Cope v. Coleman County

Case: 23-10414 Document: 61-1 Page: 1 Date Filed: 06/26/2024

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________

FILED

June 26, 2024

No. 23-10414

____________ Lyle W. Cayce

Clerk

Patsy K. Cope; Alex Isbell, as Dependent Administrator

of, and on behalf of, the Estate of Derrek Quinton

Gene Monroe and his heirs at law

Plaintiffs—Appellants,

versus

Coleman County,

Defendant—Appellee.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 6:18-CV-15

______________________________

Before Smith, Haynes, and Douglas, Circuit Judges.

Per Curiam: *

This is the second appeal in this case, which concerns Derrek

Monroe’s suicide at the Coleman County Jail in 2017. In the first appeal, we

held that the individual defendants—Coleman County Sheriff Leslie Cogdill,

Jail Administrator Mary Jo Brixey, and Jailer Jessie Laws—were entitled to

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*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 23-10414

qualified immunity. Cope v. Cogdill, 3 F.4th 198, 207 (5th Cir. 2021) (“Cope

I”), cert. denied, 142 S. Ct. 2573 (2022). Plaintiffs now return to this court to

appeal the district court’s grant of summary judgment on their municipal

liability claims against Coleman County. For the reasons below, the district

court’s judgment regarding Plaintiffs’ episodic-acts-or-omissions claim is

AFFIRMED, but the judgment is VACATED and REMANDED for

further proceedings regarding whether Plaintiffs have raised a genuine

dispute of material fact as to their conditions-of-confinement claim.

I. Background

A. Factual Background

On September 29, 2017, Monroe was arrested and booked at the

Coleman County Jail. A medical screening form completed during intake

indicated Monroe was thinking about killing himself, “wished [he] had a way

to do it,” and had attempted suicide two weeks earlier. The form also

indicated Monroe had previously been diagnosed with “some sort of

schizophrenia” and received mental health treatment. During booking,

Monroe told Coleman County Sheriff’s Deputy Ryan Tucker, “I want you

to shoot me!” Tucker notified Sheriff Cogdill about the incident, and Cogdill

helped Tucker finish the booking process.

Coleman County Jail has a “Mental Disabilities and Suicide

Prevention Plan” (“Suicide Plan”), which establishes methods of

supervision for suicidal detainees at various risk levels. According to that

policy, people classified as low risk are checked every thirty minutes, people

classified as moderate risk are checked every fifteen minutes, and people

classified as high risk “receive [c]ontinuous or at least [five] minute

observation.” When Monroe was first incarcerated at the jail, he was

observed every thirty minutes, which suggests the jail initially categorized

him as low risk.

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After Monroe’s intake, an officer at the jail contacted Mental Health

and Mental Retardation Services (“MHMR”). But Monroe had a seizure on

his way to meet with the MHMR worker and was subsequently taken to the

hospital. The hospital released him on the following day. Monroe was

returned to the jail and placed in a cell with at least one other person. Shortly

after returning, Monroe unsuccessfully attempted to hang himself using a

bed sheet in his cell. 1 Laws observed Monroe’s suicide attempt and called

for backup. Cogdill, Tucker, and Laws then moved Monroe into a cell by

himself and dressed him in a safety smock. 2 Monroe’s new cell contained a

telephone with a cord that was approximately two and a half feet long.

Later that afternoon, a MHMR crisis worker named Susan Quintana

evaluated Monroe and recommended the jail place him on “highest suicide

watch.” Quintana told Brixey and Laws about Monroe’s risk factors and

suggested that Monroe be observed 100% of the time, particularly because he

did not have a padded cell. She also talked with the sheriff about her

recommendation. At the time, the jail allegedly did not have the capacity to

constantly monitor a detainee. Monroe was observed every fifteen minutes

that night, which aligns with the moderate risk category in the Suicide Plan.

The following day (Sunday, October 1, 2017), Laws started his shift at

7 A.M. Laws was the only officer at the jail that day, in accordance with an

alleged Coleman County policy under which only one jailer is staffed at the

jail during nights and on weekends. A witness who was also incarcerated in

the jail that morning testified that he could hear Monroe saying for an hour,

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1

There is some evidence in the record that Monroe first tried to strangle himself

with a blanket before attempting to hang himself.

2

To decrease the risk of using a belt or other item of clothing for self-harm, the jail

dressed people at risk of suicide in “safety smocks,” also known as “suicide smocks.”

Laws testified that Cogdill made the decision to put Monroe in a safety smock.

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“I’m going to kill myself. I’m going to kill myself. Please help me.” The

witness also heard Laws try to “talk [Monroe] down” and tell him everything

was going to be alright.

At approximately 8:30 A.M., Monroe asked Laws for permission to

shower. 3 Laws called Brixey, who told Laws to let Monroe shower and to get

him a clean smock. Monroe went to the shower and back to his cell without

incident, but he then became increasingly agitated. Laws reported that

Monroe began to overflow his toilet, so Laws shut off the water to the cell

and went to get a mop. Monroe began beating a plunger on his cell, and then

beating the phone receiver against the phone. After sitting down

momentarily, Monroe got up again, walked to the phone, and wrapped the

phone cord around his neck. Jail surveillance video does not clearly show

Monroe at that point, but his body appears to slump over. Meanwhile, Laws

continued to mop while watching Monroe from outside the cell.

Laws reported that he “tried to talk [Monroe] down” and then

notified Cogdill, Tucker, and Brixey. While waiting for backup, Laws did not

enter Monroe’s cell, obtain a rescue breathing device, or call emergency

medical services (“EMS”). 4 Laws later testified that his decision not to

enter the cell alone aligned with his training and Coleman County Jail policy.

Specifically, the Suicide Plan states that, if a suicide attempt is in progress,

“[t]he correctional officer will enter the cell and attempt appropriate life

saving techniques after backup-personnel have arrived.”

