*1 808 Benton, 624, Lozoya, v. ing States v. United States 623 F.3d
ate
United
sentence.”
(8th Cir.2010)).
(8th Cir.2010).
1051,
recognize
We
that
“The 627
1055
627 F.3d
Gasaway’s
substantially longer
sentence is
to know the law
presumed
court is
district
top
sentencing
than the
of his Guideline
sentencing and need not recite
regard
However,
range.
the court did not abuse
we review
upheld.
each factor to be
When
weighing
considerable discretion in
its
3553(a) factors,
§
will look to
we
3553(a)
arriving
factors and in
section
Keating,
sentence
LOKEN,
Judge, concurring.
Circuit
that
court
argument
gave
on an
based
to some of the section
weight
too much
I agree
Gasaway’s
that Mr.
sentence is
3553(a)
enough weight
factors and not
substantively
unreasonable and for
“
appellate review in
others.
‘Substantive
that reason concur
the decision to af
sentencing cases is narrow and deferen
pro
firm. He did not assert a claim of
tial ....
will
the unusual case when
[I]t
sentencing
cedural
error
either
court
we reverse a district
sentence—
appeal.
district court or on
I therefore
within, above,
appli
whether
or below the
disagree
opinion
with the section of the
range
substantively
cable Guidelines
conjures up
gives
such an issue and
—as
”
Shuler,
unreasonable.’ United States v.
plain
it
error review. See United States
Cir.2010),
(8th Cir.2010)
444,
(8th
Brewer,
447
(quoting
975,
598 F.3d
v.
628 F.3d
978
U
Feemster,
455,
ied,—
-,
v.
United States
572 F.3d
den
.S.
132
cert.
(8th Cir.2009) (en banc)).
126,
(2011).
S.Ct.
sider the extent but must
give due deference to the district court’s 3553(a) factors, § decision that on a Sherry LUCKERT, Represen Personal ’ whole, justify the extent of the variance.” Troy Samp tative of the Estate of Osei, 742, United States v. 679 F.3d 747 son, Deceased, Appellee, (8th Cir.2012) (quoting v. Gall United v. States, 38, 51, 586, 552 U.S. 128 S.Ct. 169 COUNTY, a DODGE Nebraska Political (2007)). L.Ed.2d 445 The court stated that Subdivision; Doug Campbell, in his 3553(a) it all of considered the section fac Cyn capacity; individual and official It tors. was within the court’s discretion Julian, R.N., thia in her individual and weight give determine what each capacity, Appellants. official factor in Gasaway’s the determination of “ sentencing sentence. ‘[A] court has wide No. 11-1178. 3553(a) weigh latitude to the section fac Appeals, United States Court of assign tors in each case and some factors Eighth Circuit. greater weight than in determining others ” Submitted: Nov. appropriate an sentence.’ States United Filed: June Richart, Cir. — 2011), denied, -, cert. U.S.
S.Ct. (quot- L.Ed.2d *4 Tomka, Lincoln, M. argued,
Jennifer NE, for appellant. Among other re- argued, Scotts- Lynn Chaloupka,
Maren charge bluff, sponsibilities, Campbell was NE, appellee. making staff and training scheduling RILEY, BEAM Judge, Before Chief policies. sure the staff followed DCJ’s BYE, Judges. Circuit provide To for the inmates’ medical needs, physi- contracted with local DCJ RILEY, Judge. Chief cians, Shoaib, including Dr. Mohammad committed suicide while Troy Sampson also em- psychiatrist. Fremont area (DCJ) Dodge County Jail detained at nurse, who, ployed according Camp- Fremont, Sampson’s moth- Nebraska. bell, gatekeeper between the served as er, Luckert, personal Sherry acting as inmates and the doctors. The nurse coor- estate, representative sued care, medical ensured dinated inmates’ jail under 42 Dodge County and officials medications, prescribed inmates received they claiming § were deliber- U.S.C. jail concerning and directed the staff medi- medical ately indifferent July cal and suicide watches. *5 needs, A violating process rights. his due approximately Sampson one month before Dodge County and DCJ’s di- found there, appellant was detained hired DCJ (collectively, appellants) rector and nurse Julian, Cynthia a registered nurse since pu- awarded Luckert actual and liable and permanent to be DCJ’s full-time damages. The district court denied nitive nurse. a appellants’ judgment motion for suicide, Sampson’s Dodge At the time of law, in matter of entered favor County’s Policy & Procedure Corrections Luckert, attorney and awarded her fees Manual included written Suicide Inter- judg- reverse the denial of costs. We 12.4). (Policy Policy Implemented vention ment as a matter of law and vacate the 1994, Policy 12.4 December had attorney damages awards of fees and been revised before suicide. At Luckert. costs for
trial, Campbell acknowledged and Julian 12.4, Policy aspects DCJ did not follow I. BACKGROUND including its identification of three suicide A. Facts1 (1) Alert, required levels: which close ob- Dodge County Jail placement servation of the inmate and (2) cell; safety Warning, which re- 10, 2006, Troy Sampson August On com- quired checks of the inmate in visual inter- DCJ, mitted suicide in his DCJ cell. (ten-min- longer vals no than ten minutes closed, inmates, up which is now held watch); Watch, required ute yet all of whom either had not been con- visual checks of the inmate in intervals no serving victed of a crime or who were longer twenty (twenty-min- than minutes year. Sampson sentence of less than one watch). ute commit was the third DCJ inmate to sui- twenty-first attempting
