United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 17-1198
                                  No. 17-1393
                          ___________________________

                                       A.H., et al.

                        lllllllllllllllllllll Plaintiffs - Appellants

                                             v.

                          St. Louis County, Missouri, et al.

                       lllllllllllllllllllll Defendants - Appellees

                          ___________________________

                     Appeals from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                              Submitted: January 9, 2018
                                 Filed: June 4, 2018
                                   ____________

Before LOKEN, BEAM, and KELLY, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       While confined at the St. Louis County Justice Center (the Jail), Jereme
Hartwig committed suicide by hanging himself with a bed sheet in his cell. Hartwig’s
three children and his mother (Plaintiffs) filed an action against St. Louis County; Dr.
Wendy Magnoli, the Jail’s clinical psychologist; corrections officer Lauren Abate;
and Herbert Bernsen, Director of the St. Louis County Department of Justice
Services. Plaintiffs asserted claims of Fourteenth Amendment violations under 42
U.S.C. § 1983; wrongful death under Missouri law, Mo. Rev. Stat. § 537.080; and
violations of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et seq.,
and the Rehabilitation Act (RA), 29 U.S.C. §§ 701, et seq. The district court1
dismissed the ADA and RA claims for lack of standing and subsequently denied
Plaintiffs’ untimely motion for leave to amend. Plaintiffs then filed a second action
against St. Louis County, asserting the ADA and RA claims. The district court
granted summary judgment dismissing Plaintiffs’ Fourteenth Amendment and
wrongful death claims in the first action. The district court2 then dismissed the ADA
and RA claims in the second action. Plaintiffs appeal these orders. We affirm.

                                I. Background

      A. Hartwig was arrested on a probation violation and confined at the Jail on
November 1, 2012. A nurse performed the initial medical screening when Hartwig
arrived; she recorded his “chief complaints” were asthma and depression, for which
he had received treatment, and “patient denies suicide” and use of alcohol and drugs.
The next day, a different nurse added a “Past Medical” note to Hartwig’s file: “Hx
of Suicide Attempt by Hanging, received treatment from St. John’s [Hospital].” A
week later, a third nurse examined Hartwig and reported he “denies current or past
suicidal ideations or attempts.”

      On December 11, Hartwig saw a nurse practitioner for an asthma follow up.
She reported no suicidal ideation or planning but referred him to the Jail’s mental


      1
        The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri, now retired.
      2
        The Honorable Catherine D. Perry, United States District Judge for the
Eastern District of Missouri.

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health services because of his previous suicide attempt. On January 14, 2013,
Hartwig saw psychiatrist Sadashiv Parwatikar. Dr. Parwatikar noted a normal affect
and that Hartwig did not display or report psychotic features, was well groomed, and
denied suicidal ideation, intent, or plan. Dr. Parwatikar noted Hartwig had received
medication for depression when he had trouble adjusting to incarceration, had a
history of substance abuse, and was facing charges for failure to pay child support.

      On January 28, Hartwig was visited by Savannah Cobb, the mother of his child,
who told him she was finished with their relationship. Upset, Hartwig hit himself in
the head with a phone receiver, inflicting a head wound. Later that day, he told a
physician’s assistant who treated the injury and a nurse that he hit his head
accidentally. Based on Cobb’s report, staff concluded he had injured himself and
confined Hartwig in the Jail’s infirmary. He was “visibly upset” with infirmary
confinement, said he was “just frustrated,” and insisted he was “not suicidal.” The
following morning, he saw an infirmary nurse and signed a release for medical
information from St. John’s and another hospital that treated two earlier suicide
episodes.3 Hartwig asked to see a “psych,” denied suicidal ideations, and said he
acted out of anger at his girlfriend.

       That day, Hartwig had his only contact with defendant Magnoli, a clinical
psychologist working for St. Louis County. Dr. Magnoli reviewed Hartwig’s medical
chart and interviewed him at the infirmary. Based on the chart and the interview, Dr.
Magnoli concluded Hartwig “appears to present a low risk of harm to self and others


      3
        The St. John’s Mercy Hospital records reflect that Hartwig was admitted on
September 1, 2011, after attempting to hang himself in his mother’s garage. His step
father cut him down and he recovered with medical treatment.