_____________________

3

These events are recorded in reports and also captured on a silent jail surveillance

video taken from a camera outside Monroe’s cell.

4

The Suicide Plan states that, during a suicide attempt, “the correctional officer

or jailer will . . . call the Emergency Medical Service.” Laws later testified that he “d[idn’t]

know” why he did not call EMS but he would not do anything differently if given the

opportunity.

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Approximately ten minutes after Monroe wrapped the cord around

his neck, Brixey arrived at the jail. Brixey and Laws then entered Monroe’s

cell together. Laws removed the cord from Monroe’s neck. Brixey called

EMS and requested an ambulance, during which time Laws found Monroe’s

pulse. Monroe did not appear to be breathing, so Brixey retrieved a breathing

mask, which Laws began using on Monroe.

The paramedics arrived approximately five minutes after Brixey

called EMS. Cogdill arrived around the same time. The paramedics took

over administering emergency aid on Monroe and subsequently transported

him to the hospital. Monroe died the following day. The plaintiffs’ expert

opined that if the cord had been removed in “less than at least 5 minutes,”

the damage to Monroe’s brain would have been “lessened and more likely

reversible.”

Two years before Monroe’s suicide, the Texas Commission on Jail

Standards (“TCJS”) issued a Technical Assistance Memorandum to all

sheriffs and jail administrators in Texas, which reported that “four . . . suicide

hanging deaths involving the use of telephone cords” had occurred in Texas

jails over the previous eleven months (“Phone Cord Memorandum”). TCJS

thus recommended that “ALL phone cords be no more than twelve (12)

inches in length.” A former Coleman County sheriff testified that the

Coleman County Jail’s policy manual was based on recommendations from

TCJS and that TCJS approved the manual. But Cogdill testified that he had

not seen the Phone Cord Memorandum before Monroe’s suicide. Cogdill

also testified that, after being elected sheriff in 2016, he did not find any folder

or computer containing previously issued TCJS memoranda.

B. Procedural History

Patsy Cope, who is Monroe’s mother, filed suit under 42 U.S.C.

§ 1983 on behalf of herself and Monroe’s estate (collectively, “Plaintiffs”)

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against Cogdill, Brixey, Laws, and Coleman County (“County”). On a

previous interlocutory appeal, we held that Cogdill, Brixey, and Laws

(collectively, “Individual Defendants”) were entitled to qualified immunity,

reversing the district court’s contrary decision. See Cope I, 3 F.4th at 202.

The Supreme Court denied review. See Cope v. Cogdill, 142 S. Ct. 2573

(2022).

Plaintiffs’ claims against Coleman County then proceeded in the

district court. Plaintiffs filed an amended complaint, which made additional

allegations regarding their municipal liability claims and attempted to clarify

that they were relying on both conditions of confinement and episodic acts or

omissions as alternative theories of relief. Discovery ensued. The County

then filed a motion for summary judgment, arguing that our grant of qualified

immunity to the Individual Defendants in Cope I was fatal to Plaintiffs’ claims

against the County. The district court granted the County’s motion.

Plaintiffs filed a Motion for New Trial, or Alternatively, Motion to Alter or

Amend Judgment, which the district court construed as a Federal Rule of

Civil Procedure 59(e) motion and denied.

Plaintiffs timely appealed both the initial grant of summary judgment

and the district court’s denial of the reconsideration motion.

II. Jurisdiction and Standard of Review

The district court had jurisdiction over this case pursuant to 28 U.S.C.

§§ 1331 and 1343. We have jurisdiction over the district court’s grant of

summary judgment pursuant to 28 U.S.C. § 1291.

We review grants of summary judgment de novo. Wisznia Co. v. Gen.

Star Indem. Co., 759 F.3d 446, 448 (5th Cir. 2014). In conducting this review,

we “view all facts in the light most favorable to the nonmovant and draw all

reasonable inferences in the nonmovant’s favor.” Id. Summary judgment is

proper when “the movant shows that there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(a).

III. Municipal Liability and Cope I

A municipality may be held liable for a constitutional violation “when

execution of a government’s policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said to represent

official policy, inflicts the injury.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

694 (1978). But “without an underlying constitutional violation, an essential

element of municipal liability is missing.” Doe ex rel. Magee v. Covington Cnty.

Sch. Dist. ex rel. Keys, 675 F.3d 849, 866–67 (5th Cir. 2012) (en banc)

(alteration adopted) (quotation omitted). For example, in City of Los Angeles

v. Heller, the Supreme Court held that a county could not be liable under

§ 1983 based on the actions of one of its police officers because a jury had

already concluded that the police officer did not inflict any constitutional

harm. 475 U.S. 796, 799 (1986) (per curiam); see also Bustos v. Martini Club

Inc., 599 F.3d 458, 467 (5th Cir. 2010) (rejecting municipal liability in a

similar situation).

The County argues—and the district court agreed—that Cope I

concluded none of the Individual Defendants violated the Constitution, so

Heller and its progeny resolve this case. 5 The law of the case doctrine

ordinarily mandates that “an issue of fact or law decided on appeal may not

be reexamined either by the district court on remand or by the appellate court

on subsequent appeal.” United States v. Lee, 358 F.3d 315, 320 (5th Cir.

2004) (quotation omitted). Thus, according to the County, we are bound to

conclude that the Individual Defendants did not cause any constitutional

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5

The County later conceded that Cope I did hold that Laws’s failure to call EMS

violated the Constitution.

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injury to Monroe, meaning the County cannot be liable under § 1983 based

on the actions of the Individual Defendants. See Heller, 475 U.S. at 799.

The problem for the County is that it misreads Cope I. In order to

overcome qualified immunity, a plaintiff must show: (1) the defendant

violated the plaintiff’s constitutional rights, and (2) “the right at issue was

clearly established at the time of [the] defendant’s alleged misconduct.”

Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal quotation marks and

citation omitted). The Supreme Court has made clear that courts may assess

only the second prong if that resolves the issue, meaning we need not reach

the question of constitutionality if we conclude there has been no violation of

clearly established law. See id. at 236–37.

In Cope I, we reached the question of constitutionality only on the

issue of Laws’s failure to call EMS. See 3 F.4th at 209 (“[W]e now make

clear that promptly failing to call for emergency assistance when a detainee

faces a known, serious medical emergency—e.g., suffering from a suicide

attempt—constitutes unconstitutional conduct.”). On every other alleged

constitutional violation for each Individual Defendant, we held only that the

defendant had not violated clearly established law. See id. at 208 (“We

conclude that Laws’s decision to wait for Brixey before entering the cell did

not violate any clearly established constitutional right.”); id. at 211 (“We

therefore conclude . . . that Brixey’s and Cogdill’s holding of Monroe in a cell

containing a phone cord did not violate a clearly established constitutional

right.”); id. (“Thus . . . no clearly established precedent suggested that

Brixey and Cogdill could be liable under an episodic-acts theory for staffing

the jail in line with Coleman County’s budget and policies.”). Accordingly,

with the exception of Laws’s failure to call EMS, we have never before

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decided the constitutionality of the Individual Defendants’ actions in this

case, which distinguishes this case from Heller and its progeny. 6

The district court therefore erred in holding that Cope I was fatal to

Plaintiffs’ Monell claims. Nevertheless, we “may affirm on any ground raised

below and supported by the record, even if the district court did not reach

it.” Williams v. J.B. Hunt Transp., Inc., 826 F.3d 806, 810 (5th Cir. 2016).

Accordingly, we turn next to the question of whether Plaintiffs have

otherwise raised a genuine dispute of material fact as to their claims.

IV. Plaintiffs’ Claims against Coleman County

When determining the appropriate standard for analyzing an alleged

violation of a pretrial detainee’s constitutional rights, “we must first classify

the challenge as an attack on a ‘condition of confinement’ or as an ‘episodic

act or omission.’” Flores v. County of Hardeman, 124 F.3d 736, 738 (5th Cir.

1997) (quotation omitted). In this case, Plaintiffs assert both theories in the

alternative, so we address each in turn. See Sanchez v. Young County, 866

F.3d 274, 279 n.3 (5th Cir. 2017) (“Sanchez I”) (per curiam) (stating

“plaintiffs can bring a pretrial detainee case . . . under alternative theories of

episodic acts and omissions by individual defendants or unconstitutional

conditions of confinement”).

A. Episodic Claim

To overcome summary judgment on their episodic claim against the

County, Plaintiffs must raise a fact dispute as to whether (1) “County

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6

Both the County and the district court also relied on Brown v. Lyford—but in that

case, we rejected the same logically flawed argument that the County makes here. See 243

F.3d 185, 191 n.18 (5th Cir. 2001) (stating that the court “must reach the question of

whether [the officer] was a policymaking official for [the county]” in order to assess

municipal liability, regardless of the fact that the officer had qualified immunity).

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officials, acting with subjective deliberate indifference, violated [Monroe’s]

constitutional rights,” 7 and (2) “the County employees’ acts resulted from

a municipal policy or custom adopted with objective indifference to

[Monroe’s] constitutional rights.” See id. at 280. To exhibit subjective

deliberate indifference, a County employee must have “had subjective

knowledge of a substantial risk of serious harm” and “responded to that risk

with deliberate indifference.” See Cope I, 3 F.4th at 207 (quotation omitted).

“Deliberate indifference is an extremely high standard to meet but can be

satisfied by a wanton disregard for an inmate’s serious medical needs.” Id.

(alteration adopted) (internal quotation marks and citation omitted).

Plaintiffs assert that Cogdill, Brixey, and Laws violated Monroe’s

constitutional rights, and those violations resulted from County policy.8

Thus, the question of the County’s liability under an episodic-acts-or-

omissions theory turns on the subjective deliberate indifference of the same

officials granted qualified immunity in Cope I. 9 Under the law of the case

doctrine, we generally cannot reexamine any issue of fact or law decided in

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7

Plaintiffs argue that the Supreme Court’s decision in Kingsley v. Hendrickson, 576

U.S. 389 (2015), requires us to apply an objective deliberate indifference standard here.

However, after Kingsley, this circuit has continued to apply a subjective deliberate

indifference standard in non-excessive-force actions alleging a violation of a pretrial

detainee’s constitutional rights based on episodic acts or omissions. See, e.g., Alderson v.

Concordia Par. Corr. Facility, 848 F.3d 415, 419 & n.4 (5th Cir. 2017) (per curiam). Cope I

followed that precedent when applying a subjective deliberate indifference standard to

Plaintiffs’ claims against the Individual Defendants. See 3 F.4th at 207 & n.7. Under the

law of the case doctrine, the district court also correctly applied the subjective standard,

and we must do so as well.

8

Plaintiffs also mention Tucker, who has never been a defendant in this case. But,

with the exception of failing to call EMS, Plaintiffs do not specify how Tucker allegedly

violated Monroe’s constitutional rights. Accordingly, he is not included in this analysis.

9

Contrary to Plaintiffs’ assertion, Cope I “express[ed] no view as to the viability”

of Plaintiffs’ Monell claims. Cope I, 3 F.4th at 211 n.13.

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Cope I. See Lee, 358 F.3d at 320. But, as discussed previously, Cope I did not

reach the ultimate conclusion of whether the Individual Defendants violated

Monroe’s constitutional rights, with the exception of Laws’s failure to call

EMS. Plaintiffs also supplemented the record after Cope I with additional

evidence regarding subjective deliberate indifference, which we must

consider. Cf. Gene & Gene, L.L.C. v. BioPay, L.L.C., 624 F.3d 698, 702 (5th

Cir. 2010) (stating one exception to the law of the case doctrine is when “the

evidence on a subsequent trial was substantially different”). Still, Cope I’s

analysis remains highly relevant.