cide and the Campbell testified DCJ instructed em- commit suicide since 2000. Policy during 12.4 ployees about orienta- tion, Appellant Doug Campbell, appointed provisions policy, but certain of the keeping was the director of DCJ at the time such as suicide notebook and light McKinley, 1. "We recite the facts in the most favor- White v. 605 F.3d jury’s Connolly, Cir.2010)) (internal omitted). verdict[ able to the Der v. quotation ].” marks (8th Cir.2012) (quoting assessments, Sampson fol- ian did not believe was a recording daily danger were not through or others. yet gone himself Julian had lowed. orientation, any or formal employee
new day, That same Julian contacted Samp- the time of training, at O’Neill, psychiatrist, Stephen son’s Dr. she could not re- Julian testified Regional who worked the Norfolk Cen- 12.4 knew of member whether she ter. Julian’s notes indicate Dr. O’Neill that time. also testified DCJ’s Julian Sampson prior saw about a week and had sui- put displaying was to inmates practice prescribed Klonopin Cymbalta fifteen-, either a twen- cidal tendencies on Sampson. Dr. O’Neill put advised DCJ to thirty-minute or watch. ty-, on suicide until Sampson watch he was “medically/psychologically stable [and] Detention at DCJ kept back on Samp- [medication].” Julian Sun- Sampson When DCJ admitted watch, downgraded son on suicide but it day, 30, 2006, no July Sampson answered twenty-minute from a to a thirty- watch attempted asked if he had ever sui- when watch. Sampson officially minute re- committing about sui- thinking cide was thirty-minute mained on suicide watch reported Luckert called DCJ and cide. until he committed suicide. DCJ records Sampson suicide two attempted had weeks staff jail multiple indicate missed watches hang by trying to himself. earlier during Sampson’s Throughout detention.2 anti-psychot- learned day, work periodically Julian’s she ob- information, light medication. this ic Sampson. served *6 mentally seemed un- Sampson and because 31, July On Julian faxed information stable, Sampson booking kept DCJ concerning Sampson to DCJ’s contract put twenty- him overnight area and on a psychiatrist, Dr. Julian Shoaib. advised minute suicide watch. of Sampson’s Dr. Shoaib current medi- Sampson day. “long history Julian met psychiatric with next cations and from Sampson complained post- Regional noted of the Norfolk Julian Center.”3 Julian re- disorder, Sampson’s depression, traumatic distress ceived and reviewed medical attacks, anxiety psychosis. Regional ob- from the and Julian records Norfolk Center anxious,” Sampson “very requested “tear- and Dr. had served advised Shoaib she ful,” ideas,” “flight meaning Regional and had of he that the Norfolk Center forward changed topics Sampson’s often. Julian medical to him. history testified Julian Sampson suicidal, requested denied he was and Jul- Dr. Shoaib the material review Headaches; log DCJ's one watch 2. sheets reflect missed Posttraumatic Stress Disorder day August (from 2-4 per between and five missed being prison); Mexican abused in August log on watches both and 6. The Personality Change Secondary to Head In- show no watches three sheets missed for the Worsening Pre-existing with of Antiso- days day Sampson's of before or the (can Personality cial and Paranoid Disorder stress); psychotic appear under Cannabis synopsis Sampson's Dr. O'Neill 3. wrote (he Dependence likely use does to self-medi- history August psychiatric on 1. Julian testi- headaches); Disorder, Personality cate for report August she received on 5. Dr. fied this Specified, Not Otherwise with Antisocial outpatient progress O’Neill also included Features; and Paranoid Probable Post Con- 20, 24, July notes from and 2006. Dr. Headaches, Secondary cussive to Concus- following as di- O’Neill listed the (from Injury being sion and Head hit with agnostic impression: 1998). pistol in Adjustment Depressed Disorder with Mood Anxiety Subsequent Worsening and with disappeared. day, effects That same Sampson her what medications side advise and feel would be you reported take and “what contacted Dr. and should Julian Shoaib patient.” this best for Dr. Sampson. her observations of Shoaib dosage in the ordered reduction Tuesday, August pre- Dr. O’Neill On Sampson’s medication. That Sampson. medications scribed direction, DCJ day, at Julian’s same trial, At Luckert’s counsel confronted holding area Sampson out of moved with Medication Admin- Julian general population. Julian into its and Record, which had istration Julian filled so in because she part she did testified out, the prescription as well as orders from concrete laying him on the “didn’t want entirely Though Dr. Shoaib. clear floor,” him because “wanted and she documents, appears from these it Julian around other population peo- to be general Sampson failed to ensure was medicated in Sampson moved to a different ple.” DCJ with As compliance Dr. Shoaib’s orders. August again August on At cell result, it was reasonable for the appears of these to be at least one moves (1) gave Sampson higher infer than request. (an doses of anti- prescribed Risperidone Thursday, Sampson Dr. Shoaib saw (an drug) psychotic Klonopin anti-anx- Sampson Dr. August 3. Shoaib testified iety drug) August