1 The Honorable Richard E. Dorr, United St ates District Judge for the Western District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-2700

___________ Cody Davis, *
* Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the Western * District of Missouri. Oregon County, Missouri; County * Sheriff, Tim Ward, *
* Defendants - Appellees, *
* Oregon County Sheriff's Department, *
* Defendant. *

___________ Submitted: March 10, 2010 Filed: June 10, 2010

___________ Before BYE, ARNOLD, and COLLOTON, Circuit Judges.

___________ BYE, Circuit Judge. Cody Davis appeals the district court's 1 grant of summary judgment in favor of Sheriff Tim Ward, the Oregon County Sh eriff's Department, and Oregon County. Davis, a pretrial detainee at the Ore gon County jail, brought suit under 42 U.S.C.-2- § 1983 and various state law authority asserting the defendants violated his rights in failing to ensure his safety after a fire broke out at the jail. The district court granted summary judgment in favor of the defendants. On appeal, Davis contends there are remaining issues of fact as to whether the inmates had access to incendiary materials, whether the jail staff was adequately traine d to respond to fires, and whether the jail was equipped with appropriate fire-safety devices. We affirm the district court.

I.

On September 6, 2007, a fire broke outin the county jail in Oregon County, Missouri, where Cody Davis was being held as a pretrial detainee. The county jail is located in the Oregon County courthouse, which consists of three floors and a basement. Upon entering the main jail access corridor, there is one door leading to the north jail cell and one door leading to the south jail cell. At the time of the fire, four detainees, including Davis, were held in the south cell of the jail. Two other detainees were held in the north cell.

The Oregon County Sheriff's Department utilizes a dispatcher to act as a detention officer to guard pretrial detainees and inmates at the jail. As part of their duties, dispatchers conduct periodic jail checks. Before beginning a jail check, dispatchers announce "10-6" on the departmentradio to indicate to all officers who may be listening that he or she is away fro m the station to perform a jail check. Upon the conclusion of the check, dispatchers a nnounce "10-8" on the radio to indicate the officer has concluded the check and is back at the station.

On the date of the fire, Deputy Wendell Stevens was on duty as a dispatcher and jailer for the Sheriff's Department. He conducted a jail check at approximately 9:20 p.m. and observed the four detainees in the north end of the south cell. Approximately ten minutes later, Deputy Stevens announced on the radio he had concluded the check. Shortly thereafter, Deputy Stevens announced"10-6" to indicate he was performing-3- another jail check. Tim Ward, Sheriff of Or egon County, was listeni ng to radio traffic at the time and believed there could be trouble because of the close proximity in jail checks. Deputy Stevens subsequently announced the jail was on fire.

Chief Deputy Eric King, who was also lis tening to the radio, arrived within a few minutes of learning of the fire. He wa s unable to enter the jail due to the volume of smoke and he ope ned a window and started a fan in an attempt to provide ventilation. After securing a self-contai ned breathing apparatu s, Chief Deputy King entered the jail and escorted the two detain ees out of the north cell into the hallway. He proceeded to the south cell, along w ith firefighters from the city of Alton, Missouri. Chief Deputy King found inmateRobert Huff lying unconscious in front of the toilet and the firefighters transported Huff into the hallway. After further searching, Chief Deputy King discovered Davis lying near an overturned bunk. The firefighters removed Davis from the cell, along with the other two detainees.

Upon his arrival at the jail, Sheriff Ward observed thick black smoke emanating from the jail. Sheriff Ward initially entere d the jail without a self-contained breathing apparatus to assist Chief Deputy King in removing detainees from the cell. After making contact with Chief Deputy King, Sheriff Ward left to retrieve a ladder and broke two windows to provide a dditional ventilation. He th en returned to the jail to assist in the removal of the detainees from the cell.

