Guillot v. Russell

Case: 22-30248 Document: 00516641661 Page: 1 Date Filed: 02/10/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

February 10, 2023

No. 22-30248

Lyle W. Cayce

Clerk

Brittany Guillot, on behalf of her minor child T.A.G.,

Plaintiff—Appellant,

versus

Jay Russell, in his official capacity as Ouachita Parish Sheriff;

Pat Johnson, Warden Ouachita Correctional Center;

John Doe, Ouachita Parish Sheriff’s Deputy,

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 3:20-CV-1537

Before Jones, Smith, and Graves, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Blake Powell committed suicide in his cell. On behalf of her minor

child, Brittany Guillot sued Pat Johnson, the then-warden at Ouachita Cor-

rectional Center (“OCC”), and Jay Russell, the sheriff of Ouachita Parish, in

their official capacities; she also purports to have sued them in their indi-

vidual capacities. All federal claims are brought under 42 U.S.C. § 1983 for

violations of Powell’s Eighth Amendment rights. Guillot additionally sued

under related state laws for negligence and vicarious liability. The district

Case: 22-30248 Document: 00516641661 Page: 2 Date Filed: 02/10/2023

No. 22-30248

court granted summary judgment, and we affirm.

I.

A.

On March 13, 2020, Powell committed suicide in his cell at OCC,

where he had been incarcerated for four months after his arrest for the

unauthorized entry of an inhabited dwelling and possession of a controlled

dangerous substance. 1 Powell is allegedly the father of minor T.A.G., on

whose behalf Guillot sued. Guillot contends that defendants are legally

responsible for Powell’s suicide because, as an inmate, Powell was under

OCC’s care and supervision.

At his booking on November 9, 2019, Powell stated that he asked the

victim of his burglaries to “kill him” and was subsequently placed on suicide

watch, from which Dr. David Boyle, the OCC mental health professional,

released him on November 13. On January 23, 2020, Powell spoke to OCC

personnel, through the speaker box in his cell, stating that he was suicidal. He

was placed on a second suicide watch with an associated suicide log. Boyle

released Powell from suicide watch on January 27 and recommended that he

return the next week for a follow-up visit, which never occurred. At the

January 27 visit, Boyle stated that Powell had no signs of suicidal inclinations

and seemed well.

On February 17, Powell was involved in a fight with another inmate

and told a deputy that he would keep fighting anyone placed in a cell with

him. The next day, OCC personnel noticed that Powell was “acting distant”

with a “blank stare” and had abrasions on his wrist. There is no record evi-

dence discussing how severe the abrasions were. An OCC personnel member

1

Powell pleaded guilty in February 2020 and received a two-year sentence.

2

Case: 22-30248 Document: 00516641661 Page: 3 Date Filed: 02/10/2023

No. 22-30248

noticed that Powell was unkempt, was not eating, had lost weight, was sleep-

ing poorly, was not communicative, and was depressed. Powell told staff that

he “need[ed] help” and was then placed in a cell for observation, but not on

suicide watch, nor was he scheduled to meet with a mental health profes-

sional. He was instead placed on “heightened observation.” There is no defi-

nition or official procedure provided by OCC for what heightened observa-

tion is.

On March 3, Powell told OCC personnel that he believed he had been

raped in his cell and asked to be placed in a cell alone. Although the rape

allegation turned out to be false, OCC’s nurse recommended that Powell visit

Boyle. But Powell did not see Boyle, who testified that given the following

behaviors, he would have wanted to see Powell.

On March 13, Powell expressed frustration with his cellmate and asked

for the cellmate to be removed. A prison employee did so. Powell was found

on the morning of March 14. He had hanged himself with a towel tied to his

shower rod.

The employees assigned to Powell’s dorm signed affidavits stating that

they did not see any risk of suicide from Powell on March 13–14 and did not

see any distress from Powell that night, nor any indication that he was a

danger to himself. 2 Named defendants Johnson and Russell had no interac-

tion with Powell on March 13.

B.

OCC’s Policy and Procedure Manual includes a Suicide Prevention

Policy. All staff responsible for offender supervision are ostensibly trained in

2

The Deputies assigned to Powell’s dorm that night were Deputy Webb Crecink,

Lieutenant Richie Varino, Corporal Daryl Wells, Deputy Roy McLendon, Deputy Brian

Milstead, Corporal Vance Whitton, and Deputy Ethan Bonner.

3

Case: 22-30248 Document: 00516641661 Page: 4 Date Filed: 02/10/2023

No. 22-30248

the policy. The policy starts at intake, where deputies are required to look for

signs of suicidal inclinations. The policy requires staff to report, to their

supervisor, any inmate with the following signs:

1. Keeps to himself and speaks very little to others.

2. When he does speak, he says little and usually says it

slowly.