from 7 to August anxious, very, very very agitated, “was (a give Sampson failed to Lunesta unpredict- psychotic” and “bizarre aid) prescribed sleeping entirety for the de- able.” Dr. Shoaib said of his detention. Other documents demon- suicidal, Dr. recom- being nied but Shoaib failed give Sampson strate DCJ one “keep on suicide [Sampson] mended DCJ Klonopin on August dose down settle[d] until his behaviors watch Indicating less agitated.” and he became August Later on Sampson submitted homicidal, Sampson was not suicidal or Dr. Request another for Medical Care and two changed Sampson’s prescriptions. Shoaib Request Inmate forms. all three re- *7 quests, Sampson again asked DCJ move Monday, next saw Sampson Julian safety solitary him to the cell or confine- 7, August response Requests to two for and stressed ment he wanted to be alone Sampson August Medical Care made on not want a and did window or a television August and 6.4Julian testified she did not The safety special his cell. cell was a Sampson’s requests see until Au- written designed that was cell to be suicide resis- she to the office gust when returned replied requests tant. Julian from a weekend off. Julian testified day, the next him Sampson glassy-eyed, telling DCJ did have appeared “kind such a cell Another staff mem- foggy, overmedicated.” Julian ad- available. [and] Sampson taking responded writing, Safety he the medi- ber “The Cell vised was that prescribed cations Dr. Shoaib and it cannot be used this time. When some- or thing up try you.” would take one two weeks before the we move opens will Care, Care, August Request Request In his for Medical submitted another Medical wrote, drugs you Sampson writing, are these "Need to "What be transferred to Norfolk giving drug Regional Id Stephen are me? like a fact sheet Center to [sic] Dr. O’Niell [sic] Cym- killing Wish My Nurse[J + side effect. to see No or I will die in here. head me. you get please making are balta! Could an American These meds me sick con- [and] psychiatrist speaks English reported day that clear or That same let fused.” DCJ officials Sunday, my psychiatrist.” Sampson longer going own me see On said he no to eat was August responded, Sampson before Julian and did not eat one meal. Campbell and Julian both testified the believe Sampson was suicidal at safety August cell was not available because an- 10. Dr. adjusted Shoaib time — glass other inmate had broken its prescription window and asked that August yet Sampson it 3 and had not been re- schedule another appointment in two paired. weeks. afternoon, Later that Sampson Tuesday, attended August
On a DCJ official study. a bible According to the transported testimony Sampson hearing, to his bond leader, of the volunteer study another in- during Sampson judge, told the mate asked person whether a who commit- trying get “I’ve been into the Norfolk ted go suicide could still to heaven. The Regional happened, Center before this leader during testified that full, resulting they every were and then I went discussion, Sampson said everyone had try get help, recourse to and it seems thought about suicide at least during once every like door was in my shut face.” their life. The leader was not concerned day, Later that Sampson Luckert visited about Sampson’s statement and did not Sampson DCJ. Luckert testified was report the conversation to DCJ officials. tearful and erratic. Luckert claimed be- DCJ, fore she left she told a employ- DCJ At approximately p.m. 4:35 on August Sampson “definitely ee suicidal” and 10, staff “Sampson discovered hanging by employees needed to watch him. a bed sheet from the vent above the toi- day, Sampson That same filled out another let.” Attempts to Sampson revive were Request for asking Medical Care to see unsuccessful and he was pronounced dead. Thursday. Dr. Shoaib on respond- Julian required by law, As see Neb. Nebraska ed to Sampson’s request day, the next § 29-1401(4), Rev.Stat. grand jury inves- telling Sampson appointment he had an tigated Sampson’s grand death. The Thursday, August scheduled for urged Dodge County Super- Board of visors to Thursday morning, August policies On “review their proce- Dr. dures, Sampson again particularly Shoaib met with in dealing and evalu- with medical watch grand ated condition. Dr. inmates.” The Shoaib ob- called “for Sampson change style served had “calmed type down” since of venting his last cover in visit. Dr. individual cells” and general Shoaib testified he made recommendations, asked if he including was suicidal. Accord- the use of Shoaib, ing to Dr. Sampson responded, “cameras and other during surveillance Doc, “No it’s these periods”; not that. I want to intensified suicide watch go to *8 (2) Norfolk “more Regional staffing” general Center. I do not as a belong deter- (3) rence; staff, I am not a training [at DCJ]. criminal. I have a increased “particularly in problem response mental and I in have to be Nor- to medical watch inmates”; (4) Regional folk and Center.” Dr. Shoaib testi- modification of the sui- fied he cide watch options grand jury discussed various forms. The with Sampson, expressed including telling you him that “if concerns about “the entire man- [DCJ], agement are suicidal I can you top send to the to bottom” hospital, and the you jail can Emergency “workload of the nurse.” [in Protective Cus- tody] and then from there the hospital Proceedings B. Prior mental health can you board commit to the Regional Norfolk According 23, 2007, Center.” to April On Luckert filed a 42 Shoaib, Dr. Sampson again § denied suicidal U.S.C. 1983 civil claim rights against the thoughts. Dr. Shoaib appellants. testified he did not appeal, As relevant to this policy, Dodge County, through its violated Sampson’s process due alleged
