MARY SHORT, Individually v. WILLIAM SMOOT, Deputy

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MARY SHORT, Individually and as
the Administratrix of the Estate of
Thomas Lee Short, Sr., Deceased,
Plaintiff-Appellee,
v.
WILLIAM SMOOT, Deputy; MICHAEL
BEATTY, Deputy; TROY OAKES,
Deputy; GEORGE LEWIS, Deputy; No. 05-1284 
HARRY FERGUSON, Deputy,
Defendants-Appellants,
and
DANIEL T. MCEATHRON, Sheriff;
KURT KENSY, Deputy; JEREMY SEAL,
Deputy,
Defendants. 
Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
Samuel G. Wilson, District Judge.
(CA-04-43)
Argued: December 1, 2005
Decided: February 2, 2006
Before WILKINS, Chief Judge, GREGORY, Circuit Judge,
and Walter D. KELLEY, Jr., United States District Judge
for the Eastern District of Virginia, sitting by designation.
Affirmed in part, reversed in part, and remanded by published opin-
ion. Chief Judge Wilkins wrote the majority opinion, in which Judge

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Kelley joined. Judge Gregory wrote an opinion concurring in part and
dissenting in part.
COUNSEL
ARGUED: Brian Keith Brake, KEELER OBENSHAIN, P.C., Harri-
sonburg, Virginia, for Appellants. Blair Duncan Howard, HOWARD,
MORRISON & HOWARD, Warrenton, Virginia, for Appellee. ON
BRIEF: Patrick C. Asplin, KEELER OBENSHAIN, P.C., Harrison-
burg, Virginia, for Appellants. Christopher T. Whelan, Paul A. Morri-
son, HOWARD, MORRISON & HOWARD, Warrenton, Virginia,
for Appellee.
OPINION
WILKINS, Chief Judge:
Warren County, Virginia Sheriff’s Deputies William Smoot,
Michael Beatty, Troy Oakes, George Lewis, and Harry Ferguson (col-
lectively, "Appellants") appeal a district court order denying their
motion for summary judgment on qualified immunity grounds in an
action brought by Mary Short, individually and as a representative of
the estate of her husband, Thomas Lee Short. Mrs. Short’s action
alleges that Appellants acted with deliberate indifference to a substan-
tial risk that Mr. Short would commit suicide while detained in the
Warren County Jail. We affirm in part, reverse in part, and remand
for further proceedings.
I.
In reviewing an order denying summary judgment based on quali-
fied immunity, we accept as true the facts that the district court con-
cluded may be reasonably inferred from the record when viewed in
the light most favorable to the plaintiff. See Gray-Hopkins v. Prince
George’s County, 309 F.3d 224, 229 (4th Cir. 2002). Thus, for pur-
poses of resolving this appeal, we assume the following facts:
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[O]n January 8, 2004, . . . Thomas Lee Short was arrested
and jailed for assault and battery of his wife, in violation of
a September 2003 protective order that prohibited Mr. Short
from having any contact with her, from committing acts of
family abuse, and from drinking alcoholic beverages. After
his release on January 11, 2004, Short went to the Blue
Ridge Motel in Front Royal, Virginia, and began drinking
heavily. Around 9:30 p.m., Short called his wife, Mary
Short, and told her that he was planning to kill himself. Mrs.
Short, concerned that her husband would carry out his
threat, called the Warren County Sheriff’s office to request
that they check the local bridges. That office advised her to
call the Front Royal Town Police, which she did.
Soon after calling his wife, Mr. Short also called his
daughter, Linda Good, to tell her that he "wanted to die,"
and to ask if she could come pick him up. When she arrived
at the motel, Good found her father so drunk that she
decided it would be better to let him sleep and return the
next morning. Mr. Short called his wife again at 4:30 a.m.
and repeated his threat to kill himself. He also called his
daughter, who told him she would pick him up at noon the
next day.
Before she returned to the hotel, Good spoke with Mrs.
Short, and they decided to have Mr. Short arrested again for
violating the September 2003 protective order, believing
that this course of action would keep him from harming
himself. Mrs. Short went to the Magistrate’s Office to file
a criminal complaint and the Magistrate issued a warrant for
Mr. Short’s arrest. The Magistrate then contacted the Front
Royal Town Police and told the officer that Mr. Short was
"basically a drunk," that he was intoxicated, and that he had
called his wife threatening to kill himself. The officer, Ser-
geant Clint Keller, went to the Short residence, arrested Mr.
Short, and transported him to the Warren County Jail.