      A county jail has no “Eighth Amendment obligation to obtain medical records
from any county hospital in which its inmates have received past medical treatment.”
Hott v. Hennepin Cty., 

, 906 (8th Cir. 2001).

                                         -3-
at this time.” She placed him on “precautionary status” because of his prior suicide
attempts, discharged him from the infirmary, and referred him to a social worker for
follow up.

       At that time, St. Louis County’s Jail Suicide Prevention and Response Policy
(the Policy), classified potentially suicidal inmates. High risk and medium risk
inmates were confined in the infirmary. High risk inmates must be observed every
five to ten minutes and may not have bed sheets. Medium risk inmates must be
observed every fifteen minutes; they may have security blankets if they keep their
heads and necks exposed. Precautionary status inmates, the lowest risk classification,
were housed in the general population. They must have a cellmate, but the cellmate
need not be with the precautionary status inmate at all times. Corrections officers
made hourly “key tour” checks of precautionary status inmates during the first two
shifts each day, and every forty minutes overnight.

       After Dr. Magnoli’s interview, Hartwig returned to general population and was
housed with a cellmate. On February 5, defendant Abate was the corrections officer
on duty in Hartwig’s fifth floor housing area. She knew Hartwig was on
precautionary status and had injured himself with the phone receiver. She conducted
the hourly checks required by the Policy. Abate observed Hartwig making a phone
call and at dinner. During the 7:25 p.m. check, inmates were permitted to be out of
their cells for “day room” time. In her deposition, Abate did not “specifically recall
noticing” Hartwig during her checks; a subsequent affidavit averred that she noted
Hartwig alone in his cell during the 7:25 p.m. check. About fifty minutes later, Abate
unlocked Hartwig’s cell to let his cellmate enter. The cellmate told Abate that
Hartwig was hanging in the cell. Abate radioed for assistance, jail staff attempted to
revive Hartwig, and he was transported to the hospital, where he died six days later.

      As Director of the St. Louis County Department of Justice Services, defendant
Bernsen oversaw the operations of the Jail. In the five years prior to Hartwig’s

                                         -4-
suicide, there had been two suicides in which inmates in a segregation area hung
themselves with bed sheets. Neither had been identified as suicidal or placed on
suicide precaution. In response, the Jail made physical modifications to the eighth
floor segregation area and the infirmary to eliminate bed sheet “anchors” those
inmates used for their suicides. Hartwig was the first inmate on precautionary status
to commit suicide since the Jail opened in 1998. After his suicide, the Policy was
twice amended to prohibit leaving precautionary status inmates alone in their cells,
and to house them in cells close to the work station of a corrections officer.

       B. Plaintiffs filed the first action in December 2014. The district court
dismissed the ADA and RA claims in July 2015 because Plaintiffs did not sue on
behalf of Hartwig’s estate. They filed a First Amended Complaint in November 2015
on the last day to amend without leave under the court’s case management order.
They re-alleged ADA and RA violations by St. Louis County, falsely alleging they
were “concurrently filing in Missouri state court a Petition for Determination of
Heirship.” In December 2015, the district court dismissed the ADA and RA claims
because Plaintiffs had not been determined to be the heirs to Hartwig’s estate. In
January 2016, Plaintiffs filed an heirship petition, which the probate court granted in
April 2016. Plaintiffs then filed a motion for leave to file a Second Amended
Complaint re-alleging the ADA and RA claims. The district court denied the motion,
concluding that Plaintiffs could not show good cause because they had not been
diligent in meeting case management order deadlines, and that allowing the
amendment would prejudice the defendants.

       Plaintiffs then filed the second action asserting the same ADA and RA claims.
St. Louis County moved to dismiss, arguing Plaintiffs impermissibly split their causes
of action and the complaint failed to state a claim. The district court stayed the action
pending the outcome of the first case. In January 2017, the district court granted
defendants summary judgment in the first case. The court then granted the County’s



                                          -5-
motion and dismissed the ADA and RA claims in the second case “for the reasons set
out in the motion and supporting memoranda.” These consolidated appeals followed.