We turn to an assessment of whether any County employee exhibited

subjective deliberate indifference to Monroe’s safety, analyzing the actions

of Cogdill, Brixey, and Laws in turn.

i. Sheriff Cogdill

Cogdill knew that Monroe had attempted suicide on Saturday. There

is also evidence that Cogdill knew about Monroe’s risk of suicide based on

conversations with Deputy Tucker and the MHMR crisis worker.

Accordingly, we conclude that Plaintiffs have raised a fact dispute regarding

Cogdill’s subjective knowledge of Monroe’s risk of suicide. But that does

not end the inquiry.

Another key question in this and the prior appeal is whether Cogdill

knew about the risk that long telephone cords pose to detainees at risk of

suicide. In Cope I, we concluded that the existence of the Phone Cord

Memorandum, by itself, was insufficient to create a fact dispute as to

Cogdill’s subjective knowledge of the risk posed by the cord in Monroe’s cell.

3 F.4th at 210 n.11. Specifically, we noted:

[T]he Supreme Court has approved reliance on circumstantial

evidence if the relevant risk “was longstanding, pervasive,

well-documented, or expressly noted by jail officials in the past,

and the circumstances suggest that the defendant-official being

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sued had been exposed to information concerning the risk and

thus ‘must have known’ about it.” [Farmer v. Brennan, 511

U.S. 825, 842–43 (1994)] (internal quotation marks omitted).

There is nothing like that here and certainly no evidence

that . . . Cogdill ever received or reviewed the [Phone Cord

Memorandum] prior to Monroe’s suicide.

Further, even at the summary judgment stage, it would go too

far to infer that . . . Cogdill [was] aware of the Commission’s

recommendations simply due to [his] employment in the Texas

jail system at the time the memorandum was written—just

because information is available to a defendant does not mean

[]he has been exposed to it.

Id. (alteration adopted).

There is still no record evidence that Cogdill had actual knowledge of

the risk of the cord in Monroe’s cell. To the contrary, Cogdill testified that

he did not see the Phone Cord Memorandum until after Monroe’s suicide.

He also testified that he never paid attention to the cord in the cell or thought

that it would be a safety risk before Monroe’s suicide. Nor is there evidence

in the record that anyone in the Coleman County Jail had ever previously

attempted suicide by strangulation with a telephone cord. See id. at 210.

After Cope I, Plaintiffs supplemented the record with additional

evidence that they argue raises a fact dispute regarding whether Cogdill

“must have known” about the substantial risk posed by the phone cord. See

Farmer, 511 U.S. at 842–43. This evidence—which was not before the Cope

I panel—includes: (1) testimony from Sheriff Wade Turner, Cogdill’s

predecessor, that the County’s policies were based on TCJS

recommendations; (2) TCJS’s written testimony that it sent the Phone Cord

Memorandum to all sheriffs and county jail administrators in Texas; (3) a

MHMR crisis worker’s testimony that the cord was an “obvious danger”

and an objectionable “potential ligature”; and (4) a variety of public sources

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that Plaintiffs argue demonstrate the risk of placing a suicidal detainee in a

cell with a long cord was obvious.

Plaintiffs must raise a fact dispute under a heavy burden, and the new

evidence, even viewed in the light most favorable to Plaintiffs, does not

sufficiently demonstrate Cogdill’s knowledge. TCJS may have distributed

the Phone Cord Memorandum to all county sheriffs in 2015, but Cogdill was

not sheriff at that time. Furthermore, Turner, who was sheriff in 2015,

testified that he was not aware of the Phone Cord Memorandum. Although

Turner testified that the Coleman County Jail’s policy manual was based on

TCJS recommendations, there is no evidence that it included any limits on

phone cords in cells. Cogdill also testified that he did not find any files or

folders with TCJS memorandum when he became sheriff. Critically, then,

there is no evidence—circumstantial or otherwise—that the Phone Cord

Memorandum ever reached Cogdill.

Nor have Plaintiffs succeeded in demonstrating that the phone cord

was such an obvious risk that Cogdill must have known about it. Many of the

public documents submitted by Plaintiffs highlight isolated incidents of

violence involving electronic cords occurring in places far from Coleman

County, Texas. A subset of the documents pertains to suicides in Texas jails,

but those reports are not numerous enough or otherwise so pervasive and

relevant as to show that Cogdill must have known about the risk of the phone

cord in Monroe’s cell. As we said in Cope I, “just because information is

available to a defendant does not mean []he has been exposed to it.” 3 F.4th

at 210 n.11.

Lastly, we cannot conclude that Cogdill’s actions clearly demonstrate

a wanton disregard for Monroe’s safety. Cogdill placed Monroe on suicide

watch after intake, and Monroe remained on suicide watch while incarcerated

at the jail. After Monroe’s first suicide attempt, Cogdill moved him into a

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new cell without bedsheets, removed his clothing, and placed him in a safety

smock. Cogdill was also available by phone on Sunday and arrived at the jail

within sixteen minutes of receiving Laws’s phone call. These reasonable

responses to Monroe’s risk of suicide, along with Cogdill’s belief—albeit

unsound—that Monroe’s new cell contained no obvious ligatures, preclude

a finding that Cogdill exhibited subjective deliberate indifference. See Farmer,

511 U.S. at 844.

ii. Jail Administrator Brixey

Like Cogdill, Brixey did not have subjective knowledge about the risk

of the phone cord, so she cannot have been subjectively deliberately

indifferent to that risk. Brixey did have subjective knowledge about

Monroe’s risk of suicide, as evidenced by her conversations with the intake

officer and the MHMR crisis worker. But Brixey took reasonable steps to

address that risk. After Monroe’s intake, Brixey placed him on suicide watch

and ensured that the intake officer contacted MHMR and the magistrate. On

Sunday morning, Brixey answered both of Laws’s phone calls and arrived at

the jail within approximately seven minutes of learning about Monroe’s

suicide attempt, which was approximately ten minutes after Monroe first

wrapped the cord around his neck. After entering Monroe’s cell, Brixey

immediately called EMS. We conclude that Brixey’s actions were reasonable

responses to her knowledge of Monroe’s risk of suicide and do not clearly

show a wanton disregard for Monroe’s safety. Cf. Olabisiomotosho v. City of

Houston, 185 F.3d 521, 527 (5th Cir. 1999) (holding that two officers were not

deliberately indifferent to a detainee’s medical needs where one went out of

his way to get her inhaler and the other informed booking personnel that she

had asthma).

