- on October at 2:00 a.m. about is, was, Neal, plaintiffs argument for the and he was unable to see sel deputy when cell, that, although the cell the “deliberate indifference” in the isolation entered Ricks applicable pre-trial to a detainee hanging from the 38-inch standard is Ricks and found cord, magistrate brought who has been before a pants which had been fash- sweat draw noose, proba- was looped judge around Ricks’ neck to determine whether there ioned into arrest, cell, Ricks ble cause for a warrantless the bars of the and and tied to the detainee has not been where was dead. magistrate judge to brought before a deter- of action set forth the The first cause probable cause for mine whether there was complaint the claim of Deborah concerned his warrantless and the arrestee com- Barrie, representative of Ricks’ personal as suicide, jailor’s mits the conduct is to be alleged, claim Barrie inter estate. In that judged an reasonableness” deputy sheriffs Walker and Neal that standard, which is not as strict as the “delib- “unreasonable conditions of confined Ricks to erate indifference” standard. confinement,” violated the Fourth Amendment to the United States Constitu- hearing, At the the conclusion the dis- allege on to court, comment, tion. Barrie then went trict with brief held that the and Sheriff Grand by defendants’ conduct was to be tested Nyland “unreasonably” in violation also acted that “deliberate indifference” standard and free from unreasonable right of Ricks’ to be facts, by depo- as the several established by the Fourth Amend- seizures as secured sitions, did not make out a case of “deliberate ment, example, failing have by, for con- holding, In line with that indifference.” facility, fading to ade- structed a modern district court also concluded that as of the supervise jail personnel, quately train and clearly date of Ricks’ suicide there was “no and the like. established law that deliberate indifference objective apply, only that reason- didn’t and second, remaining and claim the ableness to denial of medical care complaint, the claims of Alice combined Accordingly, cases this situation.” mother, Ricks, Cheiliegh Ricks’ qualified court then district concluded They realleged Ricks’ minor child. the alle- immunity legislative immunity applied. They gations above summarized. then as- court, January in line On district “liberty un- they serted that had a interest” with its at the conclusion of comment made der the Fifth and Fourteenth Amendments hearing held on December care, society “in comfort the continued granted summary judgment the motion for respectively,” which in- their son and father plaintiffs’ complaint with and dismissed the negli- gross terest violated had been appeal. prejudice. Plaintiffs We affirm. gence of the and callous indifference defen- plaintiffs sought dants. Each of the three The first issue to be decided is the $1,000,000 damages. duty owed the defendants to Ricks. As stated, discovery by parties, position they After all the defendants’ is that considerable summary they filed a motion for are not liable to the unless judgment.1 hearing “deliberately A on the motion for were indifferent” to Ricks’ con confinement, summary which conditions judgment was held December ditions of hearing, posed a risk of serious harm to 1995. At that defense counsel’s ba- substantial motion, motions, appellants’ summary judgment summary judgment 1. The motions for is in not, tell, appendix. so far as we can in the record before However, transcript hearing us. lawyer Ricks. Plaintiffs’ is that the defen- answering any before questions. exercising Ricks the Such dants owed “ob- terminated the interview and Ricks was jective custody reasonableness” to ensure that Ricks returned to the of Walker. After exposed booking completed, shoes, was not to a substantial risk of was Ricks’ hat glasses custody. serious harm while in their were taken from him Howev- and he was er, matter, placed jail’s in the “drunk considering per- tank.” haps should first examine Ricks’ status at the At p.m. about 11:00 on October time of his suicide. deputy Kim duty, Neal came on relieving Walker. After Walker briefed Neal on what The record before us discloses that on going jail, was on in the he had a 26,1991, approximately p.m., October 5:26 prisoner in the tank on burglary, vehicle County Deputy Grand Sheriff Curt Brewer Neal did a check and found Ricks dispatched attempted scene of *4 response cell. In question to Neal’s as to burglary. citizen-complain- automobile doing, how he was “alright” Ricks said and carrying purse ant belong- had seen Ricks appeared “fine” to Neal. At about 1:00 