Case: 20-11147   Date Filed: 09/15/2020   Page: 1 of 23



                                                       [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 20-11147
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 1:17-cv-05420-MLB



KENNETH GREENWAY,
As Surviving Spouse of Tammy Sue Greenway as administrator
of the estate of Tammy Sue Greenway,

                                                             Plaintiff-Appellant,


                                   versus


SOUTHERN HEALTH PARTNERS, INC.,
NURSE ALYSSA ARMENTI,
DEPUTY CHRISTOPHER A. BOYER,
SERGEANT KENNETH LANGSTON,
SERGEANT JASON MUSE, et al.,

                                                         Defendants-Appellees.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________
                            (September 15, 2020)
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Before NEWSOM, BRANCH, and LUCK, Circuit Judges.

PER CURIAM:

      This case arises from the tragic suicide of Tammy Greenway while in custody

at the Banks County Jail. Her husband, Kenneth Greenway, brought section 1983

deliberate indifference claims against the officer that arrested the Greenways,

Tammy’s jailers, the County, the Sheriff, and her medical providers and a state-law

negligence claim against the medical providers. The district court granted summary

judgment for all defendants, and Kenneth now appeals. Because we conclude, like

the district court, that there was no genuine dispute that the defendants did not have

knowledge of a strong likelihood that Tammy was a suicide risk or that the County

and the medical providers did not cause Tammy’s death, we affirm.

        FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      Kenneth and Tammy Greenway had a volatile, on-again off-again marriage.

They had discussed divorce and had romantic relationships outside of the marriage.

Around 2008, Tammy began to have paranoid delusions and became violent towards

Kenneth. That year, she attempted suicide by overdosing on pills. Between 2008

and 2015, Tammy suffered from intermittent bouts of mental illness and drug

addiction. On December 19, 2015, Tammy kicked in the door to Kenneth’s bedroom

and attacked him. Tammy was arrested and went to jail for a few days. While in

jail, Tammy did not attempt suicide or make any threats of self-harm.


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       On January 23, 2016, Tammy and Kenneth had another violent domestic

incident, and a relative called the police. Deputy Christopher Boyer and Sergeant

Jim Clay responded. 1 The officers interviewed the Greenways separately and had

them fill out witness statements.             Tammy wrote that Kenneth attacked her

unprovoked and that she did not want further trouble. For his part, Kenneth wrote

that Tammy attacked him and threatened to kill him. Deputy Boyer signed off on

Tammy’s witness statement, and neither witness statement mentioned self-harm or

suicide. While discussing the incident with Deputy Boyer, Kenneth told him that




       1
         We “view the facts and draw reasonable inferences in the light most favorable to the party
opposing the summary judgment motion.” Jackson v. West, 

, 1352 (11th Cir. 2015).
The parties debate the existence and admissibility of various pieces of evidence that the district
court did not consider: 1) statements made by Tammy’s daughter, Crystal Beauchamp, and
Kenneth at the time of the Greenways’ arrest; 2) statements made by Beauchamp’s relatives about
Tammy’s suicide risk; 3) statements documented in a Georgia Bureau of Investigation report about
Tammy’s death; and 4) testimony about what Kenneth told the jail’s nurse. Because we conclude
that, even assuming this evidence is properly before us, summary judgment is appropriate, we
consider all the evidence presented by Kenneth with the exception of the statements he and
Beauchamp purportedly made at the time of the Greenways’ arrest.
        We agree with the district court that video evidence contradicts Kenneth’s assertions that
he and Beauchamp told Deputy Boyer at the scene of the arrest that Tammy was suicidal. “When
opposing parties tell two different stories, one of which is blatantly contradicted by the record [as
with a video recording of the incident], so that no reasonable jury could believe it, a court should
not adopt that version of the facts.” Manners v. Cannella, 

, 967 (11th Cir. 2018)
(internal quotation marks omitted). Kenneth testified that while he was in the yard with
Beauchamp, before Deputy Boyer placed him in the patrol car, he and Beauchamp told Deputy
Boyer that Tammy was threatening to hurt herself and that she had attempted suicide before. But
the video directly contradicts that testimony. Though Kenneth now contends that the video did
not record all of his interactions with Deputy Boyer and parts of it are unintelligible, the video is
clear when Kenneth and Beauchamp were talking to Deputy Boyer in the yard before he was
arrested. And there is no evidence they told him Tammy was suicidal. Therefore, we will not
adopt Kenneth’s version of the facts on that point.
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Tammy was bipolar. The officers conferred and arrested both Tammy and Kenneth

for aggravated assault.

