Opposition Brief — Gary Heidel, et al., Petitioners v. Anthony Mazzola, et al.

Case No. 21-235

In The

Supreme Court of the United States

───────♦───────

GARY HEIDEL, ET AL.,

v.

Petitioners,

SHERIFF ANTHONY MAZZOLA, ET AL.,

Respondents.

───────♦───────

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

───────♦───────

BRIEF IN OPPOSITION

───────♦───────

JEFFREY L. DRISCOLL

Counsel of Record

WILLIAMS, TURNER & HOLMES, P.C.

744 Horizon Court, Suite 115

Grand Junction, CO 81506

(970) 242-6262

jdriscoll@wth-law.com

Counsel for Respondents

i

QUESTION PRESENTED FOR REVIEW

The Estate claimed that the Sheriff, in his

official capacity. was deliberately indifferent to

Catherine

Rowell’s

serious

medical

needs

(substantial risk of suicide) in violation of the

Fourteenth Amendment.

The issue raised on appeal was whether the

district court erred in dismissing the Estate’s

municipal liability claim based on the Estate’s failure

to establish the elements of violation of a

constitutional right and of state of mind. The Tenth

Circuit affirmed dismissal on both bases.

The question presented is:

Whether certiorari should be granted to

consider adopting the Kingsley v. Hendrickson, 135 S.

Ct. 2466 (June 22, 2015) Fourteenth Amendment

excessive force objective standard as the standard for

Fourteenth Amendment deliberate indifference to

serious medical needs claims, when this issue was

recently before the Court in another petition and

denied, and the resolution of which will not alter the

judgment.

Whether certiorari should be granted on the

state of mind element of municipal liability when the

only issue raised is that the Tenth Circuit erred in

applying well-settled legal authority to the particular

facts of this case, and petitioner has not

demonstrated that any special and important reasons

required to trigger this Court’s review are implicated.

ii

Rule 14.1.(b)(i) Statement

For purposes of the scope of the appeal to the

Tenth Circuit Court of Appeals (No. 20-1067) and

this petition:

The Plaintiff-Petitioner is Michael Rowell, as

the personal representative of the Estate of

Catherine Rowell (“Estate”).

The Defendant-Respondent is Sheriff Anthony

Mazzola, in his official capacity (“Sheriff”).

iii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .................. i

TABLE OF AUTHORITIES ........................................ v

INTRODUCTION ........................................................ 1

STATEMENT OF THE CASE .................................... 2

A. Course Of Proceedings Below ........................... 2

B. Factual Background ......................................... 3

REASONS FOR DENYING THE PETITION .......... 11

I. THERE ARE NO SPECIAL AND IMPORTANT

REASONS TO CONSIDER THIS PETITION .... 12

A. The Petition Is Duplicative Of A

Recently Denied Petition On The

Exact Same Issue And Does Not

Present An Independent Basis

Justifying This Court’s Review ...................... 12

B. Similar To The Strain Petition Being

Denied, There Is No Special And

Important Reason To Consider

This Petition.................................................... 14

1) The State Of Mind Cases Cited By The

Estate Do Not Establish A CertiorariWorthy Controversy .................................. 17

iv

II. THE STANDARED FOR FOURTEENTH

AMENDMENT DELIBERATE INDIFFERENCE

TO AN INMATE’S MEDICAL CARE IS A

SUBJECTIVE TEST, NOT OBJECTIVE ........... 21

III. THE ORDER BELOW WAS CORRECT .......... 22

A. The Sheriff Was Not Deliberately

Indifferent To An Almost Inevitable

Constitutional Injury ...................................... 23

B. There Was No Constitutional Right

To Suicide Screening Or Prevention

Protocols .......................................................... 28

C. Ms. Rowell Did Not Suffer A

Constitutional Injury ...................................... 29

1) Defendants Were Not Deliberately

Indifferent To Ms. Rowell ......................... 29

2) There Was No Historical Or Current

Evidence To Support A Finding Of

Deliberate Indifference.............................. 30

D. Even Under The Kingsley Objective

Standard, There Was No Constitutional

Violation .......................................................... 34

E. In A Jail Suicide Case, Knowledge Must

Be Based On A Specific Individual, Not

Knowledge Generally...................................... 35

CONCLUSION .......................................................... 38

v

TABLE OF AUTHORITIES

Cases

Bame v. Iron County,

566 Fed. Appx. 731 (10th Cir. 2014).............. 25, 26

Barney v. Pulsipher,

143 F.3d 1299 (10th Cir. 1998) ........... 17, 18, 19, 23

Barrie v. Grand County,

19 F.3d 862 (10th Cir. 1997) ................................. 21

Bd. of County Comm’rs of Bryan County, Okl. v.

Brown, 520 U.S. 397 (1997) .............................. 23

Brady v. Maryland,

373 U.S. 83 (1963) ................................................ 17

City of Los Angeles v. Heller,

475 U.S. 796 (1986) .............................................. 29

Connick v. Thompson,

563 U.S. 51 (2011) .................................... 17, 18, 24

Cox v. Glanz,

800 F.3d 1231 (10th Cir. 2015) ..................... passim

Ernst v. Creek Cty. Pub. Facilities Auth.,

697 Fed. Appx. 931 (10th Cir. 2017) ..................... 26

Estate of Hocker v. Walsh,

22 F.3d 995 (10th Cir. 1994) ........................... 21, 30

vi

Farmer v. Brennan,

511 U.S. 825 (1994) ........................ 1, 21, 22, 25, 29

Gaston v. Ploeger,

229 Fed. Appx. 702 (10th Cir. 2007) ..................... 30

Hinton v. City of Elwood,

997 F.2d 774 (10th Cir. 1993) ............................... 29

J.K.J. v. Polk,

960 F.3d 367 (7th Cir. 2020) ................................. 19

Kingsley v. Hendrickson,

135 S. Ct. 2466 (2015) .................................. passim

Lawrence v. Chater,

516 U.S. 163 (1996) .............................................. 20

McBride v. Toledo Terminal R. Co.,

354 U.S. 517 (1957) .............................................. 20

Monell v. Dep’t of Social Services,

436 U.S. 658 (1978) .............................................. 23

Olsen v. Layton Hills Mall,

312 F.3d 1304 (10th Cir. 2002) ............................. 20

Perry v. City of St. Louis,

399 F. Supp. 3d 863 (E.D. Mo. 2019) ................... 19

Sealock v. Colorado,

218 F.3d 1205 (10th Cir. 2000) ............................. 21

vii

Schneider v. City of Grand Junction Police Dep’t,

717 F.3d 760 (10th Cir. 2013) ...... 14, 17, 18, 23, 24

Taylor v. Barkes,

135 S. Ct. 2042 (2015) .......................................... 28

Verdecia v. Adams,

327 F.3d 1171 (10th Cir. 2003) ............................ 28

Watt v. Alaska,

451 U.S. 259 (1981) .............................................. 14

Woodward v. Corr. Med. Servs. of Ill., Inc.,

368 F.3d 917 (7th Cir. 2004) ................................. 19

Rules

U.S. Sup. Ct. Rule 10................................................. 15

Statutes

C.R.S. § 13-1-111(1) ................................................... 15

Constitution

Colorado Constitution, Art. VI, Section 1 ................. 15

Certiorari Petition

Strain v. Regalado,

No. 20-1562, May 7, 2021 .............. 1, 12, 13, 14, 22

1

INTRODUCTION

This case is a particularly poor vehicle for this

Court’s review.

