Petition for Writ of Certiorari — Patsy K. Cope, et al., Petitioners v. Leslie W. Cogdill, et al.

Supreme Court briefNov 22, 2021

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APPENDIX

APPENDIX A

_________

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______

PATSY K. COPE, ALEX ISBELL, as Dependent

Administrator of and, on behalf of ESTATE OF DERREK

QUINTON GENE MONROE, AND HIS HEIRS AT LAW,

Plaintiffs-Appellees,

LESLIE W. COGDILL; MARY JO BRIXEY; JESSIE W.

LAWS,

Defendants-Appellants.

_______

No. 19-10798

_______

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 6:18-CV-15

Sam. R. Cummings, U.S. District Judge

_______

Filed: July 2, 2021

_______

Thomas Dean Malone, Law Offices of Dean Malone,

P.C., Dallas, TX, Bruce K. Thomas, Law Office of

Bruce K. Thomas, Dallas, TX, for Plaintiffs-Appellees

Jon Mark Hogg, Jackson Walker, L.L.P., San Angelo,

TX, for Defendants-Appellants

_______

Before: STEWART, DENNIS, and HAYNES, Circuit

Judges.

_______

HAYNES, Circuit Judge:

This appeal concerns whether three officers

employed by the Coleman County Jail are entitled to

qualified immunity for claims regarding Derrek

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

The district court determined that the officers were

not entitled to qualified immunity. For the following

reasons, we REVERSE its holding and RENDER

judgment in the officers’ favor.

Background

Monroe was arrested on September 29, 2017, and

booked at the Coleman County Jail. A screening form

completed during intake indicated that Monroe said

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

that Monroe had attempted suicide two weeks prior.

The form also indicated that Monroe had previously

received psychiatric services, had been diagnosed

with “some sort of schizophrenia,” and displayed other

signs of mental illness and emotional disturbance.

Jail Administrator Mary Jo Brixey put Monroe on a

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

Cope.

temporary “suicide watch.” That afternoon, Monroe

had a medical emergency, and he was taken to the

Coleman County Medical Center for treatment.

Monroe returned to the jail the next day. Cope

alleges that “only about 17 minutes after returning to

the Coleman County Jail[,] … [Monroe] attempted to

commit suicide by hanging.” This attempt was

unsuccessful. Cope alleges that Sheriff Leslie Cogdill

spoke with Monroe and sought the intake form

reflecting Monroe’s mental health issues. Instead of

seeking emergency admission at a facility providing

mental health treatment, Cogdill and Jailer Jessie

Laws continued to hold Monroe in his cell.

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

the only jailer on duty. The jail typically has two

jailers on duty during weekdays but only one during

nights and weekends due to budgetary considerations.

The following incidents occurred 2 between 8:20 and

9:00 a.m.:

Laws had a discussion with Monroe. A few minutes

later, Monroe went to the phone in his cell and

appeared to do something with it, and Laws then

spoke to Monroe through the cell bars. After Laws

unlocked Monroe’s cell, Monroe exited the cell and

walked toward a shower area, and Laws followed. A

few minutes later, Monroe returned to his cell, and

Laws locked the cell door and pocketed the key. Then,

Monroe started to overflow his toilet, prompting Laws

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

off water to Monroe’s cell. Monroe became visibly

angry and appeared to beat the toilet in his cell with

a toilet plunger. Laws then began mopping the area

These events were captured on jail surveillance video.

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

remained visibly upset, slamming the phone receiver

against the wall several times.

Monroe wrapped the phone cord around his neck

around 8:37 a.m., while Laws continued mopping. As

Monroe strangled himself with the cord, Laws made a

phone call to Brixey. Laws did not call Emergency

Medical Services. About a minute or two after the

strangulation began, Monroe’s body stopped moving.

Throughout the next five minutes, Laws looked into

the cell several times, but he never unlocked or

entered it.

After Brixey arrived at the jail around 8:47 a.m.,

Laws took the cell key out of his pocket, unlocked and

entered the cell, and unwrapped the cord from

Monroe’s body. Neither Laws nor Brixey attempted to

resuscitate Monroe, but they called paramedics, who

began performing chest compressions around 8:54

a.m. Monroe was taken to the hospital, where he died

the following day.

Cope sued Cogdill, Brixey, and Laws, alleging that

they violated the Fourteenth Amendment’s Due

Process Clause because they were objectively

unreasonable in their treatment of a pretrial detainee

and denied Monroe appropriate medical care.3

Cogdill, Brixey, and Laws moved for summary

judgment on the basis of qualified immunity. The

district court denied the motion. As to Laws, the

district court determined that “watching Monroe wrap

the phone cord around his neck and then failing to

Cope also sued Coleman County, alleging unconstitutional

patterns or practices. The allegations against the county are not

at issue here.

assist Monroe to free him from the cord will have to be

analyzed by a jury to determine whether his conduct

was reasonable under the circumstances.” As to

Cogdill and Brixey, the district court determined that

they were not entitled to qualified immunity because

“evidence clearly demonstrates a high and obvious

risk of suicide by maintaining a policy of housing

suicidal inmates in a cell with a phone (and attached

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

interlocutory appeal.

II.

Jurisdiction & Standard of Review

“Although a denial of a defendant’s motion for

summary judgment is ordinarily not immediately

appealable, the Supreme Court has held that the

denial of a motion for summary judgment based upon

qualified immunity is a collateral order capable of

immediate review.” Kinney v. Weaver, 367 F.3d 337,

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

We review the district court’s denial of summary

judgment de novo and apply the same legal standard

as the district court. Estate of Henson v. Wichita Cnty.,

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

is appropriate if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment

as a matter of law.” FED. R. CIV. P. 56(A). “A dispute

about a material fact is ‘genuine’ if the evidence is

such that a reasonable jury could return a verdict for

the non-moving party.” Shackelford v. Deloitte &

Touche, LLP, 190 F.3d 398, 403 (5th Cir. 1999). Since

this is an interlocutory appeal, we lack jurisdiction to

determine whether any factual disputes are genuine,

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

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

2015).

III.

Discussion

Legal Standards

Qualified Immunity

“The doctrine of qualified immunity protects

government officials from civil damages liability when

their actions could reasonably have been believed to

be legal.” Morgan v. Swanson, 659 F.3d 359, 370 (5th

Cir. 2011) (en banc). There are two aspects to qualified

immunity: whether the plaintiff has alleged a

violation of a constitutional right and whether the

right at issue was “clearly established” at the time of

the alleged violation. Pearson v. Callahan, 555 U.S.

223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)

(citation omitted). Courts retain flexibility as to which

step of the two-step process they consider first. Id. at

236, 129 S.Ct. 808. Still, often “the better approach to

resolving cases in which the defense of qualified

immunity is raised is to determine first whether the

plaintiff has alleged a deprivation of a constitutional

right at all.” Cnty. of Sacramento v. Lewis, 523 U.S.

833, 841 n.5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).

This is especially true “with respect to questions that

do not frequently arise.” Pearson, 555 U.S. at 236, 129

S.Ct. 808.

We are bound by the restrictive analysis of “clearly

established” set forth in numerous Supreme Court

precedents. A right is “clearly established” if it is “one

that is sufficiently clear that every reasonable official

would have understood that what he is doing violates

that right.” Mullenix v. Luna, 577 U.S. 7, 11, 136 S.Ct.

305, 193 L.Ed.2d 255 (2015) (per curiam) (internal

quotation marks and citation omitted). Courts must

not “define clearly established law at a high level of

generality”; instead, their “inquiry must be undertaken in light of the specific context of the case.” Id. at

12, 136 S.Ct. 305 (internal quotation marks and

citations omitted). Therefore, unless existing

precedent “squarely governs” the conduct at issue, an

official will be entitled to qualified immunity. See

Brosseau v. Haugen, 543 U.S. 194, 201, 125 S.Ct. 596,

160 L.Ed.2d 583 (2004) (per curiam); Mullenix, 577

U.S. at 12, 136 S.Ct. 305 (emphasizing that “[t]he

dispositive question is whether the violative nature of

particular conduct is clearly established” (internal

quotation marks and citation omitted)).

Generally, to satisfy this standard, the plaintiff

must “identify[ ] a case in which an officer acting

under similar circumstances was held to have violated

the [Constitution], and … explain[ ] why the case

clearly proscribed the conduct of that individual

officer.” Joseph ex rel. Estate of Joseph v. Bartlett, 981

F.3d 319, 345 (5th Cir. 2020) (concluding the

defendants were entitled to qualified immunity

because the plaintiffs failed to identify an analogous

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

confines of the officers’ violation must be “beyond

debate.” Baldwin v. Dorsey, 964 F.3d 320, 326 (5th

Cir. 2020) (internal quotation marks and citation

omitted), cert. denied, –– U.S. –––, 141 S. Ct. 1379,

209 L.Ed.2d 123 (2021) (mem.). Broad general

propositions are not enough to overcome qualified

immunity.4 Id.

The crux of the dissenting opinion is its rejection of this wellestablished rule. According to the dissenting opinion, “in the

context of a deliberate indifference claim, clearly established

rights may be defined generally.” Dissenting Op. at 219 n.6. The

dissenting opinion reaches this conclusion almost entirely based

Supreme Court cases have been repeated and

consistent on this high standard at the second prong.

For example, in Mullenix, despite indications that the

officer was told to stand down and he nonetheless shot

from a bridge at a moving car on the street, the Court

on its reading of Jacobs v. West Feliciana Sheriff’s Department,

228 F.3d 388 (5th Cir. 2000), which supposedly denied qualified

immunity on two deliberate indifference claims without

identifying any factually analogous cases, Dissenting Op. at 218,

218–20 n.6. But nowhere in Jacobs did we purport to decide the

question of the degree of specificity at which a clearly established

right must be defined, and we certainly did not make any

statements suggesting that deliberate indifference claims are

subject to a different analysis than other claims. Perhaps more

importantly, Jacobs preceded a series of Supreme Court

decisions demanding a high degree of specificity and the

identification of an analogous case to overcome qualified

immunity. E.g. White v. Pauly, –– U.S. –––, 137 S. Ct. 548, 552,

196 L.Ed.2d 463 (2017) (per curiam); Mullenix, 577 U.S. at 12,

136 S.Ct. 305. Regardless of what Jacobs may have done twentyone years ago, we must enforce the heightened requirements that

the Supreme Court has set forth in its recent qualified immunity

decisions.

Given the clear and unequivocal language used by the

Supreme Court in imposing these requirements, we see no basis

for recognizing a special exception for deliberate indifference

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

applied the high-specificity rule to deliberate indifference claims

before. See Dissenting Op. at 220 n.6 (citing Cleveland v. Bell,

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

“misguided,” as the dissenting opinion claims, Dissenting Op. at

220 n.6, they are nonetheless binding. See, e.g., Mercado v.

Lynch, 823 F.3d 276, 279 (5th Cir. 2016) (per curiam) (“Under

our rule of orderliness, one panel of our court may not overturn

another panel’s decision, absent an intervening change in the

law, such as by a statutory amendment, or the Supreme Court,

or our en banc court.” (quotation omitted)). Rather than follow

the dissenting opinion’s foreclosed approach, we proceed in

accordance with the detailed directives of the Supreme Court.

concluded qualified immunity was appropriate. 577

U.S. at 9–10, 19, 136 S.Ct. 305. Similarly, in Kisela v.

Hughes, the Court determined that a police officer was

entitled to qualified immunity after he repeatedly

shot a woman who, although holding a kitchen knife,

was apparently calm and was separated from the

officer by a chain-link fence with a locked gate. –– U.S.

–––, 138 S. Ct. 1148, 1151–52, 1154–55, 200 L.Ed.2d

449 (2018) (per curiam); see also Brosseau, 543 U.S. at

196–97, 201, 125 S.Ct. 596 (ruling that a police officer

did not violate a clearly established right when she

shot a fleeing suspect in the back).

It might seem that things changed with the recent

opinion in Taylor v. Riojas, –– U.S. –––, 141 S. Ct. 52,

208 L.Ed.2d 164 (2020) (per curiam). But, instead,

that decision emphasizes the high standard. In

Taylor, the Supreme Court vacated our grant of

qualified immunity to a group of corrections officers

for an alleged Eighth Amendment violation. 141 S. Ct.

at 53. But that was based upon the Supreme Court’s

conclusion of how “particularly egregious” and over

the top the misconduct at issue was: the officers had

allegedly placed the plaintiff, an inmate, in a cell

covered in “massive amounts of feces” for four days,

only to transfer him to a “frigidly cold cell” where he

was “left to sleep naked in sewage.” Id. (internal

quotation marks and citation omitted). Further, the

officers acted with a marked callousness; for example,

when placing the plaintiff in the second cell, one

officer allegedly said that he hoped the plaintiff

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

marks and citation omitted). Accordingly, under

Taylor, plaintiffs are only excused of their obligation

to identify an analogous case in “extreme

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circumstances” where the constitutional violation is

“obvious.” Id. at 53–54 (internal quotation marks and

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

(explaining that the Supreme Court’s qualified

immunity precedents allow for the “rare possibility

that, in an obvious case, analogous case law is not

needed because the unlawfulness of the challenged

conduct is sufficiently clear” (cleaned up)).

Pretrial Detainees’ Right to Medical

Care

“The constitutional rights of a pretrial detainee are

found in the procedural and substantive due process

guarantees of the Fourteenth Amendment.” Estate of

Henson, 795 F.3d at 462. A state may detain

defendants for trial; its “exercise of its power to hold

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

essentials of their well-being.” Hare v. City of Corinth,

74 F.3d 633, 638– 39 (5th Cir. 1996) (en banc).

“Suicide is an objectively serious harm implicating

the state’s duty to provide adequate medical care.”

Arenas v. Calhoun, 922 F.3d 616, 621 (5th Cir. 2019).

We have articulated “proper legal measures of a

State’s duty to tend to a pretrial detainee posing a risk

of suicide,” which depend on whether the plaintiff

challenges the conditions of confinement or if he

alleges episodic acts or omissions. Hare, 74 F.3d at

643.