3. Extremely restless, pacing up and down, and wrings hands.

4. May cry and be unable to sleep.

5. Quiet and subdued.

6. Threatens suicide.

7. Begins to give away personal items.

If any of these conditions is observed, the supervisor must place the

inmate on suicide watch, which comes with the following instructions and

restrictions:

1. Contact the medical staff.

2. The offender is to be dressed in quilted smock.

3. The offender is to be placed into a holding cell.

4. The offender placed on suicide watch will be observed and

logged at least every fifteen (15) minutes.

5. Meals served to offenders on suicide watch will be served

on disposable plates and utensils.

6. Only the medical [doctor] will be able to remove an

offender from suicide watch.

7. If an offender is placed on suicide watch, his personal

property should be removed from the dorm and stored.

8. An offender on suicide watch will not be allowed to have

any property in the cell.

Deputies are provided annual training in these suicide-prevention

policies. On the night of Powell’s suicide, seven of the eight deputies on duty

had undergone the training. The one deputy who had not done the training

was shadowing a deputy who had. Paul Campbell, the current warden of

OCC, initially stated at his deposition that there had been several suicides at

4

Case: 22-30248 Document: 00516641661 Page: 5 Date Filed: 02/10/2023

No. 22-30248

OCC in the past five years, before amending his testimony in an affidavit to

state the last suicide before Powell had been in 2011.

C.

As stated, Guillot sued Johnson and Russell in their official capacities.

She also purports to have sued both of them in their individual capacities. All

federal claims are brought per § 1983 for alleged violations of Powell’s Eighth

Amendment rights. Guillot also sued under related state law laws for negli-

gence and vicarious liability per La. Civ. Code arts. 2315 (liability for acts

causing damages), 2315.1 (survival action), 2315.2 (wrongful death action),

2316 (negligence, imprudence, or want of skill), 2317 (acts of others and of

things in custody), 2320 (acts of servants, students, or apprentices), and 2324

(liability as solidary or joint and divisible obligation).

II.

This court reviews a summary judgment de novo and “appl[ies] the

same criteria used by the district court in the first instance.” Norman v.

Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994). “As is appropriate at the

summary-judgment stage, facts that are subject to genuine dispute are viewed

in the light most favorable to [the non-moving party].” Taylor v. Riojas,

141 S. Ct. 52, 53 n.1 (2020) (per curiam).

Summary judgment can be granted only where, with the evidence

before the court, the “movant shows that 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 fact is “material” when its resolution might affect

the case’s outcome under governing law. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). “A genuine dispute of material fact exists ʻif the

evidence is such that a reasonable jury could return a verdict for the nonmov-

ing party.’” Southern Ins. Co. v. Affiliated FM Ins. Co., 830 F.3d 337, 343 (5th

Cir. 2016) (quoting Anderson, 477 U.S. at 248).

5

Case: 22-30248 Document: 00516641661 Page: 6 Date Filed: 02/10/2023

No. 22-30248

Although courts will “resolve factual controversies in favor of the

nonmoving party,” an actual controversy exists only “when both parties

have submitted evidence of contradictory facts.” Little v. Liquid Air Corp.,

37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam) (quoting from the

opinion of the district court, which the Fifth Circuit adopted in full). “‘If the

evidence is merely colorable, or is not significantly probative,’ summary

judgment is appropriate.” Cutting Underwater Techs. USA, Inc. v. Eni U.S.

Operating Co., 671 F.3d 512, 517 (5th Cir. 2012) (quoting Anderson, 477 U.S.

at 248).

There can be no genuine dispute as to a material fact where a party

fails “to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of

proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A]

complete failure of proof concerning an essential element of the nonmoving

party’s case necessarily renders all other facts immaterial.” Id. at 323. Spec-

ulative theories cannot defeat a motion for summary judgment. See Little,

37 F.3d at 1077. “[W]e may affirm a summary judgment on any ground sup-

ported by the record and advanced below, regardless of whether the district

court relied upon it.” Dillard v. City of Austin, 837 F.3d 557, 562 n.2 (5th Cir.

2016).

III.

Guillot brings official-capacity claims against Johnson, the warden,

and Russell, the sheriff, claiming the policies and procedures at OCC violated

Powell’s Eighth Amendment rights. Namely, Guillot alleges that defendants

were aware of Powell’s suicidal tendencies yet ignored their procedures and,

instead, followed a “heightened-observation” policy that was so deficient it

amounted to deliberate indifference to Powell’s medical needs. As noted,

Guillot also purportedly brings claims against both defendants in their indi-

6

Case: 22-30248 Document: 00516641661 Page: 7 Date Filed: 02/10/2023

No. 22-30248

vidual capacities. Finally, Guillot brings state-level claims for negligence

against both defendants. All of these claims fail.

A.

1.

As a threshold matter, Johnson cannot be sued in his official capacity.

Official-capacity suits may be brought only against an official acting as a pol-

icymaker, such that his decisions represent the official policy of the local gov-

ernment unit. Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737 (1989). We look

to state law when making that determination. City of St. Louis v. Praprotnik,

485 U.S. 112, 124 (1988) (plurality opinion). In Louisiana, the sheriff is the

final policymaker. 3 The district court judged so accordingly.