Utilizing the subjective deliberative indifference test set forth in Farmer v. Brennan, 511 U.S.

825 (1994), both the district court and Tenth Circuit

Court of Appeals concluded that petitioner failed to

satisfy the constitutional violation element of the

municipal liability claim.

The propriety of adopting the Kingsley

excessive force objective standard as the deliberate

indifference to serious medical needs standard was

recently before this Court in Strain v. Regalado, No.

20-1562, dated May 7, 2021, and denied October 4,

2021 (“Strain petition”). This petition brings nothing

special or important to the discussion which

warrants consideration in lieu of the Strain petition.

In addition, no decision this Court issues will alter

the result in this case.

The district court also dismissed the municipal

liability claim on the basis that the Estate failed to

prove the state of mind element as well. The Tenth

Circuit applied well-settled legal authority in

specifically affirming dismissal based on the state of

mind element. Petitioner’s quibble is that the factual

determination was error, which is not a proper basis

for this Court’s jurisdiction, and petitioner has not

otherwise identified any special and important

reason that would justify the Court’s consideration of

this issue.

2

Having failed to identify an issue that

warrants consideration, the petition for writ of

certiorari should be denied.

STATEMENT OF THE CASE

A.

Course Of Proceedings Below.

Plaintiff-Appellant, Michael Rowell, Personal

Representative of the Estate of Catherine Rowell

(“Estate”), sued Sheriff Anthony Mazzola, in his

official capacity (“Sheriff”), for violation of Catherine

Rowell’s Fourteenth Amendment rights based on the

claim that the Sheriff was deliberately indifferent to

Catherine Rowell’s serious medical need of

substantial risk of suicide.

In its summary judgment Order, the district

court concluded there was no municipal liability

because there was no underlying constitutional

violation committed by any of the Defendants,

individually or collectively. The district court further

concluded that, even if any of the individual

Defendants had violated Ms. Rowell’s constitutional

rights, the Sheriff was not aware that the deficiencies

claimed by the Estate were substantially certain to

result in a constitutional violation in the form of

suicide, and the Sheriff did not consciously and

deliberately choose to disregard the risk (state of

mind).

Summary judgment was affirmed on appeal to

the Tenth Circuit Court of Appeals. Pet. App. 1a-9a.

The Tenth Circuit held “the Estate cannot establish

an underlying constitutional violation by any of the

3

jail’s officers because they did not have subjective

awareness of Ms. Rowell’s risk of suicide.” Id. at 5a.

The Tenth Circuit also held that “the Estate

cannot show state of mind, an essential element of a

municipal-liability claim[,]” Pet. App. 8a, because the

Estate failed to show “a pattern of conduct that

would establish actual notice of a substantially high

risk of suicide”, or, that this case involved the “rare

circumstances where the jail’s operating procedures

were so deficient, or the risk of the telephone cord

was so obvious, that it would be liable under § 1983

without proof of a pre-existing pattern of violations.”

Id. at 9a (internal quotation, citation omitted).

B.

Factual Background.

In February 2016, Catherine Rowell was fiftyeight years old. In a one-year period, Ms. Rowell was

held in custody at the Rio Blanco County Detention

Center (“Jail”) four times – in February 2015, August

2015, and two separate times in February 2016. Pet.

App. 3a; Answer Brief in Tenth Circuit (hereinafter,

“AB”), 3.

On February 12, 2016, Ms. Rowell was

arrested and taken to Jail for violation of a

restraining order entered for the protection of

Plaintiff-Petitioner Gary Heidel, Ms. Rowell’s

purported common-law husband. AB, 3; Pet. App. 2a,

3a, 12a-13a.

The Jail is located in Meeker, Colorado and

4

was a very small facility. 1 A total of eight to twelve

inmates were being housed in the Jail during Ms.

Rowell’s February 12-15, 2016 confinement.

A

minimum of two detention officers were on duty at all

times, for a ratio of only 4-6 inmates per officer. AB,

4; Pet. App. 13a.

The Jail was divided into four general

population pods, one of which was designated for

female inmates only. The female pod had a couple of

different cells with sleeping bunks and an adjacent

dayroom which were interconnected. The dayroom

had a sink, shower, toilet, counter with bench,

television, and a telephone with a braided cord

mounted on the wall above the sink. AB, 4; Pet. App.

13a-14a.

Anthony Mazzola was elected as Sheriff and

took office in January 2015. The Sheriff’s Office had

written policies in place which had been adopted in

2002. Sheriff Mazzola began working to update the

policies and procedures for the Jail after becoming

Sheriff. AB, 4; Pet. App. 19a.

The policies specify that “[a] medical screening

shall be done as a part of the booking procedure by

the Jail Deputy.” Under the policies and procedures,

individuals with obvious medical or mental health

issues were required to be medically cleared prior to

being allowed in the Jail. If an incoming inmate had

mental health issues, Jail staff contacted the mental

health organization in Meeker, and a representative

1

A new jail was being completed at the time of the incident and

the Sheriff moved into the new jail shortly after the incident.

5

would go to the Jail to conduct an evaluation. Jail

staff would also contact the organization if an inmate

asked to speak with that organization or appeared to

staff to be in crisis during their confinement. AB, 45; Pet. App. 15a-16a.

The Sheriff utilized a computerized booking

program at the Jail, which included a series of intake

questions and documented whether the individual

indicated if they had any medical issues, including

mental health. The Jail had a standard procedure

for screening inmates for suicide risk by asking the

medical and mental health questions on the list, by

observing their conduct, and taking further action

depending on the answer to the questions or the

conduct observed. AB, 5-6; Pet. App. 15a-16a.

Staff was trained that, as part of the booking

process they were to manually input onto the booking

form “no med issues” if none of the medical

conditions on the list of intake questions were

answered in the affirmative, or, “no comments” under

the officer observation section of the form if the

specified medical conditions were not observed, and

that is how it could be determined after the fact that

the questions were actually asked. All the Jail staff

had on-the-job training to ask the inmate if they were

suicidal and to look for any signs of suicidal

tendencies, and the suicide question was always

asked. AB, 6; Pet. App. 15a-16a.

Information on the “Medical Information –

Medical Detail” section of the booking report and

under the “Officer Visual Observation – Visual

Observation Notes” section of the report had to be

6

manually entered into the Jail’s computer booking

program. Manual entries were made under both

sections of Ms. Rowell’s Feb. 12, 2016 booking report.

AB, 6-7; Pet. App. 16a.

On February 12th, Deputy Cook, who booked

Ms. Rowell into Jail, asked her the series of medical

intake questions listed on the computer program.