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

based on a jail official’s episodic acts or omissions, the

proper inquiry is whether the official had a culpable

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

“violates a pretrial detainee’s constitutional right to

be secure in his basic human needs only when the

official had subjective knowledge of a substantial risk

of serious harm to the detainee and responded to that

risk with deliberate indifference.” Estate of Henson,

795 F.3d at 464 (internal quotation marks and

citation omitted). Although deliberate indifference is

a high bar and requires egregious conduct, plaintiffs

need not prove that the official acted with the intent

to cause harm. Farmer v. Brennan, 511 U.S. 825, 835,

114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (stating that

deliberate indifference “is satisfied by something less

than acts or omissions for the very purpose of causing

harm or with knowledge that harm will result”).

“Deliberate indifference is an extremely high

standard to meet” but can be satisfied by a “wanton

disregard for [an inmate’s] serious medical needs.”

Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d

In contrast, if a pretrial detainee challenges “general

conditions, practices, rules, or restrictions of pretrial

confinement,” we evaluate whether the condition was

“reasonably related to a legitimate governmental objective.”

Hare, 74 F.3d at 644–47; see also Bell v. Wolfish, 441 U.S. 520,

539, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Conditions of

confinement may be explicit (for example, rules about

disciplinary segregation) or they may be de facto (that is, acts

that are proven to be a pervasive practice). Estate of Henson, 795

F.3d at 463. Conditions are not “reasonably related to a

legitimate governmental objective” if they are “arbitrary or

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

the purpose of the governmental action is punishment that may

not constitutionally be inflicted upon detainees.” Bell, 441 U.S.

at 539, 99 S.Ct. 1861. “[T]here is no rule barring a plaintiff from

pleading both alternative theories.” Estate of Henson, 795 F.3d

at 464.

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752, 756 (5th Cir. 2001). In the context of inmate

suicide, “to defeat qualified immunity, the plaintiffs

must establish that the officers … were aware of a

substantial and significant risk that [the detainee]

might kill [him]self, but effectively disregarded it.”

Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d 388,

395 (5th Cir. 2000).

When multiple officials are named as defendants,

we “evaluate each officer’s actions separately, to the

extent possible.” Poole v. City of Shreveport, 691 F.3d

624, 628 (5th Cir. 2012). Accordingly, each officer’s

actions are discussed separately, to the extent

possible, below.6

B. Laws’s Actions

Laws’s actions fall under a “deliberate indifference”

standard “[b]ecause the focus of the claim is one

individual’s misconduct.” Shepherd v. Dall. Cnty., 591

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

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

subjective knowledge of a substantial risk of serious

In her brief, Cope addresses her claims against Cogdill and

Brixey together. The claims center on supervisory decisions

made at the jail, and it is unclear exactly who was responsible

for each decision. During oral argument, Defendants’ counsel

conceded that Brixey “was not involved in placing [Monroe] in

the cell.” As Cope’s claim against Brixey is predicated on Brixey’s

involvement in this placement decision, then counsel’s

concession demonstrates that Brixey should prevail. See Ashcroft

v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868

(2009) (explaining that “[b]ecause vicarious liability is

inapplicable to Bivens and § 1983 suits, a plaintiff must [show]

that each Government-official defendant, through the official’s

own individual actions, has violated the Constitution”). However,

since we conclude that she is entitled to qualified immunity

either way, we need not analyze this issue further.

13a

harm”7 and (2) “responded to that risk with deliberate

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

(internal quotation marks and citation omitted). At

the very least, Cope has presented sufficient evidence

to create a genuine dispute of material fact as to

whether Laws had subjective knowledge of the risk of

serious harm. Brixey testified that Laws called her

saying that Monroe was trying to hang himself. Just

one day prior, Laws had witnessed Monroe attempt

suicide by hanging. Notably, Laws appears to concede

the point, stating “[t]here is no dispute that Laws

knew Monroe was potentially suicidal the morning of

the suicide.” In the context of deliberate indifference,

the question is “whether the unlawfulness of the

Officers’ conduct was clearly established at the time.”

Dyer v. Houston, 964 F.3d 374, 383 (5th Cir. 2020)

(quoting District of Columbia v. Wesby, –– U.S. –––,

138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018))

(alteration and internal quotation marks omitted).

Therefore, our analysis turns to this second prong:

whether the unlawfulness was clearly established.

Cope argues that the Supreme Court announced an objective

standard for pretrial detainees and that the standard of

reasonableness employed here should be objective, not

subjective. She relies on Kingsley v. Hendrickson, 576 U.S. 389,

135 S.Ct. 2466, 192 L.Ed.2d 416 (2015). But Kingsley did not

address claims regarding medical treatment. Rather, the

Supreme Court held that plaintiffs alleging excessive force must

show that the force was objectively excessive. Id. at 396–97, 135

S.Ct. 2466. Since Kingsley discussed a different type of

constitutional claim, it did not abrogate our deliberateindifference precedent. Thus, Cope must prove subjective

knowledge. See Hare, 74 F.3d at 643. We recently clarified,

however, that subjective intent of harm does not have to be

proven. Dyer, 964 F.3d at 380.

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1. Waiting to Enter Monroe’s Cell Until BackUp Arrived

The first issue we address is whether Laws’s failure

to immediately intervene after Monroe strangled

himself and decision to instead wait until another

jailer arrived was constitutionally unlawful under

clearly established law. Laws’s decision not to enter

Monroe’s cell was in line with his training and the

jail’s policy that jailers not enter the cell until back up

arrives. Cope argues that, notwithstanding the policy,

Laws should have requested permission to enter the

cell when he called Brixey and that even if Brixey

denied permission, Laws should have entered the cell

to render aid because failing to do so

unconstitutionally deprived Monroe of medical

assistance.

To violate the constitution in this context, Laws

must have “effectively disregarded” the risk to

Monroe’s health. Jacobs, 228 F.3d at 395. After

Monroe began strangling himself, Laws called Brixey.

Once Brixey arrived, Laws entered the cell to unwrap

Monroe’s body from the cord.8 Waiting for Brixey to

arrive was in line with the jail’s policy, and we have

held that a jailer supervising a suicidal inmate acted

In addition to waiting to enter the cell until Brixey arrived,

Laws also did not try to revive Monroe while waiting for

emergency personnel. But “a due process claim [can] never be

based on a jail official’s negligent failure to provide either

medical care or protection from harm.” Hare, 74 F.3d at 642; see

also Dyer, 964 F.3d at 381 (distinguishing between negligence

and deliberate indifference). Because negligence does not

support a deliberate indifference claim, Laws’s failure to

resuscitate Monroe did not rise to the level of deliberate

indifference and therefore cannot be a violation of clearly

established law.

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reasonably when he “essentially follow[ed] orders”

and “the orders he received … were not facially

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

of qualified immunity in an inmate-suicide case in

which the prison official waited for help to arrive, we

recently stated that requiring a jailer to enter a cell

without back-up “would create an unenviable Catch22: Either enter the cell alone and risk potential

attack, or take appropriate precautions and incur

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

We conclude that Laws’s decision to wait for Brixey

before entering the cell did not violate any clearly

established constitutional right. Specifically, it would

not be “sufficiently clear that every reasonable official

would have understood that” waiting for a backup

officer to arrive in accordance with prison policy

“violates [a pretrial detainee’s] right.” See Mullenix,

577 U.S. at 11, 136 S.Ct. 305 (internal quotation

marks and citation omitted) (addressing excessive

force). Since our case law supports that jailers who

follow policies aimed at protecting the jailer should

not be considered deliberately indifferent to an

inmate’s medical need, see Arenas, 922 F.3d at 621,

Laws is entitled to qualified immunity on this claim.

2. Failure to Call Emergency Medical Services

Cope further argues that Laws should have

immediately called 911, which Laws failed to do, after

calling Brixey. A jailer has a “duty to not act with

subjective deliberate indifference to a known

substantial risk of suicide” and accordingly cannot

“disregard … precautions he kn[ows] should be

taken.” Jacobs, 228 F.3d at 397–98. In general, a

prison official who knew of a serious threat to inmate

safety and responded reasonably cannot be held liable

16a

for his actions. Farmer, 511 U.S. at 844, 114 S.Ct.

1970. But watching an inmate attempt suicide and

failing to call for emergency medical assistance is not

a reasonable response. This was especially true in the

situation at hand, where jail policy did not permit

Laws to personally enter the jail cell to assist Monroe

until a second staff member arrived. Calling for

emergency assistance was a precaution that Laws

knew he should have taken, and failing to do so was

both unreasonable and an effective disregard for the

risk to Monroe’s life. See Jacobs, 228 F.3d at 395. For

these reasons, we now make clear that promptly

failing to call for emergency assistance when a

detainee faces a known, serious medical emergency—

e.g., suffering from a suicide attempt—constitutes

unconstitutional conduct.

As explained above, in determining whether the law

was clearly established at the time the conduct

occurred, constitutional rights must not be defined at

a high level of generality. Mullenix, 577 U.S. at 12,

136 S.Ct. 305. Until today, we have not spoken

directly on whether failing to call for emergency

assistance in response to a serious threat to an

inmate’s life constitutes deliberate indifference. See

Shepard v. Hansford Cnty., 110 F. Supp. 3d 696, 711,

713 (N.D. Tex. 2015) (noting a lack of Fifth Circuit

precedent on, among other things, an official’s failure

to call 911). Recently, in Dyer, we engaged in a similar

discussion but did not specifically address the 911

issue. 964 F.3d at 381–85. In that case, officers were

aware that the detainee was “in the grip of a druginduced psychosis” and had repeatedly “struck his

head violently against the interior of [the] patrol car”;

nonetheless, the officers neither sought any medical

17a

care nor informed the jail officials that the detainee

had suffered a head injury. Id. at 381–82. Indeed, they

did nothing at all to address his additional injuries; it

was another official who finally reacted two hours

later.9 We concluded that existing precedent showed

that officers who, “despite being aware of the

detainee’s dire condition[,] … did nothing to secure

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

behavior was deliberately indifferent. Id. 384–85

(internal quotation marks and citation omitted). Here,

in contrast, Laws did something: he called Brixey for

assistance and she called 911, albeit not as promptly

as should have been done. Existing case law,

therefore, was not so clearly on point as to “place[ ] the

statutory or constitutional question beyond debate[,]”

and we conclude that the right was not clearly

established. Morgan, 659 F.3d at 372. Unlike the

officers in Taylor, Laws did nothing so extreme or

even close as forcing an inmate to sleep naked in raw

sewage. 141 S. Ct. at 53. The failings of Laws are in a

time of minutes and lack of complete action, not days

and affirmative misconduct. 10 Cf. id. Accordingly,

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

originally come to the officers’ attention due to a 911 call. Id. at

378. Paramedics had examined Graham and released him to the

police. Id. However, during the trip to the police department,

Graham continued to injure himself with at least forty head

bashes. Id. at 378–79. It was not until two hours later, when a

sergeant noted Graham’s labored breathing, that paramedics

were summoned. Id. at 379. In this case, by contrast, the delay

was minutes, not hours, and Laws was at least attempting to

obtain help, unlike the officers in Dyer, who never did anything

to help.

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

demonstrates the need for and importance of similar cases. Like

this case, Converse concerned Fourteenth Amendment claims

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even though Laws fails on the first prong, he is

nonetheless entitled to qualified immunity.

C. Cogdill’s & Brixey’s Actions

Because Cope’s briefing focuses on deliberate

indifference, she appears to be arguing an episodicacts theory of liability. To be liable, therefore, Brixey

and Cogdill must have (1) “had subjective knowledge

of a substantial risk of serious harm” and (2)

“responded to that risk with deliberate indifference.”

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

marks and citation omitted). Even if their actions

were constitutionally unlawful, they are entitled to

qualified immunity if the constitutional right at issue

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

232, 129 S.Ct. 808.

1. Placement of Monroe in a Cell Containing a

Phone Cord

Cope contends that Brixey and Cogdill were

deliberately indifferent by housing Monroe in a cell

“with the means of committing suicide readily

available to him in the form of a lengthy telephone

cord.”

against a group of officers arising from a detainee’s suicide. 961

F.3d at 774. Based on the facts of that case, we held that the

officers were not entitled to qualified immunity at the motion-todismiss stage. Id. at 773. While making some general

statements, the actual course of our reasoning in Converse

demonstrates that we did not rely merely on an abstract legal

proposition when denying the defendants qualified immunity;

rather, we denied qualified immunity because we identified a

prior precedent, Jacobs, with “closely analogous” facts. Converse,

961 F.3d at 777–80. Thus, we adhered to the analogous-case

requirement in Converse, and consequently, we do so here as

well.

19a

We have held that a sheriff was deliberately

indifferent when he was “fully aware that [the

detainee] had actually attempted suicide once before,

regarded her as a suicide risk at all times during her

detention, and yet still … ordered loose bedding to be

given to her” and placed her in a cell with “several ‘tieoff’ points (bars and light fixtures from which a

makeshift rope could be suspended)” after “another

inmate … had previously committed suicide in the

very same cell by hanging himself with a sheet from

one of these tie-off points.” Jacobs, 228 F.3d at 390,

396. Similarly, in Converse v. City of Kemah, we

recently determined that officers who gave a suicidal

inmate a blanket were not entitled to qualified

immunity. 961 F.3d 771, 773–74 (5th Cir. 2020). We

noted that the plaintiffs’ allegations supported,

among other things, that the officers were aware that

“bedding hanging was the most frequent method of

suicide” in Texas jails. Id. at 777.

Here, Brixey had placed Monroe on a temporary

suicide watch, and Cogdill was aware that Monroe

had attempted suicide by hanging the day before.

However, the record does not suggest that any inmate

had previously attempted suicide by strangulation

with a phone cord; nor is there non-speculative

evidence that Brixey and Cogdill were aware of this

danger.11 The danger posed by the phone cord was not

In light of multiple suicides in Texas jails involving phone

cords, in 2015, the Texas Commission on Jail Standards issued a

memorandum recommending that phone cords in jails “be no

more than twelve (12) inches in length.” The phone cord in

Monroe’s cell is longer than the recommended length. In certain

circumstances, the Supreme Court has indicated that subjective

knowledge may be inferred based on circumstantial evidence,

Farmer, 511 U.S. at 842–43, 114 S.Ct. 1970. Here, however, the

20a

as obvious as the dangers posed by bedding, which is

a well-documented risk that has been frequently used

in suicide attempts. Id. at 777. We therefore conclude,

under these facts and circumstances, that Brixey’s

and Cogdill’s holding of Monroe in a cell containing a

Commission memorandum is insufficient to support the

inference that Brixey and Cogdill had subjective knowledge of

the risk posed by the lengthy phone cord. Specifically, the

Supreme Court has approved reliance on circumstantial

evidence if the relevant risk “was longstanding, pervasive, welldocumented, or expressly noted by [jail] officials in the past, and

the circumstances suggest that the defendant-official being sued

had been exposed to information concerning the risk and thus

‘must have known’ about it.” Id. (internal quotation marks

omitted). There is nothing like that here and certainly no

evidence that either Brixey or Cogdill ever received or reviewed

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

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

far to infer that Brixey and Cogdill were aware of the

Commission’s recommendations simply due to their employment

in the Texas jail system at the time the memorandum was

written—just because information is available to a defendant

does not mean she has been exposed to it. See Rode v.