Sergeant Keller took Mr. Short before the Magistrate,
who issued an order remanding Mr. Short to custody until
he could appear in Warren County General District Court
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the next day. Sergeant Keller then turned Mr. Short over to
the deputies on duty at the jail. Defendants Smoot, Beatty,
Oakes, and Lewis were in the jail’s monitor room, where
Sergeant Keller advised them that Mr. Short had been
arrested for violation of a protective order, that he was
drunk, and that he had been calling his wife threatening to
kill himself.
The Warren County Jail Policy and Procedures manual,
in effect on January 12, 2004, addressed proper treatment of
potentially suicidal inmates. The manual required custodial
officers to remove all potential tools such as sheets, blan-
kets, and shoelaces, to conduct inmate checks at random
intervals, at least twice per hour, and to make reports of any
unusual occurrences. The defendant deputies also received
training in treatment of potentially suicidal inmates. If the
deputies were aware that the inmate was suicidal, they were
instructed to remove his clothing, place him in a suicide
"smock," call mental health services, and conduct checks at
fifteen-minute intervals.
When an intoxicated inmate was brought to the jail, depu-
ties would attempt to process him. If the inmate was unable
to give a medical history, then the typical practice was to
place the intoxicated inmate in the jail’s sick cell, separate
from the general population, to sober up, and also to remove
all items that could be used for "self-destructive purposes."
Despite Sergeant Keller’s statement that Short had threat-
ened to kill himself, the deputies never removed Short’s
clothing and shoelaces or called for a mental health evalua-
tion. Sergeant Smoot took him from the booking area to the
bathroom and then to the sick cell, where he removed
Short’s belt. Several hours later, Smoot heard banging com-
ing from the sick room. He asked Short if he was all right,
and Short responded that he was fine. He did not apprise the
other deputies of the disturbance, nor did he make a report
of an unusual occurrence. Deputy Lewis checked on Short
twice, at approximately 5:30 and 6:30 p.m.; both times Short
was lying in bed with a sheet over him and appeared to be
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asleep. Deputy Oakes also checked on Short around
5:00 p.m., and observed that he was asleep.
Sergeant Smoot and Deputies Lewis, Oakes, and Beatty’s
shifts ended at 7:00 p.m. and defendants Deputies Ferguson,
Kensy, and Seal arrived. No one in the departing shift
informed the incoming deputies that Short had threatened to
kill himself; the incoming deputies were only aware that an
intoxicated detainee had been brought in and placed in the
sick room.
The Warren County Jail used surveillance cameras to
monitor inmate activity. There were a number of twelve-
inch television screens that displayed images from these
cameras in the jail’s monitor room. During the evening shift,
Deputy Ferguson, the officer-in-charge, was in the monitor
room from approximately 7:00 to 8:30 p.m., and was
responsible for observing monitors as well as answering the
telephone and admitting any visitors. He acknowledged that
he was aware that an inmate was in the sick cell on the eve-
ning of January 12, 2004, and that he observed the monitor
showing activity in the sick cell. He left the monitor room
for a short time at approximately 8:24 p.m. to respond to an
inmate waving a towel at the camera. Deputy Seal was not
working in the monitor room. He made rounds of the cells
at approximately 7:15 p.m., and again between 8:00 and
8:30 p.m. Seal did not check on the sick cell where Short
was housed, believing that it was unoccupied. Deputy Kensy
was in the jail records room filing from 7:00 to 8:30 p.m.
He passed through the monitor room for a few minutes, but
was not present at the jail between 8:35 and 9:00.
The court has reviewed the videotape taken from the sur-
veillance camera that recorded Short’s activity in the sick
room on January 12, 2004. Between approximately 7:00 and
7:30 p.m., Short removed the laces from his shoes, tied them
together, and climbed from his bed to the bars of his cell.
He tied the shoelaces to the bars and tested their strength.
He then tied the laces around his neck. Short repeated this
process a number of times, alternating between climbing on
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the bars and sitting on his bed for several minutes at a time.
At approximately 7:36 p.m., Short again climbed from his
bed to the bars of his cell, placed the noose around his neck,
and hung himself. It was not until approximately 9:00 p.m.,
when Deputy Seal escorted a new detainee to the sick room,
that the deputies discovered Short’s body.
J.A. 1931-35 (footnotes omitted).
Mrs. Short subsequently brought this action against Appellants,
Deputies Kensy and Seal, and Warren County Sheriff Daniel T.