iii. Jailer Laws

In Cope I, we determined that Laws’s failure to call EMS violated the

Constitution. See 3 F.4th at 209. However, we do not consider that

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constitutional violation here because it did not “result[] from a municipal

policy or custom adopted with objective deliberate indifference.” See

Sanchez I, 866 F.3d at 280. To the contrary, the County’s Suicide Plan states

that “[i]f a Suicide attempt is in progress, the correctional officer or jailer will

. . . call the Emergency Medical Service.” Because Laws’s failure to call EMS

violated County policy, it cannot serve as a basis for municipal liability. See

id. 10

Turning to Laws’s other actions, we conclude that they do not meet

the extremely high standard of subjective deliberate indifference. On

Saturday, Laws observed Monroe on the surveillance camera tying a knot in

a bedsheet, and he intervened before Monroe seriously hurt himself. After

backup arrived, Laws assisted in moving Monroe to a cell without bedsheets

and placing him in a safety smock. Once Laws arrived for his shift the next

morning, he observed Monroe at least every fifteen minutes and watched him

continuously for some periods. During that time, one witness heard Laws

trying to comfort Monroe. When Monroe wrapped the cord around his neck,

Laws noticed immediately and called for backup within one minute. Laws

called three other County employees, one of whom arrived within seven

minutes of the phone call.

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10

Plaintiffs argue that the County had a de facto policy of failing to timely call EMS,

but they do not point to any such failure other than on the day of Monroe’s suicide. That

is insufficient to establish a routine practice or custom for purposes of Monell liability. See

Connick v. Thompson, 563 U.S. 51, 61 (2011) (noting a custom may give rise to Monell liability

if it is “so persistent and widespread as to practically have the force of law”); Piotrowski v.

City of Houston, 237 F.3d 567, 581 (5th Cir. 2001) (“A customary municipal policy cannot

ordinarily be inferred from single constitutional violations.”); see also Guillot ex rel. T.A.G.

v. Russell, 59 F.4th 743, 753 (5th Cir. 2023) (holding that two instances of inaction did not

prove a widespread custom). Further, although the record does not contain evidence that

Laws was reprimanded for his failure to call EMS, it also does not show that a policymaker

“essentially ratified” Laws’s actions. See Piotrowski, 237 F.3d at 578 n.18. Plaintiffs have

thus failed to raise a fact dispute regarding the existence of this alleged de facto policy.

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We note that “taking some reasonable precautions does not mean the

officer, on the whole, behaved reasonably.” Converse v. City of Kemah, 961

F.3d 771, 779 (5th Cir. 2020). Nevertheless, in light of the reasonable

measures Laws took to prevent Monroe’s suicide and his promptness in

calling for backup, we conclude that his decision to follow County policy and

wait for another officer to arrive before entering Monroe’s cell does not

evince a wanton disregard for Monroe’s safety. Moreover, Laws’s failure to

retrieve the breathing machine while waiting for backup can only be classified

as negligence, see Cope I, 3 F.4th at 208 n.8, which is insufficient to support a

deliberate indifference claim, see Hare v. City of Corinth, 74 F.3d 633, 642 (5th

Cir. 1996) (en banc). Accordingly, outside of Laws’s failure to call EMS, he

did not demonstrate subjective deliberate indifference to Monroe’s safety.

****

Plaintiffs have failed to identify any constitutional violation

committed by a County employee that resulted from County policy. Thus,

we affirm the district court’s grant of summary judgment on Plaintiffs’

episodic claim.

B. Conditions-of-Confinement Claim

When a plaintiff brings a jail suicide claim under alternative theories

of episodic acts and omissions or unconstitutional conditions of confinement,

courts determine which theory applies based on an assessment of the facts

alleged. See, e.g., Olabisiomotosho, 185 F.3d at 526; see also Sanchez I, 866 F.3d

at 279 & n.3. 11 Here, Plaintiffs argue that several unconstitutional County

policies caused Monroe’s death, including: (1) staffing only one jailer on

_____________________

11

Even the County acknowledged that the “court must determine whether, based

on the facts alleged, the claims asserted fall under an episodic act or conditions of

confinement theory.”

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No. 23-10414

nights and weekends (“Staffing Policy”); (2) instructing jailers not to enter

an occupied cell alone and to wait to intervene until help arrives (“Do-Not-

Enter Policy”); and (3) maintaining lengthy phone cords in jail cells (“Phone

Cord Policy”). 12 According to Plaintiffs, the Staffing and Do-Not-Enter

Policies create conditions at the Coleman County Jail under which no at-risk

detainee experiencing a medical emergency at night or over the weekend can

receive immediate attention, and the Phone Cord Policy increases the

likelihood of a suicidal detainee experiencing a medical emergency under

such conditions. Plaintiffs thus argue that these three County policies have

a “mutually enforcing effect” resulting in the deprival of all pretrial

detainees’ constitutional rights to adequate medical care and protection from

known suicidal tendencies. See Sanchez v. Young County, 956 F.3d 785, 791,

795 (5th Cir. 2020) (“Sanchez II”) (quotation omitted). 13 In other words,

_____________________

12

As discussed previously, Plaintiffs have failed to raise a fact dispute regarding the

existence of the alleged EMS Policy. For the same reasons, Plaintiffs have failed to show

that the County had a de facto policy of failing to timely administer CPR. The alleged

“suicide watch policy” appears not to be a standalone policy, but rather a combination of

the Staffing and Do-Not-Enter Policies. Plaintiffs also allege a County policy of “allowing

suicide training for employees to lapse,” but our court has held that failure-to-train claims

are episodic. See Sanchez v. Young County, 956 F.3d 785, 792 (5th Cir. 2020). That leaves

the Staffing Policy, Do-Not-Enter Policy, and Phone Cord Policy as potential bases for

Plaintiffs’ conditions claim.