The parties dispute how the fire was started. Davis asserts there was no evidence as to the cause of the fire. The district court found the fire was set as the defendants alleged–by in mates intentionally igniting paper, Styrofoam cups, and a mattress in the corner near the south room of the south cell. In support of their assertions before the district court, th e defendants provided a report from Kuticka Fire Investigations concluding the fire was cau sed by the intentional piling of combustible items in the south cell and the intentional igniting of these items. The defendants also provided an expert report from Captain Richard Ramage concluding Sheriff Ward2 Captain Ramage's report indicates the jail maintained two portable air packs to be worn in the event of an emergency. The record is unc lear as to whether these are the same breathing units worn by the o fficers upon entering the jail after the fire started. However, Davis appears to dis pute that any oxygen tanks were available in the jail or the sheriff's department, rely ing on statements made by Deputy Stevens in his deposition that he was not aware of a ny oxygen tanks or other equipment in the jail. Viewing the evidence in the light most favorable to Davis, we assume for purposes of our discussion that no oxygen tanks were available in the jail.
-4- operated the jail under reasonabl e and safe conditions, in a ddition to an affidavit from an architect stating the jail did not viol ate any established building codes. The defendants also noted the electricity and water were still operable after the fire. They hypothesized the fire was an attempted escape by the inmates, in part because a metal bar had been broken out of the wall where it was affixed in concrete.

The parties appear to be in general agreement about the fire equipment on hand at the Sheriff's Department at the time of the fire. Between the dispatcher's station and the jail, there are five fire extinguishers atvarious locations. There is also a smoke detector above the door that leads to the main jail corridor and another smoke detector located outside the main jail corridor. No other fire safety equipment existed in the jail, such as oxygen tanks, operable fire control sprinklers, or other equipment. 2

On September 1, 2007, five days before the fire, the Sheriff's Department received information from the Alton Police Department regardi ng contraband being smuggled into the jail. Inmates had been observed lowering a rope made out of tied together sheets out the window to the ground to receive contraband. Davis was in the south cell at the time the Sheriff's Department learned of these activities. Pursuant to the information, the Sheriff's Departmentsearched the jail a nd discovered several items of contraband, includi ng a rope connected to a to ilet plunger handle, two metal pieces of wire made into "shanks," pills, lighters, cigarettes, matches, and other paraphernalia. Davis asserts inmates freque ntly used some of these items to smoke cigarettes and other items in the jail. He based his a ssertions in part on his previous-5- six months of incarceration between 2006 and 2008. He also alleged inmates were supplied cigarettes by Tom Lamb, a Sheri ff's Department jailer who retired on December 7, 2006. After the September 1, 2007 search, the jail staff closed a window in the cell area to prevent more contraband from being brought into the jail.

In his complaint, Davis asserted elev en counts alleging various violations of federal and state law relating to the defendants' failure to protect, reckless indifference and/or gross negligence, failure to use adequate procedures, failure to maintain the jail in proper condition, negligence, and cruel and unusual punishment under the Eighth Amendment. The district court granted summary judgment on Davis's claims under section 1983 and the Eighth Amendment afte r concluding he could not meet the deliberate indifference standard. The district court also granted summary judgment on Davis's remaining common law negligence claims after concluding the defendants were immune from liability for negligence. Davis timely appeals.

II.

We review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to th e non-moving party. Rand Corp. v. Yer Song Moua , 559 F.3d 842, 845 (8th Cir. 2009). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that ther e is no genuine issue as to any material fact and that the moving party is entitled to a j udgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is material when it might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).

A. Section 1983 and Constitutional Claims

The Eighth Amendment prohibits "cruel and unusual punishments." U.S. Const. amend. VIII. A pr isoner's conditions of confinement, including the safety-6- measures taken to protect prisoners, are subject to scrutiny under the Eighth Amendment. Kahle v. Leonard , 477 F.3d 544, 550 (8th Cir. 2007). Here, Davis was a pretrial detainee at the time of the allege d violation, and thus his section 1983 claims are analyzed under th e Fourteenth Amendment's Due Process Clause instead of the Eighth Amendment. Id. "This makes little differen ce as a practical matter, though: Pretrial detainees are entitled to the same protection under the Fourteenth Amendment as imprisoned convicts receive under the Eighth Amendment." Id.

