___________

No. 96-1127

___________

Susan Bahner, Individually and *

as the Administratrix of the *

Estate of Edward Bahner, *

Deceased; Kurt Bahner; Kurt *

Joshua Bahner; Nequila Rae *

Bahner, *

* Appeal from the United States

Appellants, * District Court for the

* Western District of Arkansas.

v. *

* [UNPUBLISHED]

James Roy Carmack; J.R. *

Mitchell; Neal Thomas; Shannon *

Stovall; Roger Dye; Montgomery *

County, Arkansas, *

*

Appellees. *

___________

 Submitted: February 7, 1997

 Filed: March 6, 1997

___________

Before HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.

___________

PER CURIAM.

This 42 U.S.C. § 1983 action arises from Edward Bahner's death by

suicide while incarcerated at the Montgomery County Jail. The undisputed

facts, viewed in the light most favorable to the appellants, are as

follows. Bahner was arrested for theft and murder and transported

to the Montgomery County Jail in October 1992. Based on a tip from

a drug abuse counselor that Bahner might be suicidal, Bahner was

placed on suicide watch for the first week following his arrest.

In March 1993, Bahner was temporarily moved to the Polk County Jail

and in July 1993, Bahner was transferred to the Arkansas County

Hospital, where he underwent psychiatric and
-2-

psychological evaluations between July 7 and August 2. The

psychologist's report states that the examining psychiatrist

reported Bahner showed no indication of psychotic thought or

behavior, and denied suicidal or homicidal ideation; he diagnosed

Bahner with alcohol abuse and antisocial personality disorder. 

During Bahner's absence from the Montgomery County Jail, his

diary was discovered and read by defendants Sheriff James R.

Carmack and Deputy Shannon Stovall. The diary--which contained

entries from November 8, 1992, through March 7, 1993--included

frequent references to suicide, including a November 1992 entry

referring to an attempted suicide by hanging with a strip of towel;

Bahner wrote that taking his life was better than twenty, or even

ten years in jail; he wrote he was unable to get the strip of towel

tight enough, but would "keep on trying." A December 1992 entry

indicated Bahner planned to take his life that night by

strangulation. 

Bahner was returned to the jail August 3, 1993. In December

1993, Bahner wrote his mother that he had tried to kill himself.

Bahner pleaded guilty to murder and theft and was sentenced to a

total of sixty years imprisonment. 

Bahner's parents visited with him on January 23, 1994, the day

before Bahner was scheduled for transport to the Arkansas

Department of Correction to serve his sentence. They stated at

deposition that although they were worried about him, neither

thought he was suicidal that day. Defendants and witnesses

testified Bahner was upbeat and exhibited no change in his demeanor

that day.

Defendant Deputy Roger Dye was the only deputy on duty after

11:00 p.m. on January 23. Dye was given no special instructions
-3-

regarding monitoring Bahner; jail policy required Dye to personally

check each inmate's cell hourly. Dye checked the inmates at 12:00
 The Honorable Bobby E. Shepherd, United States Magistrate 1

Judge for the Western District of Arkansas, to whom the case was

referred for final disposition by consent of the parties pursuant

to 28 U.S.C. § 636(c).

-4-

a.m., but failed to make the next two hourly checks, as he became

busy with other duties at 1:00 a.m. Surveillance monitors were

focused on each cell and broadcast to the communication center

where Dye was stationed. At some point between 12:00 a.m. and 2:26

a.m., Bahner hung himself with a braided towel. In response to

calls by Bahner's cellmate, Dye went to the cell; he did not enter

because jail policy forbade officers from entering prisoner's cells

unless a second officer was present. Dye asked Bahner's cellmates

to help cut Bahner down and perform CPR, before he called a fellow

deputy and an ambulance. When the second deputy arrived, within

approximately seven minutes, both deputies entered the cell and

performed CPR. Bahner was pronounced dead at St. Joseph's Hospital

in Hot Springs, Arkansas, at 3:36 a.m.

Bahner's relatives filed this section 1983 action against

Carmack; Deputies Neal Thomas, Stovall, and Dye; and Montgomery

County, Arkansas, alleging violation of Bahner's Eighth Amendment

protections. Specifically, plaintiffs alleged that Carmack and his

deputies knew or should have known Bahner was suicidal and

demonstrated deliberate indifference by allowing Bahner to have a

towel in his cell, and failing to conduct required cell checks.

Plaintiffs also alleged Carmack failed to train officers as to

monitoring of inmates, and both Carmack and the County failed to

promulgate policies for prevention of inmate suicides.

The defendants moved for, and the district court granted

1

summary judgment. This court reviews de novo the grant of summary

judgment, giving the nonmoving party the benefit of every inference

drawn from the evidence, and finding summary judgment is proper
-5-

where there is no genuine issue of material fact and judgment

appropriate as a matter of law. See Yowell v. Combs, 89 F.3d 542,
-6-

544 (8th Cir. 1996).

We conclude summary judgment was proper, as the plaintiffs did

not produce sufficient evidence that any defendant was deliberately

indifferent to "a strong likelihood, rather than a mere

possibility, that self-infliction of harm would occur." Bell v.

Stigers, 937 F.2d 1340, 1343 (8th Cir. 1991) (internal quotes

omitted); see Farmer v. Brennan, 511 U.S. 825, 837-38 (1994)

(official is not deliberately indifferent unless he knows of and

disregards excessive risk to inmate health and safety; knowledge

requires that official both knew facts from which inference of

excessive risk could be drawn and drew inference). Although

Carmack and Stovall both read parts of Bahner's diary indicating he

was contemplating suicide, the last diary entry was in March 1993,

and there is no evidence defendants knew Bahner continued to

contemplate suicide; the psychologist's report stated Bahner denied

suicidal ideations, and by all accounts--including that of Bahner's

parents--Bahner did not display any outward manifestations of being

suicidal. Additionally, allowing Bahner to possess a towel is, at

most, negligence. See Bell, 937 F.2d at 1343-45 (negligence in

failing to recognize suicidal tendencies not an Eighth Amendment

violation; no deliberate indifference in failing to detect or

remove belt where defendant not aware inmate suicidal, omission may

be characterized as negligence, but not deliberate indifference).

We further conclude plaintiffs failed to demonstrate Dye acted

with deliberate indifference. There was no evidence that he was

aware of the diary, and his conduct--in failing to perform his

hourly check and video surveillance, and failing to enter the cell

and perform CPR until another officer was present--amounts to no

more than negligence. See Rellergert v. Cape Girardeau County, 924

F.2d 794, 797-98 (8th Cir. 1991) (no deliberate indifference where

defendant let decedent out of his sight with a bed sheet, while on
-7-

suicide watch; evidence tends to show defendant had more

responsibilities than he could successfully discharge in emergency
-8-

situation; could reasonably conclude defendant acted imprudently,

wrongly, or negligently, but not with deliberate indifference); see

also Gordon v. Kidd, 971 F.2d 1087, 1095 (4th Cir. 1992) (no more

than negligence where jailer--who was not aware of suicide threat--

tardy in checking cell).

Finally, the district court correctly determined that the

plaintiffs failed to allege or demonstrate how the lack of any

written suicide policy by Carmack or the County contributed to

Bahner's death.

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.