13

We note that “specific examples of other instances of detainees who suffered

[Monroe’s] fate as a result of [Coleman County’s] polic[ies]” are not necessary. See

Montano v. Orange County, 842 F.3d 865, 876 (5th Cir. 2016). Plaintiffs assert that every

detainee at the Coleman County Jail who experiences a medical crisis is at risk of receiving

constitutionally inadequate treatment due to the policies at issue here, which is sufficient

to meet the “condition or practice” element of a conditions claim. See id.

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“the conditions themselves constitute the harm,” Scott v. Moore, 114 F.3d 51,

53 (5th Cir. 1997) (en banc), regardless of any individual’s act or omission. 14

Under that theory, as in other conditions cases, the Staffing, Do-Not-

Enter, and Phone Cord Policies impose “durable restraints or impositions on

inmates’ lives” that transcend a single act or omission by an officer. See

Garza v. City of Donna, 922 F.3d 626, 633 (5th Cir. 2019); see also Shepherd v.

Dallas County, 591 F.3d 445, 453 (5th Cir. 2009) (holding a claim alleging

constitutionally inadequate medical care due to “poor or non-existent

procedures and understaffing of guards and medical personnel” was a

conditions claim); cf. Scott, 114 F.3d at 53–54 (concluding a claim was

episodic where the plaintiff challenged a policy of having only one staff

member on duty, but the harm—sexual assaults committed by the jailer on

duty—was determined to be “an episodic event perpetrated by an actor

interposed between [the plaintiff] and the city”). Plaintiffs seek damages for

the harm to a single detainee, but—in contrast to episodic claims—the

alleged cause of the harm is the broader “conditions, practices, rules, or

restrictions.” See Sanchez II, 956 F.3d at 791 (quotation omitted); cf.

Shepherd, 591 F.3d at 452 (stating that, in episodic claims, “the focus of the

_____________________

14

The dissenting opinion appears to take issue with the fact that Plaintiffs also

allege Laws’s failure to call EMS contributed to Monroe’s death. One fundamental

problem with that argument is that it assumes an otherwise valid conditions claim—i.e.,

one alleging that the conditions alone are sufficient to cause the harm—cannot survive if

an individual’s actions also contributed to the alleged harm. This court has never said that,

either in Estate of Henson v. Wichita County or otherwise. See 795 F.3d 456, 464 (5th Cir.

2015) (stating only the well-established principle, which is consistent with this opinion, that

episodic claims “fault specific jail officials for their acts or omissions rather than conditions,

practices, rules, or restrictions” (internal quotation marks and citations omitted)). To the

contrary, in Sanchez I (not cited by the dissenting opinion), the plaintiffs alleged that both

the conditions of confinement and the individual actions of employees caused the

detainee’s suicide, and this court held that the district court erred by failing to consider the

conditions claim in addition to the episodic claim. 866 F.3d at 279–80.

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No. 23-10414

claim is one individual’s misconduct” 15). We thus conclude that Plaintiffs

properly asserted a conditions claim, and the district court should have

considered it as such. 16

Accordingly, we vacate and remand for the district court to consider

in the first instance whether Plaintiffs have raised a genuine dispute of

material fact on their conditions claim. See Sanchez I, 866 F.3d at 279

(vacating and remanding under similar circumstances “[i]n deference to the

trial court’s responsibility to review the record in the first instance”).

V. Conclusion

The district court erred in concluding that Cope I foreclosed Plaintiffs’

claims against the County in this case. Nevertheless, for the reasons set forth

herein, the district court’s judgment regarding Plaintiffs’ episodic-acts-or-

omissions claim is AFFIRMED. However, we VACATE and REMAND

the district court’s judgment for further proceedings regarding whether

Plaintiffs have raised a genuine dispute of material fact as to their conditions-

of-confinement claim.

_____________________

15

The dissenting opinion alleges that this statement and another in this paragraph

constitute a “new rule.” But what is clear from the majority opinion, and omitted from the

dissenting opinion, is that these principles are quoted directly from prior Fifth Circuit

caselaw. We are bound by the law of the case doctrine to follow them.

16

Plaintiffs are correct that they need not demonstrate a County employee’s

deliberate indifference in order to succeed on their conditions claim. See, e.g., Shepherd,

591 F.3d at 454–55. If Plaintiffs can show the conditions at issue are not reasonably related

to a legitimate government objective, the court “permissibly may infer that the purpose of

the governmental action is punishment that may not constitutionally be inflicted upon

detainees qua detainees.” See Bell v. Wolfish, 441 U.S. 520, 539 (1979); see also Hare, 74

F.3d at 644 (noting that a state’s imposition of a rule during pretrial confinement

“manifests an avowed intent to subject a pretrial detainee to that rule or restriction” and,

“even where a State may not want to subject a detainee to inhumane conditions of

confinement or abusive jail practices, its intent to do so is nevertheless presumed when it

incarcerates the detainee in the face of such known conditions and practices”).

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Jerry E. Smith, Circuit Judge, dissenting:

The majority correctly affirms the summary judgment for plaintiffs’

“episodic act or omission” claims. But it commits egregious error in vacating

the summary judgment on the so-called “conditions-of-confinement” claim.