Luckert Eighth rights” the and Four- and from constitutional rights arising (1) by were violated entitled “Campbell quali- Amendments and Julian are to teenth to indifference deliberate of law. In appellants’ immunity” the fied as a matter the (2) needs; medical alternative, serious appellants moved for a new the failing policy County’s custom Dodge the judgment. trial or to alter or amend preven- suicide (e). reasonable 59(a) to implement and See Fed.R.Civ.P. (3) County’s Dodge and tion practices; 10, 2010, the On district court November employees its to observe failure to train motion, appellants’ finding denied the the of a signs and risk of upon act fully “jury’s the find- supported evidence claim). (failure to train among its detainees ing of indifference to deliberate serious summary moved for appellants The needs,” the compensato- medical as well as they to
judgment, arguing were entitled awards. ry punitive damage The dis- immunity because Luckert- could qualified judgment trict court entered consistent they deliberately were indifferent not show jury the verdict. On November with Sampson would commit suicide. risk the Luckert attor- district court awarded appellants’ court denied the The district ney and costs. See U.S.C. fees motion, finding appellants were 1988(b). 7, 2010, § ap- December On qualified immunity because entitled pellants timely appeal. notice of filed questions jury to factual for the there were determine. II. DISCUSSION presided court over six- The district appeal, appellants On contend At day the close of trial June district error court committed reversible case, appellants moved for Luckert’s (1) by denying their motion for judgment as a matter of Fed. law. See (2) law; as a a re- issuing matter of 50(a). The district court denied R.Civ.P. (3) striking punitive damages; mittitur or the motion. (4) instructions; omitting jury proposed 28, 2010, the jury On June returned (5) permitting expert testimony; certain Luckert against verdict in favor of all allowing conduct improper Luckert’s appellants. The found both attorney; awarding Luckert attor- Campbell deliberately were in- Julian and ney fees and costs. different serious medical Dodge County The found needs. Judgment A. Matter of as a Law policy failing “for a or custom of liable The appellants challenge district implement prevention reasonable suicide court’s motion for judgment denial of their practices,” found in Dodge but favor of law, claiming as a Julian and matter County on Luckert’s failure to train claim. are entitled to immuni- $750,000 The Luckert jury awarded ty and insufficient there was damages $100,000 pu- compensatory *9 County’s Dodge practices policies show damages $75,000 against Campbell nitive — process rights. violated Sampson’s due $25,000against Julian. 2010, review the district court’s de 26, We July appellants On the renewed judgment nial of a for as a matter motion judgment their motion for a matter of as 50(b), novo, “using of law de the same standards law to Rule pursuant arguing “[t]he as the court.” Howard v. Mo. at trial is district evidence adduced insufficient Ctr., Inc., 991, by the ... Bone & 615 F.3d 995 jury sustain the verdict Joint
817 Cir.2010). (8th for our A motion as circuit is clear .... [that] only “a proper immunity question court, a matter of law is if reason- ais of law for the decide”). legally able would not have a suffi- than jury, rather the Whether evidentiary cient basis find for [Luc- official’s conduct constitutes deliberate 50(a). Fed.R.Civ.P. Our review is a question kert].” indifference is for of fact Hall, jury. 703, deferential to the verdict and highly See Davis v. 375 F.3d 719 (8th Cir.2004). weigh question we do not the evidence or credibility reaching our con- witnesses’ Qualified immunity shields Howard, 615 clusion. See F.3d 995. government performing officials discre Eighth prohi “[T]he Amendment tionary liability functions from civil unless on cruel and unusual punishment bition their clearly conduct “violatefs] established protect prisoners extends to from deliber statutory rights or constitutional of which ate indifference to serious medical needs.” person a reasonable would have known.” Ark., Vaughn Cnty., v. Greene 438 F.3d 1070, Young, Ambrose v. 474 F.3d 1077 (8th Cir.2006). 845, 850 risk of sui “[A] (8th Cir.2007) (quoting Fitzger Harlow v. by cide an inmate is a serious medical ald, 800, 818, 2727, 457 U.S. 102 S.Ct. 73 Class, 413, Gregoire v. need.” 236 F.3d (internal L.Ed.2d 396 quotation (8th Cir.2000). [Sampson] 417 “Because omitted)). marks “Officials are not liable detainee, pretrial
awas
claims are
[his]
areas;
for
guesses
bad
in gray
they are
analyzed under the Fourteenth Amend
transgressing
liable for
bright lines.” Id.