                      II. Constitutional Claims under § 1983

       Plaintiffs allege the individual defendants and St. Louis County violated the
Fourteenth Amendment rights of Hartwig, a pretrial detainee, when they failed to
protect him from a known risk of harm, that he presented a substantial risk of suicide.
“[T]he Eighth Amendment prohibition on cruel and unusual punishment extends to
protect prisoners from deliberate indifference to serious medical needs,” including the
risk of suicide. Gregoire v. Class, 

, 417 (8th Cir. 2000). Deliberate
indifference is “akin to criminal recklessness,” something more than mere negligence;
a plaintiff must show that a prison official “actually knew that the inmate faced a
substantial risk of serious harm” and did not respond reasonably to that risk. Drake
ex rel. Cotton v. Koss, 

, 1042 (8th Cir. 2006); see Farmer v. Brennan,

, 836-37, 844-45 (1994). “[P]retrial detainees are entitled to at least as
great protection as that afforded convicted prisoners under the Eighth Amendment.”
Luckert v. Dodge Cty., 

, 817 (8th Cir. 2012) (quotation omitted), cert.
denied, 

(2013).

        The district court ruled (i) that Plaintiffs failed to show that any defendant was
deliberately indifferent to a substantial risk that Hartwig would commit suicide, and
(ii) that the individual defendants were entitled to qualified immunity, which protects
“government officials performing discretionary functions . . . from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 

, 818 (1982). Plaintiffs challenge both conclusions on
appeal. We review a district court’s grant of summary judgment de novo, viewing the
evidence in the light most favorable to the nonmoving party. 

.



                                           -6-
As we agree with the district court that Plaintiffs failed to prove a violation of
Hartwig’s Fourteenth Amendment rights, we need not address qualified immunity.

       A. Clinical Psychologist Magnoli. Plaintiffs argue Dr. Magnoli was
deliberately indifferent to the known risk of suicide when she placed Hartwig on
precautionary status and discharged him from the infirmary. Dr. Magnoli knew from
her interview and review of Hartwig’s medical chart that he had several “historical”
and “situational” risk factors for suicide -- a previous suicide attempt, history of drug
use and depression, financial and legal problems, and a relationship strain that led to
self-injury with the telephone receiver. She knew Hartwig lied to Jail staff in denying
a past suicide attempt and the self-inflicted injury, and that inmates commonly lied
to avoid being placed in the infirmary.

       Dr. Magnoli testified that Hartwig denied suicidal ideation during the
interview, did not present any outward signs of depression, and lacked indicators of
suicide risk such as psychotic behavior, poor grooming, or lack of alertness or eye
contact. Hartwig’s chart also recorded that he had denied suicide ideations or plans
to multiple medical professionals. Taking Hartwig’s risk factors into account,
Magnoli determined that he presented a low risk of harm to himself but that his prior
suicide attempt warranted placing him on precautionary status and referring him to
a social worker for follow up. This exercise of professional judgment, even if
negligent, falls well short of deliberate indifference. See 

;
Minix v. Canarecci, 

, 833 (7th Cir. 2010). “[W]here suicidal tendencies
are discovered and preventive measures taken, the question is only whether the
measures taken were so inadequate as to be deliberately indifferent to the risk. The
suicide is not probative of that question.” Rellergert v. Cape Girardeau Cty., 

, 796 (8th Cir. 1991).

      B. Corrections Officer Abate. Plaintiffs argue corrections officer Abate was
deliberately indifferent to Hartwig’s risk of suicide because she knew he had been

                                          -7-
placed on precautionary status and had injured himself with the telephone receiver but
“completely failed to monitor Hartwig.” The district court ruled that Abate was
entitled to judgment as a matter of law because “[t]he evidence establishes that Abate
conducted hourly checks on inmates, including Mr. Hartwig, as required by the jail’s
suicide prevention policy.” On appeal, Plaintiffs only challenge to this ruling is to
note that Abate testified she did not “specifically recall noticing” Hartwig in his cell
during the hourly checks and did not speak to Hartwig on the day he committed
suicide. Abate’s failure to recall the details of her monitoring at a deposition three
years later does not create a genuine issue that she failed to conduct the hourly
monitoring, much less that she was deliberately indifferent to Hartwig’s risk of
suicide. See Yellow Horse v. Pennington Cty., 

, 927-28 (8th Cir. 2000).
Deliberate indifference requires proof of criminal recklessness.