Dellarciprete, 845 F.2d 1195, 1208 (3d Cir. 1988) (rejecting the

plaintiff’s theory that the Governor of Pennsylvania could be

inferred to have personal knowledge of state employees’ acts of

retaliatory harassment “because of numerous articles that

appeared in newspapers throughout the state and through the

introduction of a legislative resolution seeking an investigation

into [the harassment], the filing of grievances with the

Governor’s office of administration, and telephone calls and

correspondence with the office of the Lieutenant Governor”).

Consequently, there is insufficient evidence that Brixey and

Cogdill were exposed to the Commission’s memorandum to

create a genuine dispute of material fact as to their subjective

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

21a

phone cord did not violate a clearly established

constitutional right.12

2. Staffing the Jail with Only One Weekend

Jailer

Cope also alleges that Brixey and Cogdill acted with

deliberate indifference when they staffed the jail with

just one jailer even though they knew both that

Monroe was on suicide watch and that the jail’s policy

did not allow for the jailer to intervene until backup

arrived.

Coleman County employs only one weekend jailer

due to budgetary constraints. Our precedent suggests

that municipalities, not individuals, should generally

be held liable for city policies.13 See Scott v. Moore, 114

F.3d 51, 54 (5th Cir. 1997). Thus, at the time of the

suicide, no clearly established precedent suggested

that Brixey and Cogdill could be liable under an

Recently, in Sanchez v. Oliver, we determined that summary

judgment on the plaintiff’s deliberate indifference claim was

inappropriate where the defendant had placed a suicidal inmate

“in general population, with ready access to blankets, other

potential ligatures, and tie-off points.” 995 F.3d 461, 473 (5th Cir.

2021). Sanchez did not involve the possible dangers of phone

cords; hence, whatever its import, Sanchez did not hold that, at

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

defendant violates the Constitution by placing a suicidal inmate

in a cell containing a phone cord. In short, Sanchez is not

contrary to our conclusion here.

Indeed, Cope brought such § 1983 claims against Coleman

County, along with claims under the Americans with Disabilities

Act and the Rehabilitation Act. These claims have been stayed

since July 2019 to permit the completion of this interlocutory

appeal. Although we express no view as to the viability of these

claims, we note that our decision therefore does not end Cope’s

lawsuit entirely.

22a

episodic-acts theory for staffing the jail in line with

Coleman County’s budget and policies. Cope has cited

no case law providing that jailers must deviate from

the typical staffing procedures if they believe that a

detainee is a suicide risk. We, therefore, hold that

Brixey’s and Cogdill’s decision to staff only one

weekend jailer did not violate any clearly established

constitutional right.

IV. Conclusion

Based upon the above analysis, all three defendants

are entitled to qualified immunity. We REVERSE the

district court’s decision and RENDER judgment in the

officers’ favor.

23a

JAMES L. DENNIS, Circuit Judge, dissenting:

Small county jails are no strangers to in-custody

suicides. Indeed, the suicide rate for local jails of 100

beds or fewer is nearly ten times that of the nation as

a whole. The Role of Corrections Professionals in

Preventing Suicide, NATIONAL INSTITUTE OF

CORRECTIONS,

https://nicic.gov/role-correctionsprofessionals-preventing-suicide (last visited June 17,

2021). Located in a pocket of rural Central Texas,

Coleman County Jail is one such small local jail. It

comprises four cells and has a staff of seven—five

jailers, a jail administrator, and a sheriff—for an

inmate population of up to nine persons. And, like so

many other similarly sized jails, it has been the scene

of an in-custody suicide—the self-strangulation of

detainee Derrek Monroe via a lengthy telephone cord

that was, inexplicably, contained inside the cell in

which jail staff isolated him.

Monroe’s tragic death resulted not just from

egregious acts and omissions by Coleman County Jail

staff after he was taken into custody on September 29,

2017. The jail leadership’s decision to implement

policies that they knew to be inadequate also

contributed to Monroe’s avoidable suicide. In

particular, the jail maintains only one jailer on duty

during nights and weekends. But jail policy forbids a

jailer from entering a cell without backup support.

Thus, on nights and weekends, jail policy effectively

prevents the lone jailer from rescuing a known

suicidal detainee who is actively committing suicide

inside a cell. In light of the manifest danger this

situation presents to suicidal detainees, Sheriff Leslie

Cogdill and Jail Administrator Mary Jo Brixey, the

jail’s second-in-command, agree that the policy of

24a

staffing the jail with only one jailer on nights and

weekends—a policy they administer—is “just not

safe” because it creates the conditions that can lead to

tragedies like the suicide in this case of Derrek

Monroe.

A few months before Monroe’s suicide, Coleman

County Jail staff attended a training where they

learned that the suicide rate for all county jails is nine

times greater than in the general population. But

trainings and academic presentations were not the

only source of jail officials’ knowledge of the risks of

in-custody suicides. Prior to their tenures with the

County Jail, both Sheriff Cogdill and Jail

Administrator Brixey had worked at the Coleman

City Jail when inmates had committed suicide,

including, as in this case, suicide by strangulation.

One suicide involved a detainee who used a ligature—

his shoestrings—to choke himself to death in manner

similar to the way Monroe strangled himself with the

phone cord. In short, Defendants here were acutely

aware of the danger of suicide at small county jails

like the very one they were charged with overseeing.

On Friday, September 29, 2017, Derrek Monroe was

delivered into the custody of the Coleman County Jail

in Texas. During booking, Monroe informed jailhouse

authorities that he had attempted suicide by ingesting

pills just two weeks before and that he was presently

having suicidal thoughts. This information was

immediately relayed to Sheriff Cogdill and Jail

Administrator Brixey. On Monroe’s first night in the

jail, Cogdill chose to house him in Cell 2 in the

company of several other detainees. Cogdill’s decision

was in keeping with the training he had received,

which advised against “isolat[ing]” suicidal inmates.

25a

The following day, Saturday, September 30, Monroe

had a seizure requiring treatment at a local hospital.

After being successfully treated, Monroe was

transported back to the County Jail. Jailer Jessie

Laws, who, per jail policy, was the only jailer on duty,

placed Monroe back in Cell 2 and in the company of

other inmates. Laws watched as Monroe proceeded to

attempt suicide twice in rapid succession. Monroe sat

against the wall, wrapped a blanket around his neck,

and, according to one of his cellmates, tried to “choke

himself out.” After that didn’t work, Monroe stood up,

climbed atop the cell’s latrine, and tried to hang

himself by tying the cloth to a fixture before “bomb

div[ing]” off. The knot gave way, and Monroe crashed

to the floor of the cell. Undeterred, Monroe wrapped

the sheet around his neck again. Only at this point did

Laws call Sheriff Cogdill for backup. After arriving at

the scene, Cogdill decided to remove Monroe from Cell

2 and, with the assistance of Laws, to isolate Monroe

in Cell 3, the jail’s only single-occupancy cell. Cogdill’s

decision to relocate Monroe to an isolation cell was

directly contrary to his training, which had instructed

him that isolating a suicidal detainee is a dangerous

and disfavored policy. Jail Administrator Brixey, was

aware of and effectively ratified Cogdill’s decision.

In addition to the risks created by isolating Monroe

in Cell 3, the cell contained an obvious potential

ligature for suicide: a phone mounted to the wall with

a thirty-inch telephone cord. 1 Two years earlier, in

2015, the Executive Director of the Texas Commission

on Jail Standards (“the Texas Jail Commission”)

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

that charges inmates for outgoing calls. Coleman County

receives a portion of the revenue from these calls.

26a

circulated a memorandum addressed to “All Sheriffs

and Jail Administrators” warning jail officials that

four suicides involving phone cords had occurred in

Texas jails in the span of eleven months. Based on

these multiple suicides, the Texas Jail Commission

notified Sheriffs and Jail Administrators that “ALL

phone cords be no more than twelve (12) inches in

length.”

Cogdill was also aware that Coleman County Jail’s

own policy required that a suicidal detainee—like

Monroe—“be transferred to a facility better equipped

to manage an inmate with mental disabilities” if doing

so was necessary in order to protect the inmate, and,

in fact, had previously authorized transfers of inmates

to other facilities when his inmate population reached

9, the maximum number of inmates the Texas Jail

Commission permitted to be supervised by a single

jailer. Despite this guidance and Cogdill’s awareness

that Monroe could be transferred to a more suitable

facility, Cogdill chose to keep Monroe at the Coleman

County jail and to house him in isolation in a cell with

a thirty-inch phone cord. Late Saturday afternoon,

after Monroe was relocated to Cell 3, a mental health

evaluator from Central Texas Mental Health and

Mental Retardation Services, an outside agency,

interviewed Monroe, who told her, “The first chance I

get[,] it’s over.” Following the interview, the mental

health evaluator met with Cogdill and Brixey and

debriefed them on her conversation with Monroe. The

MHMR staffer advised that jail staff observe Monroe

at least every 15 minutes instead of every 30 minutes

as the jail had been doing. Cogdill and Brixey agreed

that staff would monitor Monroe in 15-minute

intervals. But based on Monroe’s suicidal history, the

27a

jail’s suicide prevention plan mandated that he be

classified as a “high risk” of suicide and, accordingly,

that staff observe him not less than every five

minutes.

Throughout Saturday night and into the morning of

Sunday, October 1, the jailer on duty, per the

instructions of Cogdill and Brixey, monitored Monroe

in 15-minute intervals. At 7 a.m., Jailer Jessie Laws

started his shift. Laws was the only jailer on duty, and

he continued the practice of monitoring Monroe every

15 minutes. Laws knew from Monroe’s suicide

attempts the day before that Monroe was definitely

suicidal.

Though jailers are prohibited from entering a jail

cell unless back-up personnel are present, Brixey, via

phone, authorized Laws to escort Monroe, who was

unrestrained, from Cell 3 to the shower and then back

to the cell, even though Laws was unarmed.2 Minutes

later, Monroe became agitated and, at 8:37 a.m.,

began strangling himself by wrapping the thirty-inch

telephone cord phone cord several times tightly

around his neck. Within a minute or two, Monroe’s

body became motionless. Maj. Op. at 203. Laws stood

on the other side of the bars from Monroe’s cell, mere

steps away and watched.

The simple, obvious, and safe response —indeed, the

one that Laws was specifically trained to undertake

None of the jail officials explain the seemingly incongruous

policy of forbidding a jailer from entering a detainee’s cell

without another jail officer present—regardless of whether the

detainee is restrained—but permitting a lone officer to remove

an unrestrained detainee from his cell and then to escort that

detainee through the jail’s hallways and into its shower area

before escorting the detainee back to his cell.

28a

and that was required of him by jail policy—was to

immediately contact and summon by phone

emergency medical services (EMS). Laws knew that

Monroe needed immediate help because Laws was

aware that a person who is being strangled can suffer

brain damage in less than 10 minutes. He also knew

that EMS was available 24/7 and would come

immediately in response to his call. Yet Laws failed to

call EMS. When asked later why he didn’t call, Laws

said, “Honestly, I don’t know.” Instead of contacting

EMS, Laws called his superiors, Cogdill and Brixey,3

even though he knew they were off-duty. Laws

requested that Cogdill and return to the jail because

of Monroe’s suicidal actions with the thirty-inch

telephone cord. In speaking with his superiors, Laws

failed to ascertain their precise locations and thus did

not know if they could arrive within the critical period

before Monroe would suffer serious brain damage.

After Laws made these calls—and with no

assurance of when his supervisors would arrive at the

jail—he continued merely to stand outside Monroe’s

cell, watching and waiting. Monroe, according to

Laws, was motionless and silent as the cord remained

wrapped around his neck. Significantly, Laws did not

retrieve the breathing mask he would need in order to

perform rescue breathing on Monroe once Brixey or

Cogdill arrived. At nearly 8:48 a.m., almost ten

minutes after Monroe wrapped the phone cord around

his neck, Brixey made it to the jail. She and Laws

entered Cell 3, and Laws unwound and unwrapped

the thirty-inch cord from Monroe’s neck. He said he

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

summary-judgment evidence does not reveal Deputy Tucker’s

first name nor the contents of Laws’s conversation with Tucker.

29a

did not apply chest compressions because Monroe still

had a pulse. Brixey quickly left the cell to call

emergency services. Meanwhile, Monroe could not

perform rescue breathing because he had failed to get

the breathing mask. Two minutes after completing

her call, Brixey went to locate the breathing mask.

Ultimately, Laws did not commence rescue breathing

until more than 5 minutes after Brixey arrived. EMS

arrived at 8:54 a.m., approximately five minutes after

Brixey called. By this point, sixteen minutes had

elapsed since Monroe cinched the cord fast around his

neck. Although the first responders tried to save

Monroe, their resuscitative efforts came too late, and

Monroe died in the hospital the next day. Following

Monroe’s death, Coleman County jail officials had the

phone cord in Cell 3 shortened in response to Texas

Jail Commission’s recommendation.

