UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT




                            No. 93-7192



RICHARD HARE, Natural Father and
Next Friend of Haley Hare, a Minor,
ET AL.,
                                                Plaintiffs-Appellees,


                              versus


CITY OF CORINTH, MS., a Municipal
Corporation, ET AL.,
                                                          Defendants,

FRED JOHNSON, ETC., BILLY BURNS, ETC.,
JAMES DAMONS, ETC., BRENDA MOORE, ETC.,
                                               Defendants-Appellants.




          Appeal from the United States District Court
            for the Northern District of Mississippi
                       ( October 13, 1994 )


                           ON REHEARING


Before POLITZ, Chief Judge, KING and DAVIS, Circuit Judges.



POLITZ, Chief Judge:

     The opinion of the court issued on June 10, 1994 is withdrawn

and the following is substituted.
       On appeal is the claim of qualified immunity by Officer Billy

Clyde Burns, Police Chief Fred Johnson, and police dispatchers

Brenda Moore and James Damons, all members of the police department

of Corinth, Mississippi, in this 42 U.S.C. § 1983 action arising

out of the suicide of Tina Hare in that city's jail.            Concluding

that   summary   judgment   was   inappropriate    because    of    disputed

questions of fact and, accordingly, that this appeal presents more

than a question of law, the appeal is dismissed.

                              Background

       On the morning of July 4, 1989, Tina Hare was arrested for

petty larceny and forgery and was incarcerated in the city jail in

Corinth,   Mississippi.     Richard     Hare   spoke   with   his   wife   by

telephone shortly after her arrest.       She sounded very frightened;

she had never before been in jail.

       At 10:00 a.m. Officer Burns interviewed Tina Hare and learned

of her addiction to dilaudid which she had been funding by forging

checks.    He observed that she was depressed and displayed signs of

withdrawal. Sitting in the fetal position she told Burns about her

thoughts of suicide the night before and her feelings of unfitness

as a mother.     When Burns left the room briefly she attempted to

destroy the videotape being used to record the interview.

       Around noon Tina Hare's parents arrived.        She was frantic and

begged her mother to get her out of jail.        Officer Burns was aware

of her emotional state and acknowledges that she told him that if

he put her back in the cell she would kill herself.           He says that

he did not take her seriously.      Her father did.      Burns refused to


                                    2
release Tina Hare ostensibly until he could get all the allegedly

forged checks and complete his investigation.             In addition, Burns

was displeased with her attempt to destroy the videotape.             Despite

the parents' pleas that their daughter be released on bond so that

they could take her to a scheduled appointment at a rehabilitation

center the next day, Burns decided that she would stay in jail that

night.     Burns gave the parents his assurance of their daughter's

safety.

     During oral argument counsel described pertinent aspects of

the Corinth city jail, its layout and operation.           The sole means of

supervision of the interior of the cells was by an audio monitor.

There were camera monitors but they viewed only the hallway of the

jail, affording no visual observations inside the cells. The cells

were located three floors above the dispatcher.                 Jail trusties

could go on each floor but they did not have keys to the cells.

Only the dispatcher had those keys but the dispatcher was not

allowed to leave the dispatcher's station while on duty.

     Burns stated that Chief Johnson instructed him to put Tina

Hare in an isolated cell nearest the camera monitors and trusty

station.    Chief Johnson denies that he designated the cell where

she was to be placed.        She previously had been strip-searched, and

when Burns put her in a cell he took her shoes and checked for a

belt.      Burns   saw   a   blanket   on   the   bunk   and   considered   the

possibility of its fatal use but concluded that Tina Hare did not

have sufficient strength to tear it into strips.




                                       3
     Burns told Moore, the dispatcher on duty, about Tina Hare's

withdrawal symptoms and her suicide threat and he told Moore to

keep an eye on her.   Burns mistakenly believed that Moore would be

on duty until 10:00 p.m.   In fact, at 5:00 p.m. Moore was replaced

by dispatcher Damons.    Moore says that she relayed to Damons the

information Burns had provided;   Damons denies this.

     Burns left the station sometime after 3:00 p.m.     At 6:00 p.m.

he called from his home to check on Tina Hare's condition.      Burns

told Damons to have the trusty check her every 45 minutes.     Damons

sent a trusty to Tina Hare's cell.       The trusty found her hanging

from the bars of her cell by a noose fashioned from strips of the

blanket.   The trusty had no key for the cell;        he immediately

notified Damons. Damons, in accordance with jail procedures, could

not leave his post.   He called Burns.    Tina Hare was left hanging.

From the summary judgment record before us we cannot determine

whether she was alive or dead when first found by the trusty.

Informed by Damons that Tina Hare was hanging in her cell, Burns

instructed Damons to leave her there until the State Investigator

arrived.

     Three and one-half months prior to Tina Hare's suicide another

prisoner had committed suicide in the Corinth city jail by hanging

himself with his belt.