McEathron, pursuant to 42 U.S.C.A. § 1983 (West 2003), contending
that the officers violated her husband’s rights under the Cruel and
Unusual Punishments Clause of the Eighth Amendment by exhibiting
deliberate indifference to the substantial risk that he would commit
suicide. After the district court dismissed Sheriff McEathron from the
action, all remaining defendants moved for summary judgment. The
district court denied the motion as to Deputies Smoot, Beatty, Oakes,
and Lewis (the first-shift officers), concluding that the forecasted evi-
dence permitted the reasonable inference that the conduct of the first-
shift officers constituted deliberate indifference because the officers
all were aware of the risk that Short would commit suicide yet failed
to follow jail procedure or even "take the simple precaution of warn-
ing the next shift that Short was at risk." J.A. 1939. The court also
denied the motion as to Deputy Ferguson, concluding that the fore-
casted evidence supported the inference that he exhibited deliberate
indifference because he actually witnessed Ferguson’s suicide in
progress, understood what was happening, and yet made no attempt
to intervene.1
II.
Appellants first argue that the district court erred in denying sum-
mary judgment to the first-shift officers. We agree.
Qualified immunity protects "all but the plainly incompetent or
those who knowingly violate the law." Malley v. Briggs, 475 U.S.
1The district court granted summary judgment to Deputies Kensy and
Seal.
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335, 341 (1986). It protects law enforcement officers from "bad
guesses in gray areas" and ensures that they are liable only "for trans-
gressing bright lines." Maciariello v. Sumner, 973 F.2d 295, 298 (4th
Cir. 1992). Thus, government officials performing discretionary func-
tions are entitled to qualified immunity from liability for civil dam-
ages to the extent that "their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982).
In analyzing an appeal from the rejection of a qualified immunity
defense, our first task is to identify, "at the appropriate level of speci-
ficity," Wilson v. Layne, 526 U.S. 603, 615 (1999), the right that the
plaintiff asserts was infringed by the challenged conduct. See Taylor
v. Waters, 81 F.3d 429, 433 (4th Cir. 1996). We then ask whether the
facts, viewed in the light most favorable to the plaintiff, demonstrate
a violation of that right. See Saucier v. Katz, 533 U.S. 194, 201
(2001). If they do, we consider whether, at the time of the claimed
violation, the right alleged to be violated was clearly established—
meaning that "a reasonable official would understand that what he is
doing violates" the right in question. Id. at 202 (internal quotation
marks omitted).
The right in question here, defined at the appropriate level of speci-
ficity, is the right of a detainee, whose jailers know that he is suicidal,
to have his jailers take precautions against his suicide beyond merely
placing him in a cell under video surveillance. We hold that Brown
v. Harris, 240 F.3d 383 (4th Cir. 2001), demonstrates that no such
right derives from the Eighth Amendment.
The appropriate framework for evaluating constitutional claims
arising from a prison official’s "deliberate indifference" to "a substan-
tial risk of serious harm to an inmate" is set out in Farmer v. Brennan,
511 U.S. 825 (1994). Farmer, 511 U.S. at 828 (internal quotation
marks omitted). First, a constitutional violation can occur only when
the deprivation alleged is "objectively, sufficiently serious." Id. at 834
(internal quotation marks omitted). A substantial risk of suicide is suf-
ficient to satisfy this condition. See Brown, 240 F.3d at 389. Second,
the prison official must have "a sufficiently culpable state of mind."
Farmer, 511 U.S. at 834 (internal quotation marks omitted). The sub-
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jective component of an Eighth Amendment claim challenging the
conditions of confinement is satisfied by a showing of deliberate
indifference by prison officials. See id. "[D]eliberate indifference
entails something more than mere negligence . . . [but] is satisfied by
something less than acts or omissions for the very purpose of causing
harm or with knowledge that harm will result." Id. at 835. It requires
that a prison official actually know of and disregard an objectively
serious condition, medical need, or risk of harm. See id. at 837;
Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995).
Importantly, a prison official "who actually [knows] of a substan-
tial risk to inmate health or safety may be found free from liability if
[he] responded reasonably to the risk, even if the harm ultimately was
not averted." Farmer, 511 U.S. at 844; see Brown, 240 F.3d at 389.
Although it is unclear whether the reasonableness of the response is
part of the state of mind requirement or rather derives from the duty
to "ensure reasonable safety," Farmer holds that "prison officials who
act reasonably cannot be found liable under the Cruel and Unusual
Punishments Clause." Farmer, 511 U.S. at 844-45 (internal quotation
marks omitted); see Brown, 240 F.3d at 389.