These questions included whether Ms. Rowell was

taking any medications, was under a doctor’s care,

had recently been hospitalized, needed medical

attention, and “are you or have you been suicidal.”

Ms. Rowell answered “no” to all these questions. AB,

7; Pet. App. 15a.

Consequently, Deputy Cook manually input

“No Med Issues” under the Medical Information

category and “No Comments’ under the Officer Visual

Observation category. Even though some of the

questions were general, they would also elicit mental

health information, for example, if the inmate

responded that she was under the care of a

psychiatrist to the question of whether she was under

a doctor’s care. AB, 7; Pet. App. 15a-16a.

Deputy Cook was also the booking deputy for

Tina Gonzales, who was arrested at Gary Heidel’s

residence along with Ms. Rowell and was transported

to Jail with Ms. Rowell. Ms. Gonzales’ booking

report reflects that medical questions were also

asked of Ms. Gonzales. Ms. Gonzales was identified

as taking medication for bi-polar, manic-depressive,

and high anxiety conditions as well as asthma and

bronchitis. Ms. Gonzales bonded out shortly after

her booking that afternoon and so she was not kept

7

in custody in the female pod during February 12-15,

2016. AB, 8.

Deputy Cook had also processed Ms. Rowell’s

release two days earlier (on February 10th) at the

conclusion of her one-week confinement. Ms. Rowell

appeared to be acting the same to Deputy Cook on

February 12th when he booked her into the Jail as

she had upon her release on February 10th. Deputy

Cook was not surprised that Ms. Rowell did not have

any medical issues at the time of her booking on

February 12th because she did not have any medical

issues the previous week while she was in Jail. AB,

8; Pet. App. 13a.

While Ms. Rowell was being booked, she

answered questions properly and was cooperative.

During booking, Ms. Rowell did not exhibit any signs

of impairment from either alcohol or drugs, she did

not have red eyes, slurred speech, staggered walk, or

any other signs indicative of impairment. AB, 7; Pet.

App. 15a.

There was no evidence presented that Ms.

Rowell was addicted to drugs or experiencing

withdrawals at the time of her booking on February

12, 2016, or during her confinement the week prior to

this booking. AB, 13; Pet. App. 15a.

To the extent Ms. Rowell was isolated at the

Jail, it was because she was the only female being

housed during this period. At all times Ms. Rowell

was allowed to move between the dayroom and her

sleeping cell. AB, 6-7; Pet. App. 14a.

8

Ms. Rowell had been housed in the female-only

general population pod three prior times within the

preceding twelve months without incident, including

the week immediately prior to this incident. AB, 7;

Pet. App. 3a.

Sgt. Muxlow had previously worked as a patrol

deputy and had encountered Ms. Rowell in that

capacity. Sgt. Muxlow was working the evening

shifts (7:00 p.m. – 7:00 a.m.) on February 13th and

14th, and Ms. Rowell’s reserved demeanor was the

same during his shifts as when he had previously

encountered her as a patrol deputy. Sgt. Muxlow’s

observations of Ms. Rowell’s demeanor were also

consistent with Ms. Rowell’s common-law husband’s

description that Ms. Rowell was normally quiet and

not very talkative. AB, 9; Pet. App. 16a.

During one of Sgt. Muxlow’s night shifts Ms.

Rowell ate her dinner, but initially did not eat her

pie. Because inmates usually eat the dessert, Sgt.

Muxlow opened Ms. Rowell’s door to make sure she

was doing okay and to find out why she was not

eating her dessert. Ms. Rowell ended up eating her

pie after this interaction. AB,10.

Deputy Michael Largent 2 worked the night

shift on Saturday and Sunday (February 13th and

14th). Nothing stood out to Deputy Largent about

Ms. Rowell during his cell checks. Deputy Largent

indicated Ms. Rowell seemed like she was in decent

spirits, the same as she always was when she was

housed in the Jail. AB, 10.

2

Deputy Largent was not named as a defendant.

9

Deputy Murray worked the day shifts of

February 12-15, 2016. Deputy Murray had routine

conversations with Ms. Rowell such as how she was

doing, did she want something to eat, did she need a

blanket, did she want to go to the rec yard, things of

that nature. Deputy Murray noticed Ms. Rowell was

not eating a lot and asked her why she was not

eating, to which she responded she was not hungry.

AB, 10; Pet. App. 17a-18a.

Deputy Kilduff worked the day shifts on

February 13-15, 2016. Deputy Kilduff asked Ms.

Rowell if she wanted her one-hour of outside

recreation time and each day Ms. Rowell declined.

Ms. Rowell was confined in February, the daytime

temperature was in the 20’s, the outdoor recreation

area was just an empty yard without any exercise

equipment, and other inmates did not go outside for

exercise either.

Ms. Rowell declining outdoor

recreation time in sub-freezing temperatures was not

strange behavior. AB, 11; Pet. App. 18a-19a.

Ms. Rowell asked Deputy Kilduff on the

morning of February 15th why breakfast was not

being served, and he explained the inmates were

receiving brunch instead because the 15th was a

holiday (President’s Day). Ms. Rowell ate most of the

egg casserole provided at brunch along with her

cottage cheese and sweet bread. Ms. Rowell did not

eat the pears or potatoes. AB, 11; Pet. App. 18a.

At approximately 12:07 p.m. on February 15th,

Deputy Kilduff found Ms. Rowell asleep and he woke

her up to see if she wanted her outside recreation

time, to which she responded “No, thank you.” Ms.

10

Rowell was on her bunk in her sleeping cell during

this exchange, not in the dayroom. On previous days,

Deputy Kilduff had observed Ms. Rowell watching

television in the dayroom for part of the time. AB,

11-12; Pet. App. 20a.

The policies state that Jail checks were to be

performed every 60 minutes. Over the course of her

stay, Ms. Rowell was checked a total of 116 times

from the time of her booking on February 12th until

her death on February 15th, which equates to a cell

check on average every 6/10th of an hour. The Estate

contends that events such as delivering meals and

retrieving trays do not constitute a cell check because

it is not specifically denominated as a cell check on

the log. AB, 12; Pet. App. 3a.

Because of Ms. Rowell’s four confinements at

the Jail within an approximately one-year period,

Defendants were generally familiar with Ms. Rowell.

Ms. Rowell never complained of being suicidal, never

requested counseling, or gave any other indication

that she may wish to harm herself. Ms. Rowell’s

conduct during this particular confinement was no

different than her three prior confinements within

the previous year. AB, 12-14; Pet. App. 3a, 13a.

Independent from her confinement in Jail, Ms.

Rowell had never previously attempted to commit

suicide or been treated for suicidal tendencies. Ms.

Rowell was briefly treated for depression in 2013 as

part of her course of treatment for a stroke she had

suffered. All the individual Plaintiffs, who are Ms.

Rowell’s purported common-law husband and her

four adult children, were surprised that Ms. Rowell

11

had committed suicide. None of these individuals

had ever communicated any information or just

general concern to Defendants at any time about Ms.