a.m. ing citizen-complainant, to his wife. The and on jail October Neal made another others, apprehended Ricks and then check and noted Ricks “moving around” in police. called the Brewer arrived on the his speak cell. Neal did not to Ricks at this p.m. backup scene at about 5:41 and officers time. Around 2:00 a.m. on October shortly request- arrived thereafter. Brewer jail Neal made another check. On this dispatcher ed the to contact detective John occasion Neal could not see so he McGann and advise him of the situation. opened the cell door and entered the cell. turn, Detective McGann advised Brewer to He discovered Ricks in the northeast corner have an officer drive Ricks to the sheriff’s cell, of his sitting on the floor. Ricks had office where Detective McGann would meet tied one end of string his waist to a bar on an the officers. Ricks was arrested at the scene old unused access door and the other end After handcuffed. the officers had taken around his neck. Ricks was dead. photographs of Ricks’ vehicle some of its contents, an officer drove Ricks’ vehicle to that, Plaintiffs’ if Ricks had the sheriff’s office. Brewer then advised the who, brought been a magistrate judge, before dispatcher that he was finished the loca- presumedly, then prob found that there was transporting tion and that he was a male able for cause Ricks’ and Ricks was prisoner to the sheriff’s office. jail thereafter confined and later commit trial, prior proper ted suicide cooperative given Ricks had been and had would be one “deliberate indifference” to a name, concerning Brewer information his ad- Walsh, known risk. Estate Hooker v. dress, number, phone next of kin and Social (10th Cir.1994). However, F.3d 995 counsel Security p.m. number. At about 7:00 argues that fact that Ricks committed completing October after his arrest re- magistrate he suicide was taken to a before port, deputy Brewer turned Ricks over to standard, judge, namely, dictates different booking. sheriff Walker for Walker did de- standard, reasonableness” Also, tect an odor of alcohol on Ricks. when which is a lesser standard than “deliberate questioned, inter about whether he had arguing, indifference.” In thus counsel relies past, attempt tried to hurt himself in the Hamilton, on Austin v. 945 F.2d 1155 suicide, suicide, contemplating or was Ricks Cir.1991) DuPage, and Jones v. shook his head and answered “no.” As 1988). (N.D.Ill., F.Supp. filling log, Walker finished out his initial Austin, stopped detective McGann took Ricks to his for office were at a questioning. explained port entry McGann to Ricks into the United States from officers, who, investigating that he was finding several recent auto Mexico after a small vehicle, burglaries, asking any marijuana alleged- Ricks amount of in their questions, office, going ly he was port entry to read Ricks his took them to the rights. right When advised of repeatedly to a law- handcuffed them and assaulted yer, them, releasing Ricks stated he had better talk to charging later them without physical alleged based on intentional assaults any The defendants’ offense. either with they by police, occurring person, who was acted reason- while things was account of unruly warrant, handling two ably being without detained their arrested court The district presentment magistrate abusive detainees. denied to a and before summary judgment, motion judge. defendants’ is a suicide case and distin- Ours not entitled holding that guishable from Austin. immunity qualified since to the defense of supra, argu- DuPage, Jones dispute just what genuine there was supports plaintiffs’ position. In that ably In so happened. appeal, we affirmed. On that an individual case a district court held Fourth Amendment doing, that the we stated without warrant remains an arres- arrested force dur- only bars the use of excessive judicial brought until before a officer for tee arrest, but such also ing making of an determination, probable cause during a force the use of excessive bars Fourth Amendment reasonableness clause immediately following ar- period of detention claims, including applies to all one based person is taken before a rest and before alleged arising from the failure of official, magistrate judge, or other provide government officials to reasonable the arrest and continued determine whether per- We are not conditions confinement. So, probable cause. detention were based on court, reasoning suaded of the district concerned with the inten- Austin we were and, importantly, such is not consistent more infliction, according plaintiffs, of *5 tional to the prior with decisions of this court. during after arrest.