ment’s Due Process Clause rather than the
Davis,
(internal
(quoting
Our first task superior.” Langford is decide wheth (8th Cir.2010). er Julian and are “Supervisors can, entitled qualified immunity. Qualified however, immunity liability ‘incur ... per their question court, a legal jury, for the sonal involvement in a viola constitutional instance, tion, to decide in the first based either or when their corrective inaction or, on the if allegations material are facts amounts to deliberate indifference to or dispute, facts jury. found tacit prac authorization of the violative ” *10 Franklin, Lockhart, See Littrell v. 388 584- tices.’ Id. (quoting F.3d Choate 7 (8th Cir.2004) (8th Cir.1993)). (explaining 1370, 1376 85 law of F.3d “[t]he
818 Sampson’s suicide. Julian contact- Julian and
Because
recently
O’Neill, to
report Sampson
Sampson’s psychiatrist,
a
ed
Dr.
were aware
suicide,
dispositive
condi-
attempted
gather
Sampson’s
had
information about
taken
the measures
Samp-
“whether
question is
tion. Julian received
reviewed
deliberately
as to be
inadequate
were so
medical rec-
Regional
Norfolk
Center
son’s
924
Rellergert,
to the risk.”
indifferent
synopsis
and Dr.
written
ords
O’Neill’s
is not
“The suicide [itself]
at 796.
F.2d
Sampson.
report
responded
on
Julian
“tying
question”
that
because
probative of
writing
Sampson’s Requests
to
each of
indiffer
proof
to
deliberate
the suicide
Dr.
when
Medical Care and called
Shoaib
jailers
requiring
to
to
tantamount
ence is
might
Sampson
she observed
be over-med-
institutions,” and to
suicide-proof
provide
the fact neither Julian nor
Despite
icated.
ever happening.
suicide
against
ensure
Dr.
a seri-
Sampson posed
believed
Shoaib
In
the constitutional test.
Id. This
is
others,
kept
ous risk
or
DCJ
to himself
stead,
objectively
“consider[ ]
we must
thirty-minute
watch
Sampson on
suicide
light
practical
of the
taken
measures
entirety
Even
for the
of his detention.
jailers
prevent
to
inmate
limitations
both were
though Julian and Dr. Shoaib
“Simply laying
Id.
blame or
suicides.”
suicide,
as to the risk of
Julian’s
mistaken
might have
out what
pointing
fault
apathet-
actions do not indicate Julian was
question
is insufficient. The
is
been done
condi-
ic or unconcerned with
jailers
they
did all
could
not whether
(“In-
Rellergert,
tion. See
F.2d
have,
they did all the Consti
but whether
unconcern.”).
apathy or
difference is
Id. at 797. “In evalu
requires.”5
tution
a known
response
an
to
ating
official’s
Construing the evidence in favor of the
risk,
cognizant
we should be
how verdict,
suicide
a reasonable
could conclude
risk to be.”
(1)
the official knows the
serious
Samp-
negligently downgraded
Julian
236 F.3d
Gregoire,
twenty-minute
thirty-min-
from a
to a
son
(2)
watch;
recognize
ute
suicide
failed
objective
of the evi
An
review
watches,
ignore
or
al-
chose
missed
dence that
is deferential
verdict
though no missed watches occurred
preventative measures taken
reveals the
(3)
detention;
days of Sampson’s
last four
inadequate
were not so
as to
Sampson
pre-
one dose of
give
failed
constitutional deliberate indif
constitute
days
Samp-
medicine nine
before
scribed
Sampson was detained at DCJ
ference.