Detainee Monroe’s death by his own hand with a

thirty-inch cord in plain sight of a jailer while

emergency medical services were on duty only five

minutes away is especially tragic. In this

interlocutory appeal from the district court’s denial of

qualified immunity, the legal questions for this court

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

defendants individually amounted to deliberate

indifference and therefore violated Monroe’s

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

constitutional right to be free from each Defendants’

deliberate indifference was clearly established at the

time of the violation. An officer’s conscious disregard

of an inmate’s known risk of suicide constitutes

deliberate indifference in violation of a detainee’s

constitutional due process rights. See Converse v. City

of Kemah, 961 F.3d 771, 775 (5th Cir. 2020). And that

30a

incontestable principle has been established for

decades in this circuit. Jacobs v. W. Feliciana Sheriff’s

Dep’t, 228 F.3d 388, 395 (5th Cir. 2000) (‘‘[T]o defeat

qualified immunity, the plaintiffs must establish that

the officers … were aware of a substantial and

significant risk that [the detainee] might kill

[him]self, but effectively disregarded it.”); accord

Converse, 961 F.3d at 775 (‘‘We have repeatedly held

that pretrial detainees have a … right to be protected

from a known risk of suicide. And it is well-settled law

that jail officials violate this right if ‘they had gained

actual knowledge of the substantial risk of suicide and

responded with deliberate indifference.’ ” (internal

citations omitted) (quoting Hare v. City of Corinth

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

In this case, Defendants were all aware of Laws’s

risk of suicide. Their responses to this known risk

convince me that a reasonable jury could find that

they each effectively disregarded the risk by acting in

a manner that they knew or believed was likely

inadequate in light of the circumstances. First, based

on Laws having watched Monroe wrap the thirty-inch

phone cord around his neck and yet failing to

promptly contact emergency services—in direct

contravention of his training—a reasonable jury could

find that Laws recognized that Monroe was at risk of

committing suicide but deliberately disregarded it by

not taking the one action he knew would be the most

likely to save Monroe’s life. Second, Cogdill had been

trained to avoid isolating suicidal inmates, yet he

chose to remove Monroe from Cell 2 where there were

other inmates and to relocate Monroe to Cell 3 by

himself, a decision Brixey ratified. Compounding the

dangers of isolation, Cell 3 had a thirty-inch telephone

31a

cord—an obvious potential suicidal ligature for a

known suicidal inmate, like Monroe, who had just

attempted to strangle himself to death the previous

day. In addition to the obviousness of the danger

posed by the lengthy cord, a jury could infer that

Cogdill and Brixey had received guidance from the

Texas Jail Commission recommending jails limit the

length of phone cords to no more than 12 inches and

yet ignored this recommendation.

Moreover, the risks of isolating Monroe and of the

lengthy cord in Cell 3 could have been eliminated by

transferring Monroe to a better equipped facility, an

option Cogdill knew he could employ. Cogdill and

Brixey also could have reduced the risk of harm to

Monroe by maintaining a second jailer on duty during

when the jail had custody of a suicidal inmate. This

simple and low-cost change to staffing policy would

provide readily available backup support and thus

enable a jailer to immediately enter a cell in the event

of a suicide attempt, avoiding the delays inherent in a

lone jailer having to await the arrival of off-duty

personnel before being able to save a known suicidal

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

highly predictable and easily preventable, and the

failure by Cogdill and Brixey to take any of these

obvious precautions permits the reasonable inference

that they were deliberately indifferent to Monroe’s

substantial risk of suicide.

Thus, viewing the evidence in the light most

favorable to Plaintiffs and making all reasonable

inferences in their favor—as we must in this appeal—

the officers violated clearly established law. It should

be for a jury to decide the factual question of whether

Defendants “responded reasonably” to the grave and

32a

urgent situation and thus were deliberately

indifferent to the risk of suicide. Farmer v. Brennan,

511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811

(1994).4

Departing from longstanding and binding

precedent, the majority erroneously grants the

officers’ qualified immunity defense by embracing an

excessively narrow definition of the clearly

established rights at issue and the risk of harm

Monroe faced. Because I would follow our court’s

deliberate-indifference caselaw and affirm the district

court’s denial of qualified immunity on several of

Plaintiffs’ claims, I respectfully dissent.

Since the majority’s articulation of the qualifiedimmunity analysis is inconsistent with this court’s

cases and unduly restricts plaintiffs’ ability to recover

for violations of constitutional rights, it is necessary

to set forth the established framework for evaluating

claims of deliberate indifference in the context of a

known risk of prisoner suicide. “To overcome qualified

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

violated a statutory or constitutional right, and (2)

that the right [was] clearly established at the time of

the challenged conduct.’ ’’ Converse, 961 F.3d at 775

To be sure, the inquiry into whether an officer responded

“reasonably” is not an objective test but instead requires that the

officer actually was subjectively aware that her response was

inadequate. See Hyatt v. Thomas, 843 F.3d 172, 178 (5th Cir.

2016) (“What is clear is that, even if an officer responds without

the due care a reasonable person would use—such that the officer

is only negligent—there will be no liability.”).

33a

(quoting Cass v. City of Abilene, 814 F.3d 721, 728 (5th

Cir. 2016)).

As to the first prong of the qualified-immunity

analysis, “pretrial detainees” like Monroe, “have a

Fourteenth Amendment right to be protected from a

known risk of suicide.” Id. This right is violated when

a jail officer responds with deliberate indifference to a

known risk of suicide. Id. And a jail officer is

deliberately indifferent in violation of the Fourteenth

Amendment when he “knows of and disregards” a

detainee’s risk of suicide. Farmer, 511 U.S. at 837, 114

S.Ct. 1970 (analyzing a convicted prisoner’s deliberate

indifference claim under the Eighth Amendment); see

also Hare II, 74 F.3d at 639 (observing that, “[s]ince

the State does punish convicted prisoners, but cannot

punish pretrial detainees, a pretrial detainee’s due

process rights are said to be ‘at least as great as the

Eighth Amendment protections available to a

convicted prisoner.’ ” (quoting City of Revere v. Mass.

Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77

L.Ed.2d 605 (1983))). But a jailer who knew of the risk

of harm “may be free from liability if they responded

reasonably to the risk, even if the harm ultimately

was not averted.” Id. at 844, 114 S.Ct. 1970.

Under the second prong of the qualified-immunity

analysis, a court must determine “ ‘whether the

[D]efendants’ conduct was objectively unreasonable in

light of clearly established law at the time of

[Monroe’s] suicide.’ ” Converse, 961 F.3d at 775 (first

set of alterations in original) (quoting Jacobs, 228

F.3d at 393)). “It has been clearly established in this

Circuit since at least 1989 that ‘pretrial detainees

have a Fourteenth Amendment right to be protected

from a known risk of suicide,’ and it is well-settled law

34a

that jail officials violate this right if ‘they have actual

knowledge of the substantial risk of suicide and

respond with deliberate indifference.’ ’’ Sanchez v.

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

(quoting Converse, 961 F.3d at 775). Thus, as the

majority opinion recognizes, “[i]n the context of

inmate suicide, ‘to defeat qualified immunity, the

plaintiffs must establish that the officers … were

aware of a substantial and significant risk that [the

detainee] might kill [him]self, but effectively

disregarded it.’ ” Maj. Op. at 207 (second and third

sets of alterations in original) (quoting Jacobs, 228

F.3d at 395).

Given that the focus of a deliberate-indifference

claim is on the jailer’s subjective knowledge and

intent, it is apparent that, in the uniquely extreme

and consequential circumstance where a jail official is

aware of a prisoner’s risk of suicide but “effectively

disregards” that risk, the jailer has violated clearly

established law. Jacobs, 228 F.3d at 395. Put another

way, it is always clearly, objectively unreasonable for

a jail official to intentionally disregard a known

suicide risk. Therefore, in this context—deliberate

indifference by a jailer who knows that a detainee in

his custody and care is at risk of suicide—establishing

prong one of the qualified-immunity test necessarily

satisfies the demands of prong two. A showing that a

jailer violated the Fourteenth Amendment by being

deliberately indifferent to a known suicide risk is

necessarily also a showing that the official’s conduct

was “objectively unreasonable in light of clearly

established law.” Converse, 961 F.3d at 775. Put

simply, the two prongs of the qualified-immunity test

merge in this specific situation.

35a

This conclusion makes sense because the

constitutional violation at issue in a deliberate

indifference claim is not a negligent failure to learn of

a suicide risk that should have been apparent, nor is

it responding to a known suicide risk in a manner that

the official should have known to be unreasonable. See

Farmer, 511 U.S. at 835, 114 S.Ct. 1970 (observing

“that deliberate indifference entails something more

than mere negligence”); see also Hare II, 74 F.3d at

649 n.5 (explaining that, “where there is recognition

of substantial danger and a response thereto” by the

officer, that officer must possess a “state of mind more

blameworthy than lack of due care” in order to be

deliberately

indifferent).

Rather,

deliberate

indifference to a risk of suicide requires that an

official actually, subjectively perceive the risk of

suicide risk and respond unreasonably, meaning that

the officer actually believes his response to a known

risk is likely insufficient but still does not care. See

Farmer, 511 U.S. at 847, 114 S.Ct. 1970 (explaining

than an officer is deliberately indifferent “only if he

knows that inmates face a substantial risk of serious

harm and disregards that risk by failing to take

reasonable measures to abate it”); Hyatt v. Thomas,

843 F.3d 172, 178 (5th Cir. 2016) (“What is clear is

that, even if an officer responds without the due care

a reasonable person would use—such that the officer

is only negligent—there will be no liability.”). There is

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

a situation presents a risk of inmate suicide or that a

particular sort of response is unreasonable because,

by the very nature of a deliberate-indifference claim,

the officer must actually know both of these things in

order for a constitutional violation to occur. Jacobs,

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

36a

greatest possible risk—the loss of a human life that

an officer is charged with protecting—intentionally

disregards that known risk by either failing to act or

acting in a manner that is so clearly inadequate as to

permit the inference that the officer knew or believed

that his “response” was substantially likely to be

ineffectual but did not care, the officer’s conduct

contravenes clearly established law.

The majority asserts, however, that the

determination that a jailer effectively disregarded a

prisoner’s known risk of suicide is not sufficient to

satisfy the strictures of the qualified-immunity

analysis. Their conclusion rests on two errors in the

qualified-immunity analysis. First, the majority takes

an incredibly narrow approach to defining the clearly

established right at issue, claiming that the right

must be defined much more specifically than simply

the right of a suicidal detainee to be free from a

deliberately indifferent response by officers charged

with his supervision. Second, having defined the

clearly established right in an overly narrow manner,

the majority requires in effect that Plaintiffs point to

a case with virtually identical facts to prove that this

excessively narrow description of the right has been

clearly established. See Maj. Op. at 208–10. Both of

these propositions are contrary to what our precedent

in the detainee-suicide context demands.

In Jacobs v. W. Feliciana Sheriff’s Dep’t, for

instance, we stated that “[t]he case law from our own

and from our sister circuits offers little guidance for

determining whether the defendants’ particular

actions toward Jacobs were unreasonable in light of

their duty not to act with deliberate indifference

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

37a

Nevertheless, and unlike today’s majority, we asked

only whether the prison officers “conducted

[themselves] in an objectively reasonable manner

with respect to [their] duty to not act with subjective

deliberate indifference to the known risk that Jacobs

might have attempted suicide.” Id. at 397. Applying

this standard, we had no trouble concluding that two

of the officers were not entitled to qualified immunity

because their allegedly deliberately indifferent

conduct was objectively unreasonable, even if no

particular inmate-suicide case was factually

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

approvingly cite Jacobs and apply it in inmate-suicide

cases, see, e.g., Converse, 961 F.3d at 775, and, indeed,

the majority itself purports to rely on Jacobs.5 Thus,

under the law of this circuit, an officer who responds

with deliberate indifference to a known risk of suicide

violates clearly established law even if the “particular

actions” of the officer have not been addressed in a

previous case. Jacobs, 228 F.3d at 394.6

The majority does not contend that Jacobs was abrogated by

any intervening Supreme Court decision, and Jacobs therefore

remains “good law” and binding on this and subsequent panels.

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

Amendment excessive force case, where the Court stated that

clearly established rights should not be defined at a “high level

of generality.” 577 U.S. 7, 16, 136 S.Ct. 305, 193 L.Ed.2d 255

(2015). Of course, for many § 1983 claims, the Court has insisted

that clearly established rights be defined at a particularized level

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

“sufficiently clear [such]that a reasonable official would

understand that what he is doing violates that right.” Anderson

v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523

(1987). Put differently, defining the clearly established right at

issue at a granular level makes sure that an officer has “fair

warning” that her actions are unconstitutional before she may be

38a

held individually liable for damages. Hope, 536 U.S. at 741, 122

S.Ct. 2508; see also Brosseau v. Haugen, 543 U.S. 194, 198, 125

S.Ct. 596, 160 L.Ed.2d 583 (2004) (explaining that in a qualified

immunity case “the focus is on whether the officer had fair notice

that her conduct was unlawful”). And of course, fair warning is

the ultimate touchstone of qualified immunity. Shumpert v. City

of Tupelo, 905 F.3d 310, 321 (5th Cir. 2018). Crucially, whenever

an officer is found liable for deliberate indifference, that

conclusion necessarily means that the officer had fair warning

that his conduct violates the Constitution—regardless of his

particular acts or omissions constituting deliberate indifference.

Thus, the requirement that clearly established rights be defined

with a high degree of specificity does not apply to a deliberate

indifference claim.

To understand why an officer always has fair notice that

conduct that is deliberately indifferent violates the Constitution

requires an appreciation of the particular nature of a meritorious

deliberate indifferent claim, which is fundamentally different in

kind from an excessive force claim—or other § 1983 claims for

that matter. Deliberate indifference specifically requires that an

officer have subjective awareness not only of the risk of harm but

also that his response to that risk is inadequate—that is, the

officer must consciously disregard the risk by responding to it in

a way that the officer knows to be unreasonable. See Farmer, 511

U.S. at 847, 114 S.Ct. 1970. In short, the officer must possess a

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

to be deliberately indifferent. Hare II, 74 F.3d at 649 n.5; see also

Lawson v. Dallas Cnty., 286 F.3d 257, 262-63 (5th Cir. 2002)

(“The deliberate indifference standard is a subjective inquiry; the

plaintiff must establish that the jail officials were actually aware

of the risk, yet consciously disregarded it. … Deliberate

indifference cannot be inferred from a prison official’s mere

failure to act reasonably, i.e., it cannot be inferred from

negligence alone.”). By sharp contrast, excessive force claims

apply an “objective not subjective” inquiry in determining

whether an officer’s use of force was excessive and therefore the

officer’s “state of mind is not a matter that a plaintiff is required

to prove.” Kingsley v. Hendrickson, 576 U.S. 389, 395, 135 S.Ct.

