Cope v. Cogdill

Case: 19-10798 Document: 00515925058 Page: 1 Date Filed: 07/02/2021

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

July 2, 2021

No. 19-10798 Lyle W. Cayce

Clerk

Patsy K. Cope; Alex Isbell, as Dependent Administrator of and, on

behalf of Estate of Derrek Quinton Gene Monroe, and his

heirs at law,

Plaintiffs—Appellees,

versus

Leslie W. Cogdill; Mary Jo Brixey; Jessie W. Laws,

Defendants—Appellants.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 6:18-CV-15

Before Stewart, Dennis, and Haynes, Circuit Judges.

Haynes, Circuit Judge:

This appeal concerns whether three officers employed by the

Coleman County Jail are entitled to qualified immunity for claims regarding

Derrek Monroe’s death by suicide that occurred at the jail. 1 The district

court determined that the officers were not entitled to qualified immunity.

1

The suit was filed by Monroe’s estate and his mother, Patsy Cope.

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For the following reasons, we REVERSE its holding and RENDER judgment

in the officers’ favor.

Background

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

Coleman County Jail. A screening form completed during intake indicated

that Monroe said he “wished [he] had a way to” kill himself that day and that

Monroe had attempted suicide two weeks prior. The form also indicated that

Monroe had previously received psychiatric services, had been diagnosed

with “some sort of schizophrenia,” and displayed other signs of mental

illness and emotional disturbance. Jail Administrator Mary Jo Brixey put

Monroe on a temporary “suicide watch.” That afternoon, Monroe had a

medical emergency, and he was taken to the Coleman County Medical

Center for treatment.

Monroe returned to the jail the next day. Cope alleges that “only

about 17 minutes after returning to the Coleman County Jail[,] . . . [Monroe]

attempted to commit suicide by hanging.” This attempt was unsuccessful.

Cope alleges that Sheriff Leslie Cogdill spoke with Monroe and sought the

intake form reflecting Monroe’s mental health issues. Instead of seeking

emergency admission at a facility providing mental health treatment, Cogdill

and Jailer Jessie Laws continued to hold Monroe in his cell.

On October 1, Laws began his shift at 7:00 a.m., as the only jailer on

duty. The jail typically has two jailers on duty during weekdays but only one

during nights and weekends due to budgetary considerations. The following

incidents occurred 2 between 8:20 and 9:00 a.m.:

2

These events were captured on jail surveillance video.

2

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Laws had a discussion with Monroe. A few minutes later, Monroe

went to the phone in his cell and appeared to do something with it, and Laws

then spoke to Monroe through the cell bars. After Laws unlocked Monroe’s

cell, Monroe exited the cell and walked toward a shower area, and Laws

followed. A few minutes later, Monroe returned to his cell, and Laws locked

the cell door and pocketed the key. Then, Monroe started to overflow his

toilet, prompting Laws to turn off a water valve near the ceiling, which shut

off water to Monroe’s cell. Monroe became visibly angry and appeared to

beat the toilet in his cell with a toilet plunger. Laws then began mopping the

area outside of Monroe’s cell. While Laws mopped, Monroe remained

visibly upset, slamming the phone receiver against the wall several times.

Monroe wrapped the phone cord around his neck around 8:37 a.m.,

while Laws continued mopping. As Monroe strangled himself with the cord,

Laws made a phone call to Brixey. Laws did not call Emergency Medical

Services. About a minute or two after the strangulation began, Monroe’s

body stopped moving. Throughout the next five minutes, Laws looked into

the cell several times, but he never unlocked or entered it.

After Brixey arrived at the jail around 8:47 a.m., Laws took the cell key

out of his pocket, unlocked and entered the cell, and unwrapped the cord

from Monroe’s body. Neither Laws nor Brixey attempted to resuscitate

Monroe, but they called paramedics, who began performing chest

compressions around 8:54 a.m. Monroe was taken to the hospital, where he

died the following day.

Cope sued Cogdill, Brixey, and Laws, alleging that they violated the

Fourteenth Amendment’s Due Process Clause because they were objectively

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unreasonable in their treatment of a pretrial detainee and denied Monroe

appropriate medical care. 3

Cogdill, Brixey, and Laws moved for summary judgment on the basis

of qualified immunity. The district court denied the motion. As to Laws, the

district court determined that “watching Monroe wrap the phone cord

around his neck and then failing to assist Monroe to free him from the cord

will have to be analyzed by a jury to determine whether his conduct was

reasonable under the circumstances.” As to Cogdill and Brixey, the district

court determined that they were not entitled to qualified immunity because

“evidence clearly demonstrates a high and obvious risk of suicide by

maintaining a policy of housing suicidal inmates in a cell with a phone (and

attached cord).” Cogdill, Brixey, and Laws timely filed an interlocutory

appeal.

Jurisdiction & Standard of Review

“Although a denial of a defendant’s motion for summary judgment is

ordinarily not immediately appealable, the Supreme Court has held that the

denial of a motion for summary judgment based upon qualified immunity is a

collateral order capable of immediate review.” Kinney v. Weaver, 367 F.3d

337, 346 (5th Cir. 2004) (en banc).

We review the district court’s denial of summary judgment de novo

and apply the same legal standard as the district court. Estate of Henson v.

Wichita Cnty., 795 F.3d 456, 461 (5th Cir. 2015). Summary judgment is

appropriate if “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “A

dispute about a material fact is ‘genuine’ if the evidence is such that a

3

Cope also sued Coleman County, alleging unconstitutional patterns or practices.

The allegations against the county are not at issue here.

4

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reasonable jury could return a verdict for the non-moving party.” Shackelford

v. Deloitte & Touche, LLP, 190 F.3d 398, 403 (5th Cir. 1999). Since this is an

interlocutory appeal, we lack jurisdiction to determine whether any factual

disputes are genuine, and we only consider, as a matter of law, if they are

material. Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015).

Discussion

Legal Standards

1. Qualified Immunity

“The doctrine of qualified immunity protects government officials

from civil damages liability when their actions could reasonably have been

believed to be legal.” Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011)

(en banc). There are two aspects to qualified immunity: whether the plaintiff

has alleged a violation of a constitutional right and whether the right at issue

was “clearly established” at the time of the alleged violation. Pearson v.

Callahan, 555 U.S. 223, 232 (2009) (citation omitted). Courts retain

flexibility as to which step of the two-step process they consider first. Id. at

236. Still, often “the better approach to resolving cases in which the defense

of qualified immunity is raised is to determine first whether the plaintiff has

alleged a deprivation of a constitutional right at all.” Cnty. of Sacramento v.

Lewis, 523 U.S. 833, 841 n.5 (1998). This is especially true “with respect to

questions that do not frequently arise.” Pearson, 555 U.S. at 236.

We are bound by the restrictive analysis of “clearly established” set

forth in numerous Supreme Court precedents. A right is “clearly

established” if it is “one that is sufficiently clear that every reasonable official

would have understood that what he is doing violates that right.” Mullenix

v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (internal quotation marks and

citation omitted); (addressing pretrial detainee). Courts must not “define

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clearly established law at a high level of generality”; instead, their “inquiry

must be undertaken in light of the specific context of the case.” Id. at 12

(internal quotation marks and citations omitted). Therefore, unless existing

precedent “squarely governs” the conduct at issue, an official will be entitled

to qualified immunity. See Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per

curiam); Mullenix, 577 U.S. at 12 (emphasizing that “[t]he dispositive

question is whether the violative nature of particular conduct is clearly

established” (internal quotation marks and citation omitted)).

Generally, to satisfy this standard, the plaintiff must “identify[] a case

in which an officer acting under similar circumstances was held to have

violated the [Constitution], and . . . explain[] why the case clearly proscribed

the conduct of that individual officer.” Joseph ex rel. Estate of Joseph v.

Bartlett, 981 F.3d 319, 345 (5th Cir. 2020) (concluding the defendants were

entitled to qualified immunity because the plaintiffs failed to identify an

analogous case). While an exact case on point is not required, the confines of

the officers’ violation must be “beyond debate.” Baldwin v. Dorsey, 964 F.3d

320, 326 (5th Cir. 2020) (internal quotation marks and citation omitted), cert.

denied, 141 S. Ct. 1379 (2021) (mem.). Broad general propositions are not

enough to overcome qualified immunity. 4 Id.

4

The crux of the dissenting opinion is its rejection of this well-established rule.

According to the dissenting opinion, “in the context of a deliberate indifference claim,

clearly established rights may be defined generally.” Dissenting Op. at 13 n.6. The

dissenting opinion reaches this conclusion almost entirely based on its reading of Jacobs v.

West Feliciana Sheriff’s Department, 228 F.3d 338 (5th Cir. 2000), which supposedly denied

qualified immunity on two deliberate indifference claims without identifying any factually

analogous cases, Dissenting Op. at 12–13, 13 n.6. But nowhere in Jacobs did we purport to

decide the question of the degree of specificity at which a clearly established right must be

defined, and we certainly did not make any statements suggesting that deliberate

indifference claims are subject to a different analysis than other claims. Perhaps more

importantly, Jacobs preceded a series of Supreme Court decisions demanding a high degree

of specificity and the identification of an analogous case to overcome qualified immunity.

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Supreme Court cases have been repeated and consistent on this high

standard at the second prong. For example, in Mullenix, despite indications

that the officer was told to stand down and he nonetheless shot from a bridge

at a moving car on the street, the Court concluded qualified immunity was

appropriate. 577 U.S. at 9–10, 19. Similarly, in Kisela v. Hughes, the Court

determined that a police officer was entitled to qualified immunity after he

repeatedly shot a woman who, although holding a kitchen knife, was

apparently calm and was separated from the officer by a chain-link fence with

a locked gate. 138 S. Ct. 1148, 1151–52, 1154–55 (2018) (per curiam); see also

Brosseau, 543 U.S. at 196–97, 201 (ruling that a police officer did not violate

a clearly established right when she shot a fleeing suspect in the back).

It might seem that things changed with the recent opinion in Taylor v.

Riojas, 141 S. Ct. 52 (2020) (per curiam). But, instead, that decision

emphasizes the high standard. In Taylor, the Supreme Court vacated our

grant of qualified immunity to a group of corrections officers for an alleged

Eighth Amendment violation. 141 S. Ct. at 53. But that was based upon the

E.g. White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam); Mullenix, 577 U.S. at 12.

Regardless of what Jacobs may have done twenty-one years ago, we must enforce the

heightened requirements that the Supreme Court has set forth in its recent qualified

immunity decisions.

Given the clear and unequivocal language used by the Supreme Court in imposing

these requirements, we see no basis for recognizing a special exception for deliberate

indifference claims. Moreover, as the dissenting opinion recognizes, we have applied the

high-specificity rule to deliberate indifference claims before. See Dissenting Op. at 13 n.6

(citing Cleveland v. Bell, 938 F.3d 672, 677 (5th Cir. 2019)). Even if these precedents are

“misguided,” as the dissenting opinion claims, Dissenting Op. at 13 n.6, they are

nonetheless binding. See, e.g., Mercado v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016) (per

curiam) (“Under our rule of orderliness, one panel of our court may not overturn another

panel's decision, absent an intervening change in the law, such as by a statutory

amendment, or the Supreme Court, or our en banc court.” (quotation omitted)). Rather

than follow the dissenting opinion’s foreclosed approach, we proceed in accordance with

the detailed directives of the Supreme Court.

