Date: 04-18-2018

Case Style:

Case Number: 17-2019

Judge: Erickson

Court: United States Court of Appeals for the Eighth Circuit on appeal from the Eastern District of Missouri (St. Louis County)

Plaintiff's Attorney: James E. Hullverson, Jr.

Defendant's Attorney: J. Brent Dulle

Description: Norman Whitney, Sr. (“Whitney Sr.”) brought this action after his son, a
pretrial detainee who had recently been treated for suicidal thoughts, hanged himself
in a cell that was monitored by closed-circuit television. Whitney Sr. asserted state
law wrongful death claims and federal claims under 42 U.S.C. § 1983 against
correctional officer Shelley Sharp and the City of St. Louis. The district court1
dismissed the federal claims because the complaint failed to allege that Sharp knew
that Whitney Sr.’s son presented a suicide risk and because the City could not be
liable without an underlying constitutional violation. The district court declined to
exercise supplemental jurisdiction over the state law claims. Having jurisdiction
under 28 U.S.C. § 1291, we affirm.
I. Background
On August 4, 2014, after being arrested, Norman Whitney, Jr. (“Whitney”) was
taken to the St. Louis University Hospital for treatment of an irregular heartbeat.2
While there, he attempted to escape and said that he wanted the police to take his life
so that he would not be sent back to prison. He was evaluated and determined to be
suicidal. After being treated by psychiatry and showing improvement, he was
released as fit for confinement and transported to the St. Louis City Justice Center on
August 8, 2014.
On August 10, 2014, Whitney was moved to a medical unit in the Justice
Center because he was suffering from a number of medical conditions, including (1)
detoxification from heroin use, (2) congestive heart failure, (3) hypertension, and (4)
diabetes mellitus.3 Sharp was assigned to monitor Whitney in his cell via closed-
1The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
2The factual background is taken from the complaint and the medical
examiner’s report that was attached to and incorporated by the complaint.
3The complaint alleges that Whitney was placed on medical observation
“because of his health, heroin detox, he was a ‘flight risk,’ and the aforesaid suicidal
thoughts.” The incorporated medical examiner’s report, however, states that Whitney
was not on suicide watch.
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circuit television. Sharp last saw Whitney pacing by the shower area at 9:05 a.m.
Sometime within the next fourteen minutes, she discovered that he had hanged
himself with a ligature made from his ripped hospital gown.
After Whitney’s death, an unnamed medical practitioner at the Justice Center
came forward to report that Whitney had mentioned having suicidal ideation to him.
There is no evidence that this information was relayed to Sharp or other jail personnel
prior to Whitney’s death. Whitney denied suicidal ideation when asked by other
correctional officers.
Whitney’s father brought an action in Missouri state court against Sharp, in
both her official and individual capacities, as well as the City of St. Louis, asserting
claims under 42 U.S.C. § 1983 and the Missouri wrongful death act. The action was
removed to federal court pursuant to 28 U.S.C. § 1331. The complaint alleges that
Sharp caused Whitney’s death through her deliberate indifference by failing to: (1)
“adequately monitor Whitney;” (2) “timely provide adequate medical care to his
serious suicidal medical condition and need;” and/or (3) “timely intervene to rescue
Whitney while he was committing suicide in the CCTV cell.” The claim against the
City is based on the City’s failure “to have a policy of constant surveillance under the
circumstances of Whitney’s incarceration.”
Sharp and the City filed motions to dismiss under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. The district court granted the motions, dismissed with
prejudice the § 1983 claims against both defendants, and dismissed without prejudice
the state law claims against both defendants.
II. Discussion
Whitney Sr. claims the district court erred (1) when it held that the complaint
did not adequately plead deliberate indifference in his claim against Sharp, and (2)
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when it held that the City could not be liable under § 1983 in the absence of a
constitutional violation by Sharp. We review the grant of a motion to dismiss for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) de novo.
Hughes v. City of Cedar Rapids, 840 F.3d 987, 994 (8th Cir. 2016) (citing Sparkman
Learning Ctr. v. Ark. Dep’t. of Human Servs., 775 F.3d 993, 997 (8th Cir. 2014)).
To survive a 12(b)(6) motion, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
A. Deliberate Indifference Claim Against Sharp
Prisoners have a “clearly established constitutional right to be protected from
the known risks of suicide and to have [their] serious medical needs attended to.”
Yellow Horse v. Pennington Cty., 225 F.3d 923, 927 (8th Cir. 2000) (citing Liebe v.
Norton, 157 F.3d 574, 577 (8th Cir. 1998)). The Eighth Amendment prohibits jail