Rowell’s mental or medical health. AB, 14.

Ms. Rowell was with Gary Heidel on the day

she got arrested and, despite the restraining order,

had been staying with Mr. Heidel from the time of

her release on February 10th to the time of her rearrest on February 12th. Mr. Heidel indicated the

two days between Ms. Rowell’s release and her arrest

were probably the best couple of days he and Ms.

Rowell had had since her stroke in 2013. Ms. Rowell

appeared normal to Mr. Heidel at the time she was

arrested on February 12th. AB, 14.

Only one other suicide has occurred at the Jail,

which happened in the early 1980’s or 90’s, and no

inmate had previously attempted to harm themself

with the braided telephone cord. An attempted

suicide in 2015 involved an inmate trying to drown

herself in the toilet. Jail staff had no information to

indicate that Ms. Rowell may be suicidal during this

confinement or that she would use the telephone cord

to harm herself. AB, 13.

REASONS FOR DENYING THE PETITION

The issue on appeal was whether petitioner

satisfied all elements of municipal liability.

Determining whether the holding in Kingsley v.

Hendrickson, 135 S. Ct. 2466 (2015) was so broad

that it should be applied outside of the Fourteenth

Amendment excessive force context and interjected

into the deliberate indifference to serious medical

12

needs context was recently reviewed by the Court in

the Strain petition, which was denied. And, even if it

were to be considered here, it still would not resolve

whether petitioner established the state of mind

element of a municipal liability claim – one of the two

elements petitioner failed to satisfy – even if adoption

of the standard and remand resulted in determining

Ms. Rowell’s constitutional rights were violated.

Petitioner’s disagreement with the Tenth

Circuit’s application of well-settled municipal

liability “state of mind” legal authority to the facts of

the case does not present a special and important

reason sufficient to trigger this Court’s review.

I.

THERE ARE NO SPECIAL AND

IMPORTANT REASONS TO CONSIDER

THIS PETITION.

Petitioner has not identified any special and

important reason that would justify consideration of

its petition. The petition should be denied.

A.

The Petition Is Duplicative Of A

Recently Denied Petition On The Exact

Same Issue And Does Not Present An

Independent Basis Justifying This

Court’s Review.

A petition for writ of certiorari was considered

in Strain v. Regalado, No. 20-1562, which was denied

on October 4, 2021. The predicate for the Strain

petition was to resolve a purported circuit split as to

whether the objective standard in excessive force

cases set forth in Kingsley v. Hendrickson, 135 S. Ct.

13

2466 (June 22, 2015) should be extended into the

Fourteenth Amendment deliberate indifference to

serious medical needs context. More specifically, the

question presented was:

Whether a pretrial detainee can prevail

against a jail official who disregarded an

obvious risk of serious harm or whether the

pretrial detainee must prove that the official

subjectively knew of and disregarded a serious

risk of harm.

The Strain petition was distributed for

conference on September 27, 2021, and denied on

October 4, 2021.

Both the present petition and the Strain

petition involve the claim that jail officials failed to

provide medical care to a pretrial detainee as

considered under the Fourteenth Amendment.

Strain involved the lack of physical medical care,

whereas the present matter involved the lack of

mental health care.

That distinction is wholly

irrelevant to whether the Kingsley objective standard

should be extended into the deliberate indifference to

serious medical needs arena and therefore does not

warrant consideration of this petition in lieu of

Strain.

14

B.

Similar To The Strain Petition Being

Denied, There Is No Special And

Important Reason To Consider This

Petition.

Petitioner’s “second question presented [is] to

correct the Tenth Circuit’s error.” (Petition, p 28)

This Court has noted that “our certiorari jurisdiction

is designed to serve purposes broader than the

correction of error in particular cases.” Watt v.

Alaska, 451 U.S. 259, 275 fn.5 (1981)(Stevens, J.,

concurring).

There is no special and important reason to

consider this petition in lieu of the Strain petition.

Resolution of a circuit split purportedly created by

Kingsley as to the standard for determination of

whether a constitutional violation occurred does not

resolve this appeal because the state of mind element

of municipal liability also was not proven and

petitioner has not elucidated a special and important

reason to consider the second question.

To establish municipal liability, the Estate was

required to “show (1) an official government policy or

custom, (2) that caused a constitutional injury, and

(3) requisite state of mind.” Pet. App. 4a (citing

Schneider v. City of Grand Junction Police Dep’t, 717

F.3d 760, 769 (10th Cir. 2013)).

The appeal involved whether the district

court’s holding was in error that the Estate failed to

establish all elements of municipal liability. The

district court held, which the Tenth Circuit affirmed,

that the Estate failed to demonstrate Ms. Rowell’s

15

constitutional rights were violated, and, even if they

were violated, the Estate failed to establish the state

of mind element of municipal liability.

So, even if the Kingsley objective standard is

extended into the Fourteenth Amendment deliberate

indifference to serious medical needs context, and, on

remand one or more of the individual Defendants are

determined to have violated Ms. Rowell’s

constitutional rights under that new standard, that

still does not disturb the judgment because the

Estate failed to establish the state of mind element of

municipal liability.

As to the state of mind element of municipal

liability, petitioner has not demonstrated that the

character of the reasons for granting certiorari

enumerated under U.S. Sup. Ct. Rule 10 are

implicated here.

Petitioner did not identify decisions of other

United States court of appeals on the same important

matter which are in conflict with the Tenth Circuit

Court of Appeals’ decision. There is not a conflict

among the circuits as to what constitutes the

elements of municipal liability generally, or analysis

of the state of mind element specifically.

The Tenth Circuit Court of Appeals did not

decide an important federal question in a way that

conflicts with a decision by a state court of last

resort, a Colorado supreme court decision, which is

the court of last resort in Colorado.

Colorado

Constitution, Art. VI, Section 1; C.R.S. § 13-1-111(1).

16

The Tenth Circuit Court of Appeals’ March 23,

2021 Order and Judgment (Pet. App. 1a-9a) did not

so far depart from the accepted and usual course of

judicial proceedings or sanction such a departure by

a lower court as to call for an exercise of this Court’s

supervisory power. The state of mind element was a

factual determination and both the district court and

the Tenth Circuit Court of Appeals applied wellsettled law to the specific facts of the case. No clear

and convincing showing has been made that the

factual decisions were not supported by the record, or

that the district court or Tenth Circuit misapplied

the applicable law to those facts.

The Tenth Circuit Court of Appeals did not

decide an important question of federal law that has

not been, but should be, settled by this Court. What

does or does not comprise municipal liability

generally, or state of mind specifically, is not

unsettled law. There is not a disparity among the

various circuits as to the meaning or application of

this settled authority. The present matter does not

raise a newly undecided aspect on this issue, rather,

the present matter simply involves petitioner’s

disgruntlement with factual determinations having

been decided against it.

Lastly, the Tenth Circuit Court of Appeals did

not decide an important federal question in a way

that conflicts with relevant decisions of this Court.

17

1)

The State Of Mind Cases Cited By

The Estate Do Not Establish A

Certiorari-Worthy Controversy.