excessive force detention spoke as follows: regard, In this outset, At the we note claims just the fourth We conclude that as jail are and based on suicide considered continue in effect amendment’s strictures jail claims on the failure of treated as based applicable constitutional limita to set the provide officials to medical care for those (reasonable regarding both duration tions custody. Popham City their In Tal arrest) of period under the circumstances of (11th Cir.1990), jail ladega, 908 F.2d 1561 (judicial justification determina legal and upheld the Eleventh Circuit cause), protections probable tion of its also summary grant judgment district court’s of

persist impose on the treat to restrictions based, jail part, for the officials on the ment the arrestee detained without a of plaintiff failure of the to demonstrate “ Thezan], Henson[ warrant. Accord F.Supp. Fourth Amendment Cf. Powell, [1330] at 1335-36 at 1044 [(N.D.Ill.1989)]. (‘We think the probably therefore, the defendants ence’ to the needs entitled to showed ‘deliberate indiffer qualified immunity. prisoner” were, doing, spoke so the Eleventh Circuit as fol period should be least to the lows: person prior to the time when the arrested [pursuant arraigned or warrant] to a is indifference standard deliberate formally charged, remains in the cus case, in arose in the context of a medical sole) tody (joint arresting offi or inadequate prisoner which a claimed medi- cers.”) added.) (Emphasis Gamble, cal treatment. Estelle v.

Austin, 945 at 1160. F.2d (1976). 97 S.Ct. 50 L.Ed.2d analogous Because suicides are to the quote, argues counsel foregoing From the care, provide to medical deliberate by police, any claim for mistreatment failure become the has barometer jailors, occurring being while one detained indifference involving suicide cases convicted arrest before he is after a warrantless prisoners pretrial detainees are as well as magistrate judge, taken before a is to be Atlanta, City tested. See Anderson v. judged on a standard of reason- Cir.1985) (pre- ableness,” F.2d including alleged a claim based on rights constitutional are trial detainee’s prevent failure to a detainee from commit- to his by deliberate indifference ting disagree. suicide. We Austin did not denied just in- It medical needs as deliberate involve a claim based on suicide. serious needs, rights of a convicted denies the medical announced Estelle v. difference added.)2 Gamble, (Emphasis prisoner). (1976) (Eighth L.Ed.2d 251 at 1563.

Popham, 908 F.2d prisoners adjudication), ap shields after Wayne, Frohmader plies pretrial through detainees the due subsequent to Aus- decided process clause of the Fourteenth Amend tin, grant court’s we affirmed the district ment. Lake Garcia Salt plaintiffs based summary judgment on claim (10th Cir.1985). F.2d In Martin by jail offi- inadequate medical attention v. Board spoke In that case we as follows: cials.3 Pueblo, 909 F.2d 402 Cir. Fourteenth Amend Under 1990), qualified officers immuni asserted clause, process pretrial ment’s due detain ty alleged defense to an violation of this Frohmader, ees, like entitled standard. The officers went to protection regarding medi degree same hospital day room on the of her release cal attention as that afforded convicted execute arrest warrant for failure to inmates under Amendment. appear speeding on a violation. Plaintiff Martin, Thus, 909 F.2d at 406. Frohmad mother, doctor, explained plain and her claim inadequate er’s medical attention neck, tiff suffered from a fractured judged against must be the “deliberate movement, except by gur wheelchair or indifference to serious medical needs” test ney, presented grave injury. a risk of De Gamble, of Estelle v. spite warning, the officers walked S.Ct. plaintiff a police transported van and Martin, 909 at 406. con Frohmader county jail. her to the The Martin court Wayne’s response tends that to his com upheld qualified immunity the denial of plaints claustrophobia agoraphobia clearly because Garcia established constituted a violation of the Estelle stan protection detainees share the same from *6 dard. deliberate indifference to serious medical