## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-1464

___________ Joetta Drake, as legal guardian for * Adrian V. Cotton, an incapacitated * person; Minnesota Department of * Human Services, *
* Plaintiffs/Appellants, *
* v. *
* Francis D. Koss, M.D., individua lly * Appeal from the United States and in his official capacity , * District Court for the * District of Minnesota. Defendant, *
* Dennis Johnson, individually and in * his official capacity; Jane Lilienthal, * individually and in her official capacity, * Edward Springman, individually and in * his official capacity; Katherine Jones, * individually and in her official capacity; * Leon Koentopf, individually and in his * official capacity; Carol Kirchoff, * individually and in her official capacity; * County of McLeod, Minnesota; Bonnie * E. Case, individually and her official * capacity, *
* Defendants/Appellees. *

___________ Submitted: November 16, 2005 Filed: March 3, 2006

___________1 The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota.
-2- Before WOLLMAN, FAGG, and MELLOY, Circuit Judges.

___________ WOLLMAN, Circuit Judge. Joetta Drake, as legal guardian for Adrian Cotton, and the Minnesota Department of Human Services (collectivel y, Drake) appeal the district court’s 1 grant of summary judgment in favor of McLeod County and Bonnie E. Case, Katherine Jones, Carol Kirchoff, Le on Koentopf, Jane Lilienthal, and Edward Springman (collectively, jailers). We affirm.

I.

This case arises from the in juries suffered by Adrian Cotton when he attempted suicide while being held at the McLeod County jail. At the time, Case was the jail administrator and the other individual defe ndants were jailers employed by the county.
On November 13, 2000, police arrested Cotton on a domestic assault charge and brought him to the jail. At that tim e, Cotton denied any suicidal tendencies or past suicide attempts. On November 15, jailer Koentopf noticed blood on the wall of Cotton’s cell. Upon further inspection by Koetopf, Lilienthal, and Jones, it was discovered that Cotton had stabbed himself in the wrist approximately twelve times with a pencil and had written “I Love Adri an” on the cell wall in blood. Cotton later admitted to drinking cleaning solution. The jailers took Cotton to the local hospital, where Cotton confessed suicidal intentions to a doctor. The doctor arranged Cotton’s transfer to a state psychiatric hospital in Willmar. Jones filled out a suicide attempt report detailing the incident and placed th e report in Cotton’s file, with one copy-3- provided to her supervisor Case. OnNovember 16, 2000, Dr. Francis Koss performed a psychiatric evaluation of Cott on at the Willmar facility and determined that he was not suicidal but simply experiencing anxiety and acting out. Dr. Koss suggested that Cotton “may need close superv ision.” Cotton was then returned to the jail, where he remained without incident for more than two weeks.

On December 3, 2000, Cotton again stabbed himself in the wrist with a pencil and told jailers that he had consumed cleaning solution. Cotton was treated at the local hospital, where he again told a doctor that he wanted to harm himself. The doctor placed Cotton on a 72-hour hold and referred him again to the Willmar psychiatric facility. In his hold order, the doctor wrote:

This is [Cotton’s] second “cry for help” in 2-3 wks. I feel he needs more than 24 hrs stay at Willmar. Please admit him & do the appropriate work up this time!
Cotton was immediately transported to Willmar. Dr. Koss again examined Cotton and noted in his Discharge Summary that Cotton had denied any suicidal ideation. Dr Koss noted that:

The patient is clearly adjusting to situation in jail, with some mild, depressed mood and mildanxiety; also see patient attempting to manipulate system by malingering. Attempt to avoid Court in the ability to use phone.
Dr. Koss discharged Cotton on December 4, pr escribing Atarax for the anxiety Cotton was exhibiting, and making the following discharge recommendations:

Patient to be discharged back into in carceration. . . . For safety: would highly recommend no sharps to patient in jail and to make cleaning solution unavailable to incarcerated individual. Would recommend-4- close monitoring; patient may manipulate system in order to get out of jail in the future, as he has recently demonstrated.

By the time Cotton was transported back to the jail on the evening of December 4, the pharmacy was closed. As a result, the jailers were unable to fill Cotton’s Atarax prescription that night. Upon his return, Cotton was placed on lockdown status in a minimum security cell, which denied him access to sharp objects. Jail administrator Case decided 30-minute well-be ing checks would be sufficient. Jailers Lilienthal, Kirchoff, Koentopf, Jones a nd Springman followed Case’s orders and conducted such checks on Cotton every 30 minutes.

As Springman was attempting to deliver a breakfast tray to Cotton’s cell at 6:00 the next morning, Cott on pushed the tray back, spilling its contents. Lilienthal punished Cotton for this incident with a 23-hour extension of lockdown. Cotton was described as appearing agitated throughout this incident, finally burying his head in a pillow. When Springman performed hi s regular 30-minute check at 9:32 a.m., he observed Cotton sleeping in his bed. During the next 30-minute check, which occurred at approximately 10:00 a.m., Springman saw Cotton hanging by a bed sheet from a ceiling vent in the cell. Cotton was not breathing, and the jailers immediately set to work resuscitating him and then tran sported him to a nearby hospital. Cotton survived, but suffered serious brain injuri es as a result of the suicide attempt.