The Tenth Circuit identified the legal

authority and analysis required to determine

whether the state of mind element of municipal

liability had been satisfied. Pet. App. 7a-8a. The

cases cited by petitioner do not establish authority

that is in conflict with the authority identified by the

Tenth Circuit. Rather, petitioner’s cases merely

represent application of the same well-settled

authority to different sets of facts. The existence of

different conclusions reached based on different sets

of facts is not a valid reason for triggering this

Court’s jurisdiction.

The Tenth Circuit cited Connick v. Thompson,

563 U.S. 51, 64 (2011), Schneider v. City of Grand

Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir.

2013) and Barney v. Pulsipher, 143 F.3d 1299, 1307

(10th Cir. 1998) as legal authority as to what must be

proven to establish the state of mind element of a

municipal liability, official capacity claim. Pet. App.

7a-8a. The Tenth Circuit then applied the legal

authority to the specific facts of this case and

concurred with the district court that, under the

circumstances of this case, petitioner did not satisfy

the state of mind element of municipal liability.

Connick, 563 U.S. 51, involved a municipal

liability claim for failure to train the prosecutor’s

staff on exculpatory evidence disclosure obligations

under Brady v. Maryland, 373 U.S. 83 (1963).

Connick identified the requirement that a claimant

18

must prove the municipality was deliberately

indifferent, which “is a stringent standard of fault,

requiring proof that a municipal actor disregarded a

known or obvious consequence of his action.” Id.

Connick noted that a pattern of similar constitutional

violations is ordinarily necessary to demonstrate

deliberate indifference. Id. at 62.

Like the present matter, Connick held that the

claimant failed to establish a pattern of prior

constitutional violations, and further held that the

circumstances of the case did not fall within the

narrow range of circumstances in which proof of a

pattern of prior constitutional violations was not

necessary. Id. at 63-68. In the present matter, the

Tenth Circuit applied the same legal principles to a

different set of facts and reached a similar

conclusion.

Schneider, 717 F.3d 760, involved municipal

liability claims for a police officer accused of sexually

assaulting a woman. In the present matter, the

Tenth Circuit quoted the standard of proof identified

in Schneider which is required to establish the state

of mind element of municipal liability. Pet. App. 8a.

Like the present matter, the municipal liability claim

in Schneider was rejected due to a lack of evidence of

deliberate indifference. Id. at 773.

Barney, 143 F.3d 1299, involved claims of

sexual assault and conditions of confinement against

the sheriff in his official capacity. Barney detailed

the deliberate indifference standard necessary to

establish the state of mind element of a municipal

liability claim, Id. at 1307-08, which was similarly

19

detailed in the Tenth Circuit’s Mar. 23, 2021 Order

and Judgment. Pet. App. 7a-8a. Like the present

matter, in Barney no pattern of violations existed to

put the officials on notice. Id. at 1308. Also like the

present matter, in Barney it was concluded the facts

of the case did not fall within the narrow range of

circumstances justifying a finding of deliberate

indifference absent a pattern of violations. Id.

Petitioner argues that “as was cited to the

Tenth Circuit below, the courts addressing this legal

issue appear to have all reached the opposite

conclusion. Woodward, 368 F.3d at 929; Perry for

Brooks, 399 F. Supp. 3d at 882 n.15; accord J.K.J. v.

Polk, 960 F.3d 367, 381 (7th Cir. 2020) . . . .” 3 Pet.

27. First of all, the “courts addressing this legal

issue” only include two cases from the 7th Circuit

and a single district court case. More importantly,

petitioner’s argument makes clear that there is not a

split among the circuits as to the appropriate legal

standard for the state of mind element in a municipal

liability claim. Rather, these three other courts

simply reached different conclusions on their specific

set of facts than was reached in the present matter.

As set forth in Part I.B. above, petitioner’s argument

does not establish that any special and important

reason for granting certiorari are implicated.

Contrary to petitioner’s argument, the Tenth

Circuit distinguished the facts of Woodward, 368

F.3d 917, from the present matter. Pet. App. 7a-8a.

3 Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917 (7th

Cir. 2004); Perry v. City of St. Louis, 399 F. Supp. 3d 863 (E.D.

Mo. 2019).

20

Also contrary to petitioner’s argument, the

Tenth Circuit’s decision was not contrary to the

holding in Olsen v. Layton Hills Mall, 312 F.3d 1304

(10th Cir. 2002). Olsen involved consideration of

municipal liability as to two separate municipalities.

Id. at 1318-20. Based on the particular facts of that

case, Olsen concluded one municipality was not

deliberately indifferent whereas a question of fact

existed as to whether the other municipality was. In

reaching that conclusion, Olsen applied the same

deliberate indifference analysis as was utilized in the

present matter. Just because the Tenth Circuit

reached a different conclusion here based on the

unique facts of this case does not render its decision

contrary to Olsen. McBride v. Toledo Terminal R.

Co., 354 U.S. 517, 519 (1957)(Frankfurter, J.,

dissenting)(“This Court has said again and again

that a difference of opinion in weighing evidence is

not included among “special and important reasons’

for granting certiorari.”)

With petitioner having failed to establish a

basis for consideration of the propriety of the Tenth

Circuit affirming summary judgment on the state of

mind element of municipal liability, there also is no

special and important reason to consider adoption of

the Kingsley standard on the constitutional violation

element since summary judgment will stand

regardless. Lawrence v. Chater, 516 U.S. 163, 173-74

(1996)(respect for lower courts and the public’s

interest in finality of judgments dictate that the

Court’s authority to grant certiorari, vacate the

judgment, and remand for further review should be

used sparingly.)

21

II.

THE STANDARD FOR FOURTEENTH

AMENDMENT DELIBERATE

INDIFFERENCE TO AN INMATE’S

MEDICAL CARE IS A SUBJECTIVE

TEST, NOT OBJECTIVE.

Whether or not an objective standard or a

subjective standard should be applied in deliberate

indifference to an inmate’s health or safety cases was

addressed in Farmer v. Brennan, 511 U.S. 825, 837

(1994), in which it was concluded a subjective

standard is applicable.

(“We reject petitioner’s

invitation to adopt an objective test for deliberate

indifference.”) Kingsley did not purport to overturn

or supercede Farmer.

“[C]laims based on a jail suicide are considered

and treated as claims based on the failure of jail

officials to provide medical care for those in their

custody.” Barrie v. Grand County, 19 F.3d 862, 866

(10th Cir. 1997). For the Estate to substantiate Ms.

Rowell had a constitutional right to adequate medical

care, it must prove that Defendants were deliberately

indifferent to her serious medical needs. Farmer, 511

U.S. 825; Estate of Hocker v. Walsh, 22 F.3d 995, 998

(10th Cir. 1994).

Because none of the Defendants were medical

personnel, deliberate indifference only occurs if

Defendants delayed or prevented Ms. Rowell from

access to medical personnel capable of evaluating the

need for treatment. Sealock v. Colorado, 218 F.3d

1205, 1211 (10th Cir. 2000).