2466, 192 L.Ed.2d 416 (2015).

39a

With this distinction in mind, it cannot be doubted that it

would be “sufficiently clear” to “a reasonable officer” that it

violates the Constitution to be deliberately indifferent to a risk

of harm to a detainee. Anderson, 483 U.S. at 640, 107 S.Ct. 3034.

All reasonable officers would know that it is unlawful to respond

to a risk of harm to a detainee in a manner that the officer

consciously believes to be unreasonable. Therefore, officers do

not need clearly established rights to be defined so narrowly to

the point that the illegality of their particular acts or omissions

constituting deliberate indifference have been established in a

prior case in order to have “fair warning” that it is

unconstitutional to deliberately ignore a risk of harm to a

detainee.

Unsurprisingly, then, the Supreme Court has never applied

Mullenix’s admonition against defining clearly established rights

at a “high level of generality” in reviewing a deliberate

indifference claim. And even following Mullenix, our sister

circuits have recognized that, in the context of a deliberate

indifference claim, clearly established rights may be defined

generally. See, e.g., Lewis v. McLean, 864 F.3d 556, 566 (7th Cir.

2017) (“[W]e ask whether the contours of the right are

sufficiently clear that a reasonable official would understand

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

that deliberate indifference to an inmate’s serious medical needs

violates the Eighth Amendment.” (cleaned up)); Rafferty v.

Trumbull Cnty., 915 F.3d 1087, 1097 (6th Cir. 2019) (holding

that “it was clearly established in 2014 that ignoring known risks

of harm to an inmate due to inadequate medical care, inhumane

conditions of confinement, or abuse by another inmate could

constitute deliberate indifference” (citing, inter alia, Farmer, 511

U.S. at 834, 114 S.Ct. 1970)); Cox v. Quinn, 828 F.3d 227, 239

(4th Cir. 2016) (“It has long been established that jail officials

have a duty to protect inmates from a substantial and known risk

of harm, including harm inflicted by other prisoners.” (citing

Farmer, 511 U.S. at 833, 114 S.Ct. 1970)). Respectfully, this

court’s cases that have relied on Mullenix to narrowly define the

right at issue in a deliberate indifference case, see e.g., Cleveland

v. Bell, 938 F.3d 672, 677 (5th Cir. 2019), are misguided, failing

to grapple with the distinguishing feature of a deliberate

indifference claim, which requires that an officer have subjective

40a

The majority does note (before promptly foreclosing)

an additional path by which Plaintiffs might satisfy

the clearly established prong, even without a directly

on-point case. Under Supreme Court precedent, an

officer violates clearly established law when his

conduct so obviously transgresses the Constitution

such that the unlawfulness would have been apparent

to any reasonable officer. E.g., Hope v. Pelzer, 536 U.S.

730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). The

majority even cites the Supreme Court’s recent

rebuke of this court in Taylor v. Riojas, –– U.S. –––,

141 S. Ct. 52, 208 L.Ed.2d 164 (2020) for failing to

apply properly this principle. In Taylor, a panel of this

court had determined that officers who left an inmate

in a squalid, excrement-filled jail cell for “only six

days” were entitled to qualified immunity because

this court “hadn’t previously held that a time period

so short violated the Constitution.” Taylor v. Stevens,

946 F.3d 211, 222 (5th Cir. 2019), vacated sub nom.

awareness of the inadequacy of his acts or omissions in

responding to a risk of harm.

In any event, our court held over twenty years ago in Jacobs

that an officer who responds with deliberate indifference to a

known risk of a detainee’s suicide violates clearly established law,

even though the officer’s particular conduct constituting

deliberate indifference had not been addressed in a previous

case. See 228 F.3d at 394. Thus, even putting aside the logical

conclusion that an officer who acts with deliberate indifference

necessarily violates clearly established law, we are bound by

Jacob’s clear holding. Jacobs’s conclusion makes eminent sense

because the risk of harm in a case involving a claim of deliberate

indifference to a known risk of suicide is uniquely high—indeed,

there can be no greater risk. In this circumstance, it would be

“sufficiently clear [to] every reasonable official” that it violates

constitutional rights to disregard that risk of harm. Mullenix,

577 U.S. at 11, 136 S.Ct. 305.

41a

Taylor v. Riojas, 141 S. Ct. at 54. The Supreme Court

summarily vacated, reaffirming the longstanding rule

that a plaintiff need not provide a precisely analogous

case to overcome qualified immunity when the

circumstances are such that “no reasonable

correctional officer could have concluded” that the

conduct at issue was constitutional. Taylor, 141 S. Ct.

at 53 (citing Hope, 536 U.S. at 741, 122 S.Ct. 2508

(explaining that “ ‘a general constitutional rule

already identified in the decisional law may apply

with obvious clarity to the specific conduct in

question’ ” (quoting United States v. Lanier, 520 U.S.

259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)). In

short, the Court made clear that the shield of qualified

immunity vanishes when there is no “doubt about the

obviousness” of an officer’s violation of an inmate’s

constitutional rights. Id. at 54 n.2.

Though the majority cites Taylor, it fails to absorb

and apply the case’s lesson. In the majority’s view,

because the conduct of Defendants here was not as

extreme as that of the guards in Taylor, the Supreme

Court’s decision is inapplicable. Maj. Op. at 205–06,

208–09. But this essentially repeats the very same

analytical error this court made in Taylor and which

the Supreme Court found necessary to correct. Rather

than asking only whether the facts here are closely

analogous to Taylor and thus if there exists an onpoint precedent—which is essentially the majority’s

analysis—Taylor teaches that the proper qualifiedimmunity inquiry must also ask whether the violation

was so obvious that “any reasonable officer should

have realized that” their conduct “offended the

Constitution.” Taylor, 141 S. Ct. at 54; see also

Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.Ct. 596,

42a

160 L.Ed.2d 583 (2004) (“Of course, in an obvious case,

[general] standards can ‘clearly establish’ the answer,

even without a body of relevant case law.”). 7 And

because, as discussed above, deliberate indifference

by an officer in the face of an inmate’s known risk of

suicide is always objectively unreasonable in light of

clearly established law, such a violation will

necessarily be “obvious” in that “any reasonable

officer should have realized that” their conduct

“offended the Constitution.” Taylor, 141 S. Ct. at 54.

Where the violation at issue is intentionally

disregarding a known suicide risk, this standard is

clearly met.

In sum, in the deeply alarming circumstance where

a detainee is known by jail officials to be at risk of

suicide, a response by those officials that deliberately

“effectively disregards” that risk violates clearly

established law in a manner that should be clear to all

reasonable officers. Jacobs, 228 F.3d at 395. Such

facts would thus defeat qualified immunity if proven.

Id. For the reasons outlined below, a reasonable jury

could infer that Laws was deliberately indifferent by

failing promptly to contact emergency services once

Monroe had begun actively choking himself and

Cogdill and Brixey were likewise deliberately in-

To be sure, it should infrequently be the case that an officer’s

conduct so obviously violates constitutional rights such that any

reasonable officer would have known of the unlawfulness of his

conduct. But this is not to say, as the majority appears to believe,

that a constitutional violation is only obvious when the facts of a

particular case are as “deplorabl[e]” as those in Taylor, 141 S. Ct.

at 53. The question, as noted above, is more straightforward:

whether “any reasonable officer should have realized that” their

conduct “offended the Constitution.” Id. at 54.

43a

different for housing Monroe by himself in a cell with

a lengthy phone cord.

II.

In this appeal from Defendants’ motion for summary

judgment, we must view the evidence in the light most

favorable to Plaintiffs and making all reasonable

inferences in their favor. See Jacobs, 228 F.3d at 393.

Under this standard, Jailer Laws’s alleged response

to Monroe’s ongoing suicide was so inadequate as to

permit a reasonable juror to infer that Laws was

deliberately indifferent to Monroe’s plight. Indeed, the

majority agrees that Laws may have been deliberately

indifferent, but it asserts that he is entitled to

qualified immunity because he “did something,” i.e.,

contacting his supervisors. Maj. Op. at 209. But, as

discussed above, the issue is not whether a prior case

put Laws on notice that calling his supervisors was an

inadequate response because the constitutional

violation at issue is not based solely on the objective

unreasonableness of his response. Instead, the

violation is Laws’s alleged deliberate indifference. If

Laws knew calling his off-duty supervisors was likely

going to fail to save Monroe’s life but did not care—

that is, if he thought “this is not my problem and

someone else can deal with it”—the constitutional

violation was obvious to any reasonable officer,

regardless of the specifics details of his inadequate

response.

The majority’s holding is inconsistent with common

sense and our precedent. Even setting aside the

specific and acutely urgent context of an ongoing

suicide attempt, no one would suggest that an officer

who responds to an inmate in need of medical care but

does so in a manner that he knows or believes to be

44a

plainly inadequate is immunized from liability. See,

e.g., Farmer, 511 U.S. at 847, 114 S.Ct. 1970 (holding

that a prison official is deliberately indifferent “if he

knows that inmates face a substantial risk of serious

harm and disregards that risk by failing to take

reasonable measures to abate it” (emphasis added));

Austin v. Johnson, 328 F.3d 204, 210 (5th Cir. 2003)

(denying qualified immunity where, although a prison

guard rendered first aid, the minor-aged prisoner

remained unconscious and vomiting due to heat

stroke and the guard waited nearly two hours to call

for emergency services); Harris v. Hegmann, 198 F.3d

153,159–60 (5th Cir. 1999) (prisoner stated deliberate

indifference claim when he alleged that he had

complained to prison medical staff that his jaw had

“fallen out of place” and that he was in excruciating

pain and required immediate medical attention yet

prison medical officials performed only a “cursory

inspection” of his mouth and otherwise ignored his

repeated requests for treatment for eight days after

his jaw re-broke). Rather, “this court ha[s] previously

held that taking some reasonable precautions does not

mean the officer, on the whole, behaved reasonably.”

Converse, 961 F.3d at 779.

Jacobs well-illustrates this principle. In that

detainee-suicide case, the jail’s sheriff “did not

completely ignore [the detainee’s] suicidal condition,

and in fact instituted some preventative measures,”

such as prohibiting the detainee from having loose

bedding during her initial period in detention and

ordering more frequent checks on her. 228 F.3d at 395.

Nevertheless, we held these precautions were “not

enough to mitigate [the sheriff’s] errors,” including

ratifying the decision to place the detainee in a cell

45a

that had a “significant blind spot and tie-off points”

that the detainee later used to hang herself. Id.

Similarly, in Converse, we held that, although an

officer removed a suicidal detainee’s shoelaces before

placing him in a cell, the officer was not entitled to

qualified immunity when he failed both to regularly

check on the detainee and to remove bedding that the

detainee later used to hang himself. 961 F.3d at 779

(reviewing assertion of qualified immunity at motionto-dismiss stage). When an officer “disregard[s] …

precautions he knew should be taken” or responds to

a crisis in a manner that is so deficient as to permit

the inference that the officer consciously disregarded

the risk, then that officer acts with deliberate

indifference. Jacobs, 228 F.3d at 397; see also Hare II,

74 F.3d at 649 n.5.

Applying this standard, a reasonable juror could

infer that Laws responded to Monroe’s selfstrangulation with deliberate indifference. The risk of

death posed by a suicidal inmate actively choking

himself with a telephone cord is obvious and clearly

urgent. In fact, Laws knew that less than ten minutes

of strangulation can result in serious brain damage.

He also knew that EMS was available 24/7 and would

come. Nonetheless, Laws’s only affirmative response

was to call Cogdill, Brixey, and Deputy Tucker for

help. Thereafter, despite Laws’s alleged awareness

that none of the superiors he called were in the

jailhouse or even on duty, he “basically just waited for

somebody to get there.” This violated the

commonsense training Laws had received, which

demanded that he promptly call emergency services.

See Arenas v. Calhoun, 922 F.3d 616, 624 (5th Cir.

2019) (“[A] knowing failure to execute policies

46a

necessary to an inmate’s safety may be evidence of an

officer’s deliberate indifference.”).

And such a response would have required minimal

effort while posing no risk to Laws. Cf. Converse, 961

F.3d at 778 (“Plaintiffs have plausibly alleged that, by

failing to take simple and reasonable precautions,

Officer Melton displayed deliberate indifference to the

risk of harm to Silvis.”). Instead, with a crisis

unfolding right in front of him, Laws allegedly just

waited for ten minutes for Brixey to get to the jail,

even though he was “sure” from his education and

training as a jailer that someone being strangled by a

ligature could suffer serious brain damage in “less

than ten minutes.” Once Brixey arrived, she took it

upon herself to call for emergency medical assistance.

From Laws’s glaring record of inaction, a reasonable

juror could infer that, although he “did not

completely” ignore Monroe’s risk of suicide, he

“effectively disregarded” that risk and therefore is not

absolved of liability. 8 Jacobs, 228 F.3d at 395-96.

The majority cites a district court opinion in Shepard v.

Hansford County, 110 F. Supp. 3d 696, 711, 713 (N.D. Tex. 2015),

for the proposition that our caselaw has yet to clearly establish

(prior to this case, at least) that the failure to promptly call for

emergency services in response to an inmate attempting suicide

is a constitutional violation. Maj. Op. at 209. Reliance on

Shepard is misplaced as that decision fundamentally misreads

this court’s precedents on deliberate indifference in the face of a

suicidal inmate. First, Shepard thought that our determination

that officers were deliberately indifferent in Jacobs turned on the

fact that the officers in that case failed to implement sufficient

suicide prevention measures even though there had been a

previous jailhouse suicide. On that basis, Shepard sought to

distinguish Jacobs from the detainee suicide at issue in that case,

which was the first in that jail’s history. See id. at 713. However,

in Converse, we expressly rejected this very distinction as

47a

Because a reasonable juror could conclude that Laws

was deliberately indifferent to the risk that Monroe

would die from his suicide attempt, Laws’s actions,

viewed in the light most favorable to Plaintiffs,

violated clearly established law. See Converse, 961

F.3d at 775. Accordingly, I would affirm the district

court’s conclusion that this claim against Laws should

proceed to trial.

III.

Turning to the claims against Sheriff Cogdill and

Administrator Brixey, I consider first whether each

immaterial, explaining that the fact of a past suicide in Jacobs

“speaks only to the degree, not the occurrence, of unreasonable

behavior.” 961 F.3d at 777 (emphasis in original). Hence, we

determined that officers responded with deliberate indifference

to a suicidal detainee by failing to take reasonable preventative

measures, despite the fact that no previous inmate had

committed suicide in the cell in which the detainee killed himself.