Brown demonstrates that the first-shift officers’ response to Short’s
risk of suicide was objectively reasonable and therefore sufficient to
prevent liability under the Eighth Amendment. As is relevant here,
Brown, like the case at bar, was an action alleging deliberate indiffer-
ence by the defendants to a suicide risk of their detainee. There, Rob-
ert Brown was arrested by a probation officer (Svec), who had learned
that Brown was taking 8-10 pills a day and had attempted suicide the
prior week by overdosing on pills. See Brown, 240 F.3d at 385. Pursu-
ant to subsequent searches, Svec found pills in Brown’s bedroom and
car, as well as on his person. See id. Svec then delivered Brown to
the Virginia Beach General Jail for processing on a probation viola-
tion. See id.
At trial, the evidence was conflicting regarding what information
Svec shared with the jail supervisor (Ogden). Svec testified that she
told Ogden that Brown was suicidal, psychotic, and volatile. See id.
On the other hand, Ogden testified that Svec informed him only that
Brown had violent episodes and did not tell him that Brown was sui-
cidal. See id. Ogden placed Brown on "medical watch," which estab-
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lished continuous video surveillance of Brown’s cell. Id. (internal
quotation marks omitted). Nevertheless, Brown hanged himself three
days after his arrival at the jail and eventually died as a result. See id.
at 385-86.
We affirmed a district court order granting judgment as a matter of
law to both Svec and Ogden. Regarding Ogden, viewing the evidence
in the light most favorable to Brown, we assumed that Ogden had
been informed of Brown’s suicidal tendencies. See id. at 390. We
nevertheless held that, as a matter of law, placement of a detainee in
a cell under video surveillance constituted an objectively reasonable
response by Ogden to the risk that Brown would kill himself. See id.
We further concluded that the reasonableness of the response was not
affected by the fact that there were additional precautions, such as
placing Brown in a paper gown or having him examined by a medical
professional, that Ogden also could have taken. See id. (explaining
that even if Ogden "took less action than he . . . should have . . . [t]hat
does not . . . negate the reasonableness of his response"); accord Par-
rish ex rel. Lee v. Cleveland, 372 F.3d 294, 309 (4th Cir. 2004) (opin-
ion of Williams, Circuit Judge) (citing Brown for the proposition that
"the question in deliberate indifference cases is not whether the offi-
cials could have taken additional precautions").
Here, the first-shift officers’ response to the risk that Short would
kill himself was the same as Ogden’s response in Brown: they placed
the detainee in a cell under video surveillance. Thus, under Brown,
this response was sufficient under the Cruel and Unusual Punishments
Clause regardless of whether additional precautions might also have
been advisable.
Our dissenting colleague concludes that the officers’ response was
different from Ogden’s in that the officers here "never observed Mr.
Short on the video monitor." Post, at 12 (emphasis omitted). Initially,
it is important to point out that it hardly seems unusual that none of
the first-shift officers would have remembered observing Short on
one of the many video monitors in their video monitor bank when the
videotape of his time in the cell reveals that he was not doing any-
thing out of the ordinary during their shift except for a couple of times
when he banged his shoe against the cell bars or the sink. In fact, he
spent most of the time in his bed covered with a sheet. In any event,
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it is unclear why our colleague considers the fact that the first-shift
officers did not actually observe Short on the video monitors to be a
difference between the two cases because there is no indication in our
opinion in Brown that any officer, including Ogden, ever observed
Brown on the video monitor until he had already hanged himself. See
Brown, 240 F.3d at 385. The critical point is that despite the actual
failure of the officers’ measures to prevent the detainees’ suicides,
and despite possible inattentiveness of the officers whose duty it was
at the time of the suicides to watch the monitors, in both Brown and
the present case the officers placed their detainees in video-monitored
cells, knowing that someone would be responsible for watching the
monitors. See id. (stating that there was an officer responsible for
viewing the video monitors); J.A. 507-09, 557 (Smoot’s deposition
testimony that during his shift, after a brief power outage, "[t]here
was always someone" with the responsibility of watching the video
monitors); id. at 805-07 (Ferguson’s deposition testimony that he was
responsible for watching the video monitors from 7:00 p.m. until after
the time Short hanged himself).
In its order, the district court provides only a cursory mention of
Brown, stating that the first-shift officers "did not take ‘less action
than they could have,’ [as was the case in Brown,] rather, they did vir-
tually nothing." J.A. 1939. This characterization does not satisfacto-
rily distinguish Brown, however, because Ogden’s response there was
essentially identical to that of the first-shift officers here. Although
the district court observed that the first-shift officers did not even so
much as notify any second-shift officers of the risk that Short would
commit suicide, a similar criticism could be leveled against Ogden,
who apparently also did not share information about Brown’s suicide
risk with anyone (and indeed denied he ever received such informa-
tion). In any event, the availability of additional precautions was
immaterial to our decision in Brown, as we have explained.2
2Our affirmance in Brown of the grant of judgment as a matter of law
to Svec also supports our ruling in favor of the first-shift officers here.