     Richard Hare sued Burns, Johnson, Moore, and Damons in their

official and individual capacities as well as the City of Corinth,

Mayor Edward S. Bishop, former Mayor Jack Holt, and the City of

Corinth Board of Aldermen, alleging that the defendants' deliberate


                                  4
indifference to his wife's psychiatric needs violated 42 U.S.C.

§ 1983 and Mississippi's wrongful death statute.               After completion

of discovery both parties filed motions for summary judgment.                  The

district court granted defendants' motion with regard to the state

law claim but refused to grant Johnson, Burns, Moore, and Damons

summary judgment based on qualified immunity in their individual

capacities.1

                                        Analysis

     Burns, Johnson, Moore, and Damons maintain that the district

court        erred   in   not    granting   them   summary   judgment   in   their

individual capacities.2              When addressing the qualified immunity

issue we must first consider whether the asserted constitutional

injury involved a clearly established right at the time of the

unfortunate event.3             Thereafter we consider whether the defendants

acquitted their duty to detainee Tina Hare and are entitled to

summary judgment on the grounds of qualified immunity.



A. Clearly Established Constitutional Injury

     In reviewing the denial of a summary judgment motion based on

a claim of qualified immunity, the Supreme Court has taught that

the first inquiry is whether the plaintiff has asserted a violation

of a constitutional right.             If so, we must then determine whether

     1
        

.
         2
      See Mitchell v. Forsyth, 

, 

, 

(1985) (recognizing defendants' right to file an
interlocutory appeal upon denial of qualified immunity).
        3
         Johnston v. City of Houston, 

(5th Cir. 1994).

                                            5
that right was clearly established at the time the events took

place.4       Hare asserts that the defendants knew or should have known

from a previous suicide the danger of placing his wife in an

isolated cell where she could not be reached or rescued timely

because of the jail configuration and procedures.                     He further

asserts that by detaining his wife under these conditions, the

defendants acted with deliberate indifference to the possibility

that she would take her own life.              Although, as discussed later,

the   contours        of   the   right   are   somewhat   different    from    that

described        by    Hare,     Hare    has   asserted   a   violation       of   a

constitutional right.

       To be clearly established, the contours of the constitutional

right "must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right."5                 It is not

necessary that there be a case which is factually identical or

which holds the specific action at bar unlawful.                      Rather, the

unlawfulness of the action must be apparent in light of the

existing law.

      4
      Siegert v. Gilley, 

, 232, 

, 1793,

(1991) ("A necessary concomitant to the
determination of whether the constitutional right asserted by a
plaintiff is 'clearly established' at the time the defendant acted
is the determination of whether the plaintiff has asserted a
violation of a constitutional right at all."). Accord Samaad v.
City of Dallas, 

, 940 (5th Cir.1991) ("In Siegert, the
Court holds that a court addressing a claim of qualified immunity
should first consider 'whether the plaintiff asserted a violation
of a constitutional right at all' before reaching the possibly
unnecessary question of whether the plaintiff asserted a violation
of a 'clearly established' right.").
          5
      Anderson v. Creighton, 

, 640, 

,
3039, 

(1987).

                                           6
      In Estelle v. Gamble6 the Supreme Court held that the eighth

amendment prohibition against cruel and unusual punishment protects

convicted inmates against prison officials who act with deliberate

indifference to their serious medical needs.                However, in Bell v.

Wolfish7 the Court made clear that pretrial detainees are shielded

by a broader fourteenth amendment due process right to be free of

punishment. Under Wolfish, a condition of pretrial detainment does

not   constitute      punishment      if   it   is   reasonably     related   to   a

legitimate governmental objective.8

      In Partridge v. Two Unknown Police Officers of Houston,9 we

applied Wolfish to an action seeking to recover against jail

officials      for   the   wrongful    death    of   a   pretrial   detainee   who

committed suicide in the jail.             Noting that "[p]retrial detainees

are often entitled to greater protection than convicted persons,"

we held that "pretrial detainees are entitled to at least the level

of medical care set forth in Estelle."10             Because the plaintiff had

alleged conduct constituting deliberate indifference, we did not

consider whether breach of a lower standard would visit liability

on the defendants.

      6
          

, 

, 

(1976).
      7
     

, 

, 

(1979). See also
City of Revere v. Massachusetts General Hosp., 

, 

, 

(1983) (failure to provide medical care
to a prisoner being apprehended by the police can rise to the level
of a fourteenth amendment due process violation).
      

, 

, 60 L.Ed.2d at 468.
      9
          

(5th Cir. 1986).
      10
           

(internal quotation omitted).

