1

Section 1983 prohibits the deprivation under color of state

law of any rights, privileges, or immunities secured by the

Constitution and laws of the United States. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-8454.

Johnny HEGGS, Husband of Delois Heggs, deceased; James Reynolds,

Administrator of the Estate of Delois Heggs, Plaintiffs-Appellees,

v.

Hershal GRANT; Wayne Fuqua, in his individual and official

capacity; The City of Dublin, Georgia, Defendants-Appellants.

Jan. 22, 1996.

Appeal from the United States District Court for the Southern

District of Georgia. (No. 3:92-00032-CV), Dudley H. Bowen, Jr.,

Judge.

Before BIRCH and BARKETT, Circuit Judges, and HENDERSON, Senior

Circuit Judge.

PER CURIAM:

This is an appeal from the order of the United States District

Court for the Southern District of Georgia denying the appellants'

motion for summary judgment in an action filed pursuant to 42

U.S.C. § 1983.1

 As we more fully explain below, our jurisdiction

is limited to deciding whether the appellants, Hershall Grant and

Wayne Fuqua, are entitled to qualified immunity from the assessment

of § 1983 damages. We conclude that they are and therefore reverse

the district court's implicit ruling to the contrary.

I. BACKGROUND

The facts giving rise to this lawsuit are not in dispute. On

February 1, 1992, Delois Heggs was arrested for public drunkenness

and disorderly conduct by T.J. Cobb, Jr., a police officer of the
City of Dublin, Georgia ("City"). Cobb transported Heggs to the

City jail for booking. According to the incident report prepared

by Cobb and made a part of the record, Heggs was not unconscious,

she displayed no signs of trauma, illness, drug or alcohol

withdrawal and she denied being under the influence of any drug

other than alcohol. Although Heggs was uncooperative in answering

questions, Cobb was able to elicit her medical and drug use

history. She denied having suicidal tendencies stating that she

"loved" life and had never planned to kill herself in the past, nor

would she in the future. However, when Cobb advised her he was

going to place her in a cell, she threatened to take her life if he

took such action. In accordance with standard operating procedures

in place at the jail, Cobb reported Heggs' threat to Cassandra

Hall, the jailer on duty, who in turn called the shift supervisor,

Lieutenant Hershall Grant, to evaluate the situation. While

waiting for Grant, Heggs informed Cobb that she was only joking

about killing herself and stated that she was just "making it hard

on him (Cobb)."

Grant had known Heggs for approximately fifteen years and had

arrested her for public drunkenness on a number of occasions. She

had never threatened or attempted suicide during any of her past

incarcerations. When Grant arrived he asked Heggs whether her

suicide threat was serious and suggested that he transport her to

the hospital. She assured him there was no need for that and

repeated that she had only been trying to make things difficult for

Cobb. At that point Heggs telephoned her attorney, who apparently

refused to render her immediate assistance, but agreed to come to
 2

The time of Heggs' arrest was 12:37 a.m. 

 3Grant explained in deposition testimony that intoxicated

inmates sometimes try to hurt themselves or set fire to their

cells and that the removal of these items was a preventative

measure. 

the jail later in the morning.2 After receiving further assurances

from Heggs that she was going to be all right and determining that

her suicide threat was not a reality, Grant approved her placement

in a cell.

In keeping with procedures affecting intoxicated inmates, the

mattress, blanket and sheets were removed from Heggs' cell, 3 but

she continued to wear her street clothing. It was also jail policy

to conduct a check of all prisoners every fifteen minutes. The

first check of Heggs occurred at 1:45 a.m. and was made by an

officer who remained in the cell area until 2:08 a.m. Subsequent

observations were conducted at 2:20 a.m., 2:34 a.m. and 2:42 a.m.

Heggs spoke with the jailer during two of these visits and

requested a blanket and mattress. At 2:57 a.m. Grant passed

through the inmate area and discovered Heggs hanging from the cell

bars by her socks. Attempts to revive her were unsuccessful.

Heggs' husband and the administrator of her estate

subsequently instituted the present action seeking § 1983 damages

against Grant in his individual capacity, the Chief of Police,

Wayne Fuqua, in his individual and official capacities, and the

City. The complaint alleged that Grant was deliberately

indifferent to Heggs' medical needs, in violation of the Fourteenth

Amendment, by failing to move her to a proper facility for

psychiatric intervention after she threatened to commit suicide and
 4

The record shows that in the year preceding Heggs' death,

there were three successful suicides at the jail and two

attempts. 