Guillot does not attempt to rebut that judgment. Parties forfeit con-

tentions by inadequately briefing them on appeal. Rollins v. Home Depot USA,

8 F.4th 393, 397 n.1 (5th Cir. 2021); see also Fed. R. App. P. 28(a)(8)(A).

Adequate briefing requires a party to raise an issue in its opening brief. United

States v. Bowen, 818 F.3d 179, 192 n.8 (5th Cir. 2016). “To be adequate, a brief

must address the district court’s analysis and explain how it erred.” SEC v.

Hallam, 42 F.4th 316, 327 (5th Cir. 2022) (quotation omitted).

In her reply brief, Guillot attempts to address the judgment. Though

the issue is forfeited regardless, her arguments are meritless. First, she cites

Walker v. Upshaw, 515 F. App’x 334 (5th Cir. 2013) (per curiam), which is

inapposite in that it analyzes whether a warden sued in his individual capacity

was entitled to qualified immunity. 4 Second, Guillot posits that Johnson is

3

See La. Const. art. 5, § 27 (“[The sheriff ] shall be the chief law enforcement

officer in the parish.”); La. Stat. § 5539 (“Each sheriff . . . shall preserve the peace and

apprehend public offenders.”); see also Craig v. St. Martin Parish Sheriff, 861 F. Supp. 1290,

1300 (W.D. La. 1994).

4

See Walker v. Inst. Div. of Tex. Dep’t of Crim. Just., No. H-08-530, 2011 WL

7

Case: 22-30248 Document: 00516641661 Page: 8 Date Filed: 02/10/2023

No. 22-30248

listed on the front cover of OCC’s official policies and procedures handbook,

making him a policymaker. That conclusory contention still does not make

Johnson a final policymaker under state law. 5

2.

Although Russell can be sued in his official capacity, those claims also

fail. The elements under § 1983 are that the conduct (1) deprived a person of

rights, privileges, or immunities secured by the Constitution or laws of the

United States and (2) was committed by a person acting under color of state

law. 42 U.S.C. § 1983; see also Gomez v. Toledo, 446 U.S. 635, 640 (1980).

Russell, as the final policymaker in the Parish, does satisfy the second require-

ment and can be sued in his official capacity, assuming Guillot provides evi-

dence that the conduct prong is met.

A claim against government officials in their official capacity is a

de facto suit against the local government entity of which the officials act as

agents. Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999);

Hafer v. Melo, 502 U.S. 21, 25 (1991). Section 1983 does not allow recovery

under a theory of respondeat superior; a plaintiff must show that the local gov-

ernment’s policy or custom violated the plaintiff’s constitutional rights.

Hafer, 502 U.S. at 25; Monell v. New York City Dep’t of Soc. Servs., 436 U.S.

658, 691 (1978); Leffall v. Dall. Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.

3924981, at *3 (S.D. Tex. Sept. 7, 2011), rev’d by Walker, 515 F. App’x at 341. Walker also

looked to Texas, not Louisiana, law.

5

Moreover, any suit against Johnson in his official capacity would be a suit against

OCC directly, which is not a legal entity capable of being sued. See, e.g., Harris v. Brown,

No. 3:21-cv-01332, 2021 WL 5822100, at *11 (W.D. La. Nov. 22, 2021) (“Harris sued

Weatherly in his official capacity as warden of the [Richland Parish Detention Center] . . .

However, this court consistently has held that the RPDC is not a juridical person capable

of being sued.”).

8

Case: 22-30248 Document: 00516641661 Page: 9 Date Filed: 02/10/2023

No. 22-30248

1994).

“[T]he custom or policy [must] serve[] as the moving force behind the

[constitutional] violation” at issue. Meadowbriar Home For Children, Inc. v.

Gunn, 81 F.3d 521, 533 (5th Cir. 1996). Alternatively, the plaintiff must dem-

onstrate that his injuries result from the policy’s execution. Fraire v. City of

Arlington, 957 F.2d 1268, 1277 (5th Cir. 1992). “The description of a policy

or custom and its relationship to the underlying constitutional violation,

moreover, cannot be conclusory; it must contain specific facts.” Spiller v.

City of Texas City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (citing Fraire,

957 F.2d at 1278).

In jail suicide cases, federal law requires officers to “ha[ve] gained

actual knowledge of the substantial risk of suicide and responded with delib-

erate indifference.” Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996)

(en banc). 6 To avoid liability, “[p]rison officials charged with deliberate in-

difference might show . . . that they did not know of the underlying facts indi-

cating a sufficiently substantial danger and that they were therefore unaware

of a danger, or that they knew the underlying facts but believed (albeit

unsoundly) that the risk to which the facts gave rise was insubstantial or

nonexistent.” Farmer, 511 U.S. at 844.

Mere evidence that the official was “aware of a substantial risk to

inmate safety does not alone establish deliberate indifference.” Hyatt v.