22

“[A] prison official cannot be found liable . . .

unless the official knows of and disregards an

excessive risk to inmate health or safety; 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.”

Farmer, 511 U.S. at 837. The Tenth Circuit simply

followed the precedent of Farmer on the specific issue

at hand.

Contrary to petitioner’s argument, the holding

in Kingsley was not broad and did not purport to

depart from Farmer. By its express terms, the scope

of Kingsley was limited to a pretrial detainee’s

Fourteenth Amendment due process claim based on

excessive use of force. Kingsley, 135 S. Ct. at 2476.

The Kingsley court specifically declined to expand the

objective standard to apply to even Eighth

Amendment excessive force claims brought by

convicted prisoners. Id. There was no discussion,

much less holding, extending the Kingsley standard

into denial of medical care claims.

The panoply of reasons for the Court to decline

taking up this issue have already been fully

elucidated in the Strain petition, which was denied

October 4, 2021.

III.

THE ORDER BELOW WAS CORRECT.

In order to impose municipal liability, a

plaintiff must prove: (1) the existence of an official

government policy or custom (2) which caused the

constitutional injury, and (3) the policy or custom

was enacted or maintained with deliberate

23

indifference to an almost inevitable constitutional

injury (state of mind). Schneider v. City of Grand

Junction Police Dep’t, 717 F.3d 760, 770 (10th Cir.

2013).

The Sheriff was not liable because there was

no underlying violation of Ms. Rowell’s constitutional

rights. However, even if there was an underlying

constitutional violation, both the district court and

Tenth Circuit also concluded the Estate failed to

establish the state of mind element of municipal

liability.

A.

The Sheriff Was Not Deliberately

Indifferent To An Almost Inevitable

Constitutional Injury.

The Sheriff can be held responsible for a

constitutional violation only if a Sheriff’s policy or

custom caused the constitutional injury. Monell v.

Dep’t of Social Services, 436 U.S. 658 (1978).

To establish municipal liability, “rigorous

standards of culpability and causation must be

applied,” which requires a showing of deliberate

indifference.

Bd. of County Comm’rs of Bryan

County, Okl. v. Brown, 520 U.S. 397, 405 (1997). The

term “deliberate indifference” has a different

meaning in the context of municipal liability than in

the context of whether an individual committed a

constitutional violation. Barney v. Pulsipher, 143

F.3d 1299, 1307, n.5 (10th Cir. 1998).

24

To prove deliberate indifference in the

municipal liability context, the Estate was required

to establish the following:

The deliberate indifference standard may be

satisfied when the municipality has actual or

constructive notice that its action or failure to

act is substantially certain to result in a

constitutional violation, and it consciously or

deliberately chooses to disregard the risk of

harm. In most instances, notice can be

established by proving the existence of a

pattern of tortious conduct. In a narrow

range of circumstances, however, deliberate

indifference may be found absent a pattern of

unconstitutional behavior if a violation of

federal rights is a highly predictable or

plainly

obvious

consequence

of

a

municipality’s action or inaction.

Schneider, 717 F.3d at 771. “A pattern of similar

constitutional violations by untrained employees is

ordinarily necessary to demonstrate deliberate

indifference for purposes of failure to train.” Connick

v. Thompson, 563 U.S. 51, 62 (2011).

Although the knowledge of risk required for

establishing deliberate indifference has been modified

for unique settings such as sexual assault in prison,

this does not alter the clear guidance of cases

involving jail-suicide because “a substantial risk of

suicide may be impossible to discern unless the

particular inmate reveals indicia of that risk to prison

officials.” Cox v. Glanz, 800 F.3d 1231, 1251 n. 11

(10th Cir. 2015).

25

A substantial risk is well-known when the risk

is (1) longstanding; (2) pervasive; (3) welldocumented or expressly noted by the jail in the past;

and (4) the circumstances suggest that the jail had

been exposed to information concerning the risk and

thus must have known about it. Farmer v. Brennan,

511 U.S. at 842-43. There was no evidence that any

inmate had used a telephone cord in the Jail before to

harm themself, or others, and that it presented a

well-known substantial risk to Ms. Rowell’s safety.

As noted by the district court, the telephone cord is

analogous to items routinely present in jail such as

sheets and clothing. Pet. App. 39a-40a.

The evidence did not support the conclusion

that the Sheriff had actual or constructive notice that

its actions were substantially certain to result in a

constitutional violation.

The Jail had only

experienced one prior suicide, which was remote in

time (1980’s or 90’s), and did not involve an inmate

hanging themself with a telephone cord.

The

attempted suicide in 2015 involved an inmate trying

to drown herself in the toilet. So, the Sheriff did not

have notice that placing Ms. Rowell in a general

population cell in which she had access to a telephone

was substantially certain to result in Ms. Rowell

using the telephone cord to kill herself.

The Estate argued to the district court that the

Jail should have had more surveillance cameras

monitoring the inmates.

While the lack of a

surveillance camera may be evidence of the tort of

negligent design, a state remedy, it is not a

constitutional violation. Bame v. Iron County, 566

Fed. Appx. 731, 740 (10th Cir. 2014) (unpublished).

26

The Jail manual was not inadequate. As

required by the policies, Jail staff checked on Ms.

Rowell 116 times over the course of the

approximately seventy-two hour period of time from

when she was brought to Jail and when she died,

which equates to a cell check on average every 6/10th

of an hour. Acknowledging that the Estate disputed

the frequency of the checks, the district court

nonetheless held that “staff routinely checked on Ms.

Rowell”. Pet. App. 14a.

Defendants spoke to and interacted with Ms.

Rowell, asked how she was doing, whether she

needed anything such as blankets or wanted to go

outside to exercise, brought her meals, retrieved her

food tray. Jailors have no constitutional duty to

monitor inmates constantly. Bame, 566 Fed. Appx.

at 740. The failure to monitor Ms. Rowell as

frequently as argued by the Estate did not amount to

deliberate indifference. Id.

The manual had adequate protocols for taking

extra security measures for inmates who are suicidal.

However, under the circumstances of this case those

protocols were not triggered.

The Estate also argued to the district court

that the Jail should have employed medical staff to

conduct suicide evaluations. “Absent a constitutional

requirement that only licensed physicians or

psychiatrists may conduct suicide evaluations”, “and

we are aware of none”, “it cannot be said that the jail

was deliberately indifferent to the risk of [the

inmate’s] suicide”. Ernst v. Creek Cty. Pub. Facilities

Auth., 697 Fed. Appx. 931, 934 (10th Cir. 2017)

27

(unpublished). As discussed in Part III.B. below, Ms.

Rowell had no constitutional right to specialized

suicide screening protocols.

The evidence also did not establish that the

Sheriff engaged in a pattern of tortious conduct.

There was no evidence that there was a history of

Jail staff ignoring inmates’ needs for mental health

treatment in general, or suicide in particular. The

only instance of purported tortious conduct identified

by the Estate was the present matter.