Frohmader, 958 F.2d at 1028. Martin, inmates. needs convicted 909 indicated, in As Frohmader we affirmed F.2d at 406. grant summary judg- of the district court’s Howard, 34 F.3d at 980. ment for the defendants on claim of inadequate plain- treatment medical because (10th Meeks, In v. 52 F.3d 1547 Wilson showing tiff had to make a sufficient failed Cir.1995) court which we reversed district the defendants’ conduct to amounted had the defendants’ motion for sum- denied “deliberate indifference.” mary plaintiffs’ judgment on claim based on Dickerson, 978, In Howard v. 34 F.3d 980 alleged defendants’ failure to render medical upheld a we district court’s deceased, who shot aid to the had been denying order to dis- defendant’s motion shortly who as a officer and later died result charge miss a claim based on a of “deliberate thereof. The deceased had been shot and indifference to known medical needs” of the seriously by police, plaintiffs’ wounded ease, plaintiff.4 spoke In that we as follows: was, police claim inter had emergency to render medical treat- protection failed against The constitutional de- prisoner’s shooting, resulting liberate indifference to a serious ment at the scene of the tell, City Foley, we not later taken See also Belcher v. 30 F.3d so far as can he was of (11th Cir.1994) Buffington legali- 1396 v. Baltimore magistrate judge before a to determine the Cir.1990), (4th County, 913 F.2d rt. ty ce of the arrest. denied, 111 S.Ct. (1991). L.Ed.2d 216 However, case. 4.Howard was not arrest, and, we there a warrantless as far as 3. Frohmader was not a suicide case. Officers tell, appear the arrestee never did before can attempting to serve a summons and com- legality magistrate judge to determine the of his plaint on the defendant when a confrontation arrest. but, arrested, escalated. The defendant was then Wilson, shortly using daughter we a towel. The had been ar- in thereafter.5 death charges rested without warrant on of tres- spoke as follows: Amendment standard v. vide access to medical ference to ban on cruel and Amendment indifference” to the trial Cir.1994). at L.Ed.2d 605 50 L.Ed.2d oners a violation of the [239] Gamble, The two lines of Howard ]Massachusetts detainees primary case 97 S.Ct. at the Due Process Howard (1983)]. standard Dickerson, as well. unusual 97, 104, 97 S.Ct. 291. The analysis Gen. medical needs of employing care extends to of care is Estelle v. Eighth Amendment [2979] It held “deliberate 34 F.3d 978 Hosp., punishment. deliberate indif- [City come rights at 2983[, together to Revere Eighth Eighth pris pro pre- pre Id. later the sheriff were prevail, parently agreed her arrest and continued detention. taken before a suicide. The father and his pass, Oklahoma. of made an “booked” and charges On the controlled Hocker does not indicate serious medical needs on that same public day following he official to determine the and a dangerous initial However, intoxication and placed in municipal to show that the in that “deliberately magistrate judge district appearance day her substances. She was our the Detention Center. Estate Hocker regard that she committed judge judge order for opinion indifferent” to possession she was ever in was that he county legality Cleveland daughter, in Estate daughter or other Norman, criminal him It was ap- of to juris- showing trial detainees. had made sufficient “deliberate indifference” to mo- defeat defendants’ prudence always applied summary judgment. tion for The district Deland, detainees. Littlefield and, granted summary judgment, court Cir.1981). Howard relaxed the appeal, spoke doing, we affirmed. so demarcation, applying the deliber- line of as follows: of Estelle to a ate indifference B. Deliberate Indifference Serious pro- via the Due Process pretrial detainee Medical Needs of the Fourteenth Amendment. tections Under the Fourteenth Amendment’s Howard, at 980-81. Howard also Clause, pretrial Due Process detainees are legal standard of deliberate indif- held degree protection entitled to the same clearly pur- established for the ference was against denial of medical care as that af 981; poses of section 1983. Id. at see also forded