The Eighth Amendment standard for cond itions of confinement is whether the defendants acted with deliberate indiffe rence. Nelson v. Corr. Med. Servs. , 583 F.3d 522, 528 (8th Cir. 2009) (en banc). A prison official is deliberately indifferent if he "knows of and disregards" a substantial risk to an inmate's safety. Id. There is both an objective component and a subjective component to a claim of deliberate indifference, which questions: (1) whether a substantial risk to the inmate's safety existed, and (2) whether th e officer had knowledge of the substantial risk to the inmate's safety but nevertheless disregarded it. Id. at 529. "The subjective component requires that the official was both aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and he must also draw the inference." Norman v. Schuetzle , 585 F.3d 1097, 1104 (8th Cir. 2009). An official's negligence alone is insufficient to meet th e subjective component because "the official must recklessly disregard a known, excessive ri sk of serious harm to the inmate." Id. In this case, Davis essentia lly focuses on three areas wher e he alleges the defendants were aware of a substantial ri sk to his safety and disregarded the risk: (1) the jail's smoking policy, (2) the jail's fire-safety e quipment, and (3) the emergency training provided to the officers. We will a ddress each of these areas in turn.

1. The Jail's Smoking Policy

First, although Davis concedes the jail had an anti-smoking policy in effect, he alleges the policy was disregarded by the officers, who knew inmates were using-7- matches and lighters to smoke cigarettes and other items. He also asserts Tom Lamb, a former jailer with the Sheriff's Department, supplied cigarettes to inmates. Moreover, he contends the district court's finding "smoking indoors does not create an unreasonable risk of fire" was unsupported by any evidence.

We reject Davis's arguments regarding the jail's smoking policy. First, Davis concedes the jail had an anti-smoking policy ineffect at all relevant times. Such a policy demonstrates the prison officials' acti ons in dealing with fire hazards. Standish v. Bommel , 82 F.3d 190, 192 (8th Cir. 1996) (per curiam) (holding there was no deliberate indifference where "prison offici als had taken action to deal with fire hazards, for example, by prohibiting smoki ng in [the housing unit]."). Davis's assertions regarding Lamb are of little re levance because Lamb retired nine months before the fire occurred and was not involved in the events of this case.

Similarly, Davis's allegations regardi ng the other officers' disregard for the smoking policy is contradicted by the undisputedfacts in the record demonstrating the officers' sweeps for contraband as recently as five days before the fire. During the September 1, 2007, search, the officers took preventative measures to inhibit the flow of lighters, matches, cigarette s, and other items into the ja il, such as confiscating all current contraband and closing the window where the inmates were receiving the contraband. In light of these recent meas ures taken by the officers, they cannot be said to have faile d to reasonably respond to a substan tial risk to Davis's safety. See Young v. Selk , 508 F.3d 868, 873 (8th Cir. 2007) ("An official is deliberately indifferent if he or she actually knows of the substantial risk and fails to respond reasonably to it.") (citing Farmer v. Brennan , 511 U.S. 825, 844-45 (1994)).3 At summary judgment, while we view th e evidence in the light most favorable to the non-moving party, that party "must do more than simply show that there is some metaphysical doubt as to the material fact s." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). Before the district court, the defendants provided evidence demonstrating the cause of the fire, including a fire investigation report, an expert report detailing the safety of the jail, and an affidavit establishing the jail's compliance with build ing codes. Davis, as the nonmoving party, must then demonstrate "specifi c facts showing that there is a genuine issue for trial." Id. at 587. While his concluso ry denial of the evidence s howing the cause of the fire likely fails to meet this standard, it is not n ecessary to decide this issue in light of the officers' preventative measures.
-8- Further, while the parties dispute the cause of the fire, 3 we conclude this issue is unnecessary to resolve in light of the officers' preventative measures discussed above. "In prison conditions claims, which in clude threats to an inmate's health and safety, the subjective inquiry is whethe r the prison officials were deliberately indifferent to a serious risk of harm to the inmate." Irving v. Dormire , 519 F.3d 441, 446 (8th Cir. 2008). Even if the fire was caused by other inmates' smoking, as Davis presumably infers, the anti-smoking policy and the officers' actions in curbing the use of contraband demonstrate no deliberate indiffe rence to a substantial risk to Davis's safety. Similarly, we need not decide whether smoking indoors creates an unreasonable risk of fire becau se, even if it did, the o fficers' contraband sweeps and anti-smoking policy would have been a reasonable response to such a risk. Accordingly, the district court was correct in rejecting Davis's argument regarding the jail's smoking policy.