That claim, as a matter of law, does not exist, and the summary judgment

should be affirmed in full. I respectfully dissent.

Derrek Monroe attempted suicide by strangulation and died after

jailers failed to render timely emergency assistance. Given those facts, plain-

tiffs’ Monell claim can be classified as nothing other than an attack on “epi-

sodic acts or omissions.”

The standard for analyzing a pretrial detainee’s constitutional claim

turns on its categorization as a challenge to an “episodic act or omission” or,

instead, to a “condition of confinement.” Scott v. Moore, 114 F.3d 51, 53 (5th

Cir. 1997) (en banc). The former deals with claims “where the complained-

of harm is a particular act or omission of one or more officials.” Id. The

latter, by contrast, includes only those claims in which the alleged harm is

caused by a policy’s “mere existence”—that is, its “very promulgation and

maintenance.” Id. at 53–54.

So, for valid conditions-of-confinement claims, the alleged harm must

occur without the fault of any “specific jail employees’ acts or omissions.”

Estate of Henson v. Wichita Cnty., 795 F.3d 456, 464 (5th Cir. 2015) (cleaned

up). In other words, a policy’s “mere existence” must be sufficient to bring

about the alleged harm. Scott, 114 F.3d at 53. 1 Only then can it be said that it

_____________________

1

Claims failing to meet that requirement must be episodic, because they require an

employee to do more than act as “a dispenser of intended conditions or restrictions.” Hare

v. City of Corinth, 74 F.3d 633, 645 (5th Cir. 1996) (en banc). The question then becomes,

inter alia, “whether that [employee] breached his constitutional duty.” Id.

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No. 23-10414

was the policy itself that “cause[d] the pretrial detainee’s alleged constitu-

tional deprivation.” Shepherd v. Dallas Cnty., 591 F.3d 445, 455 (5th Cir.

2009) (quoting Hare, 74 F.3d 633, 644–45 (5th Cir. 1996) (en banc)).

Plaintiffs’ conditions-of-confinement claim fails that test. Monroe’s

death occurred after a jail employee (1) acted unconstitutionally and (2) vio-

lated county policy.

(1) In Cope v. Cogdill, 3 F.4th 198 (5th Cir. 2021) (“Cope I”), a prior

panel determined that Jessie Laws’s failing timely to call for emergency medi-

cal assistance “was [] unreasonable and an effective disregard for the risk to

Monroe’s life,” id. at 209. Cope I therefore concluded that Laws’s response

“constitute[d] unconstitutional conduct.” Id.; see also Op. at 14. That deter-

mination and that conclusion are issues “decided on appeal [that] may not be

reexamined . . . by the appellate court on subsequent appeal.” United States

v. Lee, 358 F.3d 315, 320 (5th Cir. 2004) (quotation omitted).

(2) Laws was not acting as a mere “dispenser of intended conditions

or restrictions” when he engaged in that unconstitutional conduct. Hare,

74 F.3d at 645. Quite the opposite. As the majority expressly concedes,

“[his] failure to call EMS violated County policy.” Op. at 15 (emphasis

added). So Laws’s response was wholly unrelated to the County’s “imple-

ment[ing] . . . an identifiable intended condition or practice.” Hare, 74 F.3d

at 645.

Given (1) and (2), just one conclusion can possibly follow: Monroe’s

death did not occur without the fault of a “specific jail employee for his acts

or omissions.” Estate of Henson, 795 F.3d at 464 (cleaned up). To put it

another way: None of the three policies—in isolation or combination—is

sufficient to bring about the actual harm Monroe suffered by virtue of its

“very promulgation and maintenance.” Scott, 114 F.3d at 53. Consequently,

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the complaint’s factual allegations foreclose plaintiffs’ conditions-of-

confinement claim.

Yet, somehow, the majority concludes to the contrary. In so doing, it

runs roughshod over longstanding and well-settled Fifth Circuit precedent,

preferring instead to invent a rule from whole cloth.

Under the majority’s new rule, a conditions claim can rest on any pol-

icy that merely “imposes durable restraints or impositions on inmates’ lives

that transcend a single act or omission.” Op. at 17 (cleaned up). Events are

characterized based on the alleged “focus of the claim”—i.e., per its theory,

a claim is episodic if the allegations “focus” on “one individual’s miscon-

duct.” Op. at 18 (cleaned up). That is grave error.

For starters, the majority’s rule is strictly prohibited by our circuit’s

time-honored rule of orderliness. Unavoidable is the majority’s conflict with

legions of our circuit’s panel and en banc holdings—so much so that its own

citations prove the point.

Take, for example, its describing Scott. As stated by the majority, Scott

concluded that a claim faulting “a policy of having only one staff member on

duty . . . [for] sexual assaults committed by the jailer on duty” was episodic.

Op. at 18 (citing Scott, 114 F.3d at 53–54). That’s because the staffing poli-

cy’s mere implementation is insufficient to bring about Scott’s alleged

harm. 2 She would not have suffered harm had the jailer not “breached his

constitutional duty,” Hare, 74 F.3d at 645, by “entering [her] cell[] and

sexually assault[ing] her,” Scott, 114 F.3d at 52.

Per that description, Scott is legally indistinguishable from the matter

at hand. None of the three policies identified in the complaint—in isolation

_____________________

2

Put bluntly, the Scott policy did not command jailers sexually to assault prisoners.

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No. 23-10414

or combination—was sufficient to cause Monroe’s harm by virtue of its

“very promulgation and maintenance.” Scott, 114 F.3d at 53. So too with

Scott’s policy of staffing one jailer. Like the jailer in Scott, Laws had to act

unconstitutionally and contravene jail policy for Monroe to suffer the harm

he experienced.

So, the very caselaw the majority cites fatally undercuts its conclusion.