See id. Second and more fundamentally, Shepard misconstrues

Jacobs’s statement, mentioned above, that “we cannot say that

the law is established with any clarity as to what [measures

jailers must take to prevent inmate suicide].” Shepard, 110 F.

Supp. 3d at 713 (alterations in original) (quoting Jacobs, 228

F.3d at 394-95). Notwithstanding this statement, Jacobs

continued on to explain what is required, as a matter of law, to

overcome qualified immunity when an inmate presents an

ongoing risk of suicide: to defeat qualified immunity, the

plaintiffs must establish that the officers in this case were aware

of a substantial and significant risk that Jacobs might kill

herself, but effectively disregarded it.” 228 F.3d at 395. Jacobs

then applied that standard, ultimately finding a violation of

clearly established law by multiple officers. See id. at 397. In

other words, Jacobs makes clear what Shepard does not

recognize: even if the law has not spelled out each precise

measure a jailer must take in response to a known suicide risk,

a jailer’s response that is deliberately indifferent to such a risk

violates clearly established law. See id. at 393-94.

48a

subjectively perceived the substantial risk of harm

Monroe faced before addressing each of their

responses to that risk. 9 Cogdill concedes that he

believed Monroe to pose a real risk of suicide. So, too,

was Brixey aware of this risk as she, along with

Cogdill, knew that Monroe had attempted suicide on

his second day in the jail and made the initial decision

to place Monroe on suicide watch. Accordingly, I

would address the second part of the deliberate

indifference inquiry, i.e., whether the officers

“effectively disregarded” Monroe’s risk of suicide by

housing him in a cell alone with a thirty-inch phone

cord. Jacobs, 228 F.3d at 395.

The majority, however, determines that Cogdill and

Brixey escape liability because they lacked knowledge

of the specific risk of suicide by strangulation posed by

placing Monroe in a cell with a lengthy phone cord.

See Maj. Op. at 210–11.10 Under Supreme Court and

Of course, each officers’ subjective deliberate indifference—

and therefore liability—must be analyzed separately. See, e.g.,

Jacobs, 228 F.3d at 395. While adhering to this requirement, the

evidence pertaining to Cogdill’s and Brixey’s individual

deliberate indifference is mentioned together for the sake of

concision. But again, the legal analysis is individualized because

each officer must personally act with deliberate indifference in

order for liability to attach.

Curiously, the majority suggests that Plaintiffs cannot

prevail on their claim against Brixey because “Defendant’s

counsel conceded that Brixey ‘was not involved in placing

[Monroe] in the cell’ ” and because a § 1983 claim cannot be based

on vicarious liability. Maj. Op. at 207 n.6 (emphasis added).

First, it transgresses fundamental rules of fairness to assert that

an argument put forward by a defendant that is intended to

avoid liability—here, the contention by Brixey’s counsel that she

was not involved in the decision to place Monroe in the cell with

the phone cord—(1) constitutes a “concession” by that party and

49a

circuit precedent, however, the risk of harm in the

first step of the deliberate-indifference test should not

be defined so narrowly. Rather, as the Supreme Court

made clear in Farmer v. Brennan, 511 U.S. 825, 843,

114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), all that must

be established is that the jail official had actual

knowledge that the inmate faced a risk of harm. Id.

(holding that the deliberate-indifference standard

requires that the official “both be aware of facts from

which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw the

inference”). The Court did not impose an additional

burden on plaintiffs to show that the official possessed

knowledge of the specific manner or source of harm.

To the contrary, it squarely rejected engrafting such a

requirement, explaining that the official’s knowledge

as to “whether the risk comes from a single source or

multiple sources” is irrelevant to the inquiry into the

(2) somehow binds a plaintiff who might point to facts leading to

a different conclusion. And to simply take the defendant’s

characterization of the facts as gospel violates the longestablished rule that we are to view the facts in the light most

favorable to the non-moving party. But even assuming that

Brixey was not involved in the initial decision to place Monroe in

the cell in which he ultimately committed suicide, our court has

held that a supervisor can be deliberately indifferent in response

to a known risk of suicide when they “effectively ratified th[e]

decision” to place a detainee in a particular cell “by keeping [the

detainee] in the cell while he considered her to be a significant

suicide risk.” Jacobs, 228 F.3d at 395; cf. Hunt v. Davis, 749 F.

App’x 522, 524 (9th Cir. 2018) (explaining that “a supervisor’s

acquiescence in a subordinate’s constitutional violation may

result in his individual liability” if the supervisor “ ‘knowingly

refuse[s] to terminate’ acts by others which he knows or has

reason to know inflict constitutional injury.’ ” (quoting Starr v.

Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011)).

50a

officer’s awareness of the risk of harm. Id. (internal

quotation marks omitted).

In a case involving a detainee with a known risk of

suicide, the risk of harm is the risk of the detainee’s

suicide, not the risk of suicide by a particular means.

See Converse, 961 F.3d at 779 (“Plaintiffs have alleged

sufficient facts to demonstrate that Officer Kimball

was subjectively aware of the risk of suicide Silvis

faced.” (emphasis added)); Hyatt v. Thomas, 843 F.3d

172, 179 (5th Cir. 2016) (explaining that plaintiffs

were “not required to demonstrate that [the officer]

was aware of the particular means that [the detainee]

would ultimately use to hurt himself, only of the

substantial risk that he might try to hurt himself”);

Sanchez, 995 F.3d at 473 (“Thus, the question is

whether Sanchez has presented evidence from which

a reasonable jury could infer that Oliver knew Gauna

was at risk of suicide and ignored the risk.”); cf.

Hernandez ex rel. Hernandez v. Tex. Dep’t of Protective

& Regul. Servs., 380 F.3d 872, 881-82 (5th Cir. 2004)

(State-employed social workers “contend that the

plaintiffs cannot show that by placing [a foster child]

with the [foster family] the social workers had actual

knowledge of a specific danger of the particular injury

of suffocation. … [T]his court has never required state

officials to be warned of a specific danger. … [T]o

require state officials to have knowledge of the exact

risk of harm, i.e. suffocation, would be inapposite with

the Supreme Court’s decision in Farmer.… We need

not address the form that such a risk might eventually

manifest”). 11 Thus, Cogdill’s and Brixey’s knowledge

Relying on Farmer, other circuits have applied similar

reasoning. See, e.g., Tafoya v. Salazar, 516 F.3d 912, 916 (10th

Cir. 2008) (McConnell, J.) (“The official’s knowledge of the risk

51a

of the specific risk of strangulation by the phone cord

should be considered only at the second stage of the

deliberate indifference test—which asks whether

Cogdill and Brixey “effectively disregarded” the risk

of harm, Jacobs, 228 F.3d at 395—where this

awareness may demonstrate that the officers knew or

believed that their response to Monroe’s suicidal

ideation and attempts could be inadequate.

With regard to the second part of the deliberateindifference test, I would hold that a reasonable juror

could conclude that Cogdill’s and Brixey’s responses

to Monroe’s known risk of suicide were deliberately

indifferent, viz., that the officials “effectively

disregarded” Monroe’s risk of suicide. Id.. Cogdill

decided to transfer Monroe, who just attempted to

strangle and hang himself, to Cell 3, an isolation cell

with a thirty-inch phone cord, and Brixey ratified that

decision, even though they both knew that other, safer

options for housing Monroe were available.

need not be knowledge of a substantial risk to a particular

inmate, or knowledge of the particular manner in which injury

might occur.” (citing Farmer, 511 U.S. at 843, 114 S.Ct. 1970));

Haley v. Gross, 86 F.3d 630, 643 n.33 (7th Cir. 1996) (“Likewise

Sergeant Ellis and Superintendent Gross are no less liable for

deliberate indifference because, while they knew that [prisoner]

Wilborn presented a substantial risk of serious harm to [his

cellmate] Haley, they may not have envisioned that Wilborn

would light the cell on fire. While there must be some link

between the risk of which the official was aware and the harm

that actually occurred—as it would be unfair to hold officials

liable for risks they could not have anticipated simply because

they ignored other unrelated risks—prison officials need not be

specifically aware of the precise risk that unfolds. It is sufficient

that Ellis and Gross knew that Haley was in danger of some kind

of attack from Wilborn and made no attempt to prevent it.”

(citing Farmer, 511 U.S. at 843, 114 S.Ct. 1970)).

52a

“A supervisory official may be held liable” if he

“implements unconstitutional policies that causally

result in the constitutional injury.” In this case,

Cogdill and Brixey chose to have only one jailer on

duty when the jail houses a suicidial detainee in its

custody. However, the jail’s policy requires a jailer to

wait for backup support to arrive before entering a

cell, even when, as here, a detainee is actively

attempting suicide inside his cell. Maintaining only

one jailer on duty thus increases the response time

before a jailer can physically intervene to prevent a

detainee from committing suicide. The obvious

consequence of a policy of keeping only a single jailer

on duty even when a suicidal detainee is in the jail’s

custody is that a suicidal detainee may commit serious

self-harm before a jailer can effectively intercede. And

critically, Cogdill and Brixey knew that this staffing

policy—which

they

were

responsible

for

administering— was “just not safe” precisely because

of the delays it creates in responding to a crisis

situation. Had an additional jailer been on duty the

morning that Monroe wrapped the phone cord around

his neck, either Laws or that additional jailer could

have immediately intervened and prevented the

suicide. On this record, a reasonable jury could infer

that Cogdill and Brixey’s policy of keep only a single

jailer on duty when the jail houses a suicidal detainee

“causally result[ed]” in Monroe’s death. Porter v.

Epps, 659 F.3d 440, 446 (5th Cir. 2011).

Cogdill and Brixey’s liability as supervisors can also

be framed as their conscious choice not to implement

policies even though they knew that the likely result

of failing to implement these policies would eventually

be a detainee’s suicide; in other words, Cogdill and

53a

Brixey can be liable for opting not to put into effect

policies that they knew would decrease substantially

the risk of harm to suicidal detainees and instead to

continue to adhere to a more dangerous policy that

was apt to lead to an in-custody suicide. See Porter,

659 F.3d at 446 (“A failure to adopt a policy can be

deliberately indifferent when it is obvious that the

likely consequences of not adopting a policy will be a

deprivation of constitutional rights.” (internal

quotation marks omitted)). Cogdill and Brixey both

knew that they had multiple options available for

housing Monroe that would have been safer than

keeping him in the jail’s custody with only a single

jailer on duty. For example, Cogdill was aware that

jail policy mandated that Monroe “be transferred to a

facility better equipped to manage an inmate with

mental disabilities” if a transfer was required in order

to protect Monroe. And in the past, Cogdill had

specifically ordered transfers of inmates to other jails.

See Jacobs, 228 F.3d at 397 (holding that a jail

official’s “disregard for precautions he knew should be

taken”

can

evidence

subjective

deliberate

indifference). Besides this alternative to housing

Monroe at the Coleman County Jail, Cogdill and

Brixey could have taken the simple and obvious step

of employing a second jailer to be on-duty at all times

when a suicidal inmate, like Monroe, was in the jail’s

custody. This latter course of action would have

averted the delays in responding to a suicide attempt

when a single jailer is on duty. And even though

Cogdill and Brixey averred that budgetary

restrictions prevent hiring more than six total staff,

this does not indicate that financial limitations would

prevent maintaining (and paying for) one additional

54a

jailer on duty in the limited circumstance where a

suicidal detainee is custody.

In sum, Cogdill and Brixey adhered to a policy of

maintaining just one jailer on duty even when a

suicidal detainee was in the jail’s custody, despite

knowing that this policy was unsafe, and instead of

transferring suicidal detainees to better equipped

facilities or keeping a second jailer on duty—policies

that they knew were available to them. A jury could

determine that the supervisors’ were deliberately

indifferent based on their “failure to adopt [ ]

polic[ies]” when they knew—as any reasonable jailer

would know—that the consequence of not

implementing these policies was likely to be an incustody suicide. Porter, 659 F.3d at 446.

There are further grounds upon which a jury could

conclude that Cogdill and Brixey were deliberately

indifferent. Both officials were aware of the risk and

prevalence of suicide in local jails and had previously

worked in a local jail where multiple inmates had

committed suicide by strangulation. Moreover,

Cogdill had been trained to house suicidal inmates in

cells with other inmates and not in insolation. In other

words, based on Cogdill’s training, it would have been

safer to simply leave Monroe in Cell 2 after Monroe

attempted suicide than to move him to Cell 3. Further,

the fact that the jail contained only four cells supports

an inference that both Cogdill and Brixey were aware

that Cell 3 was outfitted with a lengthy phone cord.

And the very length of the cord constitutes

circumstantial evidence from which a factfinder could

infer that Defendants were aware of the obvious risk

it posed to an individual who had just attempted to

hang himself. See Farmer, 511 U.S. at 842, 114 S.Ct.

55a

1970 (explaining that a prison official’s “knowledge of

a substantial risk” can be demonstrated based on

“inference from circumstantial evidence, and [that] a

fact-finder may conclude that a prison official knew of

a substantial risk from the very fact that the risk was

obvious” (internal citation omitted)). Indeed, Cogdill

spent time with Monroe in Cell 3 just the day before

Monroe strangled himself with the phone cord,

attempting to dissuade Monroe from committing selfharm. It strains credulity to accept that Cogdill would

not have noticed the lengthy cord and considered it a

potential ligature, and at the very least, it is rational

to infer that Cogdill was aware of the risk posed by

the cord.