Nor did The Sheriff consciously or deliberately

choose to disregard the harm. To disregard the

harm, the Sheriff would first have to be aware of a

substantial risk of harm. No evidence supporting

this predicate requirement was provided by the

Estate.

Even if, arguendo, evidence was presented of

the Sheriff’s awareness, the Estate presented no

evidence that the Sheriff consciously or deliberately

chose to disregard the risk. To the contrary, the

Sheriff had policies, procedures and training in place

for processing incoming inmates, for utilizing the

computerized program which included medical and

mental health and suicide questions which required

manually inputing inmate information, for regular

cell check requirements, for suicide-specific safety

protocols, for mental health evaluation and

counseling. The Sheriff’s conduct evidenced conscious

regard, not disregard.

This single instance does not denote a repeated

pattern of noncompliance such that it could be

28

considered a custom. The undisputed evidence was

that no one had previously utilized a telephone cord

to harm themself at the Jail, so a violation of federal

rights was not highly predictable or a plainly obvious

consequence.

Plaintiffs’ allegations for the state wrongful

death claims were also instructive. Nowhere in the

Second Amended Complaint did the Estate allege

that any of the Defendants’ actions were willful or

wanton or even reckless. Rather, the state claims

were based on negligence only. Aplt. App. Vol. II at

285-286, Part VI; Aplt. App. Vol. I at 19-37. Mere

negligence is insufficient to establish § 1983

deliberate indifference liability. Verdecia v. Adams,

327 F.3d 1171, 1177 (10th Cir. 2003).

B.

There Was No Constitutional Right To

Suicide Screening Or Prevention

Protocols.

In February 2016, there was no constitutional

right to suicide screening or prevention protocols.

“No decision of this Court establishes a right to the

proper

implementation

of

adequate

suicide

prevention protocols. No decision of this Court even

discusses suicide screening or prevention protocols.”

Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (per

curiam). Nor had the clear weight of authority

among the circuits established that such a right

exists. Id.; see also Cox, 800 F.3d at 1247 (“an

inmate’s right to proper prison suicide screening

procedures during booking – wasn’t clearly

established.”).

29

C.

Ms. Rowell Did Not Suffer A

Constitutional Injury.

Both the district court and the Tenth Circuit

concluded Ms. Rowell did not suffer a constitutional

injury.

“[A] prison official cannot be found liable . . .

unless the official knows of and disregards an

excessive risk to inmate health or safety; 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.”

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

If a city is sued based on its responsibility for a

police officer’s actions and it is concluded the officer

did not inflict a constitutional injury, then “it is

inconceivable that [the city] could be liable to [the

plaintiff].” City of Los Angeles v. Heller, 475 U.S.

796, 799 (1986); Hinton v. City of Elwood, 997 F.2d

774, 782 (10th Cir. 1993) (A municipality may not be

held liable where there was no underlying

constitutional violation by any of its officers).

1)

Defendants Were Not Deliberately

Indifferent To Ms. Rowell.

All individual claims were voluntarily

dismissed by the Estate during summary judgment,

except as to Sgt. Muxlow, who was also dismissed on

summary judgment. Nonetheless, the Estate argued

that the Sheriff is liable for the collective acts of the

Defendants. Even if the Estate’s argument was

30

assumed to be correct, it still does not evidence a

constitutional violation.

To establish deliberate indifference in a prison

suicide case, Plaintiffs must show “that the detainee

exhibited strong signs of suicidal tendencies, that the

jail officials had actual knowledge of, or were

willfully blind to, the specific risk that the detainee

in question would commit suicide and that the jail

officials then failed to take steps to address that

known, specific risk.” Estate of Hocker by Hocker v.

Walsh, 22 F.3d at 1000 (10th Cir. 1994). A jailer’s

knowledge is viewed under the totality of the

circumstances. Cox, 800 F.3d at 1253. When an

inmate’s observable symptoms are susceptible to a

number of interpretations, with suicide being one

possibility, a jailer is not deliberately indifferent

unless it is established that the inmate presented a

substantial risk of suicide. Id. at 1253-54.

Although a defendant’s knowledge of

substantial risk may be proven by evidence the risk

was obvious, “the threshold for obviousness is very

high.” Gaston v. Ploeger, 229 Fed. Appx. 702, 710

(10th Cir. 2007)(unpublished).

For example, “a

request to see a crisis counselor . . . is not sufficient

to put a defendant on notice that an inmate poses a

substantial and imminent risk of suicide.” Id.

2)

There Was No Historical Or Current

Evidence To Support A Finding Of

Deliberate Indifference.

There was no evidence that Ms. Rowell

exhibited suicidal ideation in any manner during her

31

three prior confinements within one year of this

incident, including the one-week confinement just

days before. Ms. Rowell was placed in the same

female general population pod with the same access

to the dayroom without incident in all three prior

confinements.

During the Feb. 12-15 confinement, there was

no evidence Ms. Rowell ever indicated she was

suicidal and no evidence that she asked for mental

health treatment or medical treatment of any nature.

Ms. Rowell was behaving in the same manner as

before and Defendants had no information which led

them to believe Ms. Rowell would harm herself on

this occasion.

Ms. Rowell was arrested, transported to Jail,

and processed at the same general time as another

female (Tina Gonzales). It is undisputed that the

booking deputy (Cook) went through the computer

questionnaire with Ms. Gonzales and specified

numerous medical issues identified by her. There

was no evidentiary support for the Estate’s argument

that the booking deputy failed to go through the

same process with Ms. Rowell, for whom the deputy

specifically noted on the booking form that there

were no med issues identified by Ms. Rowell or

observed by him. The fact that prior bookings had

noted high blood pressure and dentures, but did not

reflect that on the February 12th booking, is evidence

that prior forms were not simply copied and pasted.

Ms. Rowell was the only female being housed,

and there is no evidence of disciplinary, security or

medical reasons to confine Ms. Rowell to her sleeping

32

cell only or to place her in an isolation cell.

Defendants routinely performed cell checks, observed

and interacted with Ms. Rowell. On the day of her

death, at worst, there was an interval of

approximately an hour and fifty minutes between the

last contact with Ms. Rowell while she was still alive

and when she was discovered.

Ms. Rowell’s common law husband, Gary

Heidel, described Ms. Rowell as quiet and reserved.

The behavior observed by Defendants was consistent

with that description.

For the two-day period between Ms. Rowell’s

release on February 10th and her return to Jail on

February 12th, Mr. Heidel described their time

together as the best time they had had since Ms.

Rowell suffered a stroke three years earlier in 2013.

Ms. Rowell appeared normal to Mr. Heidel on the day

she was arrested (February 12th) and taken back to

Jail. So, the Estate’s argument that it was obvious

that Ms. Rowell was so despondent that she would

take her own life is inconsistent with the

observations of the individual that knew her the best.

There also was no factual basis for the Estate’s

argument that Ms. Rowell was despondent and

therefore suicidal because she was going through

withdrawals. There was no evidence that Ms. Rowell

was addicted to either alcohol or drugs in February

2016.

