The opinion
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-1163
___________
Mary Ellen Liebe, Special *
Administrator of the Estate of *
Robert W. Liebe, Deceased, and *
Mary Ellen Liebe, Guardian of *
the Estate of Marcus Liebe, a *
minor child, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the District of
Lyle Norton, individually and as * South Dakota.
an employee of Fall River County; *
Fall River County, South Dakota; *
and Gene Linehan, as Sheriff of *
Fall River County, *
*
Appellees. *
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Submitted: June 12, 1998
Filed: October 1, 1998
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Before BOWMAN, Chief Judge, LOKEN, Circuit Judge and MAGNUSON,1 District
Judge.
1
The Honorable Paul A. Magnuson, Chief Judge, United States District Court for
the District of Minnesota, sitting by designation.
1
MAGNUSON, District Judge.
Mary Ellen Liebe, the Special Administrator of the Estate of Robert W. Liebe
and Guardian of the Estate of Marcus Liebe, appeals from the judgment of the district
court2 dismissing Appellant’s claims against Appellee Lyle Norton and granting
summary judgment in favor of Appellees Fall River County, South Dakota and Gene
Linehan, Sheriff of Fall River County. On October 12, 1993, Robert W. Liebe
committed suicide while incarcerated at the Fall River County Jail. Mary Ellen Liebe,
Robert’s wife, sought damages against Defendants-Appellees under 42 U.S.C. § 1983.
The district court dismissed the claims against Lyle Norton based on qualified
immunity, and granted summary judgment as to the remaining Defendants-Appellees
because Appellant was unable to show that Fall River County failed to train Lyle
Norton. We affirm.
I.
On October 12, 1993, Robert Liebe was arrested and taken to the Fall River
County Jail. Liebe was intoxicated at the time of his booking. In accordance with
County policy, Lyle Norton processed Liebe into the jail, and after questioning Liebe,
classified him as a “SUICIDE RISK.” Liebe had admitted to previously attempting
suicide, and was on both clonazepam and valium. Although Liebe had previously been
2
The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
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a prisoner at the jail, Norton did not research the prior file to learn additional
information about Liebe. After removing Liebe’s shoes and belt, Norton placed Liebe
in a temporary holding cell designed to minimize the risk of harm to the inmate. The
Fall River County Manual of Policies, Procedures and Operations (the “MPPO”)
recommends checking on inmates such as Liebe every fifteen (15) minutes. Thus, from
4:30 p.m. until 8:50 p.m. on October 12, 1993, Norton checked on Liebe approximately
seventeen (17) times. The time lapse between these checks varied from seven (7)
minutes to twenty-one (21) minutes. However, Norton did not turn on the audio system
to the temporary holding cell.
At 8:50 p.m., twenty (20) minutes after the last check on Liebe, Norton found
Liebe hanging in his cell. Liebe had used his long-sleeved shirt to hang himself on a
metal-framed electrical conduit in the temporary holding cell. Despite the fact that
Norton had the keys to Liebe’s cell in his pocket, Norton ran back to the dispatch area
to trip an electronic switch to open the cell door. While at the dispatch area, Norton
told the dispatcher to call an ambulance. The dispatcher also dispatched other deputies
to Liebe’s cell. According to the dispatch log, Liebe was discovered hanging at 2057
hours, and CPR was not initiated until 2112 hours, a period of fifteen (15) minutes.
Norton returned to Liebe’s cell and assisted a Hot Springs police officer in
cutting Liebe down and lowering his body to the floor. Norton could feel that Liebe’s
hands were cold and see that his lips were blue. The Hot Springs officer could not find
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a pulse on Liebe. When the ambulance arrived, Liebe failed to respond to resuscitation
efforts, and he was pronounced dead upon his arrival at the hospital. Prior to this
incident, there had never been a suicide at the Fall River County Jail.
Norton began working part-time at the Fall River County Jail on August 17,
1993. Before beginning duties as a solo jailer, he was given on-the-job training for two
and one-half weeks by another jailer. Norton was also scheduled to attend a jailer
training course, but the course was not being held until November 1993. However,
Norton had begun a Jail Officers Training Correspondence Course. Norton had
received CPR training in 1992 and was recertified twice as a reserve officer. Thus,
prior to Liebe’s suicide, Norton had worked as a full-time jailer for approximately two
months. Norton was also given the MPPO to read, but Sheriff Bray, Norton’s superior,
never told Norton that he was required to know or understand the MPPO’s contents.