      In her interactions with the officers, Tammy did not threaten to harm herself.

When Deputy Boyer told her she was going to be arrested, she did not protest or

argue with him. Tammy appeared “fine” to Deputy Boyer. After the officers

arrested both Greenways, Deputy Boyer transported Kenneth to the Banks County

Jail, and Sergeant Clay drove Tammy. After transferring Kenneth to the jail, Deputy

Boyer had no further involvement with the Greenways.

      Sergeants Kenneth Langston and Sharon Chapman booked Kenneth at the jail.

Kenneth told Sergeant Langston that Tammy was suicidal, had attempted suicide

previously, and needed to be watched. Sergeant Langston and Sergeant Chapman

also booked Tammy. Sergeant Chapman did an initial screening of Tammy. She

recorded that Tammy appeared calm and cooperative, was not under the influence

of alcohol or drugs, and did not show signs of trauma. Sergeant Chapman then asked

Tammy a series of questions, including whether she had a history of psychiatric

treatment, whether she had ever had thoughts of harming herself, and whether she

currently had thoughts of harming herself. Tammy responded “no” to each question.

But she reported that she was under a doctor’s care and needed various medications.

Sergeant Chapman testified that Tammy appeared upset at being arrested but became




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cheerful after that. While incarcerated, Sergeant Chapman had a “good rapport”

with Tammy, discussed Tammy’s new boyfriend with her, and they shared a laugh.

      That same day, Sergeant Langston asked Tammy more in-depth questions.

That screening included twelve questions regarding suicide risk. Tammy responded

that she had not experienced marital separation, death of a loved one, loss of

business, arrest of a loved one, divorce, or major financial loss; she was not a first-

time offender and did not have unusual home-family problems; and she had never

been in a mental institution or under psychiatric care, had never attempted suicide,

and was not currently contemplating suicide. Sergeant Langston recorded that he

did not believe Tammy was a suicide risk. He also documented that Tammy had

issues with thyroid disease, panic attacks, depression, and hormones. Sergeant

Langston testified that Tammy did not say or do anything out of the ordinary.

      The next day, while both Greenways remained in jail, Kenneth told one of the

jailers, Sergeant Jason Muse, that Tammy was suicidal and needed to be placed on

suicide watch. Kenneth repeatedly tapped on the glass window of his cell to get

Sergeant Muse’s attention. Sergeant Muse thought Kenneth was having an anxiety

attack and eventually came in with Nurse Alyssa Armenti, who worked at the jail as

an employee of Southern Health Partners, Inc., to give Kenneth anti-anxiety

medication. Kenneth also told Nurse Armenti that Tammy had attempted suicide in

the past and needed to be on suicide watch. Sergeant Muse then placed Kenneth on


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suicide watch and told others he thought Kenneth was “crazy.” That same day,

Beauchamp called Sergeant Muse and told him that Tammy was suicidal.

      On the morning of January 25, 2016, Nurse Armenti conducted a medical

screening of Tammy. Tammy reported that she had never considered or attempted

suicide. Nurse Armenti similarly observed that Tammy did not exhibit any signs

suggesting a risk of suicide, assault, or abnormal behavior in January 2016. Nurse

Armenti reported that Tammy was “sweet.”         Tammy identified her medical

conditions as relating to her thyroid and to depression. She had been prescribed a

thyroid medicine and an anti-depressant but told Nurse Armenti that she had been

without her medications for two weeks and did not bring them with her to the jail.

That day, after a consult with the jail’s doctor, Nurse Armenti administered Tammy

her thyroid medicine and faxed her pharmacy to request her medication records.

Tammy did not ask to take an anti-depressant, and Nurse Armenti did not provide

one to her, because Tammy had not been taking the medication regularly.

      Early in the morning of January 26, 2016, Kenneth made bail. As he left, he

and Beauchamp told Sergeant Chapman that Tammy was suicidal. Later that

morning, Nurse Armenti went with Sergeant Muse to give Tammy her next dose of

thyroid medication. Tammy asked Sergeant Muse if she could have another blanket,

but he told her he did not have one to give to her. In response, Tammy refused to




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take her medicine and threw it on the ground. Sergeant Muse then placed Tammy

in lockdown in her cell.