        C. Director Bernsen and St. Louis County. Director Bernsen had no
personal involvement with any decision relating to detainee Hartwig, but he was the
Jail’s final policymaker. In an action under § 1983, a municipality such as St. Louis
County and its supervisor cannot be liable on a respondeat superior theory, but can
be held liable if a constitutional violation resulted from a municipal policy or custom.
See Liebe v. Norton, 

, 578-79 (8th Cir. 1998). That liability attaches in
two situations, where a municipal policy is itself unconstitutional, and where the
municipality’s deliberate indifference to the need to train and supervise its employees
causes an employee to violate a third party’s constitutional rights. See City of Canton
v. Harris, 

, 386-90 (1989).

       Failure to train claims are more common, and Plaintiffs argue on appeal that
Bernsen and the County should be liable for failure to train and supervise the Jail’s
staff. But that claim fails because we agree with the district court that no County
employee was guilty of violating Hartwig’s constitutional rights. See Gibson v.
Cook, 

, 817 (8th Cir. 2014). Thus, the issues remaining on appeal are
whether the Policy itself violated Hartwig’s constitutional right to be protected from

                                          -8-
suicide and, if so, whether Bernsen was personally involved in that unconstitutional
policymaking. See Webb v. City of Maplewood, 

(8th Cir. 2018). The
Supreme Court has provided the standard under which these claims must be
reviewed:

             Where a plaintiff claims that a particular municipal action itself
      violates federal law, or directs an employee to do so, resolving . . . issues
      of fault and causation is straightforward. Section 1983 itself contains no
      state-of-mind requirement independent of that necessary to state a
      violation of the underlying federal right. In any § 1983 suit, however,
      the plaintiff must establish the state of mind required to prove the
      underlying violation.

Bd. of Cty. Comm’rs v. Brown, 

, 404-05 (1997). Here, Plaintiffs must
show that the Policy itself reflects deliberate indifference of the County and Bernsen
to the risk of inmate or detainee suicide that was the “moving force” behind the
violation of Hartwig’s rights. 

; see Jenkins v. Cty. of
Hennepin, 

, 633-34 (8th Cir. 2009).

       At the time of Hartwig’s suicide, the Policy required incoming inmates to be
screened for suicidal ideations, plans, and behavior. It classified inmates into
different risk tiers and mandated successively more stringent precautions for each tier.
Inmates on precautionary status were required to be housed with a cellmate, were to
have their status evaluated at least every three weeks by a member of the mental
health team, and were to be moved to the jail infirmary if required to be transferred
out of regular housing for disciplinary reasons. The Policy detailed extensive
procedures for handling potentially suicidal detainees and mandated annual employee
training. In response to two prior suicides, the Jail removed shelves and modified
vents in the segregation area and infirmary that the inmates had used as anchors.




                                          -9-
       Pointing to the two previous suicides in the segregation area and twenty-two
attempted suicides between May 2008 and February 2013, Plaintiffs argue St. Louis
County was deliberately indifferent because the Policy allowed inmates on
precautionary status to be alone in their cells, permitted them to have bed sheets, and
did not require them to be monitored more than the inmate population at large when
in general housing. Prior cases foreclose this line of attack. A municipal policy
“cannot be both an effort to prevent suicides and, at the same time, deliberately
indifferent to suicides.” 

; see 

(“Indifference is apathy or unconcern. The policy demonstrates the opposite . . .
concern that inmates not commit suicide.”); Yellow 

. As
the district court noted, attempted suicides are not evidence of deliberate indifference.
If anything, they show the Policy was effective in avoiding the unfortunate reality of
inmate or detainee suicide.

      For these reasons, we conclude the district court properly granted all
defendants summary judgment dismissing Plaintiffs’ § 1983 claims.