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Supreme Court’s conclusion of how “particularly egregious” and over the

top the misconduct at issue was: the officers had allegedly placed the plaintiff,

an inmate, in a cell covered in “massive amounts of feces” for four days, only

to transfer him to a “frigidly cold cell” where he was “left to sleep naked in

sewage.” Id. (internal quotation marks and citation omitted). Further, the

officers acted with a marked callousness; for example, when placing the

plaintiff in the second cell, one officer allegedly said that he hoped the

plaintiff “would f***ing freeze.” Id. at 54 (internal quotation marks and

citation omitted). Accordingly, under Taylor, plaintiffs are only excused of

their obligation to identify an analogous case in “extreme circumstances”

where the constitutional violation is “obvious.” Id. at 53–54 (internal

quotation marks and citation omitted); see also Joseph, 981 F.3d at 330

(explaining that the Supreme Court’s qualified immunity precedents allow

for the “rare possibility that, in an obvious case, analogous case law is not

needed because the unlawfulness of the challenged conduct is sufficiently

clear” (cleaned up)).

2. Pretrial Detainees’ Right to Medical Care

“The constitutional rights of a pretrial detainee are found in the

procedural and substantive due process guarantees of the Fourteenth

Amendment.” Estate of Henson, 795 F.3d at 462. A state may detain

defendants for trial; its “exercise of its power to hold detainees and prisoners,

however, brings with it a responsibility under the U.S. Constitution to tend

to essentials of their well-being.” Hare v. City of Corinth, 74 F.3d 633, 638–

39 (5th Cir. 1996) (en banc).

“Suicide is an objectively serious harm implicating the state’s duty to

provide adequate medical care.” Arenas v. Calhoun, 922 F.3d 616, 621 (5th

Cir. 2019). We have articulated “proper legal measures of a State’s duty to

tend to a pretrial detainee posing a risk of suicide,” which depend on whether

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the plaintiff challenges the conditions of confinement or if he alleges episodic

acts or omissions. Hare, 74 F.3d at 643.

When, as in this case, “a pretrial detainee’s claim is based on a jail

official’s episodic acts or omissions, the proper inquiry is whether the official

had a culpable state of mind in acting or failing to act.” 5 Id. An official

“violates a pretrial detainee’s constitutional right to be secure in his basic

human needs only when the official had subjective knowledge of a substantial

risk of serious harm to the detainee and responded to that risk with deliberate

indifference.” Estate of Henson, 795 F.3d at 464 (internal quotation marks

and citation omitted). Although deliberate indifference is a high bar and

requires egregious conduct, plaintiffs need not prove that the official acted

with the intent to cause harm. Farmer v. Brennan, 511 U.S. 825, 835 (1994)

(stating that deliberate indifference “is satisfied by something less than acts

or omissions for the very purpose of causing harm or with knowledge that

harm will result”). “Deliberate indifference is an extremely high standard to

meet” but can be satisfied by a “wanton disregard for [an inmate’s] serious

medical needs.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756

(5th Cir. 2001). In the context of inmate suicide, “to defeat qualified

immunity, the plaintiffs must establish that the officers . . . were aware of a

substantial and significant risk that [the detainee] might kill [him]self, but

5

In contrast, if a pretrial detainee challenges “general conditions, practices, rules,

or restrictions of pretrial confinement,” we evaluate whether the condition was

“reasonably related to a legitimate governmental objective.” Hare, 74 F.3d at 644–47; see

also Bell v. Wolfish, 441 U.S. 520, 539 (1979). Conditions of confinement may be explicit

(for example, rules about disciplinary segregation) or they may be de facto (that is, acts that

are proven to be a pervasive practice). Estate of Henson, 795 F.3d at 463. Conditions are

not “reasonably related to a legitimate governmental objective” if they are “arbitrary or

purposeless”; in that case, “a court permissibly may infer that the purpose of the

governmental action is punishment that may not constitutionally be inflicted upon

detainees.” Bell, 441 U.S. at 539. “[T]here is no rule barring a plaintiff from pleading both

alternative theories.” Estate of Henson, 795 F.3d at 464.

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effectively disregarded it.” Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d

388, 395 (5th Cir. 2000).

When multiple officials are named as defendants, we “evaluate each

officer’s actions separately, to the extent possible.” Poole v. City of

Shreveport, 691 F.3d 624, 628 (5th Cir. 2012). Accordingly, each officer’s

actions are discussed separately, to the extent possible, below. 6

Laws’s Actions

Laws’s actions fall under a “deliberate indifference” standard

“[b]ecause the focus of the claim is one individual’s misconduct.” Shepherd

v. Dall. Cnty., 591 F.3d 445, 452 (5th Cir. 2009). If this case went to trial,

then, the questions would be whether Laws (1) “had subjective knowledge of

a substantial risk of serious harm” 7 and (2) “responded to that risk with

6

In her brief, Cope addresses her claims against Cogdill and Brixey together. The

claims center on supervisory decisions made at the jail, and it is unclear exactly who was

responsible for each decision. During oral argument, Defendants’ counsel conceded that

Brixey “was not involved in placing [Monroe] in the cell.” As Cope’s claim against Brixey

is predicated on Brixey’s involvement in this placement decision, then counsel’s

concession demonstrates that Brixey should prevail. See Ashcroft v. Iqbal, 556 U.S. 662, 675

(2009) (explaining that “[b]ecause vicarious liability is inapplicable to Bivens and § 1983

suits, a plaintiff must [show] that each Government-official defendant, through the

official’s own individual actions, has violated the Constitution”). However, since we

conclude that she is entitled to qualified immunity either way, we need not analyze this

issue further.

7

Cope argues that the Supreme Court announced an objective standard for pretrial

detainees and that the standard of reasonableness employed here should be objective, not

subjective. She relies on Kingsley v. Hendrickson, 576 U.S. 389 (2015). But Kingsley did not

address claims regarding medical treatment. Rather, the Supreme Court held that plaintiffs

alleging excessive force must show that the force was objectively excessive. Id. at 396–97.

Since Kingsley discussed a different type of constitutional claim, it did not abrogate our

deliberate-indifference precedent. Thus, Cope must prove subjective knowledge. See

Hare, 74 F.3d at 643. We recently clarified, however, that subjective intent of harm does

not have to be proven. Dyer, 964 F.3d at 380.

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deliberate indifference.” Estate of Henson, 795 F.3d at 464 (internal quotation

marks and citation omitted). At the very least, Cope has presented sufficient

evidence to create a genuine dispute of material fact as to whether Laws had

subjective knowledge of the risk of serious harm. Brixey testified that Laws

called her saying that Monroe was trying to hang himself. Just one day prior,

Laws had witnessed Monroe attempt suicide by hanging. Notably, Laws

appears to concede the point, stating “[t]here is no dispute that Laws knew

Monroe was potentially suicidal the morning of the suicide.” In the context

of deliberate indifference, the question is “whether the unlawfulness of the

Officers’ conduct was clearly established at the time.” Dyer v. Houston, 964

F.3d 374, 383 (5th Cir. 2020) (quoting District of Columbia v. Wesby, 138 S.

Ct. 577, 589 (2018)) (alteration and internal quotation marks omitted).

Therefore, our analysis turns to this second prong: whether the unlawfulness

was clearly established.

1. Waiting to Enter Monroe’s Cell Until Back-Up Arrived

The first issue we address is whether Laws’s failure to immediately

intervene after Monroe strangled himself and decision to instead wait until

another jailer arrived was constitutionally unlawful under clearly established

law. Laws’s decision not to enter Monroe’s cell was in line with his training

and the jail’s policy that jailers not enter the cell until back up arrives. Cope

argues that, notwithstanding the policy, Laws should have requested

permission to enter the cell when he called Brixey and that even if Brixey

denied permission, Laws should have entered the cell to render aid because

failing to do so unconstitutionally deprived Monroe of medical assistance.

To violate the constitution in this context, Laws must have

“effectively disregarded” the risk to Monroe’s health. Jacobs, 228 F.3d at

395. After Monroe began strangling himself, Laws called Brixey. Once

Brixey arrived, Laws entered the cell to unwrap Monroe’s body from the

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cord. 8 Waiting for Brixey to arrive was in line with the jail’s policy, and we

have held that a jailer supervising a suicidal inmate acted reasonably when he

“essentially follow[ed] orders” and “the orders he received . . . were not

facially outrageous.” Id. at 398. Moreover, in affirming a grant of qualified

immunity in an inmate-suicide case in which the prison official waited for

help to arrive, we recently stated that requiring a jailer to enter a cell without

back-up “would create an unenviable Catch-22: Either enter the cell alone

and risk potential attack, or take appropriate precautions and incur liability

under § 1983.” Arenas, 922 F.3d at 621.

We conclude that Laws’s decision to wait for Brixey before entering

the cell did not violate any clearly established constitutional right.

Specifically, it would not be “sufficiently clear that every reasonable official

would have understood that” waiting for a backup officer to arrive in

accordance with prison policy “violates [a pretrial detainee’s] right.” See

Mullenix, 577 U.S. at 11 (internal quotation marks and citation omitted)

(addressing excessive force). Since our case law supports that jailers who

follow policies aimed at protecting the jailer should not be considered

deliberately indifferent to an inmate’s medical need, see Arenas, 922 F.3d at

621, Laws is entitled to qualified immunity on this claim.

8

In addition to waiting to enter the cell until Brixey arrived, Laws also did not try

to revive Monroe while waiting for emergency personnel. But “a due process claim [can]

never be based on a jail official’s negligent failure to provide either medical care or

protection from harm.” Hare, 74 F.3d at 642; see also Dyer, 964 F.3d 381 (distinguishing

between negligence and deliberate indifference). Because negligence does not support a

deliberate indifference claim, Laws’s failure to resuscitate Monroe did not rise to the level

of deliberate indifference and therefore cannot be a violation of clearly established law.

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2. Failure to Call Emergency Medical Services

Cope further argues that Laws should have immediately called 911,

which Laws failed to do, after calling Brixey. A jailer has a “duty to not act

with subjective deliberate indifference to a known substantial risk of suicide”

and accordingly cannot “disregard . . . precautions he kn[ows] should be

taken.” Jacobs, 228 F.3d at 397–98. In general, a prison official who knew of

a serious threat to inmate safety and responded reasonably cannot be held

liable for his actions. Farmer, 511 U.S. at 844. But watching an inmate

attempt suicide and failing to call for emergency medical assistance is not a

reasonable response. This was especially true in the situation at hand, where

jail policy did not permit Laws to personally enter the jail cell to assist

Monroe until a second staff member arrived. Calling for emergency

assistance was a precaution that Laws knew he should have taken, and failing

to do so was both unreasonable and an effective disregard for the risk to

Monroe’s life. See Jacobs, 228 F.3d at 395. For these reasons, we 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.

As explained above, in determining whether the law was clearly

established at the time the conduct occurred, constitutional rights must not

be defined at a high level of generality. Mullenix, 577 U.S. at 12. Until today,

we have not spoken directly on whether failing to call for emergency

assistance in response to a serious threat to an inmate’s life constitutes

deliberate indifference. See Shepard v. Hansford Cnty., 110 F. Supp. 3d 696,

711, 713 (N.D. Tex. 2015) (noting a lack of Fifth Circuit precedent on, among

other things, an official’s failure to call 911). Recently, in Dyer, we engaged

in a similar discussion but did not specifically address the 911 issue. 964 F.3d

at 381–85. In that case, officers were aware that the detainee was “in the grip

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of a drug-induced psychosis” and had repeatedly “struck his head violently

against the interior of [the] patrol car”; nonetheless, the officers neither

sought any medical care nor informed the jail officials that the detainee had

suffered a head injury. Id. at 381–82. Indeed, they did nothing at all to

address his additional injuries; it was another official who finally reacted two

hours later. 9 We concluded that existing precedent showed that officers who,

“despite being aware of the detainee’s dire condition[,] . . . did nothing to

secure medical help” at all were on “fair warning” that their behavior was

deliberately indifferent. Id. 384–85 (internal quotation marks and citation

omitted). Here, in contrast, Laws did something: he called Brixey for

assistance and she called 911, albeit not as promptly as should have been

done. Existing case law, therefore, was not so clearly on point as to “place[]

the statutory or constitutional question beyond debate[,]” and we conclude

that the right was not clearly established. Morgan, 659 F.3d at 372. Unlike

the officers in Taylor, Laws did nothing so extreme or even close as forcing

an inmate to sleep naked in raw sewage. 141 S. Ct. at 53. The failings of Laws

are in a time of minutes and lack of complete action, not days and affirmative

misconduct. 10 Cf. id. Accordingly, even though Laws fails on the first prong,

he is nonetheless entitled to qualified immunity.