Furthermore, the absence in the record of past

suicides by strangulation with telephone cords

specifically in the Coleman County Jail does not

foreclose a finding that Cogdill and Brixey were aware

of the risk posed by the lengthy phone cord. As

mentioned above, in 2015 the head of the Texas Jail

Commission circulated a memorandum notifying “All

Sheriffs and Jail Administrators” in the state that

multiple suicides had occurred in Texas jails in less

than a years’ time through the use of lengthy phone

cords. Accordingly, the Commission advised that

phone cords in jails “be no more than twelve (12)

inches in length.” Although Cogdill and Brixey

testified that they had not received or read the

memorandum, a reasonable factfinder could find their

denials incredible. See Deville v. Marcantel, 567 F.3d

156, 165–166 (5th Cir. 2009) (summary judgment

inappropriate “where the credibility of key witnesses

loom large” (cleaned up)). Cogdill was Deputy Sheriff

of the Coleman County Jail at the time the

56a

memorandum was circulated, and one could

reasonably infer that Cogdill’s predecessor as sheriff

would have informed him of the memo’s contents

when it was circulated. And Cogdill had been Sheriff

for two years at the time of Monroe’s suicide. A juror

could infer that Cogdill—like any responsible senior

jail official, particularly one starting a role as the head

of a jail—would have familiarized himself with

reports issued by the Texas Jail Commission, the

state’s regulator of county jails, 12 and thus that he

reviewed the Jail Commission’s 2015 memorandum

warning officials about the risk to suicidal inmates

posed by lengthy phone cord. Likewise, a juror could

reasonably conclude that Brixey reviewed the

memorandum after she became Jail Administrator in

2017 given that it was addressed to Jail

Administrators and given the fact that Cogdill tasked

her with handling communications with the Jail

Commission.

Even assuming that neither Cogdill nor Brixey

received the memo or heard reports of its contents—

which would be contrary to our duty to make

reasonable inferences in favor of Plaintiffs as the nonmovants—the existence of the document suggests that

the clear and obvious nature of the risk posed by

housing a suicidal prisoner in a cell with a phone cord

“The Texas Commission on Jail Standards is the regulatory

agency for all county jails and privately operated municipal jails

in the state.” TEXAS COMMISSION ON JAIL STANDARDS, COMPACT

WITH TEXAS, https://www.tcjs.state.tx.us/compact-withtexas/

(last visited June 23, 2021). Among other oversight duties, the

Jail Commission establishes “reasonable minimum standards for

the … operation of jails” and “monitor[s] and enforce[s]”

compliance with jail standards. Id.

57a

in excess of twelve inches was generally known within

the Texas jail system. See Farmer, 511 U.S. at 842,

114 S.Ct. 1970. What is more, Cogdill and Brixey’s

extensive experience in jails lends support to the

inference that they would have been generally aware

of the risk posed by lengthy phone cords as potential

ligatures to suicidal detainees. Thus, although Cogdill and Brixey did not admit that they were aware of

the risk the phone cord presented, a factfinder could

disbelieve their denials in light of the substantial

circumstantial evidence pointing the other way. See

Deville, 567 F.3d at 165–166. 13 And it is not our

In determining that Cogdill and Brixey were not aware of the

risk of the phone cord, the majority purports to rely on Farmer’s

statement that risks that are “longstanding, pervasive, welldocumented, or expressly noted by prison officials in the past”

can serve as circumstantial evidence that an official “has been

exposed to information concerning the risk and thus ‘must have

known’ about it.” Maj. Op. at 211 n.11 (quoting 511 U.S. at 842,

114 S.Ct. 1970). First, as explained above, Farmer itself and this

court’s caselaw make clear that the relevant risk of harm in this

case is the risk of suicide, not the risk of suicide by a thirty-inch

telephone cord. See Farmer, 511 U.S. at 843, 114 S.Ct. 1970 (“Nor

may a prison official escape liability for deliberate indifference

by showing that, while he was aware of an obvious, substantial

risk to inmate safety, he did not know that the complainant was

especially likely to be assaulted by the specific prisoner who

eventually committed the assault. The question under the

Eighth Amendment is whether prison officials, acting with

deliberate indifference, exposed a prisoner to a sufficiently

substantial risk of serious damage to his future health, and it

does not matter whether the risk comes from a single source or

multiple sources, any more than it matters whether a prisoner

faces an excessive risk of attack for reasons personal to him or

because all prisoners in his situation face such a risk.” (cleaned

up)); Hyatt, 843 F.3d at 179 (explaining that plaintiffs were “not

required to demonstrate that [the officer] was aware of the

particular means that [the detainee] would ultimately use to

58a

hurt himself, only of the substantial risk that he might try to

hurt himself’’); Hernandez, 380 F.3d at 881-82 (5th Cir. 2004)

(State-employed social workers “contend that the plaintiffs

cannot show that by placing [a foster child] with the [foster

family] the social workers had actual knowledge of a specific

danger of the particular injury of suffocation. … [T]his court has

never required state officials to be warned of a specific danger.

… [T]o require state officials to have knowledge of the exact risk

of harm, i.e. suffocation, would be inapposite with the Supreme

Court’s decision in Farmer.… We need not address the form that

such a risk might eventually manifest”). And it is undisputed

here that Cogdill and Brixey were aware that Monroe was

suicidal, and thus subjectively appreciated that Monroe faced a

risk of harm.

Although Cogdill and Brixey’s awareness of the danger posed

by the phone cord does not bear on whether they knew Monroe

was at a risk of harm, their awareness is relevant to the second

prong of the deliberate indifference test—whether they

effectively disregarded that risk by failing to act or acting in a

manner they believed to be unreasonable. In this case, Cogdill

and Brixey’s decision to house Monroe in Cell 3, despite their

awareness that the lengthy phone cord in that cell could be used

as a suicidal ligature, evidences the inadequacy of their

individual responses to Monroe’s risk of suicide. And contrary to

the majority’s contention, the dangers to suicidal inmates from

phone cords more than twelve-inches in length—like the cord in

Cell 3—were “longstanding” and “well-documented” because two

years before Monroe’s suicide the Texas Jail Commission

expressly warned senior jail officials like Cogdill and Brixey of

the risk created by phone cords of over twelve inches in length.

Moreover, Farmer expressly states that whether a risk was

“longstanding, pervasive, or expressly noted” by past officials are

merely examples of the types of circumstantial evidence that

could support the inference that an official had subjective

knowledge of a risk of harm; they are not the exclusive forms of

such evidence. 511 U.S. at 842, 114 S.Ct. 1970. Rather, “a factfinder may conclude that a prison official knew of a substantial

risk from the very fact that the risk was obvious.” Id. There is no

doubt that a lengthy phone cord contained inside a jail cell poses

an obvious risk of harm to a suicidal inmate housed in that cell

59a

province to weigh this competing evidence in

reviewing a summary judgment order. See Schroeder

v. Greater New Orleans Fed. Credit Union, 664 F.3d

1016, 1026 (5th Cir. 2011).

To summarize, Cogdill and Brixey chose to house

Monroe, who they knew was a suicide risk, alone in a

cell with a thirty-inch long phone cord despite (1) their

training, which generally advised against housing

suicidal prisoners by themselves; (2) their knowledge

that there were other, safer facilities to house Monroe

and that they had a duty to relocate him if their jail

could not adequately protect Monroe; (3) the risk

posed by the lengthy cord, which was both obvious and

a specific risk that a jury could infer that the officials

were made aware of by the Texas Jail Commission.

Considering this evidence in the light most favorable

to Plaintiffs and drawing all reasonable inferences in

their favor, a juror could conclude that Cogdill and

Brixey knew or believed that their response to

Monroe’s risk of suicide was deficient and therefore

possessed a “state of mind more blameworthy than

lack of due care.” Hare II, 74 F.3d at 649 n.5. Put

differently, one could conclude that the officers

“effectively disregarded” the risk of harm to Monroe.

Jacobs, 228 F.3d at 395. Plaintiffs have thus raised

material questions as to whether each officer

independently was deliberately indifferent and, as

explained above, have therefore also established a

violation of clearly established law. See id.; see also

Converse, 961 F.3d at 775.

where the inmate had attempted to strangle himself to death just

the previous day. Thus, a jury could reasonably find that Cogdill

and Brixey were aware of the risk to Monroe created by the

thirty-inch phone cord in Cell 3.

60a

***

Qualified immunity is not the judicial equivalent of

the Armor of Achilles, an impenetrable shield that

governmental actors can wield to insulate themselves

from liability no matter how flagrant their conduct. As

the Supreme Court has recently reminded this court,

qualified immunity vanishes where an official’s action

or inaction so obviously violates the Constitution that

“any reasonable officer should have realized” the

unlawfulness of the conduct. Taylor, 141 S. Ct. at 54.

And “any reasonable officer” would know that it

offends the Constitution to be deliberately indifferent

to a detainee’s known risk of suicide. Taking the facts

and inferences in the light most favorable to

Plaintiffs, a reasonable juror could conclude that the

officers here responded with deliberate indifference to

the risk that pretrial detainee Derrek Monroe would

commit suicide, and therefore the officers are not

entitled to qualified immunity. It should be left to a

jury to weigh the competing evidence and resolve the

factual disputes, most particularly Defendants’

subjective states of mind. Instead, today’s majority

ends all claims against all officers by erroneously

granting them qualified immunity. Because the

majority

misapprehends

decades

clearly

established law and denies Plaintiffs the jury trial to

which they are entitled, I respectfully dissent.

61a

APPENDIX B

_________

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

SAN ANGELO DISTRICT

_______

PATSY K. COPE and ALEX ISBEL, as Dependent

Administrator of, and on behalf of, the Estate of

Derrek Quinton Gene Monroe and his heirs at law,

Plaintiffs,

COLEMAN COUNTY, et al.,

Defendants.

_______

Civil Action No. 6:18-CV-015-C

_______

Signed: April 25, 2019

_______

ORDER

_______

On this date, the Court considered:

(1)

Individual Defendants’ Motion for Summary

Judgment, filed November 9, 2018; and

(2)

Plaintiffs’ Response, filed December 4, 2018.

62a

BACKGROUND

Following the suicide death of Derrek Monroe (“Mr.

Monroe”), Plaintiffs filed suit against Defendants

Coleman County, Coleman County Sheriff Leslie

Cogdill, Coleman County Jailer Jessie Laws, and

Coleman County Jail Administrator Mary Jo Brixey

for violations of the Fourteenth Amendment under 42

U.S.C. § 1983, for the alleged wrongful death of Mr.

Monroe. Plaintiff Patsy Cope brings claims in her

individual capacity as the mother of Mr. Monroe.

Plaintiff Alex Isabell brings claims as the Dependent

Administrator of Mr. Monroe’s Estate and on behalf of

Mr. Monroe’s minor children.

Plaintiffs claim deliberate indifference by the

Defendants in that Defendants allegedly acted

intentionally and with a conscious indifference to Mr.

Monroe’s rights guaranteed by the Fourteenth

Amendment to the Constitution of the United States.1

The parties do not dispute the general facts and

circumstances preceding Mr. Monroe’s suicide.

Moreover, here, unlike in many jail suicide cases,

there is a clear video capturing the entire incident.

To provide insight, Mr. Monroe was brought to the

Coleman County Jail following an arrest and was

determined to be a suicide risk after being booked. He

was transported to medical care following an

It appears that Plaintiffs did not allege claims against the

individual Defendants in their official capacities because suit

was also brought against Defendant Coleman County. See Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (suit against

official in his official capacity is, in reality, asserted against the

governmental entity itself).

63a

attempted suicide using a sheet/ blanket while housed

in a cell with several other inmates. Monroe also made

multiple verbal threats of suicide. A mental health

evaluation was ordered and completed by MHMR and,

as a result, Mr. Monroe was then classified as “high

risk.” Upon return to Coleman County Jail, he was

placed in a cell as the solitary detainee within that cell

and monitored by video surveillance, along with

personal jailer observations completed at fifteenminute intervals.

On the morning of October 1, 2017, Jailer Laws was

on duty as the sole jailer at the facility during that

particular shift because it was a Sunday. The

Coleman County Jail did not maintain more than one

jailer on duty during the night shifts or on weekends

due to staffing shortage/budget issues. Although the

prior Sheriff requested funding for additional staffing,

Sheriff Cogdill was informed that no additional

funding was available for more staff to be hired. For

the shifts in which only one jailer was staffed, the

County’s policy was that the jailer on duty could not

enter a cell until another jailer or deputy was

available to enter the cell or stand by as back up. In

instances such as occurred here, this required the sole

jailer on duty to call and wait for backup to arrive

before entering the cell—with a time delay for such a

wait.

The basic facts, as supported by the video

surveillance footage, shows that Mr. Monroe required

a shower on the morning of October 1, 2017, and

Defendant Laws called his supervisors to verify that

it was permissible to allow Monroe to exit the cell and

go shower. Laws was given permission to remove

64a

Monroe from the cell and take him for a shower. 2

Upon return from the shower, the toilet in Monroe’s

cell was clogged and overflowing. In the video footage,

Monroe appears to become agitated and began

swinging a toilet plunger at the cell bars hitting

them.3 Laws then began mopping up the overflowing

water and can be seen in the video footage reaching

up and turning off the water valve to the cell in order

to stop the overflowing toilet. Laws continued to clean

up the overflow with a mop and Monroe can be seen

banging the receiver of a telephone located in the cell

against the wall—still agitated. 4 Monroe then

wrapped the phone receiver cord around his neck in

an effort to commit suicide. The video footage

indicates that Laws took note of the situation and at

first it appears that Laws did not take Monroe’s

actions seriously because Laws continued mopping for

a few seconds. Laws then placed the mop in the bucket

and leaves the screen to call Defendants Brixey and

Cogdill to apprise them of the situation and request

assistance.5 Laws apparently did not call emergency

It is unclear why a single jailer could permissibly be alone

with Monroe outside the cell to take him to the shower, but could

not enter the cell to assist Monroe when he hanged himself.

It is not clear if the plunger is generally left in the cell or if it

was placed in there sometime that morning and not retrieved.

As to why it was determined that phones (along with phone

cords) should be placed within the inmate cells is puzzling.

Moreover, in light of well-known suicide risks involving such

items as cords entailed, it is not at all clear why a cell used to

house a “high risk” suicidal detainee would have such an item in

the cell or not have a policy that required removal of such items.

The evidence indicates that Laws also attempted to call

another deputy who was on call for that period, but he failed to

reach the other deputy.

65a

medical care at this point. The video shows Laws

looking into Monroe’s cell several times over the next

few minutes and checking his watch (obviously

concerned at the amount of time that was passing

while Monroe continued to have the phone cord

around his neck). 6 Laws did not enter the cell until

Brixey arrived at the jail and can be seen on the

camera footage. At this point, Monroe was removed

from the cell and they waited on EMT to arrive. The

video footage files show the EMT personnel

attempting CPR on Monroe for several minutes and

then removing him for transport to the hospital. 7

Although Monroe was noted as having a pulse at the

time EMT arrived, he failed to survive.