(4)
suicide;
quickly
failed to act
or
son’s
days,
point
At no
for fewer than twelve
upon
requests for a
adequately
before
during Sampson’s incarceration
his
cell,
available;
readily
was not
new
Samp
did
August
successful suicide on
(5)
implement
failed to
reduction in
or
to be
attempt
son
claim
suicidal.
medicine;
prescribed
Sampson
Luckert that
DCJ learned from
to tell Dr. Shoaib about Luckert’s
failed
recently attempted
response,
report
Sampson
attempted
had
sui-
nurse,
Julian,
registered
twice saw and
two weeks before his detention.
cide
arranged
for two
assessed
may
poor
While these failures
constitute
psychiatrist,
with DCJ’s
Dr.
appointments
Shoaib,
even
morning judgment, negligence,
possibly
on the
including session
heavily
twenty-twenty hindsight,
we
upon
what
benefit of
do
The dissent focuses
Jul
now,”
primary
precau
focus is
"those
post
ian failed to do. See
821 to 23. While
our
tionary
which were undertaken.”
what Julian did not do
relevant
measures
that,
Norton,
inquiry,
precedent
Liebe v.
Cir.
our
is clear
because
1998).
jail
officials such as Julian "did
have the
*11
gross negligence, they
not
frequent
do
constitute
observation than the watches de-
Also,
tailed in
12.4.
deliberate indifference when viewed
did
DCJ
not
notebook,”
a
“affirmative,
keep
“suicide
context of
maintain
deliberative
certain documentation procedures
refer-
steps”
prevent Sampson’s
Julian took
in Policy
enced
12.4. It would
Liebe,
be reason-
578;
suicide. See
157 F.Sd at
see
to expect Policy
able
12.4
Koss,
either
v.
also Drake
445 F.3d
or be
followed
modified to reflect DCJ’s
(8th Cir.2006) (“Deliberate indifference is
practices.
actual
But these acts and omis-
requires
akin to criminal recklessness and
do
sions
not rise to the level of constitu-
something more than
negligent
mere
mis-
tional deliberate indifference.
conduct.”);
Weber;
Gibson
433 F.3d
(8th Cir.2006) (“A showing
of deliber-
Failure to
proce
follow written
greater
gross
ate indifference is
than
neg- dures
does
constitute per se deliberate
Choate, 7
ligence.”);
(explain-
F.3d at 1374
so,
indifference.
If this were
such a rule
ing “deliberate indifference requires a would create an
jails
incentive for
to keep
highly culpable state of mind approaching
policies vague,
their
or not
poli
formalize
intent”);
actual
see Minix v. Canarec-
cies
all. And the record in this case
ci,
(7th
824, 828-29,
Cir.2010)
597 F.3d
evidence,
any
does
show
nor are we
a
(concluding
any
nurse’s decision to
precedent,
remove a
aware
jail
from which
pretrial
officials
thirty-minute
detainee from a suicide
would know a
watch and
sui
cide watch—as opposed
segregation despite
twenty-min
from medical
knowing
ute watch—is constitutionally
attempted suicide,
impermissi
the inmate had twice
ble, or
keeping
that
a suicide
month,
notebook is
previous
once
did not show
constitutionally required. See generally
indifference,
deliberate
even if the decision
(“While
Rellergert,
(“Even causing a of and knows of risk if an official evi occur, unsupported claims are the official these suicide, does and suicide dence, causing contribute to others did not immunity if he could is to entitled suicide, af and some occurred response his to the reasonably that believe (or and not Sampson’s suicide thus are ter deliberately indifferent was not risk See, probative e.g., to the issue at hand. risk.”). reckless) that to
Liebe,
(reasoning
157
“focus on
F.3d
580
County Liability
Dodge
af
County’s lack of corrective actions
....
the mark
[be
ter the suicide misses
Finally,
must
we
consider
occurring
to
after the
failure
act
cause]
judg
Dodge County is entitled
whether
not
that
date of suicide does
show
against
a
of law. “A claim
as matter
ment
deliberately
County was
indifferent to
only
a
county
sustainable
where
con
is
it
of a suicide ... nor does
show that
risk
committed
violation has been
stitutional
County tacitly
any
authorized
unconsti
custom,
or
pursuant
policy,
an official
conduct”).
effectively
Luckert
has
tutional
Blaukat, 453
practice.”
v.
F.3d
Johnson
County’s practices,
in Dodge
shown flaws
Cir.2006)
(8th
1108,
v.
(citing
1114
Monell
“continuing,
but has not demonstrated the
N.Y.C., 436
Dep’t.
Servs.
U.S.