Thomas, 843 F.3d 172, 177 (5th Cir. 2016). “[P]rison officials who actually

knew of a substantial risk to inmate health or safety may be found free from

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

6

See also Farmer v. Brennan, 511 U.S. 825, 837 (1994) (holding that to be deliberately

indifferent to an inmate’s needs in violation of the Eighth Amendment, “the official must

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.”).

9

Case: 22-30248 Document: 00516641661 Page: 10 Date Filed: 02/10/2023

No. 22-30248

was not averted.” Farmer, 511 U.S. at 844.

Defendants aver, and the district court found, that Guillot did not

adequately demonstrate the existence of an unconstitutional policy at OCC

or provide proof of a de facto policy. Generally, Guillot does not challenge

whether the OCC Suicide Prevention Policy is constitutional. Instead, she

states that the Policy “seeks to avoid violations of constitutional rights, in-

cluding protecting inmates from self-harm.” Although this policy may be

constitutional, Guillot posits that OCC had an unconstitutional de facto policy

of placing suicidal inmates on ʻheightened observation’ instead of suicide

watch. Still, she does not allege sufficient facts to allow a reasonable fact-

finder to hold that this was a de facto policy at OCC. And even if it was, the

de facto policy does not have a causal link to Powell’s suicide.

Similar to custom, a de facto policy is defined as a persistent wide-

spread practice that, although not authorized by an officially adopted policy,

is so common and well settled as to constitute a custom that fairly represents

a municipal policy. See Webster v. City of Houston, 735 F. 2d 838, 842 (5th Cir.

1984). “[I]solated acts” cannot establish the existence of a custom or prac-

tice. Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003). Instead,

prior incidents “must have occurred for so long or so frequently that the

course of conduct warrants the attribution to the governing body of knowl-

edge that the objectional conduct is the expected, accepted practice.” Web-

ster, 735 F.2d at 842.

According to Guillot, the custom at OCC was to apply heightened

observation, which has no written definition, to inmates exhibiting suicidal

tendencies. She alleges that on February 18 and March 3, 2020, Powell exhib-

ited such tendencies. Most concerningly, on February 18, he had asked for

help, was withdrawn, had a blank stare, and had wrist abrasions, yet he was

not sent to suicide watch and instead was placed under heightened obser-

10

Case: 22-30248 Document: 00516641661 Page: 11 Date Filed: 02/10/2023

No. 22-30248

vation. Guillot maintains that it is a custom that allows deputies to shirk their

responsibility to observe the inmates and meticulously log their observations.

Under this deficient de facto policy, she claims Powell was denied his Eighth

Amendment rights.

Nevertheless, even taking all of Guillot’s factual assertions as accur-

ate, she has not stated sufficient facts that indicate the alleged policy was a de

facto policy. Moreover, she does not demonstrate that even if it was a de facto

policy, that policy was the moving force behind the purported constitutional

violation present here.

This circuit has consistently rejected the notion that one-off actions

constitute a policy. 7 Guillot has alleged only two violations, namely, the in-

action by guards after Powell’s concerning acts on February 18 and March 3.

Even taking at face value that Powell should have been moved to suicide

watch both times, this does not prove a widespread custom of violating con-

stitutional rights. These are one-off actions, and Guillot has not shown any

other valid examples of persistent violations.

Instead, she relies on an admission by the new warden of OCC, Paul

Campbell, that there were multiple suicides in the facility over the past five

years. Still, that is insufficient evidence to support her argument.

First, Campbell corrected his statement, swore in an affidavit that it

was a misstatement, and provided evidence that the last suicide at OCC was

over a decade ago. Guillot has not rebutted the affidavit nor provided any

legal argument indicating that we should reject the warden’s affidavit.

Instead, she argues that it is implausible that the warden made a mistake in

7

See, e.g., Piotrowski v City of Hous., 237 F.3d 567, 581 (5th Cir. 2001); Bennett v.

City of Slidell, 728 F.2d 762, 768 n.3 (5th Cir. 1984) (“Isolated violations are not the per-

sistent, often repeated, constant violations that constitute custom and policy.”).

11

Case: 22-30248 Document: 00516641661 Page: 12 Date Filed: 02/10/2023

No. 22-30248

his original deposition.

Guillot’s position is not convincing. And even assuming that Camp-

bell’s original statement was true, there is no proof connecting the other

unknown suicides to the alleged policy of applying heightened observation to

suicidal inmates. So Guillot cannot prevail.

After all, Powell had previously been moved to suicide watch twice

before: Per their official procedures, OCC personnel had followed their

constitutionally appropriate policies where an inmate presented signs of sui-

cide. Generally speaking, a failure to follow prison policies, procedures, or

regulations—without more—does not give rise to a constitutional violation.

Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986).