Drake sued McLeod County, Dr. Koss, and the individual jailers in their individual and official capacities, alleging vi olations of Cotton’s federal civil rights as well as state law negligence. After Drake settled the clai ms against Dr. Koss, McLeod County and the jailers moved for summary judgment, asserting qualified immunity as to the federal claims and offi cial immunity as to the state law claims. The district court granted summary judgment to McLeod County and the remaining jailers in all respects.-5- On appeal, Drake has abandoned her fe deral claims against McLeod County. Drake argues that because genuine issues of fact exist on whether the individual jailers demonstrated deliberate indifferen ce to Cotton’s needs, the federal claims against them should have survived summary judgment. Drake also argues that McLeod County and the jailers are not entitled to official immunity on the state law claims.

II.

We review de novo a district court’s grant of summary judgment. Aviation Charter, Inc. v. A viation Research Group/US , 416 F.3d 864, 868 (8th Cir. 2005). Summary judgment is proper if there are no di sputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Aviation Charter , 416 F.3d at 868. We view the evidence and the inferences that may reasonably be drawn from the evidence in the light most favorable to the nonmoving party. Id. We review de novo the district court’s inte rpretation of Minnesota law. Id. A.

We treat allegations that officials failed to prevent jail suicides in violation of federal law as claims for failure to provi de adequate medical treatment. Hott v. Hennepin County , 260 F.3d 901, 905 (8th Cir. 2001). Deliberate indifference is the barometer by which such claims are tested. Olson v. Bloomberg , 339 F.3d 730, 735 (8th Cir. 2003). To find a prison official liable for showing deliberate indifference, we require the plaintiff to show that the official actually knew that the inmate faced a substantial risk of serious harm and faile d to respond reasonably to abate that risk. Id. ; Gregoire v. Class , 236 F.3d 413, 417 (8th Cir. 2000). Deliberate indifference is akin to criminal recklessness and require s something more than mere negligent misconduct. Olson , 339 F.3d at 736.2 The jailers were also sued in their offi cial capacities. We treat a suit of an employee in his or her official capacity as a suit against the employer. Johnson v. Outboard Marine Corp. , 172 F.3d 531, 535 (8th Cir. 1999). On appeal, Drake has abandoned the federal claims against McLe od County. Thus, the only federal claims we have before us are those against the jailers in their individual capacities.
-6- Even if officials know of a risk of su icide, and a suicide attempt does occur, officials sued in their individual capacity 2are protected by qualified immunity if they could reasonably believe that their respons e was not deliberately indifferent to that risk. Gregoire , 236 F.3d at 418. Drake points to three specific decisions by the jailers as proof of deliberate indiffere nce: conducting well-being checks only every 30 minutes, failing to remove bedding and cl othing, and failing to fill Cotton’s Atarax prescription in a timely manner. We conclude that these decisions were not unreasonable in light of the risks as the jailers understood them at the time. The jailers’ view of the risk was shaped by the diagnosis and recommendations of Dr. Koss, who indicated that Cotton was not suicidal but simply manipulative. In light of that diagnosis and those recommendations , the actions by the jailers, even taken in the light most favorable to Drake, di d not constitute deliberate indifference.

Drake argues, based on Guglielmoni v. Alexander , 583 F. Supp. 821 (D. Conn. 1984), that reliance by the jailers upon this diagnosis does not preclude a finding of deliberate indifference. We rejected su ch an argument in Meloy v. Bachmeier , 302 F.3d 845 (8th Cir. 2002). There, a prison official with a nursing background asserted qualified immunity on the grounds that she was relying on doctor’s orders in making treatment decisions. We held that the pris on officials’ adherence to the doctor’s order was objectively reasonable, for “[t]he law doe s not clearly require an administrator with less medical training to second-gue ss or disregard a treating physician’s treatment decision.” Id. at 849. Similarly, the law does not require a jailer to secondguess or disregard a psychiatrist’s di agnosis or treatment recommendations.-7- B.

Officials are entitled to official immunityagainst state law claims in Minnesota if they are engaged in discretionary acts taken in the course of their official duties. Sletten v. Ramsey County , 675 N.W.2d 291, 299 (Minn. 2004). These discretionary acts are distinguished from mere ministerial duties. Johnson v. Minnesota , 553 N.W.2d 40, 46 (Minn. 1996). A ministerial duty is one that is “absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.” Id. For example, the decision to release a patient on medical parole is a discretionary act, rather th an a ministerial one, because it requires each member of the parole board to personally evaluate the data and make a discretionary judgment about the patient. Id.

Drake points to Minn. Rule 2911.5700, which provides that “More frequent observation is required for those inmates of a special need classification who may be harmful to themselves.” Drake argues that th is rule created a ministerial duty that the jailers perform well-being checks more frequently than they did. However, this rule clearly requires the jail officials to make a discretionary decision whether the inmate is of a special need classifi cation. The rule provides examples of inmates of a special need classification, including “those classifi ed as potentially suic idal, those classified as mentally ill, or those experiencing withdrawal from drugs or alcohol.” The rule thus requires the jailers to evaluate th e available data and make a discretionary judgment about the inmate’s needs. Their decision not to assign such a classification to Cotton is protected by official immunity. Ordinarily, when an official is protected from liability by official immunity, the public employer is also protected by vicarious official liability. Wiederholt v. City of Minneapolis , 581 N.W.2d 312, 316 (Minn. 1998). As a result, we conclude that McLe od County is also protected from state law liability for the discretionary acts of its employees.

The judgment is affirmed.

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