convicted inmates under Lake Garcia Salt Eighth Amendment. Frohmader (10th Cir.1985) (Fourteenth Amend- *7 1024, Wayne, 958 F.2d 1028 Cir. custody in ment claim for man who died 1992). Thus, plaintiffs claim for inade provide adequate based on failure to medi- quate judged medical attention must be observation); County cal Martin v. against the “deliberate to seri indifference Pueblo, County 909 F.2d Comm’rs of of ous medical needs” test of Estelle v. Gam (10th Cir.1990) (Fourteenth 402 Amend- ble, 97, 104, 285, 291, 97 S.Ct. 50 plaintiff in ment claim for arrest of her 251 v. L.Ed.2d Martin Board of room). hospital Comm’rs, County 909 F.2d 406 Wilson, Cir.1990). at 1555. Relying on Lake Garcia Salt County, 768 F.2d 303 Walsh, Estate Hocker plaintiff contends that Sheriff Walsh and (10th Cir.1994) a claim 42 involved under County deliberately Cleveland indif against § the brought 1983 Board U.S.C. ferent to the of Ms. serious medical needs County of Cleveland Hocker. (Oklahoma) county by of that and the Sheriff Hocker, 22 Estate at 998. daughter a committed sui- father whose cases, cide in the Cleveland Detention Cen- foregoing On basis upper prisoner, in a hanging ter herself from an bunk we conclude that this circuit Wilson, reading brought magistrate judge 5. a From our we believe it to be to determine legality rather arrest. obvious that the deceased had never been of his warrantless

869 penal Eighth in a institu- der he be an inmate Amendment. With all due whether pre-trial respect or a detainee in analysis, reject tion after conviction to that court’s against county jail, not have a claim anythiijg does its conclusion that crim- less than provide adequate by jailer custodian for failure to per inal recklessness is se insuf- the custodian knows medical attention unless give Eighth ficient to rise to involved, “deliberately in- and is it, of the risk protections. analysis, As we in see its thereto. Whether the detainee different” collapsed the Duckworth court the distinc- judge magistrate taken before a or has been carefully preserved Whitley tion so in be- legality other officer to determine the tween the malicious and sadistic standard material, custodian’s of his arrest is not applicable prison in riot situations and the event. And the is the same either applicable deliberate indifference standard lenged, as tutes “deliberate indifference.” suicide. erately same spoke of “deliberate indifference” as follows: Gamble, gia, supra, wanton infliction of prisoners constitutes the indifference to serious medical needs of the instant suicide, i.e., We therefore conclude that deliberate The next issue is or his indifferent” In this such, U.S. detention, [428 U.S.] the custodian must be “delib- applies ease, regard, (1976), appeal. pain,” Gregg v. a substantial to a claim based on has never been chal- we should note that at legality just “unnecessary 182-183, Supreme S.Ct. what consti of Ricks’ Estelle risk of Court Geor S.Ct. requiring intentional and malicious ry known or obvious risk that is pality acts with deliberate indifference if its conduct result in the violation of a to more therefore, hold that an official or munici- Whitley[ negligence, L.Ed.2d 412 stitutional (1986)] n.& 106 S.Ct. Canton v. reflected in the ordinary prison policy “Deliberate [1078] rights. (or adopted policy) disregards Albers], or even (1989), higher degree Harris, at Whitley remains lower than the 1084[, gross negligence, City indifference,” 1204 & n. infliction standard. prisoner’s of fault than very likely L.Ed.2d [312] decisions. at while inju- con- We, [2909] 2925[, L.Ed.2d (1976)] Our study of the record before us leads us plaintiffs’ showing to conclude that of “delib- (joint proscribed by opinion), part any erate indifference” the in Amendment. This is true whether was insufficient to withstand de- by prison is manifested doctors difference summary judgment. fendants’ motion for prisoner’s response in their needs or conduct, individually The defendants’ viewed by prison guards intentionally denying collectively, simply or does not rise to the delaying access to medical care or inten a known level of “deliberate