 5The qualified immunity defense does not extend to

municipalities or to claims against state actors in their

official capacities. Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit, 507 U.S. 163, ----, 113 S.Ct.

1160, 1162, 122 L.Ed.2d 517, 523 (1993); Lassiter v. Alabama A &

M Univ., Bd. of Trustees, 28 F.3d 1146, 1149 n. 2 (11th

Cir.1994). The motion for summary judgment did not specifically

address the plaintiffs' state causes of action. We note in

passing, however, that the defense does not apply to suits

governed by state law. D'Aguanno v. Gallagher, 50 F.3d 877, 879

(11th Cir.1995). 

by leaving her unattended in a jail cell with the means to carry

out the threat. It further alleged that Fuqua and the City were

also liable under § 1983 because they were aware of the need for

better staffing and training at the jail in the area of suicide

prevention and failed to take adequate corrective measures.4 The

complaint also asserted pendent state law claims.

 Thereafter, the defendants filed a joint motion for summary

judgment supported by affidavits and deposition testimony, which

outlined the facts as stated above. They argued they were entitled

to judgment on the merits and that Grant and Fuqua were entitled to

qualified immunity from the payment of damages in their individual

capacities.5

 In response, the plaintiffs did not take issue with

the defendants' statement of the facts, but submitted the affidavit

of David E. Slemons, identified as a Criminal Justice Management

Consultant, who opined that the circumstances demonstrated

deliberate indifference to Heggs' medical needs and safety. The

district court thereafter denied the motion for summary judgment

stating simply that the plaintiffs had "met their burden ... of

demonstrating genuine issues of material fact." (R1-38). The
court did not identify the issues of fact for trial, nor did it

address the subject of qualified immunity. The defendants later

filed this appeal in which they challenge the district court's

implicit denial of qualified immunity and its explicit denial of

summary judgment on the merits.

II. DISCUSSION

 Because a final order has not been entered in this case, we

are limited in the scope of our review. On the appeal of a

nonfinal order denying qualified immunity, we have jurisdiction

under the collateral order doctrine to decide whether the conduct

complained of violated "clearly established statutory or

constitutional rights of which a reasonable person would have

known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,

2738, 73 L.Ed.2d 396, 410 (1982); see Mitchell v. Forsyth, 472

U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411, 427 (1985);

Haygood v. Johnson, 70 F.3d 92, 94-95 (11th Cir.1995). This is

purely a question of law, which we review de novo. Elder v.

Holloway, 510 U.S. ----, ----, 114 S.Ct. 1019, 1023, 127 L.Ed.2d

344, 351 (1994). We do not have jurisdiction to decide sufficiency

of the evidence issues going to the merits of the case. Johnson v.

Jones, 515 U.S. 2151, ----, 115 S.Ct. 2151, 2156, 132 L.Ed.2d 238,

246-47 (1995). Thus, at this interlocutory stage, we may not

review a district court's finding "that there exists a genuine

issue of material fact regarding the conduct claimed to violate

clearly established law." Babb v. Lake City Community College, 66

F.3d 270, 272 (11th Cir.1995).

Despite the district court's finding in the present case that
 6

The district court did not find that a question of material

fact precluded qualified immunity. We construe its order as

addressing the merits of the case only, an issue which is

"conceptually distinct" from the question of qualified immunity. 

See Johnson, 515 U.S. at ----, 115 S.Ct. at 2157, 132 L.Ed.2d at

247-48. Assuming that we have the discretion to exercise pendent

appellate jurisdiction over the district court's denial of

summary judgment on the merits, see Swint v. Chambers County

Comm'n, 514 U.S. ----, ----, 115 S.Ct. 1203, 1212, 131 L.Ed.2d

60, 74-75 (1995), we decline to exercise it. See Ratliff v.

DeKalb County, Ga., 62 F.3d 338, 340 n. 4 (11th Cir.1995). 

summary judgment was precluded due to the presence of genuine

issues of fact, the parties are in full agreement that the events

described herein accurately portray what happened at the jail after

Heggs' arrest.6 We may review, therefore, whether clearly

established law was violated under this "given set of facts."

Johnson, 515 U.S. at ----, 115 S.Ct. at 2159, 132 L.Ed.2d at 250.