Moreover, Guillot has not alleged a plausible causal link between the

alleged “policy” and Powell’s suicide. On March 13, there was no evidence

that Powell exhibited suicidal tendencies that should have had deputies move

him to suicide watch. On the contrary, defendants have averred that multiple

deputies saw Powell that night and did not observe any of the suicidal

tendencies listed in the official policy, nor any of the concerning behaviors

presented on February 18 or March 3. Defendants have sworn that Powell

did not appear to be in distress and did nothing to indicate that he would harm

himself. One deputy spoke with Powell that night and complied with Powell’s

requests. Guillot has not challenged any of these facts.

Guillot also alleges that OCC failed to train its officers in implement-

ing its suicide prevention and heightened observation policies. A munici-

pality’s failure to train officers in appropriate procedures supports § 1983

liability “only where the failure to train amounts to a deliberate indifference

to the rights of persons with whom the [officers] come into contact.” City of

Canton v. Harris, 489 U.S. 378, 388 (1989). A city can be held liable in a

failure-to-train suit only if there are “manifest signs” of suicidal tendencies.

12

Case: 22-30248 Document: 00516641661 Page: 13 Date Filed: 02/10/2023

No. 22-30248

Whitt v. Stephens Cnty., 529 F.3d 278, 284 (5th Cir. 2008) (quoting Evans v.

City of Marlin, 986 F.2d 104, 108 (5th Cir. 1993)). A “failure to train custodial

officials in screening procedures to detect latent suicidal tendencies does not

rise to the level of a constitutional violation.” Id. (quoting Evans, 986 F.2d

at 107–08).

Guillot has not presented proof that Powell exhibited manifest signs of

suicidal tendencies when he committed suicide. Additionally, as demon-

strated in the record, all the deputies on duty in Powell’s cell block were

trained in suicide prevention strategies, save one shadowing another deputy.

Therefore, there is no cognizable claim here.

B.

There is no genuine dispute of material fact to hold defendants Russell

and Johnson legally responsible in their individual capacities under § 1983. It

is improbable that Guillot sued the defendants in their individual capacities,

and those claims should fail for procedural deficiencies. Assuming that she

did so, she still cannot allege a genuine dispute as to any material fact to show

that defendants acted with deliberate indifference.

1.

In Guillot’s complaint and amended complaint, it is unclear whether

she intended to sue defendants in their individual capacity. Accordingly, in

granting summary judgment, the court expressly stated that “[b]oth Russell

and Johnson have been sued only in their official capacities.” 8

Yet on appeal in her opening brief, Guillot did not even attempt to

explain whether she had adequately pleaded individual-capacity claims. As

8

The court did analyze Guillot’s claims in the alternative, assuming that she ade-

quately pleaded her individual capacity claims.

13

Case: 22-30248 Document: 00516641661 Page: 14 Date Filed: 02/10/2023

No. 22-30248

discussed above, parties forfeit contentions by inadequately briefing them on

appeal. Rollins, 8 F.4th at 397 n.1; see also Fed. R. App. P. 28(a)(8)(A).

Although Guillot attempts to respond to the district court in her reply brief,

arguments raised for the first time in reply are generally forfeited. See Sahara

Health Care, Inc. v. Azar, 975 F.3d 523, 528 n.5 (5th Cir. 2020).

Even if the argument is not forfeited, Guillot did not adequately plead

claims against the defendants in their individual capacities. She posits that

the complaint and surrounding pleadings plainly indicate that claims were

brought against the defendants in their individual capacities. That contention

is not accurate.

Concerning Russell, Guillot initially alleges claims against “Jay Rus-

sell, in his official capacity as the elected Sheriff of Ouachita Parish.” Only

later in the complaint does Guillot appears to plead individual-capacity

claims against Russell, in one paragraph, by stating, “The Ouachita Correc-

tional center was operated and supervised by Jay Russell at all relevant times.

He is sued in his individual and in his official capacity for those acts and omis-

sions, which occurred while he was Sheriff.”

Then in the amended complaint, Guillot alleged claims against “Jay

Russell, in his official capacity as Ouachita Parish Sheriff, Pat Johnson, War-

den Ouachita Correctional Center, and John Doe, Ouachita Parish Sheriff’s

Deputy.” Still, in the complaint regarding fictional defendant John Doe,

Guillot pleaded claims against “John Doe, in his official capacity as a[n] Oua-

chita Parish Sheriff’s Deputy and in his personal capacity.” This would indi-

cate she was aware of the proper method of pleading individual-capacity

theories.

The claims against defendant Johnson are no more clear. Guillot

first merely states,

Pat Johnson, Warden of Ouachita Correctional Center, a per-

14

Case: 22-30248 Document: 00516641661 Page: 15 Date Filed: 02/10/2023

No. 22-30248

son of the full age of majority holding the office of Warden of

the Ouachita Correctional Center, domiciled and residing in

the Parish of Ouachita, State of Louisiana. Pat Johnson is the

responsible party for day to day operations of the Ouachita Cor-

rectional Center.