                       III. Missouri Wrongful Death Claim

       The court determined the wrongful death claims are barred by sovereign
immunity with respect to St. Louis County and by official immunity with respect to
the individual defendants, except to the extent that corrections officer Abate non-
negligently performed a ministerial duty in monitoring Hartwig. Under Missouri law,
absent bad faith or malice, which requires proof of intent to injure, public officials are
entitled to official immunity from suit for discretionary acts or omissions undertaken
within the scope of their authority, but can be held liable “for torts committed when
acting in a ministerial capacity.” State ex rel. Twiehaus v. Adolf, 

,
444, 446-47 (Mo. 1986) (quotation omitted). On appeal, Plaintiffs argue the district
court erred in granting summary judgment in favor of Abate because there was



                                          -10-
sufficient evidence she was negligent in checking Hartwig’s cell on her hourly
rounds. We review this issue de novo. 

.

       Defendants concede that Abate acted in a ministerial capacity in monitoring
Hartwig, a precautionary status inmate, in accordance with the Policy’s cell check
requirements. The Policy required performance of checks “upon a given state of facts,
in a prescribed manner, in obedience to the mandate of legal authority, without regard
to [her] own judgment or opinion concerning the propriety of the act to be
performed.” Southers v. City of Farmington, 

, 610 (Mo. 2008)
(quotation omitted). Abate can be liable if she negligently breached this ministerial
duty. See 

; Stephens v. Dunn, 

, 250 (Mo.
App. 2014). Based on deposition testimony that Abate did not “specifically recall
noticing” Hartwig when she conducted her cell checks, Plaintiffs argue Abate
negligently “glanced” in the cells rather than “checking” them. But Plaintiffs do not
dispute that Abate performed her ministerial duty of conducting hourly checks
required by the Policy. At the last check before Hartwig hung himself, Abate noted
he was in his cell at a time when many other inmates, including Hartwig’s cellmate,
were not. Whether Abate should have taken action because of that circumstance
required an exercise of her discretion that is shielded by official immunity.

                             IV. ADA and RA Claims

       Plaintiffs argue the district court erred in denying leave to file a second
amended complaint updating their ADA and RA claims in the first action and in
dismissing these claims in the second action. We first address the dismissal of these
claims on the merits. Like the district court, we conclude Plaintiffs’ ADA and RA
allegations failed to state a claim.

     Improper medical treatment claims may not be brought under the ADA or RA.
See Shelton v. Ark. Dep’t of Human Servs., 

, 843 (8th Cir. 2012);

                                        -11-
Burger v. Bloomberg, 

, 883 (8th Cir. 2005). “We have generally treated
allegations that officials failed to prevent jail suicides as claims for failure to provide
adequate medical treatment.” 

. Plaintiffs contend their
complaint alleges discrimination “based on social, educational, recreational, religious
and safety accommodations, not medical treatment decisions.” But the complaint
alleges Hartwig could have enjoyed various benefits of jail life but for “a lack of
treatment and adequate supervision” and states he was not given appropriate
medication, protection from hazards, and security monitoring that would have
prevented him from committing suicide. These allegations are, in essence, claims of
inadequate medical treatment indistinguishable from the claims we held could not be
brought under the ADA or RA in 

n.2, 843. The district court
properly dismissed the complaint in the second action.

       The district court’s denial of leave to amend in the first action is reviewed for
abuse of discretion. United States ex rel. Roop v. Hypoguard USA, Inc., 

, 822 (8th Cir. 2009). Plaintiffs’ motion was filed in April 2016, months after the
November 2015 deadline in the district court’s case management order. Therefore,
good cause was required to excuse non-compliance. See Fed. R. Civ. P. 16(b);
Sherman v. Winco Fireworks, Inc., 

, 714-16 (8th Cir. 2008). Plaintiffs
attack the district court’s conclusions that Plaintiffs were not diligent and defendants
would be prejudiced by untimely addition of ADA and RA claims. We conclude we
need not address these issues. The ADA and RA claims in Plaintiffs’ proposed
Second Amended Complaint are identical to the claims they asserted in the second
action. We have affirmed dismissal of the second action on the merits. Thus, adding
these claims to the first action would have been futile. Futility is always a basis to
deny leave to file an amended complaint. See, e.g., 

.

       The judgments of the district court are affirmed.
                      ______________________________



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