Mary Ellen Liebe, as administrator of Liebe’s estate, filed suit against Norton,
the Sheriff, and the County. The District Court for the District of South Dakota held
that Norton was entitled to qualified immunity. Further, the Court granted summary
judgment as to the remaining defendants. Mary Ellen Liebe appeals both of these
decisions.
II.
A. Qualified Immunity
We review qualified immunity, a question of law, de novo. See Jackson v.
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Everett, 140 F.3d 1149, 1151 (8th Cir. 1998). “Qualified immunity shields government
officials from suit unless their conduct violated a clearly established constitutional or
statutory right of which a reasonable person would have known.” Yowell v. Combs,
89 F.3d 542, 544 (8th Cir. 1996) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). To withstand the application of qualified immunity, a plaintiff must assert a
violation of a constitutional or statutory right; that right must have been clearly
established at the time of the violation; and, given the facts most favorable to the
plaintiff, there must be no genuine issues of material fact as to whether a reasonable
official would have known that the alleged action indeed violated that right. Id. (citing
Foulks v. Cole County, Mo., 991 F.2d 454, 456 (8th Cir. 1993)).
Norton concedes that the first prong of this test is satisfied. The Complaint
clearly alleges violations of Liebe’s constitutional rights. These rights include Liebe’s
right to be free from cruel and unusual punishment and his right to not be deprived of
life, liberty, or the pursuit of happiness without due process of law.
As for the second prong, Appellant contends, and the district court agreed, that
the law was clearly established on October 12,1993. However, Norton argues that, in
a § 1983 action, “clearly established” takes on a somewhat different meaning.
According to Norton, although Liebe had a clearly established right to be free from
cruel and unusual punishment, the law was not clearly established regarding what
measures must be taken to prevent inmate suicides. See Rellergert v. Cape Girardeau
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County, Mo., 924 F.2d 794 (8th Cir. 1991). However, this argument seems more
appropriately waged with regard to the third prong of qualified immunity, regarding
whether Norton should have known that his actions violated Liebe’s constitutional
rights. The Supreme Court has held that prison inmates have a constitutional right,
under the Eighth Amendment, to have serious medical needs addressed. See Estelle
v. Gamble, 429 U.S. 97, 104 (1976). Norton cannot seriously argue that Liebe does
not possess such a right. Moreover, once one is classified as a suicide risk, the right
to be protected from that risk would seem to fall under the ambit of the right to have
medical needs addressed. Further, any argument Norton may have under Rellergert,
regarding the precautions that must be taken, would require a factual inquiry. The
Rellergert holding did not question whether inmates have a right to be protected when
they pose a serious suicide risk. Instead, it merely questioned the length to which
prison officials must go to prevent that suicide. Rellergert, 924 F.2d at 796. Therefore,
we hold that the second prong of qualified immunity is met because Liebe had a
constitutional right to be protected from the known risks of suicide.
It is the third prong of the qualified immunity test which is the crux of this
appeal. This prong, regarding whether a reasonable official would have known that his
conduct violated a constitutional right, involves both an objective and subjective
component. See Prater v. Dahm, 89 F.3d 538, 541 (8th Cir. 1996). The objective
component examines whether a serious deprivation occurred. See id. The subjective
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component examine’s Norton’s state of mind, and requires that he acted with
“deliberate indifference.” Id. The district court held that this prong was not met
because Norton’s actions did not amount to deliberate indifference. We agree.
Norton cannot be found guilty of deliberate indifference unless it is shown that
he “[knew] of and disregard[ed] an excessive risk to [Liebe’s] health or safety.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994). By classifying Liebe as a suicide risk
on the prison intake form, Norton demonstrated that he was aware of a potential risk
to Liebe’s health or safety. However, Norton may still escape liability “if [he]
responded reasonably to the risk, even if the harm ultimately was not averted.” Id. at
844.
In Rellergert, we stated that “[d]eliberate indifference ‘is a difficult burden for
a plaintiff to meet and becomes the key issue.’” 924 F.2d at 796 (quoting Popham v.