Additionally, in Guillot’s Memorandum in Opposition to defendants’

Motion for Partial Judgment on the Pleadings, she plainly stated, “Plaintiff

does not seek to bring any individual capacity claims against either Sheriff Jay

Russell or Warden Pat Johnson.” 9

None of the above satisfies Federal Rule of Civil Procedure 8(a)(2),

requiring that a plaintiff provide “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Although pleadings are to be

construed to do justice, per Rule 8(e), Guillot has had numerous opportuni-

ties to amend her complaint and clarify in what capacity she is attempting to

sue these defendants. Unfortunately, she has not taken any of those

opportunities.

2.

Even if Guillot adequately pleaded her individual-capacity claims, she

has not alleged a genuine dispute as to any material fact to hold defendants

responsible under a supervisory-liability theory. 10 In the posture presented

here, Guillot must establish that the defendants acted with deliberate indif-

ference. See Flores v. Cnty. of Hardeman, 124 F.3d 736, 738–39 (5th Cir. 1997).

9

Later, after realizing that disclaimer would foreclose a significant number of her

arguments, Guillot averred that she “hereby withdraws any previous representation made

in briefing that [she] has not brought individual capacity claims, which was oversight on

[her] part. [Her] Complaint very clearly asserts individual capacity claims and [she] main-

tains these claims against both Sheriff Russell and Warden Johnson.”

10

Plaintiff has not alleged that either Russell or Johnson participated in or actively

caused Powell’s death. Therefore, they can be liable only in their capacities as supervisors.

15

Case: 22-30248 Document: 00516641661 Page: 16 Date Filed: 02/10/2023

No. 22-30248

A prison official acts with deliberate indifference only if “he knows

that inmates face a substantial risk of serious bodily harm . . . [and] disregards

that risk by failing to take reasonable measures to abate it.” Hyatt, 843 F.3d

at 179 (quoting Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (omission

in original)). 11 An inmate must show that officials “refused to treat him,

ignored his complaints, intentionally treated him incorrectly, or engaged in

any similar conduct that would clearly evince a wanton disregard for any seri-

ous medical needs.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).

“[N]egligent inaction by a jail officer does not violate the due process rights

of a person lawfully held in custody of the State.” Sibley v. Lemaire, 184 F.3d

481, 489 (5th Cir. 1999) (quoting Hare, 74 F.3d at 645). 12 This court has

almost uniformly found deliberate indifference to be a “high standard.”

Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001).

Guillot has not stated sufficient facts to allow a trier of fact reasonably

to find for her under the deliberate-indifference standard. Analyzing the facts

in the best possible light for the plaintiff, Guillot can show that the defendants

knew Powell had been suicidal in the past and should have been moved to

suicide watch after the incidents on February 17 and March 3. But Guillot

has shown no facts indicating that Powell exhibited signs of suicidal behavior

on March 13. The most she can show is negligent inaction, not deliberate

indifference, on the part of prison officials on and around February 17 and

March 3. The officials would not have known that Powell was a substantial

risk to himself on March 13 based on the facts presented about his behavior

11

See also Rhyne v. Henderson Cnty., 973 F.2d 386, 391 (5th Cir. 1992) (“The failure

to provide pre-trial detainees with adequate protection from their known suicidal impulses

is actionable under § 1983 as a violation of the detainee’s constitutional rights.”).

12

“Actions and decisions by officials that are merely inept, erroneous, ineffective,

or negligent do not amount to deliberate indifference.” Frazier v. Keith, 707 F. App’x 823,

824 (5th Cir. 2018) (per curiam).

16

Case: 22-30248 Document: 00516641661 Page: 17 Date Filed: 02/10/2023

No. 22-30248

on that date.

Hyatt is instructive on the deliberate indifference standard as applied

to suicidal inmates. Police were called to do a welfare check on Jason Hyatt,

whose wife told police he was suicidal. Hyatt was arrested under suspicion

of driving while intoxicated. Hyatt, 843 F.3d at 175. During booking, Hyatt

informed officers he was feeling “very depressed,” had been prescribed

antidepressants, and had attempted suicide two months earlier, but answered

that he was not “thinking about killing [himself] today” on the mental health

form. Id. (alteration in original). The officer noted that Hyatt “came across

as very happy and generally in a good mood,” and “[a]t no time did [she]

consider him to be a suicide risk.” Id. at 175–76 (alteration in original). Hyatt

was issued a regular jail uniform, but not a regulation sheet, and was put into

a cell under video surveillance, only with a blind spot next to the toilet. Id.

at 176. Previously, two inmates at that jail had used sheets to hang them-

selves in their cells. Id. The following day, Hyatt hanged himself using a

plastic garbage bag that had negligently been left in his cell. Id.

We affirmed the summary judgment, noting that the officer’s “failure

to inspect Hyatt’s cell and retrieve the plastic bag, and any other potential

ligatures, was perhaps negligent.” Id. at 179 (citing Est. of Pollard v. Hood

Cnty., Tex., 579 F. App’x 260, 266 (5th Cir. 2014) (per curiam)). Neverthe-

less, “negligent inaction by a jail officer does not violate the due process

rights of a person lawfully held in custody of the State.” Id. at 179–80 (quot-

ing Hare, 74 F.3d at 645).