9

Unlike this case, in Dyer the person in question (Graham) had originally come to

the officers’ attention due to a 911 call. Id. at 378. Paramedics had examined Graham and

released him to the police. Id. However, during the trip to the police department, Graham

continued to injure himself with at least forty head bashes. Id. at 378–79. It was not until

two hours later, when a sergeant noted Graham’s labored breathing, that paramedics were

summoned. Id. at 379. In this case, by contrast, the delay was minutes, not hours, and Laws

was at least attempting to obtain help, unlike the officers in Dyer, who never did anything

to help.

10

Converse v. City of Kemah, 961 F.3d 771 (5th Cir. 2020), also demonstrates the

need for and importance of similar cases. Like this case, Converse concerned Fourteenth

Amendment claims against a group of officers arising from a detainee’s suicide. 961 F.3d

at 774. Based on the facts of that case, we held that the officers were not entitled to qualified

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Cogdill’s & Brixey’s Actions

Because Cope’s briefing focuses on deliberate indifference, she

appears to be arguing an episodic-acts theory of liability. To be liable,

therefore, Brixey and Cogdill must have (1) “had subjective knowledge of a

substantial risk of serious harm” and (2) “responded to that risk with

deliberate indifference.” Estate of Henson, 795 F.3d at 464 (internal quotation

marks and citation omitted). Even if their actions were constitutionally

unlawful, they are entitled to qualified immunity if the constitutional right at

issue was not “clearly established.” Pearson, 555 U.S. at 232.

1. Placement of Monroe in a Cell Containing a Phone Cord

Cope contends that Brixey and Cogdill were deliberately indifferent

by housing Monroe in a cell “with the means of committing suicide readily

available to him in the form of a lengthy telephone cord.”

We have held that a sheriff was deliberately indifferent when he was

“fully aware that [the detainee] had actually attempted suicide once before,

regarded her as a suicide risk at all times during her detention, and yet

still . . . ordered loose bedding to be given to her” and placed her in a cell with

“several ‘tie-off’ points (bars and light fixtures from which a makeshift rope

could be suspended)” after “another inmate . . . had previously committed

suicide in the very same cell by hanging himself with a sheet from one of these

tie-off points.” Jacobs, 228 F.3d at 390, 396. Similarly, in Converse v. City of

Kemah, we recently determined that officers who gave a suicidal inmate a

immunity at the motion-to-dismiss stage. Id. at 773. While making some general

statements, the actual course of our reasoning in Converse demonstrates that we did not

rely merely on an abstract legal proposition when denying the defendants qualified

immunity; rather, we denied qualified immunity because we identified a prior precedent,

Jacobs, with “closely analogous” facts. Converse, 961 F.3d at 777–80. Thus, we adhered

to the analogous-case requirement in Converse, and consequently, we do so here as well.

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blanket were not entitled to qualified immunity. 961 F.3d 771, 773–74 (5th

Cir. 2020). We noted that the plaintiffs’ allegations supported, among other

things, that the officers were aware that “bedding hanging was the most

frequent method of suicide” in Texas jails. Id. at 777.

Here, Brixey had placed Monroe on a temporary suicide watch, and

Cogdill was aware that Monroe had attempted suicide by hanging the day

before. However, the record does not suggest that any inmate had previously

attempted suicide by strangulation with a phone cord; nor is there non-

speculative evidence that Brixey and Cogdill were aware of this danger. 11 The

11

In light of multiple suicides in Texas jails involving phone cords, in 2015, the

Texas Commission on Jail Standards issued a memorandum recommending that phone

cords in jails “be no more than twelve (12) inches in length.” The phone cord in Monroe’s

cell is longer than the recommended length. In certain circumstances, the Supreme Court

has indicated that subjective knowledge may be inferred based on circumstantial evidence,

Farmer, 511 U.S. at 842–43. Here, however, the Commission memorandum is insufficient

to support the inference that Brixey and Cogdill had subjective knowledge of the risk posed

by the lengthy phone cord. Specifically, the 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 sued had been exposed to information concerning the risk

and thus ‘must have known’ about it.” Id. (internal quotation marks omitted). There is

nothing like that here and certainly no evidence that either Brixey or Cogdill ever received

or reviewed the Commission’s memorandum prior to Monroe’s suicide.

Further, even at the summary judgment stage, it would go too far to infer that

Brixey and Cogdill were aware of the Commission’s recommendations simply due to their

employment in the Texas jail system at the time the memorandum was written—just

because information is available to a defendant does not mean she has been exposed to it.

See Rode v. Dellarciprete, 845 F.2d 1195, 1208 (3d Cir. 1988) (rejecting the plaintiff’s theory

that the Governor of Pennsylvania could be inferred to have personal knowledge of state

employees’ acts of retaliatory harassment “because of numerous articles that appeared in

newspapers throughout the state and through the introduction of a legislative resolution

seeking an investigation into [the harassment], the filing of grievances with the Governor's

office of administration, and telephone calls and correspondence with the office of the

Lieutenant Governor”). Consequently, there is insufficient evidence that Brixey and

Cogdill were exposed to the Commission’s memorandum to create a genuine dispute of

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danger posed by the phone cord was not as obvious as the dangers posed by

bedding, which is a well-documented risk that has been frequently used in

suicide attempts. Id. at 777. We therefore conclude, under these facts and

circumstances, that Brixey’s and Cogdill’s holding of Monroe in a cell

containing a phone cord did not violate a clearly established constitutional

right. 12

2. Staffing the Jail with Only One Weekend Jailer

Cope also alleges that Brixey and Cogdill acted with deliberate

indifference when they staffed the jail with just one jailer even though they

knew both that Monroe was on suicide watch and that the jail’s policy did not

allow for the jailer to intervene until backup arrived.

Coleman County employs only one weekend jailer due to budgetary

constraints. Our precedent suggests that municipalities, not individuals,

should generally be held liable for city policies. 13 See Scott v. Moore, 114 F.3d

51, 54 (5th Cir. 1997). Thus, at the time of the suicide, no clearly established

material fact as to their subjective knowledge of the risk posed by the phone cord in

Monroe’s cell.

12

Recently, in Sanchez v. Oliver, we determined that summary judgment on the

plaintiff’s deliberate indifference claim was inappropriate where the defendant had placed

a suicidal inmate “in general population, with ready access to blankets, other potential

ligatures, and tie-off points.” 995 F.3d 461, 473 (5th Cir. 2021). Sanchez did not involve

the possible dangers of phone cords; hence, whatever its import, Sanchez did not hold that,

at the time relevant for this case, it was clearly established that a defendant violates the

Constitution by placing a suicidal inmate in a cell containing a phone cord. In short,

Sanchez is not contrary to our conclusion here.

13

Indeed, Cope brought such § 1983 claims against Coleman County, along with

claims under the Americans with Disabilities Act and the Rehabilitation Act. These claims

have been stayed since July 2019 to permit the completion of this interlocutory appeal.

Although we express no view as to the viability of these claims, we note that our decision

therefore does not end Cope’s lawsuit entirely.

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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. Cope has cited no case law providing that jailers must deviate

from the typical staffing procedures if they believe that a detainee is a suicide

risk. We, therefore, hold that Brixey’s and Cogdill’s decision to staff only

one weekend jailer did not violate any clearly established constitutional right.

Conclusion

Based upon the above analysis, all three defendants are entitled to

qualified immunity. We REVERSE the district court’s decision and

RENDER judgment in the officers’ favor.

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James L. Dennis, Circuit Judge, dissenting:

Small county jails are no strangers to in-custody suicides. Indeed, the

suicide rate for local jails of 100 beds or fewer is nearly ten times that of the

nation as a whole. The Role of Corrections Professionals in Preventing Suicide,

National Institute of Corrections, https://nicic.gov/role-

corrections-professionals-preventing-suicide (last visited June 17, 2021).

Located in a pocket of rural Central Texas, Coleman County Jail is one such

small local jail. It comprises four cells and has a staff of seven—five jailers, a

jail administrator, and a sheriff—for an inmate population of up to nine

persons. And, like so many other similarly sized jails, it has been the scene

of an in-custody suicide—the self-strangulation of detainee Derrek Monroe

via a lengthy telephone cord that was, inexplicably, contained inside the cell

in which jail staff isolated him.

Monroe’s tragic death resulted not just from egregious acts and

omissions by Coleman County Jail staff after he was taken into custody on

September 29, 2017. The jail leadership’s decision to implement policies

that they knew to be inadequate also contributed to Monroe’s avoidable

suicide. In particular, the jail maintains only one jailer on duty during nights

and weekends. But jail policy forbids a jailer from entering a cell without

backup support. Thus, on nights and weekends, jail policy effectively

prevents the lone jailer from rescuing a known suicidal detainee who is

actively committing suicide inside a cell. In light of the manifest danger this

situation presents to suicidal detainees, Sheriff Leslie Cogdill and Jail

Administrator Mary Jo Brixey, the jail’s second-in-command, agree that the

policy of staffing the jail with only one jailer on nights and weekends—a

policy they administer—is “just not safe” because it creates the conditions

that can lead to tragedies like the suicide in this case of Derrek Monroe.

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A few months before Monroe’s suicide, Coleman County Jail staff

attended a training where they learned that the suicide rate for all county jails

is nine times greater than in the general population. But trainings and

academic presentations were not the only source of jail officials’ knowledge

of the risks of in-custody suicides. Prior to their tenures with the County Jail,

both Sheriff Cogdill and Jail Administrator Brixey had worked at the

Coleman City Jail when inmates had committed suicide, including, as in this

case, suicide by strangulation. One suicide involved a detainee who used a

ligature—his shoestrings—to choke himself to death in manner similar to the

way Monroe strangled himself with the phone cord. In short, Defendants

here were acutely aware of the danger of suicide at small county jails like the

very one they were charged with overseeing.

On Friday, September 29, 2017, Derrek Monroe was delivered into

the custody of the Coleman County Jail in Texas. During booking, Monroe

informed jailhouse authorities that he had attempted suicide by ingesting pills

just two weeks before and that he was presently having suicidal thoughts.

This information was immediately relayed to Sheriff Cogdill and Jail

Administrator Brixey. On Monroe’s first night in the jail, Cogdill chose to

house him in Cell 2 in the company of several other detainees. Cogdill’s

decision was in keeping with the training he had received, which advised

against “isolat[ing]” suicidal inmates.