      While locked down, Tammy screamed and banged on her cell door on and off

from 8:30 a.m. to 9:30 a.m. In the jail’s command tower, Officer Tim Brooks

observed the banging but saw through the cell’s window that Tammy was not trying

to hurt herself. Officer Brooks noticed that Tammy became quiet after about an

hour. At 10:30 am, he talked to Sergeant Muse, who instructed him to have someone

check on Tammy. Officer Brooks asked another inmate to check on Tammy; the

inmate looked through Tammy’s cell window and screamed. Officer Brooks radioed

Sergeant Muse, who reported to Tammy’s cell. Nurse Armenti also responded to

the call. They found Tammy hanging from a bedsheet. Nurse Armenti found that

Tammy still had a faint pulse. Sergeant Muse cut Tammy down and helped Nurse

Armenti with CPR. Another officer called an ambulance. The ambulance took

Tammy to the hospital where she was pronounced dead.

      Kenneth, on behalf of Tammy’s estate, sued Deputy Boyer, Sergeant

Langston, Sergeant Chapman, Sergeant Muse, Officer Brooks, jail administrator

Captain Scott Rice, Nurse Armenti, Southern Health Partners, Banks County, and

Sheriff Carlton Speed under 42 U.S.C. section 1983, alleging deliberate indifference

claims under the Fourteenth Amendment. He also brought a Georgia-law medical




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malpractice claim against Nurse Armenti and Southern Health Partners.            All

defendants moved for summary judgment, which the district court granted.

                           STANDARD OF REVIEW

      We review de novo a grant of summary judgment, applying the same legal

standards as the district court. Snow ex rel. Snow v. City of Citronelle, 

, 1268 (11th Cir. 2005). “The court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review a district

court’s decision to keep supplemental jurisdiction under 28 U.S.C. section 1367(c)

for abuse of discretion. Lucero v. Trosch, 

, 598 (11th Cir. 1997).

                                  DISCUSSION

      On appeal, Kenneth argues that: (1) genuine issues of material fact precluded

summary judgment for the officers and Nurse Armenti on his deliberate indifference

claims; (2) genuine issues of material fact existed regarding whether the County and

Sheriff had municipal liability for policies that led to inadequate medical care for

Tammy; (3) the district court erroneously exercised supplemental jurisdiction over

the state-law medical malpractice claim after dismissing the federal section 1983

claims; and (4) genuine issues of material fact foreclosed summary judgment on his

state-law medical malpractice claim.




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                           Deliberate indifference claims

      “[P]retrial detainees . . . plainly have a Fourteenth Amendment due process

right to receive medical treatment for illness and injuries, which encompasses a right

to psychiatric and mental health care, and a right to be protected from self-inflicted

injuries, including suicide.” Cook ex rel. Est. of Tessier v. Sheriff, 

,

1115 (11th Cir. 2005) (internal quotation marks omitted). “In a prisoner suicide

case, to prevail under section 1983 for violation of substantive rights,

under . . . the . . . [F]ourteenth [A]mendment, the plaintiff must show that the jail

official displayed deliberate indifference to the prisoner’s taking of his own life.”

Edwards v. Gilbert, 

, 1274–75 (11th Cir. 1989) (internal quotation

marks omitted).

      “To establish a defendant’s deliberate indifference, the plaintiff has to show

that the defendant had (1) subjective knowledge of a risk of serious harm; and

(2) disregarded that risk; (3) by conduct that is more than mere negligence.” 

(alterations adopted). “[I]n a prison suicide case, deliberate

indifference requires that the defendant deliberately disregard a strong likelihood

rather than a mere possibility that the self-infliction of harm will occur.” 

(internal quotation marks omitted). “The mere opportunity for suicide,

without more, is clearly insufficient to impose liability on those charged with the

care of prisoners.” Cagle v. Sutherland, 

, 986 (11th Cir. 2003)


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(alteration adopted). “Absent knowledge of a detainee’s suicidal tendencies, . . .

failure to prevent suicide has never been held to constitute deliberate indifference.”