To recap, the undisputed facts are as follows: Heggs, in an

intoxicated state, threatened to kill herself. She then retracted

the threat and assured both Cobb and Grant that she was only joking

and did not contemplate self-inflicted injury. She also declined

Grant's offer to take her to the hospital. Grant, who had known

Heggs for fifteen years and knew that she had never been suicidal

on any other occasion, accepted her assurances, decided that the

threat was not genuine and yielded to her refusal of

hospitalization. He then placed her in a cell from which the

sheets, blanket and mattress had been removed, knowing that she

would be checked every fifteen minutes.

The law is clearly established that jail officials may not act

with deliberate indifference to the risk of inmate suicide.

Edwards v. Gilbert, 867 F.2d 1271, 1274-75 (11th Cir.1989). There

can be no deliberate indifference to an inmate's safety, however,
unless there was a "strong likelihood, rather than a mere

possibility, that suicide would result from a defendant's actions

or inaction." Tittle v. Jefferson County Comm'n, 10 F.3d 1535,

1540 (11th Cir.1994) (en banc) (internal quotation marks and

citations omitted). Consequently, Grant is entitled to qualified

immunity unless a reasonable officer in his position should have

known under the circumstances then existing that Heggs would most

likely harm herself if he did not take additional precautions to

protect her. That is, "the law must have earlier been developed in

such a concrete and factually defined context to make it obvious to

all reasonable government actors, in [Grant's] place, that "what he

[did or did not do]' violate[d] federal law." Lassiter v. Alabama

A & M Univ., Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir.1994)

(quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,

3039, 97 L.Ed.2d 523, 531 (1987)).

We find that at the time of Heggs' suicide, the law did not

(nor does it now) require Grant to do anything differently than

what he did on this occasion. In fact, in a case decided just

after Heggs' suicide, this court found no § 1983 liability under

somewhat similar circumstances. In Schmelz v. Monroe County, 954

F.2d 1540 (11th Cir.1992), James Michael Schmelz was arrested by

the Monroe County Sheriff's Department. He was well-known to the

Department's members because of numerous prior arrests. Although

Schmelz was normally combative, on this particular occasion he was

quiet and subdued. He had never attempted suicide in the past and

denied the wish to harm himself when questioned by the ranking

officer on duty. The officer nevertheless thought it prudent to
put him on a "suicide watch." According to Department policy, this

required that a guard be present in the jail area on a continuous

basis and that Schmelz be visually observed every fifteen minutes.

In between observations and during a brief absence of the officer

assigned to the cell area, Schmelz attempted to hang himself with

a blanket. He consequently sustained injuries which left him in an

irreversible coma. Id. at 1541-42, 1545.

The court in that case stated that § 1983 liability cannot be

founded upon the suicide of an inmate " "who never had threatened

or attempted suicide and who had never been considered a suicide

risk.' " Id. at 1545 (quoting Edwards, 867 F.2d at 1277). The

court held that the ranking officer went beyond her duty by placing

Schmelz on a suicide watch under the circumstances, and that

leaving him alone and with a blanket was at most, negligence. Id.

 In the instant case, although Heggs threatened to kill

herself, she quickly and emphatically recanted the threat. She had

spent the night in the jail while intoxicated many times in the

past without incident. Grant knew her well and believed her

assurances that she would be all right. Serving as additional

insurance was the knowledge that her condition would be checked at

fifteen-minute intervals. There is nothing in the record to

demonstrate that Grant's evaluation of the situation was

unreasonable. No clearly established law required him to take

further measures to protect her. Likewise, no clearly established

law required Fuqua to staff the jail or train his officers more

thoroughly to prevent suicide under these circumstances. Through

this lawsuit the plaintiffs, in effect, seek to establish a new
rule of law which would require jail officials to treat more

seriously than is now required every suicide threat made by a

prisoner, even those made in an offhand or joking manner. We

simply observe that there was no such legal duty imposed at the

time of Heggs' suicide requiring the custodial authorities to do

more than what was done on this occasion. We therefore conclude

that Grant and Fuqua are entitled to the qualified immunity defense

from liability.

III. CONCLUSION

Because clearly established law did not proscribe the actions

or inaction of Grant and Fuqua, they are immune from an award of §

1983 damages in their individual capacities. We therefore REVERSE

the district court's implicit finding to the contrary and REMAND

the case for further proceedings on the plaintiffs' remaining

claims.