The following day, Saturday, September 30, Monroe had a seizure

requiring treatment at a local hospital. After being successfully treated,

Monroe was transported back to the County Jail. Jailer Jessie Laws, who, per

jail policy, was the only jailer on duty, placed Monroe back in Cell 2 and in

the company of other inmates. Laws watched as Monroe proceeded to

attempt suicide twice in rapid succession. Monroe sat against the wall,

wrapped a blanket around his neck, and, according to one of his cellmates,

tried to “choke himself out.” After that didn’t work, Monroe stood up,

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climbed atop the cell’s latrine, and tried to hang himself by tying the cloth to

a fixture before “bomb div[ing]” off. The knot gave way, and Monroe

crashed to the floor of the cell. Undeterred, Monroe wrapped the sheet

around his neck again. Only at this point did Laws call Sheriff Cogdill for

backup. After arriving at the scene, Cogdill decided to remove Monroe from

Cell 2 and, with the assistance of Laws, to isolate Monroe in Cell 3, the jail’s

only single-occupancy cell. Cogdill’s decision to relocate Monroe to an

isolation cell was directly contrary to his training, which had instructed him

that isolating a suicidal detainee is a dangerous and disfavored policy. Jail

Administrator Brixey, was aware of and effectively ratified Cogdill’s

decision.

In addition to the risks created by isolating Monroe in Cell 3, the cell

contained an obvious potential ligature for suicide: a phone mounted to the

wall with a thirty-inch telephone cord. 1 Two years earlier, in 2015, the

Executive Director of the Texas Commission on Jail Standards (“the Texas

Jail Commission”) circulated a memorandum addressed to “All Sheriffs and

Jail Administrators” warning jail officials that four suicides involving phone

cords had occurred in Texas jails in the span of eleven months. Based on

these multiple suicides, the Texas Jail Commission notified Sheriffs and Jail

Administrators that “ALL phone cords be no more than twelve (12) inches

in length.”

Cogdill was also aware that Coleman County Jail’s own policy

required that a suicidal detainee—like Monroe—“be transferred to a facility

better equipped to manage an inmate with mental disabilities” if doing so was

necessary in order to protect the inmate, and, in fact, had previously

1

The phones are operated by a private company, City Telecoin, that charges

inmates for outgoing calls. Coleman County receives a portion of the revenue from these

calls.

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authorized transfers of inmates to other facilities when his inmate population

reached 9, the maximum number of inmates the Texas Jail Commission

permitted to be supervised by a single jailer. Despite this guidance and

Cogdill’s awareness that Monroe could be transferred to a more suitable

facility, Cogdill chose to keep Monroe at the Coleman County jail and to

house him in isolation in a cell with a thirty-inch phone cord. Late Saturday

afternoon, after Monroe was relocated to Cell 3, a mental health evaluator

from Central Texas Mental Health and Mental Retardation Services, an

outside agency, interviewed Monroe, who told her, “The first chance I get[,]

it’s over.” Following the interview, the mental health evaluator met with

Cogdill and Brixey and debriefed them on her conversation with Monroe.

The MHMR staffer advised that jail staff observe Monroe at least every 15

minutes instead of every 30 minutes as the jail had been doing. Cogdill and

Brixey agreed that staff would monitor Monroe in 15-minute intervals. But

based on Monroe’s suicidal history, the jail’s suicide prevention plan

mandated that he be classified as a “high risk” of suicide and, accordingly,

that staff observe him not less than every five minutes.

Throughout Saturday night and into the morning of Sunday, October

1, the jailer on duty, per the instructions of Cogdill and Brixey, monitored

Monroe in 15-minute intervals. At 7 a.m., Jailer Jessie Laws started his shift.

Laws was the only jailer on duty, and he continued the practice of monitoring

Monroe every 15 minutes. Laws knew from Monroe’s suicide attempts the

day before that Monroe was definitely suicidal.

Though jailers are prohibited from entering a jail cell unless back-up

personnel are present, Brixey, via phone, authorized Laws to escort Monroe,

who was unrestrained, from Cell 3 to the shower and then back to the cell,

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even though Laws was unarmed. 2 Minutes later, Monroe became agitated

and, at 8:37 a.m., began strangling himself by wrapping the thirty-inch

telephone cord phone cord several times tightly around his neck. Within a

minute or two, Monroe’s body became motionless. Maj. Op. at 3. Laws

stood on the other side of the bars from Monroe’s cell, mere steps away and

watched.

The simple, obvious, and safe response —indeed, the one that Laws

was specifically trained to undertake and that was required of him by jail

policy—was to immediately contact and summon by phone emergency

medical services (EMS). Laws knew that Monroe needed immediate help

because Laws was aware that a person who is being strangled can suffer brain

damage in less than 10 minutes. He also knew that EMS was available 24/7

and would come immediately in response to his call. Yet Laws failed to call

EMS. When asked later why he didn’t call, Laws said, “Honestly, I don’t

know.” Instead of contacting EMS, Laws called his superiors, Cogdill and

Brixey, 3 even though he knew they were off-duty. Laws requested that

Cogdill and return to the jail because of Monroe’s suicidal actions with the

thirty-inch telephone cord. In speaking with his superiors, Laws failed to

ascertain their precise locations and thus did not know if they could arrive

within the critical period before Monroe would suffer serious brain damage.

2

None of the jail officials explain the seemingly incongruous policy of forbidding a

jailer from entering a detainee’s cell without another jail officer present—regardless of

whether the detainee is restrained—but permitting a lone officer to remove an unrestrained

detainee from his cell and then to escort that detainee through the jail’s hallways and into

its shower area before escorting the detainee back to his cell.

3

Laws also called Deputy Tucker, an off-duty deputy. The summary-judgment

evidence does not reveal Deputy Tucker’s first name nor the contents of Laws’s

conversation with Tucker.

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After Laws made these calls—and with no assurance of when his

supervisors would arrive at the jail—he continued merely to stand outside

Monroe’s cell, watching and waiting. Monroe, according to Laws, was

motionless and silent as the cord remained wrapped around his neck.

Significantly, Laws did not retrieve the beathing mask he would need in order

to perform rescue breathing on Monroe once Brixey or Cogdill arrived. At

nearly 8:48 a.m., almost ten minutes after Monroe wrapped the phone cord

around his neck, Brixey made it to the jail. She and Laws entered Cell 3, and

Laws unwound and unwrapped the thirty-inch cord from Monroe’s neck. He

said he did not apply chest compressions because Monroe still had a pulse.

Brixey quickly left the cell to call emergency services. Meanwhile, Monroe

could not perform rescue breathing because he had failed to get the breathing

mask. Two minutes after completing her call, Brixey went to locate the

breathing mask. Ultimately, Laws did not commence rescue breathing until

more than 5 minutes after Brixey arrived. EMS arrived at 8:54 a.m.,

approximately five minutes after Brixey called. By this point, sixteen minutes

had elapsed since Monroe cinched the cord fast around his neck. Although

the first responders tried to save Monroe, their resuscitative efforts came too

late, and Monroe died in the hospital the next day. Following Monroe’s

death, Coleman County jail officials had the phone cord in Cell 3 shortened

in response to Texas Jail Commission’s recommendation.

Detainee Monroe’s death by his own hand with a thirty-inch cord in

plain sight of a jailer while emergency medical services were on duty only five

minutes away is especially tragic. In this interlocutory appeal from the

district court’s denial of qualified immunity, the legal questions for this court

are (1) whether the acts and omissions of each of the defendants individually

amounted to deliberate indifference and therefore violated Monroe’s

constitutional rights and (2) if so, whether Monroe’s constitutional right to

be free from each Defendants’ deliberate indifference was clearly established

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at the time of the violation. An officer’s conscious disregard of an inmate’s

known risk of suicide constitutes deliberate indifference in violation of a

detainee’s constitutional due process rights. See Converse v. City of Kemah,

961 F.3d 771, 775 (5th Cir. 2020). And that incontestable principle has been

established for decades in this circuit. Jacobs v. W. Feliciana Sheriff’s Dep’t,

228 F.3d 388, 395 (5th Cir. 2000) (“[T]o defeat qualified immunity, the

plaintiffs must establish that the officers . . . were aware of a substantial and

significant risk that [the detainee] might kill [him]self, but effectively

disregarded it.”); accord Converse, 961 F.3d at 775 (“We have repeatedly held

that pretrial detainees have a . . . right to be protected from a known risk of

suicide. And it is well-settled law that jail officials violate this right if ‘they

had gained actual knowledge of the substantial risk of suicide and responded

with deliberate indifference.’” (internal citations omitted) (quoting Hare v.

City of Corinth (Hare II), 74 F.3d 633, 650 (5th Cir. 1996) (en banc)).

In this case, Defendants were all aware of Laws’s risk of suicide. Their

responses to this known risk convince me that a reasonable jury could find

that they each effectively disregarded the risk by acting in a manner that they

knew or believed was likely inadequate in light of the circumstances. First,

based on Laws having watched Monroe wrap the thirty-inch phone cord

around his neck and yet failing to promptly contact emergency services—in

direct contravention of his training—a reasonable jury could find that Laws

recognized that Monroe was at risk of committing suicide but deliberately

disregarded it by not taking the one action he knew would be the most likely

to save Monroe’s life. Second, Cogdill had been trained to avoid isolating

suicidal inmates, yet he chose to remove Monroe from Cell 2 where there

were other inmates and to relocate Monroe to Cell 3 by himself, a decision

Brixey ratified. Compounding the dangers of isolation, Cell 3 had a thirty-

inch telephone cord—an obvious potential suicidal ligature for a known

suicidal inmate, like Monroe, who had just attempted to strangltehimself to

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death the previous day. In addition to the obviousness of the danger posed

by the lengthy cord, a jury could infer that Cogdill and Brixey had received

guidance from the Texas Jail Commission recommending jails limit the

length of phone cords to no more than 12 inches and yet ignored this

recommendation.

Moreover, the risks of isolating Monroe and of the lengthy cord in Cell

3 could have been eliminated by transferring Monroe to a better equipped

facility, an option Cogdill knew he could employ. Cogdill and Brixey also

could have reduced the risk of harm to Monroe by maintaining a second jailer

on duty during when the jail had custody of a suicidal inmate. This simple

and low-cost change to staffing policy would provide readily available backup

support and thus enable a jailer to immediately enter a cell in the event of a

suicide attempt, avoiding the delays inherent in a lone jailer having to await

the arrival of off-duty personnel before being able to save a known suicidal

detainee. In short, Monroe’s suicide in Cell 3 was highly predictable and

easily preventable, and the failure by Cogdill and Brixey to take any of these

obvious precautions permits the reasonable inference that they were

deliberately indifferent to Monroe’s substantial risk of suicide.

Thus, viewing the evidence in the light most favorable to Plaintiffs and

making all reasonable inferences in their favor—as we must in this appeal—

the officers violated clearly established law. It should be for a jury to decide

the factual question of whether Defendants “responded reasonably” to the

grave and urgent situation and thus were deliberately indifferent to the risk

of suicide. Farmer v. Brennan, 511 U.S. 825, 837 (1994). 4

4

To be sure, the inquiry into whether an officer responded “reasonably” is not an

objective test but instead requires that the officer actually was subjectively aware that her

response was inadequate. See Hyatt v. Thomas, 843 F.3d 172, 178 (5th Cir. 2016) (“What

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Departing from longstanding and binding precedent, the majority

erroneously grants the officers’ qualified immunity defense by embracing an

excessively narrow definition of the clearly established rights at issue and the

risk of harm Monroe faced. Because I would follow our court’s deliberate-

indifference caselaw and affirm the district court’s denial of qualified

immunity on several of Plaintiffs’ claims, I respectfully dissent.

I.