Deliberate indifference requires more than a “mere oversight,” more

than a mere mistake. Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d 388, 395

(5th Cir. 2000) (quotation omitted). Guillot, in fact, cites Jacobs as the best

support for her deliberate-indifference theory. Her use of the case is not apt.

In Jacobs, we examined whether summary judgment was proper where

17

Case: 22-30248 Document: 00516641661 Page: 18 Date Filed: 02/10/2023

No. 22-30248

the sheriff was aware of a substantial risk of suicide and placed a pretrial

detainee in an inadequately protective environment. 228 F.3d at 390. The

court concluded that with those particular facts, the trier of fact could find

that the sheriff acted with deliberate indifference. Id. at 395–96.

There are some similarities with Jacobs present here. For example,

the court found that the detainee had not given “indications that she was

planning to attempt suicide or to harm herself” right before her suicide. Id.

at 391. Nevertheless, the “record reveal[ed] that the defendants still regarded

Jacobs as a suicide risk during that time. Indeed, [the sheriff ] testified that

Jacobs was on a ʻprecautionary,’ though not a ʻstraight’ suicide watch.” Id.

Still, there are significant differences that make Guillot’s claims

noncomparable. First, less than four days had passed since obviously suicidal

inclinations were expressed in Jacobs. Id. Looking at the evidence in the best

light for the plaintiff, there was a minimum of ten days between suicidal

expressions in the present case. Moreover, it is much more likely here that

the last suicidal expression was several weeks before, in January.

In Jacobs, the sheriff, despite having strong reason to believe that the

detainee was presently suicidal, took patently unreasonable measures. For

example, the sheriff placed the detainee in a cell where another inmate had

committed suicide. The sheriff knew that the cell had tie-off points for sheets

and makeshift ropes, which were strictly forbidden in a suicide-watch cell.

Id. at 395–96. Moreover, while the detainee was on a “precautionary” sui-

cide watch, as distinguished from a “strict” suicide watch, the sheriff also

allowed the detainee to have a towel. Id. at 391. Those facts differentiate the

case. Here a significantly longer time gap exists, OCC officials did not regard

Powell as a suicide risk at the time he committed suicide, and, twice before,

OCC moved Powell to an appropriate suicide cell when he presented suicidal

tendencies.

18

Case: 22-30248 Document: 00516641661 Page: 19 Date Filed: 02/10/2023

No. 22-30248

Numerous other cases undercut the notion of deliberate indifference

here. For example, in Flores, a sheriff put an inmate “not acting like himself”

under heightened observation for 12 hours. Flores, 124 F.3d at 737. At no time

did the inmate express any “overt signs that he intended to commit suicide,”

so staff gave him back his blanket. Id. He later hanged himself with the blan-

ket. Id. Although the sheriff’s actions may have been “ill advised,” the

inmate’s failure to indicate overt suicidality relieved the sheriff of any liability.

Id. at 739. Indeed, in Jacobs, we summarized our holding in Flores as follows:

“We found that the sheriff had not acted with subjective deliberate indif-

ference because Flores did not give any indication of suicidal tendencies at

the time he killed himself.” Jacobs, 228 F.3d at 396 (citing Flores, 124 F.3d

at 738–39).

Contemporaneity matters. 13 For example, in DeLoach v. Bryan,

144 F. App’x 377, 378 (5th Cir. 2005) (per curiam), we found that prior men-

tal health treatment and a previously written “suicide note” were too sepa-

rated in time from the suicide. The more recent history of the inmate’s

behavior, as related by the jail staff, was a better indication of his mental

health at the time of his death. Id. at 378–79. Although failure properly to

follow a suicide-prevention policy may amount to deliberate indifference, see

Pollard, 579 F. App’x at 266, considering the facts, any noncompliance here

13

It is important to note that suicide watch imposes tremendous restraints on a

prisoner’s activity, significantly changes the conditions of his confinement, and imposes a

great amount of strain on a prison’s resources. Here, prisoners in suicide-watch cells have

little interaction with others, have no personal possessions, are not permitted a blanket, and

are under constant observation. As a result, placing an inmate under suicide watch is a

decision not taken lightly, as officials must balance the danger the inmate poses to himself

and others, the restraints on his activities, and the cost to the mental health resources of the

prison. Ideally, inmates are not held under suicide watch indefinitely. The previous two

times Powell was placed under suicide watch, he was released within a few days.

19

Case: 22-30248 Document: 00516641661 Page: 20 Date Filed: 02/10/2023

No. 22-30248

would be at most negligent. 14

C.