Soc.
of
of
widespread, persistent pattern of constitu
2018,
658, 690-91, 98 S.Ct.
minutes. testimony cause Dr. to his ed, thirty-min- Shoaib’s kept but also dosages the medications and assumption very until the instant ute suicide watches had as he directed changed been when 12.4 actually committed he adjustments ordering further to consult with a shift required Julian prescriptions August an inmate’s downgrading supervisor before *14 failed to consult watch.6 Julian suicide finding In indif- deliberately Julian to required 12.4 anyone. Policy Julian needs, ferent to serious medical on and assess inmates suicide observe following the to the had evidence basis. The record here daily watch on a Julian did not tell Dr. consider. Shoaib to personal- failed clearly concludes Julian attempted had to commit Sampson suicide eight days. for entire ly Sampson observe recently prior. as as weeks She did two any to not communicate Dr. Shoaib addition, is else following In what Sampson’s requests solitary for confine- report failed failed do. She to Julian to ment, notes, increasingly frantic or his his his Sampson did not administer DCJ staff following type refusal eat. The is to and, least medications on at one occasion insignificant, information Julian found too importantly, more missed his suicide irrelevant, too to perhaps pass or to on a As watches on number occasions. Sampson’s treating physician. August On notes, footnote, majority albeit in a request submitted medi- Sampson for clearly had log Sampson sheets showed care, stating: cal “Need to be transferred per day one missed suicide watch Regional Stephen to to Dr. Norfolk Center period August August 2 and between I My Oneil or will die in here. head [sic] again suicide watches five missed killing making is me. These are me meds August again August 5 as well During sick and confused.” that same missed Julian knew about these watches. day, stop Sampson announced he would absolutely nothing to correct them. She did eating. day, August Sampson The next adjust Sampson’s also failed to Julian solitary again requested “safety cell medications as instructed directed I to alone.” confinement. NO TV. wish Dr. The record shows she contin- Shoaib. “The go He further wrote: T.V. makes me (an Cymbalta ued administer anti-de- to time, im crazy move me for the last please (an Klonopin anti-anxiety pressant) it, gonna please.” loose no Later [sic] T.V. medication) Sampson after Dr. Shoaib Sampson day, submitted another med- ordered her to discontinue these medi- form, request pleading: ical “Dr. Mo- time, At the same did not cations. she put no please hamed me isolation with anti-psy- dosage reduce the by myself. go T.V. making TV The me chotic medication and did administer insane, solitary put me confinement ” (a aid) by Dr. sleep Lunesta as directed please. A.S.A.P. Need medication.... addition, in- any Shoaib. Julian never Julian did not communicate of these Dr. her pleas simply formed Shoaib about failure to Dr. She wrote Shoaib. Sampson: medi- “No like prescribed cryptic reduce note cells 12.4(D)(3) provides: supervisor agree downgrade the sui- must on-duty the Nurse or the Shift Su- level or the inmate form a Either cide remove pervisor may place an on a sui- individual altogether.... level suicide upgrade neces- cide level or that level as added.) (Emphasis However, sary. and the shift nurse that available. Sorry. We are full.” As a dence does not paint an impressive picture result, Sampson remained general in the of [Campbell’s] performance as DCJ di- population, per directions, Julian’s where rector ... [his] acts and omissions do not on August 10 he hung himself from the air rise to the level of constitutional deliberate vent utilizing bed sheet. See Coleman v. indifference.” Ante at 819. Construed in Parkman, Cir.2003) F.3d light most favorable to ver- (stating the placement of a suicidal inmate dict, however, the presented in a cell with exposed bars and a bed sheet trial does indeed show otherwise. is an unreasonable response to in- The evidence convincingly mate’s shows needs, Camp- serious medical which vio- bell knew lates the had rule”). attempted “common sense com- mit just two prior weeks and re- Based on us, the record before it cannot *15 corded this attempt in “passbook.” the A be said the presented evidence at trial is grand jury investigating another inmate’s insufficient to overcome Julian’s suicide in however, had determined immunity defense. aWhile different jury “passbook” the was an inadequate way of may have found Julian’s conduct did not communicating potential problems with in- rise to the of level indifference, deliberate mates among DCJ staff. Moreover, a I say cannot no reasonable jury have could “passbook” was not what Policy 12.4 re- found Julian’s actions and inactions quired Campbell of and his Rather, staff. showed she was deliberately indifferent to Policy required 12.4 the completion of serious medical needs. See Or- “suicide level tiz, upon form” 889; 131 Howard, S.Ct. at determination 615 F.3d at an inmate is potentially 995 (stating form, that on suicidal—a appeal of a of a denial placed was to be for in a judgment motion as a “suicide law, note- matter of book” and “we was to must give great updated on a daily deference to the Yet, basis.7 jury’s the verdict” and evidence should overturn shows that only if dur- ing Campbell’s the evidence presented eleven-year at is “suscepti- trial tenure as ble of no DCJ’s director, reasonable he enforced, inference never sustaining or even [verdict]”) (internal of, knew these quotation Policy 12.4 requirements. marks omitted). fact, I In as would therefore affirm the trial clearly revealed, district court’s denial of Julian’s for November motion 2008—over two judgment years as a matter of after Sampson’s law.. suicide— still did not know what a “suicide note- B. Campbell. book” was. As a result of Campbell’s fail-