2. The Fire and Safety Equipment in the Jail

Next, Davis contends there was a substantia l risk to his safety in the jail's lack of fire and safety equipment. Notably, the jail's fire sp rinkler system was painted over and inoperable. Davis also asserts the jail had no oxygen tanks or other fire safety equipment, except for the fire extinguish ers and smoke detectors. Moreover, he-9- claims the inmates were left without supervision at meal times when the officer on duty left to get dinner for the inmates. He asserts the district court did not acknowledge or analyze the jail's lack of equipment and insufficient facilities.

This case is very similar to Standish v. Bommel , 82 F.3d 190 (8th Cir. 1996) (per curiam). In Standish , an inmate filed a secti on 1983 action alleging the prison officials violated his Eighth Amendment right s due to the nature of his confinement. Id. at 191. The inmate assert ed the defendants were deliberately indifferent to the risk of fire in the jail because the jail "had no smoke detectors or water sprinklers, was inadequately ventilated, and lacked sufficient emergency procedures." Id. This court first concluded the deliberate indifferen ce standard applies to prison conditions affecting fire safety. Id. Applying this standard to the facts of the case, the court concluded the following:

After careful review of the record, we conclude that Standish failed to make a sufficient showing that defe ndants were deliberately indifferent to serious risks of fire safety to withstand defendants' motion for summary judgment. The evidence showed that the only recent fires started when inmates set fire to mattresses or bedding; that neither Standish nor anyone else had been injured by smoke inhalation or fire; and that prison officials had taken ac tion to deal with fire hazards, for example, by prohibiting smoking in HU 5C. Thus, Standish's allegations did not rise above mere negligence.

Id. at 192. As a result, the court affirmed the district court's grant of summary judgment. Id.

As an initial matter, we recognize Standishis a per curiam opinion with a limited discussion of facts. However, we find its reasoning persuasive. Davis's claims mirror those set forth by the inmate in Standish . The officers in each case took action to deal with fire hazards by prohibiting sm oking. Similarly, th e facilities in each case lacked operable sprinklers and the officers we re alleged to have a lack of emergency-10- training. Moreover, the cause of the fire in each case appears to be attributable to another inmate lighting a mattress on fire. Davis's case is distinguishable in part because he appeared to suffer some inju ry due to the smoke inhalation. However, other facts in this case are more favorable than those in Standish– the jail here had operable smoke detectors and the officers conducted protective sweeps for contraband just five days before the fire took place. Under these circumstances, Davis presents no sufficient reason to depart from the reasoning in Standish . The jail's inoperable sprinklers and lack of extra fire equi pment such as oxygen tanks do not, standing alone, amount to deliberate indifference in light of the officers' actions in searching for contraband, as well as the fire extinguish ers and smoke detectors that were present at the time of the fire. As a result, we conclude the district court was correct in granting summary judgment on Davis's clai ms relating to th e fire and safety equipment in the jail.

3. The Emergency Training Provided to Staff

Finally, Davis contends the jail sta ff was inadequately trained to handle emergency situations such as the fire. According to Davis, Sheriff Ward did not conduct fire drills with his staff, nor di d the staff receive any other emergency training. Davis again claims the district court's failure to acknowledge this issue was improper.