                                           7
     In Cupit v. Jones,11 we considered the question left open in

Partridge -- precisely what duty the jail officials owe a pretrial

detainee in need of medical care.          We concluded that

     pretrial detainees are entitled to reasonable medical
     care unless the failure to supply that care is reasonably
     related to a legitimate governmental objective . . .
     [W]e believe [the distinction between the medical care
     owed to pretrial detainees and that owed to convicted
     prisoners] must be firmly and clearly established to
     guide district courts in their evaluation of future cases
     involving the constitutionality of all conditions imposed
     upon pretrial detainees.12

     Thus, when Tina Hare committed suicide in 1989, the jail

officials were under a clearly established constitutional duty to

provide pretrial detainees with reasonable care for serious medical

needs,     unless   the   deficiency   reasonably   served     a   legitimate

governmental objective.13 The defendants' reliance on Burns v. City

of Galveston14 to support their argument that they are entitled to

qualified immunity unless the plaintiff established deliberate

indifference is misplaced. Burns' suit was against a municipality,

not officers in their individual capacities.          Municipalities are

     11
          

(5th Cir. 1987).
     12
          

     13
      See Thomas v. Kipperman, 

(5th Cir. 1988); Van
Cleave v. United States, 

(5th Cir. 1988); Simpson v.
Hines, 

(5th Cir. 1990) (Cupit clearly established
reasonable medical care standard). Other courts of appeals have
chosen to apply the Estelle standard in the context of pretrial
detainees, rather than the reasonable medical care standard. See,
e.g., Ervin v. Busby, 

(8th Cir.), cert. denied, 

, 

(1993). However, a principle that has
been clearly established within this circuit does not lose its
status simply because other circuits disagree. Boddie v. City of
Columbus, Miss., 

(5th Cir. 1993).
     14
          

(5th Cir. 1990).

                                       8
only    liable      for    the     policies    and    customs     consciously     and

purposefully adopted.15



B. Summary Judgment

            We next examine whether the appellants are entitled to

summary judgment on their qualified immunity defense.16                       Summary

judgment is proper only if the movant demonstrates an absence of

genuine issues of material fact.17                   If disputed factual issues

material to qualified immunity exist summary judgment is not

appropriate.18

       The summary judgment record is replete with evidence that the

custodial       officers    knew    or   should   have    known   of   Tina    Hare's

vulnerability to suicide.            Her father heard and considered deadly

serious the same threat Burns heard and dismissed.                  Burns actually

heard additional threatening statements.                 Burns stated that Chief

Johnson instructed him to place the young woman in the cell nearest

the monitors and trusty station.               The chief denies this.           Burns

placed her in the cell and checked to see if she had a belt.                       He

saw the blanket on the bed, realized its potential deadly use, but

opted not to remove it based on his assessment of her lack of

strength to tear it into strips.                  He shared his concerns with

       15
            

       16
            Johnston v. City of Houston, 

(5th Cir. 1994).

       17
      Celotex Corp. v. Catrett, 

, 

, 

(1986).
       18
            Feagley v. Waddill, 

(5th Cir. 1989).

                                           9
dispatcher Moore and instructed her to keep an eye on Tina Hare and

to alert the trusties to do likewise.        These actions would be

consistent with a real and valid concern that the detainee might

attempt suicide, as was Burns' call to the station to inquire about

her condition shortly after arriving home.      Burns was under the

impression, when he left the jail just after 3:00 p.m., that Moore

would be the dispatcher until 10:00 p.m.    He was in error;   Damons

relieved Moore at 5:00 p.m.     As noted, Moore says she relayed

Burns' concerns and instructions;     Damons denies receipt of same.

     Hare faults the individual defendants for placing his wife,

who the officers knew was potentially suicidal, in an isolated cell

which was not visually monitored and which could not be reached by

the trusty or dispatcher on duty.    Because of the suicide three and

one-half months before, the custodial officers arguably knew that

if Tina Hare attempted suicide they could not meaningfully respond

to her needs, giving due consideration to the jail layout and the

practices and procedures in place.19     Nevertheless Tina Hare was

placed in the isolated cell and, after being discovered, she was

    19
      During oral argument counsel for the defendants argued that
these claims cannot be lodged against the defendants in their
individual capacities because they were following orders and
procedures. Whether the steps taken by the individual defendants
were pursuant to established policy is yet to be determined. The
Eighth Circuit addressed the argument posed by counsel in
Villanueva v. George, 

(8th Cir. 1981) (en banc),
holding that while officers may assert qualified immunity if they
were following orders, "if they knew or should have known that
their [failure to act was] violating the plaintiff's constitutional
rights, ... they may not hide behind the cloak of institutional
loyalty."    

     We agree with our Eighth Circuit
colleagues. It is for the jury to determine whether these officers
knowingly failed to remedy unconstitutional conditions of
confinement.

                                10
left    hanging      for     an   indeterminate       time.       It    is   for   the

trier-of-fact        to    determine    whether   under       these     circumstances

appellants denied Tina Hare reasonable medical care and, if so,

whether a legitimate governmental objective justified this denial.

At the very least a genuine factual dispute is presented which

renders       summary     judgment   inappropriate.           Because    this   appeal

presents more than a pure question of law the denial of summary

judgment       is   not    appealable   and    this   appeal     is,    accordingly,

DISMISSED.20




       20
            Mitchell; Johnston; Feagley.

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