“Supervisors, in addition ure being to to liable enforce these provisions of Policy for their actions, own 12.4, are liable when their staff did not follow the proper corrective inaction amounts to procedures ‘deliberate relating to suicide intervention. indifference’ or to ‘tacit addition, authorization’ while Campbell Policy knew practices.” violative Howard v. Adki- 12.4 only authorizes ten- and twenty-min- son, Cir.1989). 137 The ute watches for inmates, suicidal he tacitly majority concludes that while “the evi- authorized his staff members to administer Policy provides 12.4 that "[i]f correctional responsibility place to the inmate ap- on an personnel or another person staff is aware of propriate watch, form, suicide fill out the an inmate who has amade threat/ges- place notebook, init the suicide update it ture or if there is a reason to believe an that daily basis lies with either the nurse or suicidal,” inmate is potentially the staff must supervisor. the shift notify the supervisor shift immediately. The
824 Ortiz, watches, as matter law. See in direct violation thirty-minute 889; Hathaway Runyon, that also aware 131 S.Ct. Campbell was Policy 12.4. (8th Cir.1997) twenty- (“Judg- and 2006 F.3d years between suicide, only three law proper ment as a matter of attempted one inmates had Yet, complete of-proba- failed is a absence he when there were successful. whom support to DCJ’s suicide conclusion single revision tive facts make a because, juror own that could his reached so no reasonable prevention policy (in- words, get nonmoving party.”) ... “just he able have found was only rewriting that one.” Not ternal marks and citation omit- quotation around to ted). rewriting” get around he unable “to was 12.4, explain also unable to he was Dodge County. all, how, C. staff trial if at his
during training
prevention.
in suicide
received
plaintiff may
municipal
“A
establish
lia
bility
§
by proving
under
his or
of the
learned as
one
The
rights
her
Samp-
constitutional
were violated
prior to
attempts
successful suicide
pursuant
municipal
an
to official
‘action
exact manner
being
son
executed
policy’
pervasive among
or misconduct so
hung
Sampson’s suicide—the inmate
the munic
non-policymaking employees of
*16
vent
a bed
from his cell’s air
with
himself
a
Yet,
ipality ‘as to constitute
“custom or us
no corrective
Campbell took
sheet.
”
the
age” with
force of law.’ Ware v.
safety of DCJ’s
to ensure the
measures
Mo.,
873,
Cnty.,
150
Jackson
F.3d
880
safety
the
cell-—(cid:127)
system.
vent
He knew
(8th Cir.1998) (quoting Monell v. Dep’t
resis-
only
designed
the
cell
to be suicide
of
Servs.,
691,
658,
Soc.
436 U.S.
98 S.Ct.
3 to
August
tant —was unavailable from
(1978)).
L.Ed.2d 611
“Custom or
56
day
the
on which
August
usage” may
by
Yet,
committed
shown
existence
“[t]he
he offered no sub-
cell,
continuing, widespread, persistent
of a
for a suicide-resistant
effec-
stitutes
pattern
by
gen-
in a
of unconstitutional misconduct
tively forcing Sampson to remain
entity’s
governmental
employees.”
the
he had access to
population
eral
cell where
Ware,
majority
air
cently attempted to commit such III. Sampson; Warning, requires visual checks no more than ten minutes Because I decline substitute this apart, possible restriction of items in in- court’s for that of the I jury, cell, possible mate’s isolation of in- respectfully must dissent. strong display signs indicating
mates who *17 or history
suicide who have a of attempt- suicide; Watch,
ing requires longer
visual checks in no intervals than
twenty Additionally, Campbell minutes. enforce, did not DCJ employees did JAMES; Wayne Washington; Marla follow, Policy 12.4’s directives for the Armantrout; James Charles Daniel completion a “suicide level form” for sui- Dejong, Plaintiffs-Appellants, inmates, cidal the maintenance of a “sui- notebook,” cide performance and the MESA, city CITY OF incorpo COSTA recording daily assessments for inmates rated under laws of the State placed fact, suicide watch. City California; Forest, city of Lake did even know whether or how new incorporated under the laws of the employees training receive 12.4. California, Defendants-Ap State of policies existence of “[T]he written of a pellees. defendant are of no moment in the face of No. 10-55769. policies evidence that such are neither fol- Ware, nor lowed enforced.” 150 F.3d at United of Appeals, States Court The presented 882. at trial un- Ninth Circuit. equivocally pro- established that essential Argued May and Submitted 12.4, of Policy establishing visions such as May appropriate level of suicide watch and maintaining proper documentation sui- inmates,
cidal were neither followed