In the video footage, other detainees and inmates

can be seen in the multi-person cell next to Monroe’s

cell, yet none (at least one of which was a trustee) were

enlisted to help Laws assist Monroe while Laws

waited on backup from Brixey or the Sheriff. The

Sheriff’s Department did not, or at least no evidence

has been provided to the contrary, provide tasers or

other similarly appropriate tools/weapons for jailers

The video shows what appears to be obvious and clear

appreciation of the risk of harm/death likely to result to Monroe

because Laws repeatedly looks at his watch (indicating the

importance that time was of the essence) and keeps checking on

Monroe through the bars of the cell. “Whether a prison official

had the requisite knowledge of a substantial risk is a question of

fact subject to demonstration in the usual ways, including

inference from circumstantial evidence.” Farmer v. Brennan, 511

U.S. 825, 842 (1994).

The video footage of the EMT was submitted to the Court in

a separate video file, but on the same disc as the video file

containing the footage from earlier in the morning. The video

appears to be from the same camera.

66a

to utilize to enter cells when a jailer was the only

person on duty during a particular shift.

II.

STANDARDS

A. Summary Judgment

Summary judgment is proper “if 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 genuine dispute

of material fact exists when the evidence is such that

a reasonable jury could return a verdict for the nonmovant, Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986); that is, “[a]n issue is material if its

resolution could affect the outcome of the action.”

Wyatt v. Hunt Plywood Co., 297 F.3d 405, 409 (5th Cir.

2002). To demonstrate the existence of a material fact

issue, non-movants are required “to identify specific

evidence in the record, and to articulate the ‘precise

manner’ in which that evidence support[s] their

claim.” Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.

1994) (quoting Topalian v. Ehrman, 954 F.2d 1125,

1131 (5th Cir. 1992)); see also Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986) (if an adverse party

completely fails to make a showing sufficient to

establish an essential element of that party’s case on

which it will bear the burden of proof at trial, then all

other facts are rendered immaterial and the moving

party is entitled to summary judgment). A district

court is under no duty to sift through the record in

search of evidence to support a party’s opposition to

summary judgment. Forsyth, 19 F.3d at 1537.

Typically, the party moving for summary judgment

must demonstrate the absence of a genuine dispute of

67a

material fact. Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc). However, “[a] qualified

immunity defense to § 1983 liability alters the usual

summary judgment burden of proof; once an official

pleads the defense of qualified immunity in a § 1983

action, the burden then shifts to the plaintiff.” Brown

v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010); see also

Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir.

2009) (“Although nominally an affirmative defense,

the plaintiff has the burden to negate the assertion of

qualified immunity

once

properly

raised.”).

Nonetheless, all of the evidence and reasonable

inferences deducted therefrom are to be construed in

a light most favorable to the nonmoving party. Xtreme

Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221,

226 (5th Cir. 2009); see also Brown, 623 F.3d at 253

(“The plaintiff bears the burden of negating qualified

immunity, but all inferences are drawn in his favor.”

(citation omitted)).

B. Qualified Immunity

The qualified immunity defense has two prongs, and

a court may rely on either prong of the defense in its

analysis. Manis v. Lawson, 585 F.3d 839, 843 (5th Cir.

2009). The court first decides whether an official’s

conduct violated a constitutional right of the plaintiff

that was clearly established at the time of the

violation. Id. To be clearly established for purposes of

qualified immunity, the contours of the right must be

sufficiently clear that a reasonable official would

understand that what he is doing violates that right.

Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008). The

unlawfulness of the defendant’s actions must have

been readily apparent from sufficiently similar

68a

situations, but it is not necessary that the defendant’s

exact act have been illegal. Id. at 236-37.

If the defendant’s actions violated a clearly

established constitutional right, the court then asks

whether qualified immunity is still appropriate

because the defendant’s actions were “objectively

reasonable” in light of “law which was clearly

established at the time of the disputed action.” Collins

v. Ainsworth, 382 F.3d 529, 537 (5th Cir. 2004)

(citations omitted). Whether an official’s conduct was

objectively reasonable is a question of law for the

court, not a matter of fact for the jury. Williams v.

Bramer, 180 F.3d 699, 703 (5th Cir. 1999). An official’s

actions must be judged in light of the circumstances

that confronted him, without the benefit of hindsight.

Graham v. Connor, 490 U.S. 386, 396-97 (1989). In

essence, a plaintiff must allege facts sufficient to

demonstrate that no reasonable officer could have

believed his actions were proper. Babb v. Dorman, 33

F.3d 472, 477 (5th Cir. 1994).

As the Fifth Circuit has noted, “the analysis for

objective reasonableness is different from that for

deliberate indifference (the subjective test for

addressing the merits). Otherwise, a successful claim

of qualified immunity … would require defendants to

demonstrate that they prevail on the merits, thus

rendering qualified immunity an empty doctrine.”

Hare v. City of Corinth, 135 F.3d 320, 328 (5th Cir.

1998). “For qualified immunity to be surrendered, preexisting law must dictate, that is, truly compel (not

just suggest or allow or raise a question about), the

conclusion for every like-situated, reasonable

government agent that what defendant is doing

violates federal law in the circumstances.” Thompson

69a

v. Upshur County, 245 F.3d 447, 460 n.9 (5th Cir.

2001) (quotation marks and citation omitted). Again,

the plaintiff bears the burden to demonstrate

objective unreasonableness. Id. at 460.

III.

DISCUSSION

The precedent in this circuit is that qualified

immunity must be analyzed as to each individual

Defendant and the Defendants may not be lumped

together in analysis. See Meadours v. Ermel, 483 F.3d

417, 421 (5th Cir. 2007) (“we should consider the

conduct of each officer independently” and “the

district court erred in considering the officers’ actions

collectively”).

Here, a video surveillance camera captured the

relevant acts and omissions at the time of Mr.

Monroe’s suicide and that footage is not disputed. The

video speaks for itself and clearly allows the viewer to

see what occurred. Defendant Laws’ conduct of

watching Monroe wrap the phone cord around his

neck and then failing to assist Monroe to free him

from the cord will have to be analyzed by a jury to

determine whether his conduct was reasonable under

the circumstances and whether there were other

reasonable actions that Laws could have taken to

prevent Monroe’s death—including entering the cell

with a weapon, cutting Monroe loose immediately

after he lost consciousness, enlisting aid from other

inmates, etc.

Likewise, because the Court finds that evidence

clearly demonstrates a high and obvious risk of

suicide by maintaining a policy of housing suicidal

inmates in a cell with a phone (and attached cord),

70a

Defendants Brixey and Cogdill are not entitled to

summary judgment on the basis of qualified

immunity. 8 A jury will have to make the

determination, after considering the facts and

circumstances presented, whether certain policies at

Coleman County Jail were obviously likely to lead to

serious harm or death—including the policy of having

one jailer on duty at a time with instructions not to

enter a cell until backup later arrived. Deliberate

indifference implies an official’s actual knowledge of

facts showing that a risk of serious harm exists as well

as the official’s having actually drawn that inference.

Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir. 1998).

The jury will likewise make the determination as to

whether Sheriff Cogdill and Administrator Brixey

subjectively appreciated that Monroe’s prior stated

suicide intent and actual attempts while housed at

Coleman County Jail should have caused them to

draw the inference that a phone cord might be an

obvious risk of death by strangulation or hanging.9 It

is undisputed that all named Defendants were aware

of Mr. Monroe’s attempts at suicide the days

immediately preceding the incident on the morning of

Keeping in mind that Plaintiffs do not allege that Defendant

Cogdill was present at the time of the suicide, “[s]upervisory

officials may be held liable only if: (i) they affirmatively

participate in acts that cause constitutional deprivations; or (ii)

implement unconstitutional policies that causally result in

plaintiff’s injury.” Mouille v. City of Live Oak, 977 F.2d 924, 929

(5th Cir. 1992); Tompkins v. Belt, 828 F.2d 298 (5th Cir. 1987).

As to a sheriff in particular, the standard is the same. Bigford v.

Taylor, 834 F.2d 1213, 1220 (5th Cir. 1988).

After all, Monroe had attempted to first strangle himself with

a sheet/blanket and then used a sheet/blanket to attempt to hang

himself in the day or two prior to his actual successful suicide.

71a

October 1, 2017. “[T]he law is clearly established that

jailers must take measures to prevent inmate suicides

once they know of the suicide risk.…” Hare v. City of

Corinth, 135 F.3d 320, 328-29 (5th Cir. 1998).

“Deliberate indifference is an extremely high

standard to meet.” Domino v. Texas Dep’t of Crim.

Justice, 239 F.3d 752, 756 (5th Cir. 2001). Yet, it is not

an impossible standard and the suicide of an inmate/

detainee is almost never watched by a jail official as it

occurs. While, negligence cannot form the basis for a

§ 1983 claim, see, e.g., Farmer v. Brennan, 511 U.S.

825, 835 (1994), a jury may determine that the facts,

circumstances, and obvious inferences at issue here

amount to more than mere negligent (or even grossly

negligent) conduct. In order to demonstrate deliberate

indifference, “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.” Domino, 239 F.3d at 755

(quoting Farmer v. Brennan, 511 U.S. 825, 837

(1994)).

“[A]n official’s failure to alleviate a significant risk

that he should have perceived but did not” cannot

amount to deliberate indifference. Farmer, 511 U.S. at

838. However, in Jacobs v. West Feliciana Sheriff’s

Dep’t, 228 F.3d 388, 395-97 (5th Cir. 2000), the sheriff

was not only aware of facts indicating a serious risk—

the detainee had tried to kill herself previously and a

prior inmate had in fact killed himself on tie-off points

in the same cell—but the sheriff also essentially

ratified the decision to keep the detainee in that

particular cell and personally ordered his deputies to

give the detainee a blanket that they had previously

withheld and that she then used to hang herself. Id.

72a

at 395. Here, the facts are very similar, except that

the cell maintained a phone with a receiver cord that

could easily be (and was) used by the inmate to hang

himself.

Accordingly, a reasonable juror could determine that

it was obvious that the likely consequence of each

Defendant’s

actions

and/or

inactions

were

deliberately indifferent and amounted to a

deprivation of civil rights. As stated by United States

Court of Appeal for the Fifth Circuit, “[w]e express no

opinion about the ultimate reasonableness of the

officers’ actions. It is for a jury to decide the factual

disputes, and at this stage we cannot say the officers

are entitled to qualified immunity.” Meadours, 483

F.3d at 424. A reasonable jury could find that due to

constitutionally

deficient

policies

and

actions/inactions of the Defendants, Mr. Monroe’s

death occurred and that Defendants’ conduct was not

reasonable in failing to implement more adequate and

specific policies or take actions relating to suicide

prevention.

IV.

CONCLUSION

The Individual Defendants’ Motion for Summary

Judgment on the Issue of Qualified Immunity is

DENIED for the reasons stated above, as well as

those argued by the Plaintiffs in their Response. The

stay of discovery not related to the issue of qualified

immunity, imposed in the Court’s prior Order, is

LIFTED.

SO ORDERED this 25 th day of April, 2019.

73a

APPENDIX C

_________

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

SAN ANGELO DISTRICT

_______

PATSY K. COPE and ALEX ISBEL, as Dependent

Administrator of, and on behalf of, the Estate of

Derrek Quinton Gene Monroe and his heirs at law,

Plaintiffs,

COLEMAN COUNTY, et al.,

Defendants.

_______

Civil Action No. 6:18-CV-015-C

_______

Signed: June 24, 2019

_______

ORDER

_______

On this date, the Court considered:

(1)

The Motion for Reconsideration filed by the

individual Defendants on May 1, 2019;

(2)

The Amended Motion for Reconsideration filed

by the individual Defendants on May 16, 2019;

and

(3)

Plaintiffs’ Response thereto, filed May 22, 2019.

74a

The individual Defendants seek for the Court to

reconsider its prior Order in which the Court

determined that a jury would have to evaluate whether

the actions/inactions of the individual Defendant and

the promulgation of certain practices/policies by the

individual Defendants were reasonable under the

circumstances presented. The individual Defendants

cite to a recently-decided decision by the United States

Court of Appeals for the Fifth Circuit, Arenas v.

Calhoun, No. 18-50194, –– F.3d –––, 2019 WL 1870686

(5th Cir. Apr. 26, 2019) (Smith, J.), for the proposition

that a jailer refusing to enter a jail cell to cut down an

inmate/detainee (along with the policy enacted to

prevent the jailer from doing so) did not amount to

deliberate indifference.

However, as argued by the Plaintiffs in their

Response, the Court finds that the particulars and

facts of the case at hand differ sufficiently from the

cited case so as to provide enough contrast to justify the

denial of the Motion and Amended Motion to

Reconsider.1

Therefore, for the reasons argued in the Response,

the Court finds that the Motion and Amended Motion

to Reconsider should be DENIED.

SO ORDERED this 24th day of June, 2019.

The Court finds a stark contrast between the often-presented

jailer discovering a prisoner/detainee already hanging for an

undisclosed period of time (and not completely visible in the

instance of Arenas) as opposed to watching a prisoner/detainee

carry out the entire act of suicide and failing to intervene at any

time in any manner. The policies and practices that allow such a

result to occur are likewise implicated.

75a

APPENDIX D

_________

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______

PATSY K. COPE; ALEX ISBELL, AS DEPENDENT

ADMINISTRATOR OF AND, on behalf of ESTATE OF

DERREK QUINTON GENE MONROE, AND HIS HEIRS AT

LAW,

Plaintiffs-Appellees,

LESLIE W. COGDILL; MARY JO BRIXEY; JESSIE W.

LAWS,

Defendants-Appellants.

_______

No. 19-10798

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 6:18-CV-15

_______

Dated: August 13, 2021

_______

ON PETITION FOR REHEARING EN BANC

_______

Before STEWART, DENNIS and HAYNES, Circuit Judges.

PER CURIAM:

76a

Treating the petition for rehearing en banc as a

petition for panel rehearing (5TH CIR. R. 35 I.O.P.), the

petition for panel rehearing is DENIED. Because no

member of the panel or judge in regular active service

having requested that the court be polled on rehearing

en banc (FED. R. APP. P. 35 and 5TH CIR. R. 35), the

petition for rehearing en banc is DENIED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.