Standishis again instructive on this issue. As noted above, the inmate in Standishasserted the jail lacked suffici ent emergency procedures. Id. at 191. The court did not hold this fact to be dispositiv e of the deliberate indifference inquiry. Id. at 192. Even if Davis is correct and Sheriff Ward should have engaged his officers in more exhaustive emergency training, th is failure does not constitute deliberate indifference. Jackson v. Everett , 140 F.3d 1149, 1153 (8th Cir. 1998) ("[The defendant's] failure to take additional security measures, even if arguably negligent, cannot constitute reckless disregard of a known risk.").-11- In support of his argument, Davis cites White v. Cooper , 55 F.Supp.2d 848, 858 (N.D. Ill. 1999), which held the "defendant s knew that consciously disregarding a non-operational fire safety and prevention syst em in a state prison . . . would violate an inmate's most basic and established constitutional rights." Davis omits the full quote from White , however, which states the defendants' disregard of the nonoperational system " and failing to free a man from his burning prison cell would violate an inmates most basic and es tablished constitutional rights." Id. (emphasis added). In this case, not only were th ere operable smoke detectors, unlike White , but it is undisputed that the officers reacted to remove the inmates from the jail cells after they discovered the fire. In this sense, even if Davis is correct that the officers' lack of training and the jail's lack of fire safe ty systems presented a substantial risk, the officers' subsequent conduct demonstrates th ey did not disregard the risk. Gregoire v. Class , 236 F.3d 413, 417 (8th Cir. 2000) ("Lastly , even if an o fficial knows of a risk, he is not liable for a subsequent in jury if he responded reasonably to the known risk.") (citing Farmer , 511 U.S. at 844).

The other cases Davis relies upon are also distinguishable. In Women Prisoners v. District of Columbia , 877 F.Supp. 634 (D.D.C. 1994), the court found the living conditions presented a constitutional violation because the dormitories were heavily overcrowded, could not contain fire with in any room, only contained one unlocked fire exit, and had no fire alarm system or sprinkler system. In Carty v. Farrelly , 957 F.Supp. 727, 737 (D. V.I.), the court determ ined the fire safety provisions did not withstand Eighth Amendment scrutiny because the cell locking devices, manual alarm systems, smoke dampers, and heat detect ors were all inoperable, "which together pose[d] a security risk during a fire emergency."

While some of the same conditions might be said to exist in Oregon County jail, such as the lack of an operable sprinkl er system, these cases are distinguishable because they tend to represent the outerbounds of decency. In Hadix v. Johnson , 367 F.3d 513 (6th Cir. 2004), the Sixth Circuit Court of Appeals conducted a review of-12- Women Prisoners , Carty , and a number of other cases to determine which cases found constitutional violations and which cases did not. Hadix relied on Helling v. McKinney , 509 U.S. 25, 36 (1993), a Supreme Court case holding an analysis of whether the conditions of confinement vi olate the Eighth Amendment "requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporar y standards of decency to expose anyone unwillingly to such a risk."

In this case, the conditions at the Or egon County jail were not so dangerous as to violate contemporary standards of d ecency in comparison with Women Prisoners and Carty . The facilities maintained operable fi re extinguishers and smoke detectors and the officers conducted sweeps for contraband and established an anti-smoking policy, as noted above. More over, there is no suggestion of overcrowding of inmates, lack of fire exits, inoperable cell locking devices, or any of the other conditions present in Women Prisoners and Carty . Under these circumstances, we do not find the reasoning of these cases to be analogous and we affirm the district court's grant of summary judgment on Davis's section 1983 and constitutional claims.

B. The Negligence Claims Against the Defendants

Aside from his section 1983 and constituti onal claims, Davis asserts a number of negligence claims against the defendants. First, he alleges negligence against the County because of the condition of the ja il. Under Missouri law, public entities such as Oregon County are afforded sovereign i mmunity from tort actions. Mo. Rev. Stat. § 537.600.1. However, Davi s contends Oregon County waived its immunity due to the dangerous condition of the jail, which is excepted from immun ity. Mo. Rev. Stat. § 537.600.1(2). The district court conclude d the County had not wa ived its sovereign immunity pursuant to state law because the dangerous conditi on of property waiver does not apply when prisoners commit inten tional acts the plaintiff claims the prison should have protected against.-13- The Missouri Supreme Court has made clear"a plaintiff must allege more than that a public entity's property in some re mote way presaged the commission of a tort by another party." Kanagawa v. State By and Through Freeman , 685 S.W.2d 831, 835 (Mo. banc 1985). In Kanagawa , the Missouri Supreme Court held the plaintiff's allegations were deficient to show a defect, either through construction or maintenance, in the cond ition of a prison. Id. Kanagawawas later reversed in part in Alexander v. State , 756 S.W.2d 539, 542 (Mo. banc 1988), which concerned a ladder placed by an agent of the state that resulted in injury to the plaintiff. Alexander slightly broadened the scope of the da ngerous condition exception by concluding an object placed by an agent of the state may qualify as a dangerous condition even though it was not part of the physical cons truction or maintenance of the property itself. 756 S.W.2d at 542. Howe ver, the remand in Alexander did not appear to completely foreclose the dangerous cond ition requirement because the court noted "the condition here was danger ous because its existence, without intervention by third parties, posed a physical threat to plaintiff." Id. In other words, in situations involving intervening acts by third parties not connected to the st ate, the exception to immunity still would not apply. Cai n v. Mo. Highways & Transp. Com'n , 239 S.W.3d 590, 596 (Mo. banc 2007).

