Karla Olson v. Thomas Hauglin , 339 F.3d 730 ( 2003 )


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  •                    United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 02-1874
    ___________
    Karla Olson, as Special Administrator *
    of the Estate of Jeremy J. Gacek,     *
    Deceased,                             *
    *
    Plaintiff - Appellee,          *
    *
    v.                             *
    *
    Jeffrey Bloomberg; Keith Ditmanson; *
    Kenneth Hemenway,                     *
    * Appeal from the United States
    Defendants,                    * District Court for the
    * District of South Dakota.
    Thomas Hauglin,                       *
    *
    Defendant - Appellant,         *
    *
    Steven Lee; Douglas Weber; Captain *
    Jeff L. Snyder; Captain Greg Knutson; *
    Owen Spurrell; Pete Norris; Dennis    *
    Block; Robert Kuemper,                *
    *
    Defendants.                    *
    ___________
    Submitted: December 11, 2002
    Filed: August 11, 2003
    ___________
    Before McMILLIAN, JOHN R. GIBSON, and BYE, Circuit Judges.
    ___________
    JOHN R. GIBSON, Circuit Judge.
    Thomas Hauglin appeals the district court's order denying him summary
    judgment on qualified immunity grounds in this 
    42 U.S.C. § 1983
     action filed against
    him in his individual capacity. Karla Olson filed this action on behalf of her son,
    Jeremy Gacek, who committed suicide while in the South Dakota State Penitentiary;
    she alleges that prison officials were deliberately indifferent to Gacek's serious
    medical needs in violation of the Eighth Amendment's prohibition against cruel and
    unusual punishment. The district court granted summary judgment to eleven of
    twelve prison officials in this case, but found that there was a dispute as to the
    predicate facts surrounding Hauglin's actions during a fifteen to twenty-five minute
    period after Gacek informed Hauglin that he was going to commit suicide. Hauglin
    argues that he tried to convince Gacek not to commit suicide and alerted another
    guard to call a code red, that this conduct did not constitute deliberate indifference,
    and that therefore, he was entitled to qualified immunity. Based upon 
    28 U.S.C. § 1291
     and the collateral order doctrine, we have jurisdiction over this appeal of the
    district court's denial of summary judgment on qualified immunity grounds. We
    affirm the district court's order.
    In reviewing this denial of summary judgment, we view the facts in the light
    most favorable to the non-moving party, Karla Olson, as special administrator of
    Jeremy Gacek's estate. Jeremy Gacek committed suicide on March 4, 1998, while
    incarcerated in the Special Housing Unit of the South Dakota State Penitentiary in
    Sioux Falls, South Dakota. The guards on duty in the Special Housing Unit during
    the afternoon of Gacek's death included correctional officers Thomas Hauglin and
    Vern Bormann and senior correctional officer Greg Knutson. In the Special Housing
    Unit, inmates are continuously confined in their cells except for a period of forty-five
    minutes for recreation period, commonly referred to as "rec," which they may take
    once a day, five days a week. During rec, inmates are allowed to take a shower, walk
    -2-
    around the tier, and talk with other inmates who are in their cells. A maximum of two
    inmates are allowed to be out of their cells during the same rec period. Inmates who
    are on "status" (i.e. those who have committed disciplinary violations resulting in a
    forced cell entry within the past year) are only allowed to take their rec until 3:30 p.m.
    because there are fewer correctional officers on duty after that time. If an inmate is
    not released from his cell by 2:45 p.m., he will often not receive his rec period and
    consequently will not take a shower that day.
    At approximately 3 p.m., Jeremy Gacek asked Bormann and Hauglin if he
    could receive his rec period because he wanted to take a shower. Gacek told
    Bormann that if he was released from his cell, he was going to take the full rec period
    until 3:45 p.m. Because of previous disciplinary violations, Gacek was "on status,"
    and therefore, was not allowed to be out of his cell after 3:30 p.m. Bormann spoke
    with Captain Kenneth Hemenway, who directed that Gacek not be given his rec
    period that day. Both Gacek and his rec partner, inmate Chris Hill, were upset that
    they did not receive their rec and told their guards that if they did not receive their
    rec, they would refuse to give their trays back at supper, which would result in a
    forced cell entry to remove the trays. Hauglin and Bormann contacted Hemenway
    about Gacek and Hill's threats to not give back their trays. Hemenway told Hauglin
    and Bormann to give the inmates sack lunches which are served without trays or
    utensils. When the sack lunches were served, Gacek became verbally abusive and
    threw water on Hauglin and Bormann through the food port. Bormann later issued
    a write-up for Gacek's behavior.