City of Talladega, 908 F.2d 1561, 1563 (11th Cir. 1990)). Additionally, even though
we admitted that “we cannot say that the law is established with any clarity as to what
. . . measures must be” taken to prevent inmate suicides, we did find that a prison
institution’s policy of housing suicide inmates in a common area represented
“affirmative and deliberate steps to prevent suicides.” Id. at 797. Moreover, we noted
that the policy “could not have been both deliberately cautious about [an inmate’s] risk
as a suicide and deliberately indifferent about it.” Id. Finally, we noted that the fact
that a suicide occurred does not answer the relevant question: Were the preventive
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measures taken “so inadequate as to be deliberately indifferent to the risk”? Id. Thus,
even though the prison official’s conduct may have amounted to negligence, we could
not conclude as a matter of law that he acted with deliberate indifference. See id. at
797-98.
The facts of this case are strikingly similar to those in Rellergert. In both cases,
the prisons had policies in place for the protection of inmates classified as suicide risks.
Tragically, in both cases, despite those preventive policies, inmates were successful in
committing suicide. Appellant asserts that the present case is somehow different
because of the lack of in-depth training provided to Norton, and Norton’s supposed
awareness of the inadequacy of that training. Specifically, Appellant points to Norton’s
awareness that Liebe was taking medications for depression and an anxiety disorder,
and Norton’s admission that he was not sure what those disorders entailed.
Additionally, Appellant proffers Norton’s failure to immediately administer CPR to
Liebe as evidence of his indifference. All of these facts, Appellant asserts, amount to
deliberate indifference.
Appellant contends that the district court erred in focusing on the efforts which
Norton undertook. Instead, Appellant points to all of the actions which Norton should
have taken. Unfortunately, Norton did not have the benefit of twenty-twenty hindsight,
as we do now. Thus, we must examine those precautionary actions which were
undertaken. Appellant seems to ignore the fact that Norton did classify Liebe as a
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suicide risk, and he did take the preventive measures of placing him in the temporary
holding cell and removing his shoes and belt. Additionally, Norton periodically checked
on Liebe. While Norton may have been negligent in not checking on Liebe more often,
or in failing to notice the exposed electrical conduit in the temporary holding cell, we
cannot say as a matter of law that his actions were indifferent. To the contrary, Norton’s
actions constituted affirmative, deliberate steps to prevent Liebe’s suicide. Despite
Norton’s ultimate failure to prevent that suicide, Norton did not act with deliberate
indifference. Accordingly, Appellant fails to meet her burden, and Norton is entitled to
qualified immunity.
B. Summary Judgment
Appellant also appeals the district court’s grant of summary judgment in favor of
Fall River County and Sheriff Linehan. We review a grant of summary judgment de
novo. See Olinger v. Larson, 134 F.3d 1362, 1365-66 (8th Cir. 1998) (citing Brodnicki
v. City of Omaha, 75 F.3d 1261, 1264 (8th Cir. 1996)). Summary judgment is
appropriate if there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317 (1986); Unigroup, Inc. v. O’Rourke Storage & Transfer Co., 980 F.2d 1217,
1219-20 (8th Cir. 1992). The court determines materiality from the substantive law
governing the claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over facts that might affect the outcome of the lawsuit according to
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applicable substantive law are material. See id. A material fact dispute is “genuine” if
the evidence is sufficient to allow a reasonable jury to return a verdict for the non-
moving party. See id. at 248-49.
Because Appellant’s suit against Sheriff Gene Linehan is against Linehan in his
official capacity, it must be treated as a suit against the County. See Hafer v. Melo, 502
U.S. 21, 25 (1991). Thus, the actions of the Sheriff will be deemed actions of the
County. Additionally, in a § 1983 action, a municipality may only be held liable for
constitutional deprivations if the deprivation is the result of a policy or custom of the
municipality. See City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).
Liebe asserts three claims against the Sheriff and the County:
1. The failure of Fall River County to have appropriate policies in place
to safeguard the constitutional rights of those with whom their employees
may come into contact; and
2. The failure of Fall River County to adequately train its jailers, and
particularly Lyle Norton; and
3. The failure of Fall River County to adequately supervise its jailer,
Lyle Norton.