Since the majority’s articulation of the qualified-immunity analysis is

inconsistent with this court’s cases and unduly restricts plaintiffs’ ability to

recover for violations of constitutional rights, it is necessary to set forth the

established framework for evaluating claims of deliberate indifference in the

context of a known risk of prisoner suicide. “To overcome qualified

immunity,” a plaintiff “must show: ‘(1) that the official violated a statutory

or constitutional right, and (2) that the right [was] clearly established at the

time of the challenged conduct.’” Converse, 961 F.3d at 775 (quoting Cass v.

City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016)).

As to the first prong of the qualified-immunity analysis, “pretrial

detainees,” like Monroe, “have a Fourteenth Amendment right to be

protected from a known risk of suicide.” Id. This right is violated when a jail

officer responds with deliberate indifference to a known risk of suicide. Id.

And a jail officer is deliberately indifferent in violation of the Fourteenth

Amendment when he “knows of and disregards” a detainee’s risk of suicide.

Farmer, 511 U.S. at 837 (analyzing a convicted prisoner’s deliberate

indifference claim under the Eighth Amendment); see also Hare II, 74 F.3d at

639 (observing that, “[s]ince the State does punish convicted prisoners, but

is clear is that, even if an officer responds without the due care a reasonable person would

use—such that the officer is only negligent—there will be no liability.”).

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cannot punish pretrial detainees, a pretrial detainee’s due process rights are

said to be ‘at least as great as the Eighth Amendment protections available to

a convicted prisoner.’” (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S.

239, 244 (1983))). But a jailer who knew of the risk of harm “may be free

from liability if they responded reasonably to the risk, even if the harm

ultimately was not averted.” Id. at 844.

Under the second prong of the qualified-immunity analysis, a court

must determine “‘whether the [D]efendants’ conduct was objectively

unreasonable in light of clearly established law at the time of [Monroe’s]

suicide.’” Converse, 961 F.3d at 775 (first set of alterations in original)

(quoting Jacobs, 228 F.3d at 393)). “It has been clearly established in this

Circuit since at least 1989 that ‘pretrial detainees have a Fourteenth

Amendment right to be protected from a known risk of suicide,’ and it is well-

settled law that jail officials violate this right if ‘they have actual knowledge

of the substantial risk of suicide and respond with deliberate indifference.’”

Sanchez v. Oliver, 995 F.3d 461, 466 (5th Cir. 2021) (cleaned up) (quoting

Converse, 961 F.3d at 775). Thus, as the majority opinion recognizes, “[i]n

the context of inmate suicide, ‘to defeat qualified immunity, the plaintiffs

must establish that the officers . . . were aware of a substantial and significant

risk that [the detainee] might kill [him]self, but effectively disregarded it.’”

Maj. Op. at 9 (second and third sets of alterations in original) (quoting Jacobs,

228 F.3d at 395).

Given that the focus of a deliberate-indifference claim is on the jailer’s

subjective knowledge and intent, it is apparent that, in the uniquely extreme

and consequential circumstance where a jail official is aware of a prisoner’s

risk of suicide but “effectively disregards” that risk, the jailer has violated

clearly established law. Jacobs, 228 F.3d at 395. Put another way, it is always

clearly, objectively unreasonable for a jail official to intentionally disregard a

known suicide risk. Therefore, in this context—deliberate indifference by a

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jailer who knows that a detainee in his custody and care is at risk of suicide—

establishing prong one of the qualified-immunity test necessarily satisfies the

demands of prong two. A showing that a jailer violated the Fourteenth

Amendment by being deliberately indifferent to a known suicide risk is

necessarily also a showing that the official’s conduct was “objectively

unreasonable in light of clearly established law.” Converse, 961 F.3d at 775.

Put simply, the two prongs of the qualified-immunity test merge in this

specific situation.

This conclusion makes sense because the constitutional violation at

issue in a deliberate indifference claim is not a negligent failure to learn of a

suicide risk that should have been apparent, nor is it responding to a known

suicide risk in a manner that the official should have known to be

unreasonable. See Farmer, 511 U.S. at 835 (observing “that deliberate

indifference entails something more than mere negligence”); see also Hare II,

74 F.3d at 649 n.5 (explaining that, “where there is recognition of substantial

danger and a response thereto” by the officer, that officer must possess a

“state of mind more blameworthy than lack of due care” in order to be

deliberately indifferent). Rather, deliberate indifference to a risk of suicide

requires that an official actually, subjectively perceive the risk of suicide risk

and respond unreasonably, meaning that the officer actually believes his

response to a known risk is likely insufficient but still does not care. See

Farmer, 511 U.S. at 847 (explaining than an officer is deliberately indifferent

“only if he knows that inmates face a substantial risk of serious harm and

disregards that risk by failing to take reasonable measures to abate it”); Hyatt

v. Thomas, 843 F.3d 172, 178 (5th Cir. 2016) (“What is clear is that, even if

an officer responds without the due care a reasonable person would use—

such that the officer is only negligent—there will be no liability.”). There is

no need for a prior case to put an officer on notice that a situation presents a

risk of inmate suicide or that a particular sort of response is unreasonable

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because, by the very nature of a deliberate-indifference claim, the officer

must actually know both of these things in order for a constitutional violation

to occur. Jacobs, 228 F.3d at 395. In sum, if an officer faced with the greatest

possible risk—the loss of a human life that an officer is charged with

protecting—intentionally disregards that known risk by either failing to act

or acting in a manner that is so clearly inadequate as to permit the inference

that the officer knew or believed that his “response” was substantially likely

to be ineffectual but did not care, the officer’s conduct contravenes clearly

established law.

The majority asserts, however, that the determination that a jailer

effectively disregarded a prisoner’s known risk of suicide is not sufficient to

satisfy the strictures of the qualified-immunity analysis. Their conclusion

rests on two errors in the qualified-immunity analysis. First, the majority

takes an incredibly narrow approach to defining the clearly established right

at issue, claiming that the right must be defined much more specifically than

simply the right of a suicidal detainee to be free from a deliberately indifferent

response by officers charged with his supervision. Second, having defined

the clearly established right in an overly narrow manner, the majority requires

in effect that Plaintiffs point to a case with virtually identical facts to prove

that this excessively narrow description of the right has been clearly

established. See Maj. Op. at 12-14. Both of these propositions are contrary

to what our precedent in the detainee-suicide context demands.

In Jacobs v. W. Feliciana Sheriff’s Dep’t, for instance, we stated that

“[t]he case law from our own and from our sister circuits offers little

guidance for determining whether the defendants’ particular actions toward

Jacobs were unreasonable in light of their duty not to act with deliberate

indifference toward a known risk of suicide.” 228 F.3d at 393-94.

Nevertheless, and unlike today’s majority, we asked only whether the prison

officers “conducted [themselves] in an objectively reasonable manner with

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respect to [their] duty to not act with subjective deliberate indifference to the

known risk that Jacobs might have attempted suicide.” Id. at 397. Applying

this standard, we had no trouble concluding that two of the officers were not

entitled to qualified immunity because their allegedly deliberately indifferent

conduct was objectively unreasonable, even if no particular inmate-suicide

case was factually analogous. Id. at 397-98. Our court has continued to

approvingly cite Jacobs and apply it in inmate-suicide cases, see, e.g., Converse,

961 F.3d at 775, and, indeed, the majority itself purports to rely on Jacobs. 5

Thus, under the law of this circuit, an officer who responds with deliberate

indifference to a known risk of suicide violates clearly established law even if

the “particular actions” of the officer have not been addressed in a previous

case. Jacobs, 228 F.3d at 394. 6

5

The majority does not contend that Jacobs was abrogated by any intervening

Supreme Court decision, and Jacobs therefore remains “good law” and binding on this and

subsequent panels.

6

The majority erroneously relies on Mullenix v. Luna, a Fourth Amendment

excessive force case, where the Court stated that clearly established rights should not be

defined at a “high level of generality.” 577 U.S. 7, 16 (2015). Of course, for many § 1983

claims, the Court has insisted that clearly established rights be defined at a particularized

level in order to ensure that “[t]he contours of the right” are “sufficiently clear [such]that

a reasonable official would understand that what he is doing violates that right.” Anderson

v. Creighton, 483 U.S. 635, 640 (1987). Put differently, defining the clearly established right

at issue at a granular level makes sure that an officer has “fair warning” that her actions are

unconstitutional before she may be held individually liable for damages. Hope, 536 U.S. at

741; see also Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (explaining that in a qualified

immunity case “the focus is on whether the officer had fair notice that her conduct was

unlawful”). And of course, fair warning is the ultimate touchstone of qualified immunity.

Shumpert v. City of Tupelo, 905 F.3d 310, 321 (5th Cir. 2018). Crucially, whenever an officer

is found liable for deliberate indifference, that conclusion necessarily means that the officer

had fair warning that his conduct violates the Constitution—regardless of his particular

acts or omissions constituting deliberate indifference. Thus, the requirement that clearly

established rights be defined with a high degree of specificity does not apply to a deliberate

indifference claim.

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To understand why an officer always has fair notice that conduct that is deliberately

indifferent violates the Constitution requires an appreciation of the particular nature of a

meritorious deliberate indifferent claim, which is fundamentally different in kind from an

excessive force claim—or other § 1983 claims for that matter. Deliberate indifference

specifically requires that an officer have subjective awareness not only of the risk of harm

but also that his response to that risk is inadequate—that is, the officer must consciously

disregard the risk by responding to it in a way that the officer knows to be unreasonable.

See Farmer, 511 U.S. at 847. In short, the officer must possess a “state of mind more

blameworthy than lack of due care” in order to be deliberately indifferent. Hare II, 74 F.3d

at 649 n.5; see also Lawson v. Dallas Cnty., 286 F.3d 257, 262-63 (5th Cir. 2002) (“The

deliberate indifference standard is a subjective inquiry; the plaintiff must establish that the

jail officials were actually aware of the risk, yet consciously disregarded it. . . . Deliberate

indifference cannot be inferred from a prison official’s mere failure to act reasonably, i.e.,

it cannot be inferred from negligence alone.”). By sharp contrast, excessive force claims

apply an “objective not subjective” inquiry in determining whether an officer’s use of force

was excessive and therefore the officer’s “state of mind is not a matter that a plaintiff is

required to prove.” Kinglsey v. Hendrickson, 576 U.S. 389, 395 (5th Cir. 2015).

With this distinction in mind, it cannot be doubted that it would be “sufficiently

clear” to “a reasonable officer” that it violates the Constitution to be deliberately

indifferent to a risk of harm to a detainee. Anderson, 438 U.S. at 640. All reasonable officers

would know that it is unlawful to respond to a risk of harm to a detainee in a manner that

the officer consciously believes to be unreasonable. Therefore, officers do not need clearly

established rights to be defined so narrowly to the point that the illegality of their particular

acts or omissions constituting deliberate indifference have been established in a prior case

in order to have “fair warning” that it is unconstitutional to deliberately ignore a risk of

harm to a detainee.

Unsurprisingly, then, the Supreme Court has never applied Mullenix’s admonition

against defining clearly established rights at a “high level of generality” in reviewing a

deliberate indifference claim. And even following Mullenix, our sister circuits have

recognized that, in the context of a deliberate indifference claim, clearly established rights

may be defined generally. See, e.g., Lewis v. McLean, 864 F.3d 556, 566 (7th Cir. 2017)

(“[W]e ask whether the contours of the right are sufficiently clear that a reasonable official

would understand that what he is doing violates that right. It has long been clear that

deliberate indifference to an inmate’s serious medical needs violates the Eighth

Amendment.” (cleaned up)); Rafferty v. Trumbull Cnty., 915 F.3d 1087, 1097 (6th Cir.