Its attempt to distinguish Scott is utterly futile. It musters just one—that the

claim at issue in Scott was episodic because “the harm . . . was determined to

be ‘an episodic event.’” Op. at 18.

That makes negative sense, as the distinction is internally contra-

dictory. Just two pages earlier, the majority expressly (and correctly) states

that a claim’s categorization turns on facts internal to the complaint. See Op.

at 16 (“determin[ing] which theory applies based on an assessment of the

facts alleged” (citation omitted)).

But that’s all but ignored by the majority when it comes time to dis-

tinguish Scott. Now, dispositive are qualities inherent to the type of harm

experienced. So, for reasons unstated and still unknown, the majority regards

sexual assault harms—but not suicides—as just the kind of harm that is

“episodic.”

Never mind that the basis for such a distinction undoubtedly turns on

facts external to the complaint. But that’s the least of the problems with this

imagined distinction.

The majority’s distinction, if true, would render incomprehensible

this very case. To defend the proposition that a claim’s categorization turns

on the qualities of an alleged harm, the majority must accept the premise that

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No. 23-10414

any one particular harm gives rise to either an episodic or conditions-of-

confinement claim—but not both. 3

That mires the majority in a factual quandary from which it cannot

escape. In Cope I, this court considered plaintiffs’ episodic claims alleging

the exact same harm before us now. Cope I held, under an episodic-acts theory

of liability, that such harm was the result of Laws’s failing timely “to call for

emergency assistance [for] a detainee . . . suffering from a suicide attempt.”

3 F.4th at 209.

The upshot is blissfully ironic. Under the majority’s reasoning,

Cope I’s holding—which is binding on this panel as law of the case—would

foreclose the possibility of plaintiffs’ conditions-of-confinement claim.

The majority can pick its poison. It can admit that a complained-of

harm’s qualities have no bearing on determining a claim’s categorization. Or

it can stick to its guns and insist that certain harms—such as sexual assaults—

are cognizable only as “episodic harms.” Picking the former concedes that

Scott is indistinguishable, thereby placing the majority into an irreconcilable

conflict with en banc precedent. Choosing the latter places suicides in the

episodic-harm category, rendering the majority opinion internally contradic-

tory. So, either way, the majority cannot avoid the inescapable conclusion—

that plaintiffs’ conditions-of-confinement claim must fail.

The destruction that is sown by the majority extends well beyond the

facts of this case. Its reasoning effectively eliminates the objective deliberate-

indifference requirement for episodic claims.

_____________________

3

That is, after all, the very basis of the majority’s distinguishing Scott. Rejecting

that premise would require the majority to concede that Scott is indistinguishable, since a

so-called “episodic harm” would be legally indistinguishable from a “conditions-of-

confinement harm,” at least for purposes of categorizing a Monell claim.

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No. 23-10414

Recall that the majority suggests that events can be characterized

based on the “source of the harm” on which a claimant’s allegations

“focus.” Op. at 18. That effectively categorizes claims solely on the basis of

ipse dixit—now, to raise a conditions claim, claimants need do nothing more

than artfully “allege[]” that the “source of the[ir] harm is [a] broader condi-

tion[], practice[], rule[], or restriction[].” Id. (quotation omitted). 4

But that cannot be, for the legal analysis applicable to each of the two

categories of claims is wholly distinct. 5 Only conditions-of-confinement

claims permit “the jury reasonably [to] presume that the government acted

with the requisite intent to punish.” 6 Shepherd, 591 F.3d at 455. For

episodic-acts claims, however, “intentionality is no longer a given,” because

a jail employee can act with subjective deliberate indifference to a detainee’s

constitutional rights independently of any intent to punish on part of the gov-

ernmental unit. See Hare, 74 F.3d at 649 n.4.

Under the majority’s newly-announced rule, claimants are but one

artful pleading away from recasting their episodic claims into ones chal-

lenging conditions of confinement. The majority has therefore granted

claimants, armed with nothing but their own ipse dixit, the benefit of pre-

_____________________

4

Indeed, under the majority’s rule, the claim in Scott would fall into the conditions-

of-confinement category. That’s because Scott’s “amended state petition . . . com-

plain[ed] generally of inadequate staffing,” 114 F.3d at 53, which would be a “broader

condition or practice,” Op. at 18 (cleaned up).

5

Though the threshold for liability for both is “functionally equivalent.” Shepherd,

591 F.3d at 455 (quoting Hare, 74 F.3d at 643).

6

That follows from the premise that the governmental unit promulgates and imple-

ments policies only for the purpose of achieving some goal. See Hare, 74 F.3d at 644–45.

If a policy creates a condition that bears no reasonable relationship to any legitimate govern-

mental objective, then—by process of elimination—punishment is the only remaining jus-

tification for what is an otherwise senseless policy. See Shepherd, 591 F.3d at 452 (citation

omitted).

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No. 23-10414

suming that the governmental body intended any and all harms caused by any

and all of its employees’ episodic acts and omissions.

That is plainly impermissible, as it holds municipalities liable for the

constitutional violations of its employees absent any showing of its acting with

“objective deliberate indifference to the detainee’s constitutional rights.” 7

In sum, the majority has gone out of its way to keep on life-support

plaintiffs’ supposed conditions-of-confinement claim—notwithstanding its

obvious lack of merit. Worse, the majority disposes of longstanding and well-

established Fifth Circuit precedent and runs amok on the rule of orderliness.

Worse still, it leaves us with an inscrutably vague rule that holds gov-

ernmental entities liable for the subjective deliberate indifference of its

employees.

I respectfully dissent.

_____________________

7

Hare, 74 F.3d at 649 n.4 (emphasis removed); see also Piotrowski v. City of Hous.,

237 F.3d 567, 578 (5th Cir. 2001) (citing Bd. of Comm’rs v. Brown, 520 U.S. 397, 403 (1997)).

26