indifference” to tionally interfering with the treatment risk, which, or obvious our prescribed. Regardless once of how evi substantial risk of suicide. denced, prison deliberate indifference to a injury er’s serious illness or states a cause alter As concerns district court’s § of action under ruling enti native that the defendants were *8 Berry City Muskogee, v. 900 F.2d qualified immunity, plaintiffs argue in tled to (10th 1489, Cir.1990), we discussed this court that the “standard announced meaning the of “deliberate indifference” as Appeals for the the United States Court follows: Hamilton, supra, in v. Tenth Circuit Austin struggled give practical [objective urged reasonableness]

Courts have sufficiently meaning plaintiffs in this case was well- to the “deliberate indifference” Franzen, Mr. standard. In Duckworth v. 780 established at the time of Ricks’ deten (7th denied, 645, Cir.1985), that the cannot F.2d 653 cert. tion and death 816, 71, they protected by qualified immu 93 L.Ed.2d 28 claim (1986), proper negligence, nity.” Having that now ruled that the the court held conduct is gross negligence and tort recklessness standard to measure defendants’ indifference,” justify liability all un- and not the stan- insufficient to “deliberate 870 reasonableness,” plaintiffs’ Court has not held that the Fourth Amend

dard inquiry ment into how a argument regard fails. seizure is carried out this determining is limited to whether excessive Judgment affirmed. employed, force was but rather that protections against Fourth un Amendment BRISCOE, Judge, concurring: Circuit reasonable seizures are at least broad summary agree judgment I Although enough to include all claims of excessive in this I appropriate defendants is write Graham, 395, force. 490 U.S. at 109 S.Ct. at disagree I with ma- separately because Accepting premise set forth jority’s that Fourth Amendment conclusion pro Austin1 —that the Fourth Amendment protections against unreasonable seizures applicable vides standards to the confinement pre- in the suicide of a implicated cannot be prior of an conditions arrestee notes, majority trial detainee. As probable determination of cause —I would Hamilton, 1155, 945 Austin F.2d 1160 v. permit arising a claim from the suicide of an (10th Cir.1991), held the Fourth Amend- arrestee detained without a warrant to be provides ment a constitutional source for analyzed princi under Fourth Amendment on the treatment of substantive restrictions Park, ples. Pylca Village See v. Orland without warrant. The arrestee detained (N.D.Ill.1995) (arrestee F.Supp. 906 1196 sui majority would limit the Fourth Amend- analyzed cide claim under Fourth Amend protection ment’s in this context to a narrow ment); 699, Young, F.Supp. Freece v. 756 703 type injury excessive force. How- of—use (W.D.N.Y.1991) (same, relying on Powell v. ever, applies, where the Fourth Amendment (2d Gardner, 1039, Cir.1989), 1044 only prohibit it use of excessive does supporting authority which we cited as force, prohibits any but rather unreasonable Austin); County DuPage, Jones 700 looking seizure. to the nature of the (N.D.Ill.1988). F.Supp. Although, 965 as the injury ap- the standard to be to determine out, majority points we have the de principle plied, majority ignores the that inadequate liberate indifference test to medi from comes not the classifica- cal attention claims of detainees suffered, injury plaintiff tion of the but Austin, Dickerson, since see Howard v. 34 provision from the constitutional 978, Cir.1994); F.3d 980 Estate of injury. violated to cause the See Graham v. Walsh, 995, Hocker 22 Connor, S.Ct. Cir.1994); Wayne, Frohmader v. (1989). 