2019) (holding that “it was clearly established in 2014 that ignoring known risks of harm to

an inmate due to inadequate medical care, inhumane conditions of confinement, or abuse

by another inmate could constitute deliberate indifference” (citing, inter alia, Farmer, 511

U.S. at 834)); Cox v. Quinn, 828 F.3d 227, 239 (4th Cir. 2016) (“It has long been established

that jail officials have a duty to protect inmates from a substantial and known risk of harm,

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The majority does note (before promptly foreclosing) an additional

path by which Plaintiffs might satisfy the clearly established prong, even

without a directly on-point case. Under Supreme Court precedent, an officer

violates clearly established law when his conduct so obviously transgresses

the Constitution such that the unlawfulness would have been apparent to any

reasonable officer. E.g., Hope v. Pelzer, 536 U.S. 730, 741 (2002). The

majority even cites the Supreme Court’s recent rebuke of this court in Taylor

v. Riojas, 141 S. Ct. 52 (2020) for failing to apply properly this principle. In

Taylor, a panel of this court had determined that officers who left an inmate

in a squalid, excrement-filled jail cell for “only six days” were entitled to

qualified immunity because this court “hadn’t previously held that a time

period so short violated the Constitution.” Taylor v. Stevens, 946 F.3d 211,

222 (5th Cir. 2019), vacated sub nom. Taylor v. Riojas, 141 S. Ct. at 54. The

Supreme Court summarily vacated, reaffirming the longstanding rule that a

plaintiff need not provide a precisely analogous case to overcome qualified

immunity when the circumstances are such that “no reasonable correctional

including harm inflicted by other prisoners.” (citing Farmer, 511 U.S. at 833)).

Respectfully, this court’s cases that have relied on Mullenix to narrowly define the right at

issue in a deliberate indifference case, see e.g., Cleveland v. Bell, 938 F.3d 672, 677 (5th Cir.

2019), are misguided, failing to grapple with the distinguishing feature of a deliberate

indifference claim, which requires that an officer have subjective awareness of the

inadequacy of his acts or omissions in responding to a risk of harm.

In any event, our court held over twenty years ago in Jacobs that an officer who

responds with deliberate indifference to a known risk of a detainee’s suicide violates clearly

established law, even though the officer’s particular conduct constituting deliberate

indifference had not been addressed in a previous case. See 228 F.3d at 394. Thus, even

putting aside the logical conclusion that an officer who acts with deliberate indifference

necessarily violates clearly established law, we are bound by Jacob’s clear holding. Jacobs’s

conclusion makes eminent sense because the risk of harm in a case involving a claim of

deliberate indifference to a known risk of suicide is uniquely high—indeed, there can be no

greater risk. In this circumstance, it would be “sufficiently clear [to] every reasonable

official” that it violates constitutional rights to disregard that risk of harm. Mullenix, 577

U.S. at 11.

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officer could have concluded” that the conduct at issue was constitutional.

Taylor, 141 S. Ct. at 53 (citing Hope, 536 U.S. at 741 (explaining that “‘a

general constitutional rule already identified in the decisional law may apply

with obvious clarity to the specific conduct in question’” (quoting United

States v. Lanier, 520 U.S. 259, 271 (1997)). In short, the Court made clear

that the shield of qualified immunity vanishes when there is no “doubt about

the obviousness” of an officer’s violation of an inmate’s constitutional rights.

Id. at 54 n.2.

Though the majority cites Taylor, it fails to absorb and apply the case’s

lesson. In the majority’s view, because the conduct of Defendants here was

not as extreme as that of the guards in Taylor, the Supreme Court’s decision

is inapplicable. Maj. Op. at 7, 12-13. But this essentially repeats the very

same analytical error this court made in Taylor and which the Supreme Court

found necessary to correct. Rather than asking only whether the facts here

are closely analogous to Taylor and thus if there exists an on-point

precedent—which is essentially the majority’s analysis—Taylor teaches that

the proper qualified-immunity inquiry must also ask whether the violation

was so obvious that “any reasonable officer should have realized that” their

conduct “offended the Constitution.” Taylor, 141 S. Ct. at 54; see also

Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (“Of course, in an obvious case,

[general] standards can ‘clearly establish’ the answer, even without a body of

relevant case law.”). 7 And because, as discussed above, deliberate

7

To be sure, it should infrequently be the case that an officer’s conduct so

obviously violates constitutional rights such that any reasonable officer would have known

of the unlawfulness of his conduct. But this is not to say, as the majority appears to believe,

that a constitutional violation is only obvious when the facts of a particular case are as

“deplorabl[e]” as those in Taylor, 141 S. Ct. at 53. The question, as noted above, is more

straightforward: whether “any reasonable officer should have realized that” their conduct

“offended the Constitution.” Id. at 54.

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indifference by an officer in the face of an inmate’s known risk of suicide is

always objectively unreasonable in light of clearly established law, such a

violation will necessarily be “obvious” in that “any reasonable officer should

have realized that” their conduct “offended the Constitution.” Taylor, 141

S. Ct. at 54. Where the violation at issue is intentionally disregarding a known

suicide risk, this standard is clearly met.

In sum, in the deeply alarming circumstance where a detainee is

known by jail officials to be at risk of suicide, a response by those officials that

deliberately “effectively disregards” that risk violates clearly established law

in a manner that should be clear to all reasonable officers. Jacobs, 228 F.3d

at 395. Such facts would thus defeat qualified immunity if proven. Id. For

the reasons outlined below, a reasonable jury could infer that Laws was

deliberately indifferent by failing promptly to contact emergency services

once Monroe had begun actively choking himself and Cogdill and Brixey

were likewise deliberately indifferent for housing Monroe by himself in a cell

with a lengthy phone cord.

II.

In this appeal from Defendants’ motion for summary judgment, we

must view the evidence in the light most favorable to Plaintiffs and making

all reasonable inferences in their favor. See Jacobs, 228 F.3d at 393. Under

this standard, Jailer Laws’s alleged response to Monroe’s ongoing suicide

was so inadequate as to permit a reasonable juror to infer that Laws was

deliberately indifferent to Monroe’s plight. Indeed, the majority agrees that

Laws may have been deliberately indifferent, but it asserts that he is entitled

to qualified immunity because he “did something,” i.e., contacting his

supervisors. Maj. Op. at 13. But, as discussed above, the issue is not whether

a prior case put Laws on notice that calling his supervisors was an inadequate

response because the constitutional violation at issue is not based solely on

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the objective unreasonableness of his response. Instead, the violation is

Laws’s alleged deliberate indifference. If Laws knew calling his off-duty

supervisors was likely going to fail to save Monroe’s life but did not care—

that is, if he thought “this is not my problem and someone else can deal with

it”—the constitutional violation was obvious to any reasonable officer,

regardless of the specifics details of his inadequate response.

The majority’s holding is inconsistent with common sense and our

precedent. Even setting aside the specific and acutely urgent context of an

ongoing suicide attempt, no one would suggest that an officer who responds

to an inmate in need of medical care but does so in a manner that he knows

or believes to be plainly inadequate is immunized from liability. See, e.g.,

Farmer, 511 U.S. at 847 (holding that a prison official is deliberately

indifferent “if he knows that inmates face a substantial risk of serious harm

and disregards that risk by failing to take reasonable measures to abate it”

(emphasis added)); Austin v. Johnson, 328 F.3d 204, 210 (5th Cir. 2003)

(denying qualified immunity where, although a prison guard rendered first

aid, the minor-aged prisoner remained unconscious and vomiting due to heat

stroke and the guard waited nearly two hours to call for emergency services);

Harris v. Hegmann, 198 F.3d 153,159–60 (5th Cir. 1999) (prisoner stated

deliberate indifference claim when he alleged that he had complained to

prison medical staff that his jaw had “fallen out of place” and that he was in

excruciating pain and required immediate medical attention yet prison

medical officials performed only a “cursory inspection” of his mouth and

otherwise ignored his repeated requests for treatment for eight days after his

jaw re-broke). Rather, “this court ha[s] previously held that taking some

reasonable precautions does not mean the officer, on the whole, behaved

reasonably.” Converse, 961 F.3d at 779.

Jacobs well-illustrates this principle. In that detainee-suicide case, the

jail’s sheriff “did not completely ignore [the detainee’s] suicidal condition,

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and in fact instituted some preventative measures,” such as prohibiting the

detainee from having loose bedding during her initial period in detention and

ordering more frequent checks on her. 228 F.3d at 395. Nevertheless, we

held these precautions were “not enough to mitigate [the sheriff’s] errors,”

including ratifying the decision to place the detainee in a cell that had a

“significant blind spot and tie-off points” that the detainee later used to hang

herself. Id. Similarly, in Converse, we held that, although an officer removed

a suicidal detainee’s shoelaces before placing him in a cell, the officer was not

entitled to qualified immunity when he failed both to regularly check on the

detainee and to remove bedding that the detainee later used to hang himself.

961 F.3d at 779 (reviewing assertion of qualified immunity at motion-to-

dismiss stage). When an officer “disregard[s] . . . precautions he knew should

be taken” or responds to a crisis in a manner that is so deficient as to permit

the inference that the officer consciously disregarded the risk, then that

officer acts with deliberate indifference. Jacobs, 228 F.3d at 397; see also Hare

II, 74 F.3d at 649 n.5.

Applying this standard, a reasonable juror could infer that Laws

responded to Monroe’s self-strangulation with deliberate indifference. The

risk of death posed by a suicidal inmate actively choking himself with a

telephone cord is obvious and clearly urgent. In fact, Laws knew that less

than ten minutes of strangulation can result in serious brain damage. He also

knew that EMS was available 24/7 and would come. Nonetheless, Laws’s

only affirmative response was to call Cogdill, Brixey, and Deputy Tucker for

help. Thereafter, despite Laws’s alleged awareness that none of the

superiors he called were in the jailhouse or even on duty, he “basically just

waited for somebody to get there.” This violated the commonsense training

Laws had received, which demanded that he promptly call emergency

services. See Arenas v. Calhoun, 922 F.3d 616, 624 (5th Cir. 2019) (“[A]

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knowing failure to execute policies necessary to an inmate’s safety may be

evidence of an officer’s deliberate indifference.”).

And such a response would have required minimal effort while posing

no risk to Laws. Cf. Converse, 961 F.3d at 778 (“Plaintiffs have plausibly

alleged that, by failing to take simple and reasonable precautions, Officer

Melton displayed deliberate indifference to the risk of harm to Silvis.”).

Instead, with a crisis unfolding right in front of him, Laws allegedly just

waited for ten minutes for Brixey to get to the jail, even though he was “sure”

from his education and training as a jailer that someone being strangled by a

ligature could suffer serious brain damage in “less than ten minutes.” Once

Brixey arrived, she took it upon herself to call for emergency medical

assistance. From Laws’s glaring record of inaction, a reasonable juror could

infer that, although he “did not completely” ignore Monroe’s risk of suicide,

he “effectively disregarded” that risk and therefore is not absolved of

liability. 8 Jacobs, 228 F.3d at 395-96. Because a reasonable juror could

8

The majority cites a district court opinion in Shepard v. Hansford County, 110 F.