Popham v. City of Talladega, 

, 1564 (11th Cir. 1990). In a deliberate

indifference case, “[e]ach individual Defendant must be judged separately and on

the basis of what that person knows.” Jackson v. West, 

, 1353 (11th

Cir. 2015).

      Deputy Boyer: Deputy Boyer responded to the Greenways’ domestic

disturbance. Kenneth told Deputy Boyer that Tammy had attacked him, threatened

to burn down their home, threatened to kill him, was bipolar, and had a drug

addiction. Deputy Boyer observed Tammy firsthand after the fight. She appeared

“fine” to him, did not protest her arrest, did not threaten to hurt herself, and gave no

other indication to Deputy Boyer that she was suicidal. Neither Kenneth’s nor

Tammy’s witness statement made any mention of suicide. And Deputy Boyer did

not know that Tammy had attempted suicide in 2008. Though he knew Tammy was

bipolar, Deputy Boyer also knew that Tammy would be screened for mental health

issues once she arrived at the jail. In any event, “[a]nti-social, aggressive behavioral

problems do not rise to the level of a strong risk of suicide.” 

(internal quotation marks omitted). Though Tammy was violent, knowledge

of “homicidal tendencies” did not give Deputy Boyer belief of “a strong, or any,




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likelihood of suicide.” See Williams v. Lee Cnty., Ala., 

, 493 (11th Cir.

1996).

      Sergeant Chapman: Sergeant Chapman conducted the initial screening of

Tammy at the jail. Tammy was calm, cooperative, and cheerful and exhibited no

signs of trauma. Tammy told Sergeant Chapman that she had not previously had

thoughts of suicide and did not currently have any such thoughts. And Tammy said

that she had no history of psychiatric treatment. Sergeant Chapman also testified

that she observed Tammy in a holding cell during booking, and Tammy made no

attempt to hurt herself. Neither arresting officer told Sergeant Chapman that Tammy

was suicidal or mentally ill.

      Kenneth and Beauchamp told Sergeant Chapman on January 26 that Tammy

was suicidal.    By that point, however, Sergeant Chapman had “quite a few

conversations” with Tammy that were all positive. She had a good rapport with

Tammy and shared a laugh with her. Tammy never asked Sergeant Chapman to see

a doctor, sought drugs, exhibited mental problems, or appeared suicidal. Given the

screening she conducted, her interactions with Tammy, and her lack of knowledge

of any issues with Tammy, we cannot say that one warning by two relatives gave

Sergeant Chapman knowledge of a strong likelihood of a suicide risk. See Burnette

v. Taylor, 

, 1332 (11th Cir. 2008) (holding that a jailer was not




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deliberately indifferent to the risk of a fatal drug overdose in part because the jailer

“observed [the inmate] ‘laughing and talking’ with his cellmates”).

      Sergeant Langston: Kenneth told Sergeant Langston that Tammy was

suicidal, had attempted suicide previously, and needed to be watched. But Sergeant

Langston gave Tammy an in-depth screening with numerous questions to gauge any

potential for suicide. Tammy reported no previous or current thoughts of self-harm.

Though Tammy may have given false answers to some of the questions in the

screening, Kenneth has pointed to no evidence to show that Sergeant Langston

would think Tammy was lying about not having suicidal thoughts.                Sergeant

Langston observed that Tammy neither said nor did anything out of the ordinary

while he booked her. Tammy also told Langston that she wanted to go live with her

boyfriend after her release from jail.

      The only knowledge Sergeant Langston had of a suicide risk was Kenneth’s

statements, but Langston also knew that Kenneth was in jail because of a domestic

dispute with Tammy. Placing an inmate on suicide watch requires taking away

anything an inmate could use to hurt herself, clothing her in a “turtle” suit that cannot

be used for self-harm, and placing her in isolation and under observation. The

statements of a domestic violence defendant against his accuser attempting to place

her under restrictive and invasive observation would not give Sergeant Langston

knowledge of a strong likelihood of suicide. Moreover, Sergeant Langston knew


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Tammy “had attempted suicide in the past, but [he] did not know when the attempt

had taken place . . . [which,] without more, is not sufficient to put [Sergeant

Langston] on notice of a strong likelihood rather than a mere possibility that the self-

infliction of harm will occur.” See 

. Given Sergeant

Langston’s screening of Tammy, observation of her behavior, and conversation with

her, Kenneth’s warning did not give him notice of a strong likelihood of suicide.