Because we viewed the evidence in Brown in the light least favorable to
Svec in reviewing the grant of judgment as a matter of law in her favor,
we assumed that she did not inform Ogden of Brown’s suicidal tenden-
cies. See Brown, 240 F.3d at 391. We nevertheless ruled as a matter of
law that her removal of the pills from Brown’s person, bedroom, and car
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III.
Appellants next argue that the district court erred in denying sum-
mary judgment to Deputy Ferguson. We hold that the district court
correctly denied summary judgment.
The district court concluded that the forecasted evidence supported
the reasonable inference that Ferguson observed Short "removing the
laces from his shoes and, over a period of twenty to thirty minutes,
climbing on the bars of his cell, tying his shoelaces to the bar, placing
a noose around his neck, and testing the weight of the rope." Id. at
1940. On this basis, the district court concluded that the record per-
mitted a reasonable inference that Ferguson knew Short was attempt-
ing to commit suicide. See id. & n.10. The court ruled that failure to
make any effort to stop the ongoing suicide attempt, under such cir-
cumstances, would constitute deliberate indifference. See id. at 1940-
41.
Appellants do not dispute that it was clearly established on the day
of Short’s death that the conscious failure by a jailer to make any
attempt to stop an ongoing suicide attempt by one of his detainees
would constitute deliberate indifference. Rather, they maintain only
that the forecasted evidence was not sufficient to support a reasonable
inference that Ferguson knew Short was attempting suicide. We must
reject this argument, however, as we are not at liberty during an inter-
locutory appeal of a denial of summary judgment to question the con-
clusions of the district court regarding what reasonable inferences the
forecasted evidence supports. See Gray-Hopkins, 309 F.3d at 229. We
therefore affirm the district court order to the extent that it denies
summary judgment to Deputy Ferguson.
IV.
In sum, we reverse the denial of summary judgment to Deputies
Smoot, Beatty, Oakes, and Lewis but affirm the denial with regard to
was a reasonable response to Brown’s suicide risk, especially since Svec
knew Brown would be placed under video surveillance while in jail. See
id. We therefore held that "[w]hile Svec could have taken the extra step
of informing Ogden about Brown’s suicidal tendencies," her response, as
a matter of law, did not constitute deliberate indifference. Id.
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Deputy Ferguson, and remand to the district court for further proceed-
ings.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
GREGORY, Circuit Judge, concurring in part and dissenting in part:
I fully agree with the majority’s holding that the district court prop-
erly denied qualified immunity to Deputy Ferguson. Because I cannot
agree with the majority’s conclusion that "Ogden’s response [in
Brown] was essentially identical to that of the first-shift officers
here," ante at 10, I would also affirm the district court’s denial of
qualified immunity to those officers.
As the majority accurately notes, Ogden, the jail supervisor in
Brown, had knowledge that the inmate presented a suicide risk. 240
F.3d at 390. In addition, Ogden was concerned that Brown might
become volatile due to symptoms of drug withdrawal. Id. Because of
his concerns, Ogden made the decision to place Brown on "medical
watch" as a precautionary measure. Id. Accordingly, the guards "es-
tablished constant video surveillance" of Brown’s cell over the next
three days. Id.
The majority concludes today that because the first-shift officers
placed Short in a sick cell with a video camera, their actions were
constitutionally sufficient under Brown. I disagree with this conclu-
sion, because it is based on a dubious assumption—specifically, that
an officer establishes constant video surveillance of an inmate by
placing him in a cell with a video camera. Webster’s Third New Inter-
national Dictionary defines surveillance as a "close watch kept over
one or more persons" or "continuous observation of a person or area."
Webster’s Third Int’l Dictionary 2302 (1981). Sergeant Smoot, Dep-
uty Beatty, Deputy Lewis, and Deputy Oakes each testified that he
never observed Mr. Short on the video monitor. J.A. 1312, 1407,
1747, 1844. Thus, even though the first shift officers placed Mr. Short
in a cell with a video camera, they never established or maintained
video surveillance. I, therefore, agree with the district court’s conclu-
sion that the first shift officers "did not take less action than they
could have, rather, they did virtually nothing." J.A. 1939 (internal
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quotation marks omitted). Accordingly, I would also affirm the dis-
trict court’s denial of qualified immunity as to the first shift officers.
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