officials from acting with deliberate indifference towards risks of suicide. Coleman
v. Parkman, 349 F.3d 534, 538 (8th Cir. 2003) (citing Gregoire v. Class, 236 F.3d
413, 417 (8th Cir. 2000)). The Fourteenth Amendment extends this protection to
pretrial detainees. Id. (citing Hott v. Hennepin County, 260 F.3d 901, 905 (8th Cir.
2001)).
Our precedent establishes that “[w]hether an official was deliberately
indifferent requires both an objective and a subjective analysis.”4 Jackson v.
Buckman, 756 F.3d 1060, 1065 (8th Cir. 2014) (citing Scott v. Benson, 742 F.3d 335,
339–40 (8th Cir. 2014)). To prevail on his deliberate indifference claim, Whitney Sr.
4Whitney Sr. asserts that the Supreme Court’s conclusion in Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2472 (2015), that “the relevant standard is objective
not subjective” should apply here. Kingsley does not control because it was an
excessive force case, not a deliberate indifference case.
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must show that (1) Sharp had actual knowledge that Whitney had a substantial risk
of suicide and (2) Sharp failed to take reasonable measures to abate that risk.
Coleman, 349 F.3d at 538.
The district court correctly concluded that the complaint fails to allege facts
establishing the subjective prong of the deliberate indifference claim. The
incorporated medical examiner’s report mentions that an unnamed medical
practitioner at the Justice Center knew that Whitney was having suicidal thoughts, but
nowhere does the complaint allege that this information was relayed to Sharp. The
complaint contains a legal conclusion that Sharp was deliberately indifferent but fails
to make any allegation about Sharp’s knowledge. This conclusory statement does not
save the complaint absent any allegation of knowledge. See Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 555) (“Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.”). Dismissal of
the § 1983 claim against Sharp was proper under Rule 12(b)(6).
B. Monell Liability
In his § 1983 claim against the City, Whitney Sr. alleges that the City violated
Whitney’s rights by failing to have a policy of constant surveillance in place at the
Justice Center. Under Monell, “[s]ection 1983 liability for a constitutional violation
may attach to a municipality if the violation resulted from . . . an ‘official municipal
policy.’” Corwin v. City of Independence, 829 F.3d 695, 699 (8th Cir. 2016)
(quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). It follows that,
absent a constitutional violation by a city employee, there can be no § 1983 or Monell
liability for the City. See Malone v. Hinman, 847 F.3d 949, 955 (8th Cir. 2017)
(“Because we conclude that Officer Hinman did not violate Malone’s constitutional
rights, there can be no § 1983 or Monell liability on the part of Chief Thomas and the
City.”); Sitzes v. City of W. Memphis, 606 F.3d 461, 470 (8th Cir. 2010) (agreeing
with district court that plaintiffs’ claims “could not be sustained absent an underlying
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constitutional violation by the officer”); Sanders v. City of Minneapolis, 474 F.3d
523, 527 (8th Cir. 2007) (“Without a constitutional violation by the individual
officers, there can be no § 1983 or Monell . . . municipal liability.”).
Whitney Sr. contends that the district court was wrong when it concluded that
absent a constitutional violation on the part of Sharp, the City had no Monell liability.
He claims that Monell liability is still possible because other jail personnel who were
not named as defendants “arguably fulfilled a ‘do nothing’ Jail policy vis-a-vis an
inmate committing suicide.” This claim fails for the same reason as the claim against
Sharp. The complaint alleges that unnamed jail personnel were deliberately
indifferent while Whitney was hanging himself. Tellingly, the complaint does not
allege any facts to support this legal conclusion. The surmise of the allegation is
unsupported by sufficient factual allegations. There is, for example, no claim that any
identifiable jail official had knowledge that Whitney was in the process of committing
suicide or even that a particular jail official suspected that he might be committing an
act of self-harm. In short the complaint fails to allege any constitutional violation
arising out of a municipal policy that would expose the City to Monell liability.5

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We also note that a failure to i 5 mplement a specific policy does not equate to
a failure to adopt a constitutionally adequate policy. See Szabla v. City of Brooklyn
Park, 486 F.3d 385, 392 (8th Cir. 2007) (noting that the appellant contended that the
City should have had a specific policy regarding the use of police dogs and
explaining that “a written policy that is facially constitutional, but fails to give
detailed guidance that might have averted a constitutional violation by an employee,
does not itself give rise to municipal liability”).
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Outcome: For the foregoing reasons, we affirm the judgment of the district court.

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