Supp. 3d 696, 711, 713 (N.D. Tex. 2015), for the proposition that our caselaw has yet to

clearly establish (prior to this case, at least) that the failure to promptly call for emergency

services in response to an inmate attempting suicide is a constitutional violation. Maj. Op.

at 13. Reliance on Shepard is misplaced as that decision fundamentally misreads this court’s

precedents on deliberate indifference in the face of a suicidal inmate. First, Shepard

thought that our determination that officers were deliberately indifferent in Jacobs turned

on the fact that the officers in that case failed to implement sufficient suicide prevention

measures even though there had been a previous jailhouse suicide. On that basis, Shepard

sought to distinguish Jacobs from the detainee suicide at issue in that case, which was the

first in that jail’s history. See id. at 713. However, in Converse, we expressly rejected this

very distinction as immaterial, explaining that the fact of a past suicide in Jacobs “speaks

only to the degree, not the occurrence, of unreasonable behavior.” 961 F.3d at 777 (emphasis

in original). Hence, we determined that officers responded with deliberate indifference to

a suicidal detainee by failing to take reasonable preventative measures, despite the fact that

no previous inmate had committed suicide in the cell in which the detainee killed himself.

See id. Second and more fundamentally, Shepard misconstrues Jacobs’s statement,

mentioned above, that “we cannot say that the law is established with any clarity as to what

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conclude that Laws was deliberately indifferent to the risk that Monroe

would die from his suicide attempt, Laws’s actions, viewed in the light most

favorable to Plaintiffs, violated clearly established law. See Converse, 961 F.3d

at 775. Accordingly, I would affirm the district court’s conclusion that this

claim against Laws should proceed to trial.

III.

Turning to the claims against Sheriff Cogdill and Administrator

Brixey, I consider first whether each subjectively perceived the substantial

risk of harm Monroe faced before addressing each of their responses to that

risk. 9 Cogdill concedes that he believed Monroe to pose a real risk of suicide.

So, too, was Brixey aware of this risk as she, along with Cogdill, knew that

Monroe had attempted suicide on his second day in the jail and made the

initial decision to place Monroe on suicide watch. Accordingly, I would

address the second part of the deliberate indifference inquiry, i.e., whether

[measures jailers must take to prevent inmate suicide].” Shepard, 110 F. Supp. 3d at 713

(alterations in original) (quoting Jacobs, 228 F.3d at 394-95). Notwithstanding this

statement, Jacobs continued on to explain what is required, as a matter of law, to overcome

qualified immunity when an inmate presents an ongoing risk of suicide: to defeat qualified

immunity, the plaintiffs must establish that the officers in this case were aware of a

substantial and significant risk that Jacobs might kill herself, but effectively disregarded it.”

228 F.3d at 395. Jacobs then applied that standard, ultimately finding a violation of clearly

established law by multiple officers. See id. at 397. In other words, Jacobs makes clear what

Shepard does not recognize: even if the law has not spelled out each precise measure a jailer

must take in response to a known suicide risk, a jailer’s response that is deliberately

indifferent to such a risk violates clearly established law. See id. at 393-94.

9

Of course, each officers’ subjective deliberate indifference—and therefore

liability—must be analyzed separately. See, e.g., Jacobs, 228 F.3d at 395. While adhering

to this requirement, the evidence pertaining to Cogdill’s and Brixey’s individual deliberate

indifference is mentioned together for the sake of concision. But again, the legal analysis is

individualized because each officer must personally act with deliberate indifference in order

for liability to attach.

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the officers “effectively disregarded” Monroe’s risk of suicide by housing

him in a cell alone with a thirty-inch phone cord. Jacobs, 228 F.3d at 395.

The majority, however, determines that Cogdill and Brixey escape

liability because they lacked knowledge of the specific risk of suicide by

strangulation posed by placing Monroe in a cell with a lengthy phone cord.

See Maj. Op. at 15-17. 10 Under Supreme Court and circuit precedent,

however, the risk of harm in the first step of the deliberate-indifference test

should not be defined so narrowly. Rather, as the Supreme Court made clear

in Farmer v. Brennan, 511 U.S. 825, 843 (1994), all that must be established is

that the jail official had actual knowledge that the inmate faced a risk of harm.

Id. (holding that the deliberate-indifference standard requires that the official

“both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference”).

10

Curiously, the majority suggests that Plaintiffs cannot prevail on their claim

against Brixey because “Defendant’s counsel conceded that Brixey ‘was not involved in

placing [Monroe] in the cell’” and because a § 1983 claim cannot be based on vicarious

liability. Maj. Op. at 9 n.5 (emphasis added). First, it transgresses fundamental rules of

fairness to assert that an argument put forward by a defendant that is intended to avoid

liability—here, the contention by Brixey’s counsel that she was not involved in the decision

to place Monroe in the cell with the phone cord—(1) constitutes a “concession” by that

party and (2) somehow binds a plaintiff who might point to facts leading to a different

conclusion. And to simply take the defendant’s characterization of the facts as gospel

violates the long-established rule that we are to view the facts in the light most favorable to

the non-moving party. But even assuming that Brixey was not involved in the initial

decision to place Monroe in the cell in which he ultimately committed suicide, our court

has held that a supervisor can be deliberately indifferent in response to a known risk of

suicide when they “effectively ratified th[e] decision” to place a detainee in a particular

cell “by keeping [the detainee] in the cell while he considered her to be a significant suicide

risk.” Jacobs, 228 F.3d at 395; cf. Hunt v. Davis, 749 F. App’x 522, 524 (9th Cir. 2018)

(explaining that “a supervisor’s acquiescence in a subordinate’s constitutional violation

may result in his individual liability” if the supervisor “‘knowingly refuse[s] to terminate’

acts by others which he knows or has reason to know inflict constitutional injury.’”

(quoting Starr v. Baca, 656 F.3d 1202, 1205-06 (9th Cir. 2011)).

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The Court did not impose an additional burden on plaintiffs to show that the

official possessed knowledge of the specific manner or source of harm. To

the contrary, it squarely rejected engrafting such a requirement, explaining

that the official’s knowledge as to “whether the risk comes from a single

source or multiple sources” is irrelevant to the inquiry into the officer’s

awareness of the risk of harm. Id. (internal quotation marks omitted).

In a case involving a detainee with a known risk of suicide, the risk of

harm is the risk of the detainee’s suicide, not the risk of suicide by a particular

means. See Converse, 961 F.3d at 779 (“Plaintiffs have alleged sufficient facts

to demonstrate that Officer Kimball was subjectively aware of the risk of

suicide Silvis faced.” (emphasis added)); Hyatt v. Thomas, 843 F.3d 172, 179

(5th Cir. 2016) (explaining that plaintiffs were “not required to demonstrate

that [the officer] was aware of the particular means that [the detainee] would

ultimately use to hurt himself, only of the substantial risk that he might try to

hurt himself”); Sanchez, 995 F.3d at 473 (“Thus, the question is whether

Sanchez has presented evidence from which a reasonable jury could infer that

Oliver knew Gauna was at risk of suicide and ignored the risk.”); cf.

Hernandez ex rel. Hernandez v. Tex. Dep’t of Protective & Regul. Servs., 380

F.3d 872, 881-82 (5th Cir. 2004) (State-employed social workers “contend

that the plaintiffs cannot show that by placing [a foster child] with the [foster

family] the social workers had actual knowledge of a specific danger of the

particular injury of suffocation. . . . [T]his court has never required state

officials to be warned of a specific danger. . . . [T]o require state officials to

have knowledge of the exact risk of harm, i.e. suffocation, would be

inapposite with the Supreme Court’s decision in Farmer. . . . We need not

address the form that such a risk might eventually manifest”). 11 Thus,

11

Relying on Farmer, other circuits have applied similar reasoning. See, e.g., Tafoya

v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008) (McConnell, J.) (“The official’s knowledge

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Cogdill’s and Brixey’s knowledge of the specific risk of strangulation by the

phone cord should be considered only at the second stage of the deliberate

indifference test—which asks whether Cogdill and Brixey “effectively

disregarded” the risk of harm, Jacobs, 228 F.3d at 395—where this awareness

may demonstrate that the officers knew or believed that their response to

Monroe’s suicidal ideation and attempts could be inadequate.

With regard to the second part of the deliberate-indifference test, I

would hold that a reasonable juror could conclude that Cogdill’s and Brixey’s

responses to Monroe’s known risk of suicide were deliberately indifferent,

viz., that the officials “effectively disregarded” Monroe’s risk of suicide. Id..

Cogdill decided to transfer Monroe, who just attempted to strangle and hang

himself, to Cell 3, an isolation cell with a thirty-inch phone cord, and Brixey

ratifed that decision, even though they both knew that other, safer options

for housing Monroe were available.

“A supervisory official may be held liable” if he “implements

unconstitutional policies that causally result in the constitutional injury.” In

this case, Cogdill and Brixey chose to have only one jailer on duty when the

jail houses a suicidial detainee in its custody. However, the jail’s policy

requires a jailer to wait for backup support to arrive before entering a cell,

of the risk need not be knowledge of a substantial risk to a particular inmate, or knowledge

of the particular manner in which injury might occur.” (citing Farmer, 511 U.S. at 843));

Haley v. Gross, 86 F.3d 630, 643 n.33 (7th Cir. 1996) (“Likewise Sergeant Ellis and

Superintendent Gross are no less liable for deliberate indifference because, while they knew

that [prisoner] Wilborn presented a substantial risk of serious harm to [his cellmate] Haley,

they may not have envisioned that Wilborn would light the cell on fire. While there must

be some link between the risk of which the official was aware and the harm that actually

occurred—as it would be unfair to hold officials liable for risks they could not have

anticipated simply because they ignored other unrelated risks—prison officials need not be

specifically aware of the precise risk that unfolds. It is sufficient that Ellis and Gross knew

that Haley was in danger of some kind of attack from Wilborn and made no attempt to

prevent it.” (citing Farmer, 511 U.S. at 843)).

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even when, as here, a detainee is actively attempting suicide inside his cell.

Maintaining only one jailer on duty thus increases the response time before a

jailer can physically intervene to prevent a detainee from committing suicide.

The obvious consequence of a policy of keeping only a single jailer on duty

even when a suicidal detainee is in the jail’s custody is that a suicidal detainee

may commit serious self-harm before a jailer can effectively intercede. And

critically, Cogdill and Brixey knew that this staffing policy—which they were

responsible for administering—was “just not safe” precisely because of the

delays it creates in responding to a crisis situation. Had an additional jailer

been on duty the morning that Monroe wrapped the phone cord around his

neck, either Laws or that additional jailer could have immediately intervened

and prevented the suicide. On this record, a reasonable jury could infer that

Cogdill and Brixey’s policy of keep only a single jailer on duty when the jail

houses a suicidal detainee “causally result[ed]” in Monroe’s death. Porter,

659 F.3d at 446.

Cogdill and Brixey’s liability as supervisors can also be framed as their

conscious choice not to implement policies even though they knew that the

likely result of failing to implement these policies would eventually be a

detainee’s suicide; in other words, Cogdill and Brixey can be liable for opting

not to put into effect policies that they knew would decrease substantially the

risk of harm to suicidal detainees and instead to continue to adhere to a more

dangerous policy that was apt to lead to an in-custody suicide. See Porter, 659

F.3d at 446 (“A failure to adopt a policy can be deliberately indifferent when

it is obvious that the likely consequences of not adopting a policy will be a

deprivation of constitutional rights.” (internal quotation marks omitted)).

Cogdill and Brixey both knew that they had multiple options available for

housing Monroe that would have been safer than keeping him in the jail’s

custody with only a single jailer on duty. For example, Cogdill was aware that

jail policy mandated that Monroe “be transferred to a facility better equipped

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to manage an inmate with mental disabilities” if a transfer was required in

order to protect Monroe. And in the past, Cogdill had specifically ordered

transfers of inmates to other jails. See Jacobs, 228 F.3d at 397 (holding that a

jail official’s “disregard for precautions he knew should be taken” can

evidence subjective deliberate indifference). Besides this alternative to

housing Monroe at the Coleman County Jail, Cogdill and Brixey could have

taken the simple and obvious step of employing a second jailer to be on-duty

at all times when a suicidal inmate, like Monroe, was in the jail’s custody.