Guillot brings state law claims for negligence and vicarious liability. 15

Under Louisiana law, a plaintiff must prove the following in order to be suc-

cessful in a negligence claim: “(1) [T]he defendant had a duty to conform his

conduct to a specific standard (the duty element); (2) the defendant failed to

conform his conduct to the appropriate standard (the breach of duty ele-

ment); (3) the defendant’s substandard conduct was a cause-in-fact of the

plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s substan-

dard conduct was a legal cause of the plaintiff’s injuries (the scope of liability

or scope of protection element); and, (5) actual damages (the damages ele-

ment).” Roberts v. Benoit, 605 So. 2d 1032, 1051 (La. 1991). In short form,

Louisiana law prescribes a typical duty/risk analysis. See Mart v. Hill,

505 So. 2d 1120, 1122 (La. 1987).

Prison officials must use reasonable care to protect inmates from

harm, and this duty extends to self-inflicted injury. See Scott v. State, 618 So.

2d 1053, 1059 (La. App. 1st Cir. 1993). No party disputes that this duty exists.

In examining the duty/risk in a particular case, state law requires an “ease of

association” between the injury/risk and the legal duty/rule of conduct. Todd

v. State, 96-3090, p. 7 (La. 9/9/97), 699 So. 2d 35, 39. In prison suicide cases,

this is a case-specific inquiry, see Scott, 618 So. 2d at 1059; Nagle v. Gusman,

14

Additionally, even if defendants can be sued in their individual capacities,

qualified immunity would likely bar suit. Because Guillot failed sufficiently to plead delib-

erate indifference, though, we see no need to continue the analysis.

15 La. Civ. Code arts. 2315 (liability for acts causing damages), 2315.1 (survival

action), 2315.2 (wrongful death action), 2316 (negligence, imprudence, or want of skill),

2317 (acts of others and of things in custody), 2320 (acts of servants, students, or appren-

tices), and 2324 (liability as solidary or joint and divisible obligation).

20

Case: 22-30248 Document: 00516641661 Page: 21 Date Filed: 02/10/2023

No. 22-30248

61 F. Supp. 3d 609, 625 (E.D. La. 2014), which encompasses more than mere

foreseeability if there is an ease of association, see Todd, 699 So. 2d at 39. But

if no ease of association exists between the duty breached and the damages

that occurred, there is no legal fault. Roberts, 605 So. 2d at 1045.

Guillot presented evidence of the following facts, which we will con-

sider true: First, Powell was depressed on February 18, 2020, and stated he

needed help. A doctor indicated that Powell seemed withdrawn and delu-

sional, was not communicating well, and had wrist abrasions. On March 3,

Powell falsely reported being raped and asked to be alone in his cell. On both

of those occasions, the OCC nurse recommended that Powell see a mental

health professional. Powell did not see a mental health professional and was

not placed on suicide watch on either occasion, violating prison policies, per

Guillot. On March 13, Powell committed suicide after speaking with OCC

officials that day, indicating frustration with his cellmate. Guillot primarily

focuses on the events of February 18, on which, she alleges, Powell “was

found with cuts on his wrist and asking for help.”

Yet the analysis does not change. The district court pointed to two

cases to support its contention that there was no liability even under Louisi-

ana state law. Plaintiff is correct that the first, Misenheimer v. W. Baton Rouge

Par. Sheriff’s Office, 95-2427 (La. App. 1 Cir. 6/28/96), 677 So. 2d 159, where

an inmate grabbed a deputy’s gun and shot himself, may not be entirely appo-

site. First, the prison had no history with the inmate and no reason before-

hand to believe he was suicidal. Id. at 161–62. His grabbing the gun suddenly

was not foreseeable, and the trial court made this determination after a trial,

not at the summary judgment stage. Id.

But the second, Leonard v. Torres, is precisely on point. 2016-1484 (La.

App. 1 Cir. 9/26/17), 2017 WL 4301898. A pretrial detainee hanged himself

with his shoelaces, and his widow sued the sheriff and warden for failing to

21

Case: 22-30248 Document: 00516641661 Page: 22 Date Filed: 02/10/2023

No. 22-30248

prevent the suicide and failure to train. Id. at *1. The court found for the

defendants, noting that “to show that a duty arose on the part of the prison

officials, the evidence must establish that the prison authorities either knew

or should have known of an inmate’s suicidal tendencies.” Id. at *3.

As analyzed before, officials did not have reason to believe that Powell

was a suicide risk on March 13. He was not overly suicidal on that date and

did not meet any OCC risk factors. Again, even if he had been suicidal on

February 18 and March 3, that does not indicate OCC officials knew that he

posed any risk of self-harm on March 13. As in Leonard, Powell did not vocal-

ize any thoughts of suicide anywhere temporally near his suicide. Indeed,

Guillot points to no case in Louisiana state courts where a court has ever

accepted such a tenuous link for liability between a past mental health episode

and an inmate suicide much later. Simply put, no ease of association exists

here; defendants did not owe Powell a duty of care to place him on suicide

watch on March 13, 2020. 16

The summary judgment is AFFIRMED.

16 Defendants bring other defenses, including that Guillot may not have appropri-

ately raised her damages claims. Because she cannot prevail under the initial duty/risk

analysis, it is not necessary to go further.

22