In order to state a claim under the da ngerous condition exception, Davis must show "1) a dangerous condition of public property, 2) that the injury directly resulted from the dangerous c ondition, 3) that the dangerous condition created a reasonably foreseeable risk of the kind of harm incurred, and 4) that a public employee negligently created the condition, or the pub lic entity had actual or constructive notice of the condition." State ex rel. Mo . Highway & Transp. Comm'n v. Dierker , 961 S.W.2d 58, 60 (Mo. banc 1998). Although Davis does not believe the cause of the fire is established, it is doubtful whether he has met his burden on summary judgment, as discussed above. Even if the cause of the fire is unknown, Davis fails to establish a dangerous condition of the jail caused the fi re or that any such condition created a reasonably foreseeable risk of the harm in curred. Davis's argument suggests we view-14- the lack of an operable sprinkler system and oxygen equipment in isolation in order to satisfy the dangerous condition exception. However, as we discussed above, the condition of the property, as a whole, did notpose a threat to Davis in light of the multiple fire extinguishers and smoke det ectors present at the jail, which were sufficient to meet the inmates' safety needs in this case. Accordingly, the dangerous condition exception does not apply to bar the County's immunity.

Davis also alleges negligence per se ag ainst all defendants because he claims the jail did not comply with local, state, and/or federal building codes. However, he fails to set forth any violations of any build ing codes. He has also failed to present any evidence showing an issue of material fact because he does not meet his burden on summary judgment by disputing the affida vits set forth by the defendants showing there were no applicable building codes in existence for the jail to violate. Zenith Radio Corp. , 475 U.S. at 586-87.

Finally, Davis alleges negligence agains t Sheriff Ward and Oregon County for creating a dangerous condition by allowing the inmates to be housed in an unsafe jail and maintaining insufficient safety proce dures. The County is immune pursuant to Missouri law, as discussed above. Public o fficials are also afforded immunity for tasks undertaken in relation to the offici als' performance of discretionary duties. Southers v. City of Farmington , 263 S.W.3d 603, 610 (Mo. banc 2008). Whether an act is discretionary or ministerial is a case-by-case determination based on: "(1) the nature of the public employee's duties; (2 ) the extent to which the act involves policymaking or exercise of professional judgment; and (3) the consequences of not applying official immunity." Id.

Here, the district court correctly grante d immunity to Sheriff Ward. The safety measures suggested by Davis were not requi red under the law, as discussed above, and thus they were not ministerial functions. Boever v. Special Sch. Dist. of St. Louis County , 296 S.W.3d 487, 492 (Mo. App. E.D. 2009) ("A ministerial function is one-15- of a clerical nature which a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedien ce to the mandate of legal authority, without regard to his own judgment or opinion c oncerning the propriety of the act to be performed.") (citation and inte rnal quotations omitted). Rather, determinations such as whether to conduct fire drills, etc., are more discretionary in nature because they "require[] the exercise of reason in the ad aptation of means to an end and discretion in determining how or whether an act s hould be done or course pursued." Id. Under these circumstances, Sheriff Ward's determin ations were discretionary in nature and he is entitled to official immunity on Davis's negligence claims.

For the foregoing reasons, we affirm the judgment of the district court.

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