      Sergeant Muse: While incarcerated, Kenneth told Sergeant Muse that

Tammy was suicidal and needed to be watched. And Beauchamp and other relatives

called the jail and told Sergeant Muse that Tammy was suicidal. The relatives did

not explain why they thought Tammy was suicidal or give any other supporting

detail. And there is no evidence that Sergeant Muse thought Tammy needed to be

under observation. Sergeant Muse believed Tammy did not pose a risk to herself

based on the medical team’s evaluation and decision to place her in the jail’s general

population. He also thought that Kenneth was having an anxiety attack when he told

Sergeant Muse Tammy was suicidal and that Kenneth was otherwise “crazy.”

      Sergeant Muse observed Tammy throw down her thyroid medication after

being denied an extra blanket. He also knew that she began banging on her cell door

when he placed her in lockdown. But Sergeant Muse understood that inmates

commonly became upset and acted out when placed in lockdown. And “[a]nti-

social, aggressive behavioral problems do not rise to the level of a strong risk of


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suicide.” 

(internal quotation marks omitted). Given

Sergeant Muse’s knowledge of Tammy’s behavior and mental health evaluation and

Kenneth’s state of mind, neither the relatives’ statements nor Tammy’s outburst

presented Sergeant Muse with a strong likelihood that Tammy would commit

suicide. See 

–66, 1269 (holding that an officer was not

deliberately indifferent when he observed a health screening of the inmate that did

not report any current suicidal ideation but he knew the inmate was taking

prescription medications, had attempted suicide in the past, and was crying and upset

at the time).

      Officer Brooks: Officer Brooks had no contact with Kenneth and had no

information about Tammy’s mental health status or her medical or arrest history. He

knew that Tammy had been put into lockdown and observed her screaming and

banging on her cell door for an hour. Though his view into Tammy’s cell was

limited, Officer Brooks saw that she was not harming herself while banging on the

door. Tammy then became quiet in her cell for about an hour, and Officer Brooks

had someone check on her. “There is no evidence that [Officer Brooks] suspected

that [Tammy] was suicidal.” See

      Captain Rice: The only evidence linking Captain Rice to Tammy is that a

relative told him at the time of her arrest in December 2015 and again in January

2016 that she posed a suicide risk. The relative did not elaborate on the risk or give


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any supporting information. Captain Rice knew that the jail had measures instituted

by healthcare professionals to screen inmates for mental health issues during the

booking process. And he did not talk with either Kenneth or Tammy while they

were incarcerated. The assertions of suicide risk here by a relative, unsupported by

any detail, show only a “mere possibility” of suicide. See

Rice also knew Tammy would be screened for mental health issues, he did not have

“notice of a strong likelihood . . . that the self-infliction of harm will occur.” See

brought a slightly different deliberate indifference

claim against Nurse Armenti. He alleged that she acted with deliberate indifference

by providing cursory medical care. The deliberate indifference analysis is the same

as that for prisoner suicides. See Goebert v. Lee Cnty., 

, 1327 (11th

Cir. 2007).

      Kenneth has not met his burden. He told Nurse Armenti that Tammy was a

suicide risk. But during a medical screening after Kenneth’s warning, Tammy told

Nurse Armenti that she had never considered or attempted suicide. And Tammy

appeared “sweet” to Nurse Armenti. Though Nurse Armenti knew about Tammy’s

previous suicide attempt, she also knew that attempt had occurred four years earlier.

During Tammy’s incarceration in 2015, she reported no thoughts of self-harm and

did not attempt suicide. Further, in January 2016, Tammy did not exhibit any signs

suggesting a risk of suicide, assault, or abnormal behavior. Even after Tammy


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refused to take her thyroid medication, Nurse Armenti testified that she did not think

Tammy was experiencing a mental health crisis, posed a danger to herself, or needed

to be observed. After Sergeant Muse placed Tammy on lockdown, Nurse Armenti

did not see her or hear her banging on her cell door. When she received word of

Tammy’s suicide, she acted as quickly as possible to access her cell, cut her down,

and perform CPR.

      Kenneth argues that his expert report provided evidence of deliberate

indifference. The expert opined that Nurse Armenti should have taken various

actions, such as a more probing mental health screening. But the report offers

nothing to show that Nurse Armenti had subjective knowledge of the risk that

Tammy would harm herself. The district court did not err in granting Nurse Armenti

summary judgment on the deliberate indifference claim.