(Appellant’s Br. at 34.) According to Appellant, each of these claims provides a
separate and distinct basis for the County’s liability. However, a close analysis of the
first claim, regarding the adequacy of policies in place, reveals that it is subsumed by the
failure to train claim. For example, the policies which Liebe asserts the County should
have had in place are policies involving the training and supervision of rookie
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jailers. Thus, we will address only the failure to train claim and the failure to supervise
claim.
Under Canton, a failure to train claim may only serve as a basis for § 1983 liability
when the failure to train can be said to constitute deliberate indifference to the rights of
others. See Canton, 480 U.S. at 388. Appellant contends that the County was
deliberately indifferent when it left Norton, an inexperienced jailer, in charge of its jail
facility. We have already discussed the standards for finding deliberate indifference and,
in doing so, have recognized that the County did have policies in place which were
intended to prevent inmate suicides. These policies included completing a questionnaire
for new inmates to determine if they posed a suicide risk, placing those inmates who are
deemed suicide risks in a temporary holding cell, removing clothing and accessories
from such inmates which could be used to aid in a suicide, and checking the temporary
holding cell every fifteen (15) minutes. The existence of these policies indicate that the
County was interested in preventing inmate suicides and, in fact, took affirmative steps
to prevent such suicides. In addition, similar to the policy in Rellergert, the County’s
policy cannot be both an effort to prevent suicides and, at the same time, deliberately
indifferent to suicides. See Rellergert, 924 F.2d at 797.
Moreover, the fact that Norton was not led, step by step, through the policies
contained in the MPPO does not necessarily amount to a failure to train. Norton was
given the MPPO, and he was scheduled to attend a jailer training course. Considering
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the fact that the above policies were in place, and that no inmate suicides had ever
occurred at the jail, we cannot say that “the need for more or different training [was] so
obvious and the inadequacy so likely to result in the violation of constitutional rights,
that the [County] . . . can reasonably be said to have been deliberately indifferent.”
Canton, 489 U.S. at 390. Appellant failed to set forth a genuine issue of material fact
as to whether Norton or the County’s policies showed deliberate indifference.
Accordingly, the district court did not err in granting summary judgment on Appellant’s
failure to train claim.
Appellant next asserts that the failure to supervise claim is distinct and separate
from the failure to train claim. However, both claims ultimately require the same
analysis. First, a supervisor cannot be held vicariously liable under § 1983 for an
employee’s actions. See White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994). Second,
in White, we held that a failure to supervise claim “‘may be maintained only if a
defendant demonstrated deliberate indifference or tacit authorization of the offensive
acts.’” Id. (quoting Bolin v. Black, 875 F.2d 1343, 1347 (8th Cir. 1989)). Thus, as
with the failure to train claim, this claim is governed by the deliberate indifference
standard.
As evidence of deliberate indifference, Appellant offers Norton’s on-the-job
training, in which checks of the temporary holding cell often exceeded fifteen minute
intervals. Additionally, Appellant points to the County’s failure to test Norton on his
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knowledge of the MPPO, and County’s decision to leave Norton in charge of the jail.
However, if these actions do not constitute deliberate indifference for a failure to train
claim, they cannot constitute deliberate indifference in the present failure to supervise
claim. Moreover, Appellant’s focus on the County’s lack of corrective actions after the
suicide misses the mark. Any failure to act occurring after the date of the suicide does
not show that the County was deliberately indifferent to the risk of a suicide on October
12, 1993, nor does it show that the County tacitly authorized any unconstitutional
conduct. As has already been fully discussed supra, Appellant has not presented this
Court with any material issues of fact regarding the County’s deliberate indifference.
Rather, the facts show the opposite: that the County had policies and procedures in
place to prevent inmate suicides. These deliberate steps taken to prevent inmate suicides
necessitate that we affirm the district court’s grant of summary judgment in favor of the
County and Sheriff Linehan.
C. Conclusion
In summary, we affirm the district court’s dismissal of Appellant’s claims against
Norton because he is entitled to qualified immunity. Further, we affirm the district
court’s grant of summary judgment in favor of Fall River County and Sheriff Linehan
because Appellant failed to place any genuine issues of material fact in dispute as to
whether the County was deliberately indifferent.
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A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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