Deputy Cook’s observations during the

February 12 booking that Ms. Rowell did not exhibit

any signs of impairment from either alcohol or drugs,

she did not have red eyes, slurred speech, staggered

walk, or other signs indicative of impairment

33

contradicts the Estate’s argument. Similarly, there

was no evidence that Ms. Rowell exhibited

withdrawal symptoms at any time during her

confinement Feb. 12-15, or even the week previously

when she was confined.

Other than minimal treatment for depression

during Ms. Rowell’s treatment for her stroke in 2013,

Ms. Rowell had never been treated for depression or

for being suicidal. To a person, Ms. Rowell’s common

law husband and all four of her children were

surprised when they learned Ms. Rowell had

committed suicide. None of these individuals ever

provided any information to Defendants or other Jail

personnel that Ms. Rowell had a history of depression

and should be closely observed for suicidal

tendencies, because Ms. Rowell had no such history.

The Estate claimed without evidentiary support that

Defendants should have divined a mental health

condition of which no individual close to Ms. Rowell

was even aware.

Contrast Ms. Rowell’s circumstances with the

inmate in Cox, 800 F.3d 1231. There, the inmate

indicated that he felt paranoid, heard voices, saw

things that others do not see, said he felt nervous or

depressed in recent weeks, and was taking

medication for an emotional or mental health

problem. Jail employees were aware the inmate had

been treated for paranoid schizophrenia. The inmate

denied he was currently thinking about suicide. The

court in Cox noted that the inmate’s symptoms to

some extent were consistent with a risk of suicide,

but were also consistent with other conditions.

Under those circumstances, the court held the jail

34

staff was not deliberately indifferent. Pet. App. 28a 29a. The facts of the present matter were much more

attenuated and ambiguous than the circumstances

present in Cox, and Cox was cited as authority for

support of summary judgment. Pet. App. 28a-31a.

D.

Even Under The Kingsley Objective

Standard, There Was No Constitutional

Violation.

Even if, arguendo, Kingsley should be applied,

it still is unhelpful. Kingsley itself notes that even

when it comes to pretrial detainees, “liability for

negligently inflicted harm is categorically beneath

the threshold of constitutional due process.”

Kingsley, 135 S. Ct. at 2472. The district court

concluded that, at worst, this incident amounted to

no more than gross negligence and therefore it falls

beneath the threshold of constitutional due process.

With respect to excessive force, Kingsley

identified various factors which guide a court’s

consideration. Those factors include the requirement

that the conduct undertaken must have been done

purposely or knowingly and been objectively

unreasonable. Kingsley, 135 S. Ct. at 2473. The

objective standard requires that the “determination

must be made from the perspective of a reasonable

officer on the scene, including what the officer knew

at the time”, “from the [defendant officer’s]

perspective”, and “not with the 20/20 vision of

hindsight.” Kingsley, 135 S. Ct. at 2468, 2473, 2474.

The inmate must also show that the jailor was not

acting in good faith. Id. at 2474.

35

Consideration of the Kingsley factors, if they

were applicable, still supports the district court’s

dismissal. Inmates coming into the Jail were placed

in the general population pod which afforded them

access between their sleeping cell and an adjacent

dayroom where basic necessities of water, toilet and a

shower were provided along with having a place to

sit, watch television, and contact family, friends,

attorney or others. There was no reason to place an

inmate in an isolation cell and institute suicide

protocols unless there was information to indicate the

inmate may harm him or herself.

With all the information known by

Defendants, including Ms. Rowell’s history as well as

her then-conduct, the evidence did not support the

necessity for implementing suicide protocol with Ms.

Rowell. It simply was untenable to have an inmate

with no suicidal history or tendencies placed under

close observation 24-hours a day and this level of

observation is not constitutionally required under

those circumstances.

So, even if, arguendo, the Kingsley objective

standard was adopted by the Tenth Circuit,

Defendants’ conduct still did not rise to the level of

an unconstitutional deprivation.

E.

In A Jail Suicide Case, Knowledge Must

Be Based On A Specific Individual, Not

Knowledge Generally.

The Estate argues that knowledge for

deliberate indifference purposes can be predicated on

suicide in inmate populations generally and does not

36

require knowledge about a specific individual.

Contrary to the Estate’s argument, Tenth Circuit

precedent requires knowledge of suicide risk by a

specific inmate, not the inmate population in general.

“[I]rrespective of the alleged deficiencies in the

Jail’s suicide-screening protocols, in order for any

defendant, including Sheriff [Mazzola], to be found to

have acted with deliberate indifference, he needed

first to have knowledge that the specific inmate at

issue presented a substantial risk of suicide.” Cox,

800 F.3d at 1250. “[S]omething more than an

inmate’s gloomy affect is required to trigger a duty to

inquire whether [she] is feeling suicidal”. Id. at 1253

(internal quotation omitted). “[S]trange behavior

alone, without indications that that behavior has a

substantial likelihood of taking a suicidal turn, could

not give rise to deliberate indifference liability.” Id.

at 1253-54 (internal quotation omitted).

Like any other medical condition, jail staff can

only rely on the accuracy of the mental health

information provided to them by each inmate as well

as their observations of the inmate’s conduct to

ascertain whether mental health assistance is

required. Ms. Rowell had never been treated for

attempted suicide or suicide ideation, and had only

been minimally treated for depression as part of her

overall care for the stroke she suffered years prior to

her confinement. Ms. Rowell’s four adult children

had no idea Ms. Rowell was suicidal and each of the

children expressed shock that she had committed

suicide.

37

Without evidentiary support, petitioner argues

that Jail staff was aware that Ms. Rowell was having

problems in her relationship. To the contrary, Ms.

Rowell’s common law husband had no inkling that

Ms. Rowell was suicidal either, they had just spent

their best days together in years, and Ms. Rowell was

acting normally when she was arrested. There was

no evidence that Ms. Rowell suddenly became

suicidal in the short interval between her arrest and

her booking, even if it is assumed the medical

questionnaire was not administered to her.

Ms. Rowell was not an unknown individual to

jail staff. The undisputed evidence was that Ms.

Rowell was acting the same as she had acted during

her three prior confinements within the preceding

twelve months, including the week immediately

preceding her arrest on February 12th.

The facts of this case bolster the Tenth

Circuit’s holding that the specific individual must

show some definitive sign of suicidal tendency in

order to trigger a duty to act by staff. Otherwise,

according to petitioner’s reasoning every jail inmate

should be put in isolation on a suicide watch because

it’s theoretically possible that individual may

someday try to harm themself for the sole reason

that they are an inmate in a county jail. The

constitution does not support that reasoning.

38

CONCLUSION

The petition for writ of certiorari should be

denied.

Respectfully submitted,

JEFFREY L. DRISCOLL

Counsel of Record

WILLIAMS, TURNER & HOLMES, P.C.

744 HORIZON COURT, SUITE 115

GRAND JUNCTION, CO 81506

(970) 242-6262

jdriscoll@wth-law.com

COUNSEL FOR RESPONDENTS

OCTOBER 12, 2021