                              Municipal liability claim

      Kenneth argues that the County and Sheriff Speed have responsibility for

Southern Health’s policy that led to inadequate medical care for Tammy because

Southern Health acted as the County’s final policymaker. The County and Sheriff

respond that sovereign immunity bars Kenneth’s claim as to the Sheriff, but that we

need not rule on sovereign immunity because the merits of his municipal liability

claim fail in any event. We agree.




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      “Because the Eleventh Amendment represents a constitutional limitation on

the federal judicial power established in Article III, federal courts lack jurisdiction

to entertain claims that are barred by the Eleventh Amendment.” McClendon v. Ga.

Dep’t of Cmty. Health, 

, 1257 (11th Cir. 2001) (citation omitted). But

“sovereign immunity can be waived, [so] our precedent allows us to ‘bypass’ the

threshold question whether an entity is entitled to sovereign immunity where it only

‘conditional[ly] assert[s]’ the defense.” Silberman v. Miami Dade Transit, 

, 1137 (11th Cir. 2019) (quoting 

). Because the

Sheriff and County urge us to affirm the district court’s decision without reaching

sovereign immunity, we examine the merits of Kenneth’s municipal liability claim.

      “A county is liable under [section] 1983 if one of its customs, practices, or

policies was the moving force behind a constitutional injury.” Grochowski v.

Clayton Cnty., 

, 1321 (11th Cir. 2020) (internal quotation marks

omitted). “[A] plaintiff must show: (1) that his constitutional rights were violated;

(2) that the municipality had a custom or policy that constituted deliberate

indifference to that constitutional right; and (3) that the policy or custom caused the

violation.” McDowell v. Brown, 

, 1289 (11th Cir. 2004). “A

plaintiff has two methods by which to establish a municipality’s policy: identify

either (1) an officially promulgated policy or (2) an unofficial custom or practice

shown through the repeated acts of a final policymaker for the municipality.”


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. City of Calhoun, 

, 1255 (11th Cir. 2018) (alterations

adopted).

      Here, Kenneth has not shown any underlying violation of Tammy’s

constitutional rights. That is dispositive of his claim for municipal liability. See

Knight ex rel. Kerr v. Miami-Dade Cnty., 

, 821 (11th Cir. 2017)

(affirming grant of summary judgment for a county and supervising officers because

“[t]here can be no policy-based liability . . . when there is no underlying

constitutional violation”).

      Even assuming that he has shown an underlying violation and that Southern

Health acted as the County’s final policymaker, Kenneth has not pointed to any

specific custom or policy that caused Tammy’s death. To the contrary, his expert

referenced applicable Southern Health policies but opined only that Nurse Armenti

had failed to follow these policies. That testimony forecloses any argument that

Southern Health had a policy that caused Tammy’s death. No causation exists when

the policies were not followed. See 

(“It is only when the

execution of the government’s policy or custom inflicts the injury that the

municipality may be held liable under section 1983.” (internal quotation marks

omitted; alterations adopted)). The district court did not err in granting summary

judgment for the County and Sheriff.




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                   Supplemental jurisdiction over state law claim

      Kenneth next contends that the district court abused its discretion when it

exercised supplemental jurisdiction over his state-law medical malpractice claim

after dismissing his federal claims. If a district court has original jurisdiction over

an action, it “shall have supplemental jurisdiction over all other claims that are so

related to claims in the action within such original jurisdiction that they form part of

the same case or controversy under Article III of the United States Constitution.” 28

U.S.C. § 1367(a). A district court, however, “may decline to exercise supplemental

jurisdiction” if one of four statutory requirements is met, including after “the district

court has dismissed all claims over which it has original jurisdiction.”

however, never raised the supplemental jurisdiction issue to the

district court and has therefore waived it. “[T]he district court is in the best position

to weigh the competing interests . . . in deciding whether it is appropriate to exercise

supplemental jurisdiction,” and it should have the chance to exercise its discretion

“in the first instance.” 

. Without the district court’s ruling

on the matter, “[i]t would be difficult for us to review the issue.”

we will not “overlook [Kenneth’s] failure to present [his section] 1367(c)

arguments to the district court.” See

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                         State-law medical malpractice claim

      Finally, Kenneth argues that the district court erred in finding no genuine

dispute of fact on the causation element of his medical malpractice claim. Kenneth

alleged that Nurse Armenti was negligent in her care of Tammy and Southern Health

had respondeat superior liability.