This latter course of action would have averted the delays in responding to a

suicide attempt when a single jailer is on duty. And even though Cogdill and

Brixey averred that budgetary restrictions prevent hiring more than six total

staff, this does not indicate that financial limitaitons would prevent

maintaining (and paying for) one additional jailer on duty in the limited

circumstance where a suicidal detainee is custody.

In sum, Cogdill and Brixey adhered to a policy of maintaining just one

jailer on duty even when a suicidal detainee was in the jail’s custody, despite

knowing that this policy was unsafe, and instead of transferring suicidal

detainees to better equipped facilities or keeping a second jailer on duty—

policies that they knew were available to them. A jury could determine that

the supervisors’ were deliberately indifferent based on their “failure to adopt

[] polic[ies]” when they knew—as any reasonable jailer would know—that

the consequence of not implementing these policies was likely to be an in-

custody suicide. Porter, 659 F.3d at 446.

There are further grounds upon which a jury could conclude that

Cogdill and Brixey were deliberately indifferent. Both officials were aware of

the risk and prevalence of suicide in local jails and had previously worked in

a local jail where multiple inmates had committed suicide by strangulation.

Moreover, Cogdill had been trained to house suicidal inmates in cells with

other inmates and not in insolation. In other words, based on Cogdill’s

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training, it would have been safer to simply leave Monroe in Cell 2 after

Monroe attempted suicide than to move him to Cell 3. Further, the fact that

the jail contained only four cells supports an inference that both Cogdill and

Brixey were aware that Cell 3 was outfitted with a lengthy phone cord. And

the very length of the cord constitutes circumstantial evidence from which a

factfinder could infer that Defendants were aware of the obvious risk it posed

to an individual who had just attempted to hang himself. See Farmer, 511 U.S.

at 842 (explaining that a prison official’s “knowledge of a substantial risk”

can be demonstrated based on “inference from circumstantial evidence, and

[that] a factfinder may conclude that a prison official knew of a substantial

risk from the very fact that the risk was obvious” (internal citation omitted)).

Indeed, Cogdill spent time with Monroe in Cell 3 just the day before Monroe

strangled himself with the phone cord, attempting to dissuade Monroe from

committing self-harm. It strains credulity to accept that Cogdill would not

have noticed the lengthy cord and considered it a potential ligature, and at

the very least, it is rational to infer that Cogdill was aware of the risk posed

by the cord.

Furthermore, the absence in the record of past suicides by

strangulation with telephone cords specifically in the Coleman County Jail

does not foreclose a finding that Cogdill and Brixey were aware of the risk

posed by the lengthy phone cord. As mentioned above, in 2015 the head of

the Texas Jail Commission circulated a memorandum notifying “All Sheriffs

and Jail Administrators” in the state that multiple suicides had occurred in

Texas jails in less than a years’ time through the use of lengthy phone cords.

Accordingly, the Commission advised that phone cords in jails “be no more

than twelve (12) inches in length.” Although Cogdill and Brixey testified that

they had not received or read the memorandum, a reasonable factfinder could

find their denials incredible. See Deville v. Marcantel, 567 F.3d 156, 165–166

(5th Cir. 2009) (summary judgment inappropriate “where the credibility of

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key witnesses loom large” (cleaned up)). Cogdill was Deputy Sheriff of the

Coleman County Jail at the time the memorandum was circulated, and one

could reasonably infer that Cogdill’s predecessor as sheriff would have

informed him of the memo’s contents when it was circulated. And Cogdill

had been Sheriff for two years at the time of Monroe’s suicide. A juror could

infer that Cogdill—like any responsible senior jail official, particularly one

starting a role as the head of a jail—would have familiarized himself with

reports issued by the Texas Jail Commission, the state’s regulator of county

jails, 12 and thus that he reviewed the Jail Commission’s 2015 memorandum

warning officials about the risk to suicidal inmates posed by lengthy phone

cord. Likewise, a juror could reasonably conclude that Brixey reviewed the

memorandum after she became Jail Administrator in 2017 given that it was

addressed to Jail Administrators and given the fact that Cogdill tasked her

with handling communications with the Jail Commission.

Even assuming that neither Cogdill nor Brixey received the memo or

heard reports of its contents—which would be contrary to our duty to make

reasonable inferences in favor of Plaintiffs as the non-movants—the

existence of the document suggests that the clear and obvious nature of the

risk posed by housing a suicidal prisoner in a cell with a phone cord in excess

of twelve inches was generally known within the Texas jail system. See

Farmer, 511 U.S. at 842. What is more, Cogdill and Brixey’s extensive

experience in jails lends support to the inference that they would have been

generally aware of the risk posed by lengthy phone cords as potential ligatures

12

“The Texas Commission on Jail Standards is the regulatory agency for all county

jails and privately operated municipal jails in the state.” Texas Commission on Jail

Standards, Compact with Texas, https://www.tcjs.state.tx.us/compact-with-

texas/ (last visited June 23, 2021). Among other oversight duties, the Jail Commission

establishes “reasonable minimum standards for the . . . operation of jails” and “monitor[s]

and enforce[s]” compliance with jail standards. Id.

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to suicidal detainees. Thus, although Cogdill and Brixey did not admit that

they were aware of the risk the phone cord presented, a factfinder could

disbelieve their denials in light of the substantial circumstantial evidence

pointing the other way. See Deville, 567 F.3d at 165–166. 13 And it is not our

13

In determining that Cogdill and Brixey were not aware of the risk of the phone

cord, the majority purports to rely on Farmer’s statement that risks that are “longstanding,

pervasive, well-documented, or expressly noted by prison officials in the past” can serve as

circumstantial evidence that an official “has been exposed to information concerning the

risk and thus ‘must have known’ about it.” Maj. Op. at 15 n.10 (quoting 511 U.S. at 842).

First, as explained above, Farmer itself and this court’s caselaw make clear that the relevant

risk of harm in this case is the risk of suicide, not the risk of suicide by a thirty-inch

telephone cord. See Farmer, 511 U.S. at 843 (“Nor may a prison official escape liability for

deliberate indifference by showing that, while he was aware of an obvious, substantial risk

to inmate safety, he did not know that the complainant was especially likely to be assaulted

by the specific prisoner who eventually committed the assault. The question under the

Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed

a prisoner to a sufficiently substantial risk of serious damage to his future health, and it does

not matter whether the risk comes from a single source or multiple sources, any more than

it matters whether a prisoner faces an excessive risk of attack for reasons personal to him

or because all prisoners in his situation face such a risk.” (cleaned up)); Hyatt, 843 F.3d at

179 (explaining that plaintiffs were “not required to demonstrate that [the officer] was

aware of the particular means that [the detainee] would ultimately use to hurt himself, only

of the substantial risk that he might try to hurt himself”); Hernandez, 380 F.3d at 881-82

(5th Cir. 2004) (State-employed social workers “contend that the plaintiffs cannot show

that by placing [a foster child] with the [foster family] the social workers had actual

knowledge of a specific danger of the particular injury of suffocation. . . . [T]his court has

never required state officials to be warned of a specific danger. . . . [T]o require state

officials to have knowledge of the exact risk of harm, i.e. suffocation, would be inapposite

with the Supreme Court’s decision in Farmer. . . . We need not address the form that such

a risk might eventually manifest”). And it is undisputed here that Cogdill and Brixey were

aware that Monroe was suicidal, and thus subjectively appreciated that Monroe faced a risk

of harm.

Although Cogdill and Brixey’s awareness of the danger posed by the phone cord

does not bear on whether they knew Monroe was at a risk of harm, their awareness is

relevant to the second prong of the deliberate indifference test—whether they effectively

disregarded that risk by failing to act or acting in a manner they believed to be unreasonable.

In this case, Cogdill and Brixey’s decision to house Monroe in Cell 3, despite their

awareness that the lengthy phone cord in that cell could be used as a suicidal ligature,

evidences the inadequacy of their individual responses to Monroe’s risk of suicide. And

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province to weigh this competing evidence in reviewing a summary judgment

order. See Schroeder v. Greater New Orleans Fed. Credit Union, 664 F.3d 1016,

1026 (5th Cir. 2011).

To summarize, Cogdill and Brixey chose to house Monroe, who they

knew was a suicide risk, alone in a cell with a thirty-inch long phone cord

despite (1) their training, which generally advised against housing suicidal

prisoners by themselves; (2) their knowledge that there were other, safer

facilities to house Monroe and that they had a duty to relocate him if their jail

could not adequately protect Monroe; (3) the risk posed by the lengthy cord,

which was both obvious and a specific risk that a jury could infer that the

officials were made aware of by the Texas Jail Commission. Considering this

evidence in the light most favorable to Plaintiffs and drawing all reasonable

inferences in their favor, a juror could conclude that Cogdill and Brixey knew

or believed that their response to Monroe’s risk of suicide was deficient and

therefore possessed a “state of mind more blameworthy than lack of due

care.” Hare II, 74 F.3d at 649 n.5. Put differently, one could conclude that

the officers “effectively disregarded” the risk of harm to Monroe. Jacobs,

228 F.3d at 395. Plaintiffs have thus raised material questions as to whether

contrary to the majority’s contention, the dangers to suicidal inmates from phone cords

more than twelve-inches in length—like the cord in Cell 3—were “longstanding” and

“well-documented” because two years before Monroe’s suicide the Texas Jail

Commission expressly warned senior jail officials like Cogdill and Brixey of the risk created

by phone cords of over twelve inches in length. Moreover, Farmer expressly states that

whether a risk was “longstanding, pervasive, or expressly noted” by past officials are

merely examples of the types of circumstantial evidence that could support the inference

that an official had subjective knowledge of a risk of harm; they are not the exclusive forms

of such evidence. 511 U.S. at 842. Rather, “a factfinder may conclude that a prison official

knew of a substantial risk from the very fact that the risk was obvious.” Id. There is no

doubt that a lengthy phone cord contained inside a jail cell poses an obvious risk of harm to

a suicidal inmate housed in that cell where the inmate had attempted to strangle himself to

death just the previous day. Thus, a jury could reasonably find that Cogdill and Brixey were

aware of the risk to Monroe created by the thirty-inch phone cord in Cell 3.

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each officer independently was deliberately indifferent and, as explained

above, have therefore also established a violation of clearly established law.

See id.; see also Converse, 961 F.3d at 775.

* * *

Qualified immunity is not the judicial equivalent of the Armor of

Achilles, an impenetrable shield that governmental actors can wield to

insulate themselves from liability no matter how flagrant their conduct. As

the Supreme Court has recently reminded this court, qualified immunity

vanishes where an official’s action or inaction so obviously violates the

Constitution that “any reasonable officer should have realized” the

unlawfulness of the conduct. Taylor, 141 S. Ct. at 54. And “any reasonable

officer” would know that it offends the Constitution to be deliberately

indifferent to a detainee’s known risk of suicide. Taking the facts and

inferences in the light most favorable to Plaintiffs, a reasonable juror could

conclude that the officers here responded with deliberate indifference to the

risk that pretrial detainee Derrek Monroe would commit suicide, and

therefore the officers are not entitled to qualified immunity. It should be left

to a jury to weigh the competing evidence and resolve the factual disputes,

most particularly Defendants’ subjective states of mind. Instead, today’s

majority ends all claims against all officers by erroneously granting them

qualified immunity. Because the majority misapprehends decades of clearly

established law and denies Plaintiffs the jury trial to which they are entitled,

I respectfully dissent.

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