1870-71, Contrary 104 L.Ed.2d 443 there is no indication conclusion, majority’s apparent that in those cases asserted mere fact that a claim deals with the denial Amendment, their claims under the Fourth adequate require medical care does not arguing objective its reasonableness standard application of the deliberate indifference applied. imply be I should do not Romeo, Youngberg standard. See U.S. applying numerous cases a deliberate indif n. n. S.Ct. inadequate ference standard to medical assis improperly tance or suicide eases so do hold, does, majority I plaintiff would not at the that when the asserts a substantive due may process never be the result of an Amendment claim. objectively Recognizing unreasonable seizure. Whether a the Fourth Amendment seizure may apply imply is reasonable under the Fourth to this case does not depends on the nature of provides the Fourth Amendment the exclu seizure all remedy process of the circumstances sur sive substantive due Graham, rounding Montoya it. apply. United States de does not also See U.S. Hernandez, 531, 537, 105 10, 109 (recogniz S.Ct. at 395 n. at 1871 n. 10 S.Ct. *9 Supreme ing protections The both Fourth Amendment debate, here, Foster, Although premise may open disregard 1. the Dorton, be to it see United States v. Riley see F.3d (10th Cir.1997) (appellate panel Cir.1997) (Fourth Amendment does not extend by panel). bound decision of another arrest), beyond point we are not free to protections ap- been the denial of process rehearing could made over en substantive due banc, I am type injury deten- stirred to state for the ply to same record why deny. the reason I have hope voted to I period). tion doing in so I do not create custom for this plain- Despite my willingness to evaluate court, already being enough because there tiffs’ claim under the Fourth judicial verbiage print prac- to confound standard, summary judgment agree I tioners, opprobrious I find this whole notion totality of the cir- proper here. Under publishing non-precedential matters. cumstances, challenged defendants’ actions misapprehension, my Lest there be vote objec- seizure as a whole do not render the absolutely nothing has to do with the merits tively unreasonable. by of the case. Guided what I believe are controlling principles R.App. of Fed. P. 35(a), I simply appeal do not believe the over controversy which this appro- has arisen is priate for en bane consideration. 35(a)

I portions take to heart those of Rule say rehearing en banc is “not favored” and will not be in- ordered unless the case Mary VIGIL, Ann ROCHA “question exceptional impor- volves a Plaintiff-Appellant, Recalling disposition tance.” of this unpublished matter was an order and judgment, indicating panel determination CRUCES, LAS CITY OF precedent, the case has no value as 10th Cir. Defendant-Appellee. 36.1, R. rendering virtually the decision No. 96-2059. uncitable, 36.3, 10th Cir. R. I believe the panel presents question excep- decision no Appeals, United States Court of panel importance. tional deter- What Tenth Circuit. impact upon jurispru- mined makes no circuit; therefore, dence of this it has no July except parties value themselves. Ac- ANDERSON, TACHA, and Before opinion cordingly, my proceeding does BALDOCK, Judges. Circuit high for en not reach the banc 35(a). rehearing required by I have Rule grant rehearing never to en banc in voted ORDER nothing such a and I find about this one petition rehearing for is denied change my practice. panel the case on the judges who decided ground petition timely was not filed. LUCERO, dissenting. Judge, Circuit sponte A member of the active court sua order, unpublished panel of this poll called for a of the court to determine recently pro that a se court decided whether the court would rehear the case en allegations racial sexual harassment Ebel, Seymour, Judges banc. and Lucero summary judgment are insufficient resist grant rehearing All voted to en banc. other Cruces, Vigil City Las under Title VII. deny active members of the court voted to 96-2059, May No. 1997 WL 265095 Cir. rehearing petition en banc. The for rehear- 1997). Mary Vigil Ann that when claims ing is therefore denied. working department typist as a clerk at the Airport, super- her Las Cruces International PORFILIO, Judge.

JOHN C. Circuit Hispanies “frequently” visor referred to “wetbacks,” and, response complaints precedence publi- I Because find no Hispanic overcharged, denying rehearing cation of an customers were order banc, stated, “I that Mexicans had rehearing en I have no idea what to didn’t know Nonetheless, claims that this same rights.” an issue has She further label this missive.