      “In order to prove medical malpractice in Georgia,” a plaintiff must show

“(1) the duty inherent in the health care provider-patient relationship; (2) breach of

that duty by failing to exercise the requisite degree of skill and care; and (3) that this

failure is the proximate cause of the injury sustained.” 

.

“In order to establish proximate cause by a preponderance of the evidence in a

medical malpractice action, the plaintiff must use expert testimony . . . .” Zwiren v.

Thompson, 

, 865 (Ga. 2003). “Instead of speaking in terms of

possibilities, the expert’s testimony must show as an evidentiary threshold that the

expert’s opinion regarding causation is based, at the least, on the determination that

there was a reasonable probability that the negligence caused the injury.”

omitted). “An expert may satisfy this requirement in one

of several ways, including testimony that the only apparent cause of the plaintiff’s

injury was the defendant’s action” or testimony that “based upon the expert’s

extensive experience in the field, that, in the absence of the alleged negligence, the




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patient’s condition could have been prevented from worsening.” Swint v. Alphonse,

, 317 (Ga. Ct. App. 2018) (internal quotation marks omitted).

      Here, Kenneth’s expert offers nothing more than the possibility that Nurse

Armenti proximately caused Tammy’s death. The expert testified generally that

Tammy’s death was preventable and that the County’s and Southern Health’s

policies were not followed. Those opinions do not show that Nurse Armenti caused

Tammy’s suicide. The expert does offer more specific opinions tied to Nurse

Armenti, including that she should have consulted the jail doctor given Tammy’s

history of mental illness, caused Tammy to run out of her medications by not

returning them when Tammy was released from jail in 2015, failed to notify jail staff

about Tammy’s special health needs, and delayed inappropriately in responding to

the suicide. These opinions go to Nurse Armenti’s negligence, but none of them

provide any testimony that there was a reasonable probability Nurse Armenti’s

purported failures caused Tammy’s death.

      Moreover, as the district court pointed out, the expert testified in his

deposition that Nurse Armenti’s actions did not cause Tammy’s suicide. He said

that, though Nurse Armenti caused Tammy to run out of her medication, she would

not have suffered withdrawal from her medications while incarcerated in January

2016. He also testified that a few extra doses of Tammy’s anti-depressant would not

have affected the outcome. Nurse Armenti’s mental health screening was deficient,


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said the expert, but it did “not proximately” cause Tammy’s suicide and a more

searching screening would “not necessarily” have indicated a suicide risk. The

expert thought it was “purely hypothetical” that Tammy would have been fine had

Nurse Armenti given her an extra blanket. And the expert could not conclude that

it was “more likely than not” that Nurse Armenti’s response to Tammy’s hanging

caused her to die. The district court did not err in granting summary judgment on

that basis. See Mann v. Taser Int’l, Inc., 

, 1304 (11th Cir. 2009)

(Under Georgia law “if the plaintiff medical expert cannot form an opinion with

sufficient certainty so as to make a medical judgment, there is nothing on the record

with which a jury can make a decision with sufficient certainty so as to make a legal

judgment.”). And because the evidence did not show that Nurse Armenti caused

Tammy’s death, Kenneth cannot hold Southern Health liable under a theory of

respondeat superior. See Trabue v. Atlanta Women’s Specialists, LLC, 

, 584 (Ga. Ct. App. 2019) (“[W]here a defendant employer’s liability is entirely

dependent on principles of vicarious liability, such as respondeat superior, . . . a

verdict exonerating the employee also exonerates the employer.”).

                                 CONCLUSION

      Deliberate indifference cases present “a difficult burden for a plaintiff to

meet,” 

, and Kenneth has not met it here. He failed to

establish a genuine issue of fact that any defendant had knowledge of a strong


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likelihood that Tammy would commit suicide. He also did not show a genuine

dispute that the County and Sheriff had an unconstitutional policy that caused

Tammy’s death or that Nurse Armenti’s negligence caused Tammy’s death. And he

never objected to the district court’s exercise of supplemental jurisdiction. For these

reasons, we affirm the district court’s grant of summary judgment.

      AFFIRMED.




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