    Sometime between 4:00 p.m. and 4:30 p.m., Gacek and Hill obtained plastic
    spoons from fellow inmates and told Hauglin that they had spoons and would not give
    them up. Gacek then asked whether the cell entry team, referred to as the "goon
    squad," was coming to retrieve the spoon. Hauglin told Bormann that Gacek and Hill
    had spoons, and Captain Jeffrey Snyder was contacted about how to deal with this
    problem. Snyder called Associate Warden Owen Spurrell, who decided that because
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    Gacek was not harming himself or threatening to harm others with the spoon, the
    forced cell entry could wait until the following morning when there would be a larger
    number of officers available.
    At approximately 5:30 p.m., Hauglin told Gacek that he would not be
    assembling a cell entry team to remove the spoon from Gacek's cell. Gacek was upset
    that the cell entry team was not being put together. Hauglin left the walk behind the
    cells, and Gacek continued to push his emergency call button. Bormann went home
    to change his clothes at 5:50 p.m.
    The district court found that the record contained disputes of material fact
    regarding Hauglin's actions between 5:50 p.m. and the time the code red was called
    at 6:17 p.m. Hauglin described these events in a report written the night of Gacek's
    suicide and in a deposition taken two years later. In his written report, Hauglin
    stated:
    At 5:50 Officer Feterl Arrived to relive [sic] Officer Bormann so he
    could go change cloths [sic]. I took Officer Feterl with me to pick up
    trays. I told him to stay off the tier on upper west but stand just outside
    the door to the tier. I entered the tier and picked up trays without
    incident! At Aprox 6:10pm Inmate Gacek J pushed his call light. I went
    to the back of his cell and he asked me if the goon squad was on thier
    [sic] way I told him no. He then said what is it going to take to get the
    goon squad, I said I didn't know. He then said what it doesnt [sic]
    matter that we slimed you guys, flooded and will not give up our spoons.
    I told him I did not know what was going to happen. He then told me
    he was going to get his shower one way or another, he then asked me if
    I could get him a shower. I told him I could not make that decision.
    Inmate Gacek, J then started to take his orange pants off and said fine I
    am just going to hang myself. I told Inmate Gacek J not to be stupid, his
    reply was fuck it. He was tying his pant legs into a slip knot. He said
    he was going to tie one end to his bed and tie his feet to the door. I told
    Inmate Gacek if he wanted to take on the goon squad that much just give
    me two minutes and I would go make a call to the Captin [sic] and tell
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    him that Inmate Gacek J was threating [sic] to hang himself. I told
    Gacek J that I would come back and O.C [sic] him and he could take the
    goon squad on then if he wanted to. He said no fuck it. As soon as you
    walk away I am going to hang myself and if I do get it done it will be
    your fuckers fault for fucking me out of my rec.
    At this time Inmate Gacek J walked to his door and said good bye
    to Inmate Hill C and some others that I could not hear. The whole time
    I was talking to him he was tying his pants to his bed and a towel to his
    door. He then walked away from his door and said he was was [sic]
    going to do it. He started to move the slip knot end of his pants twords
    [sic] his head. At this time I ran off the cat walk and told Officer
    Bormann to call a code Red, that Inmate Gacek J. was hanging himself.
    Aprox Time code red was called was 6:17 pm.
    Hauglin reaffirmed much of this initial account in his later deposition
    testimony.1 Thus, according to Hauglin, he tried to talk Gacek out of committing
    suicide between 6:10 p.m. and 6:17 p.m., and when Gacek tied his pants into a knot
    and put them over his head, Hauglin ran from the catwalk and told Bormann to call
    a code red.2
    A number of inmates provided testimony which conflicted with Hauglin's
    account of events. Harold Kilbourn, an inmate in the Special Housing Unit, heard
    Gacek say that he was going to hang it up and remembered Hauglin responding to
    1
    In the deposition, Hauglin stated that "from the time he [Gacek] mentioned it
    [suicide] until he actually started slipping the pants around his neck, I was talking to
    him, trying to talk him out of it." He estimated that this was between fifteen and
    twenty five minutes. When asked whether Gacek appeared serious about his threat,
    Hauglin responded: "I really couldn't say. I mean, at that time he did, and other times
    he'd just be off and we'd be talking about something totally off the wall that didn't
    have nothing to do with anything."
    2
    Bormann wrote in his informational report that he returned to the Special
    Housing Unit at 6:10 p.m. and that Hauglin was back on the catwalk at that time.
    According to Bormann, Hauglin ran off of the catwalk at 6:17 p.m. and told Bormann
    to call a code red because Gacek was attempting to hang himself.
    -5-
    Gacek, "[Y]ou do what you got to do and I'll do what I got to do." Kelly Brand also
    recalled: "I did hear somebody back there say, do what you got to do. And I don't
    know which guard that said that." Kilbourn testified that he heard Hauglin walk
    down the catwalk and heard a door shut. Dan Cady, another inmate and friend of
    Gacek's, remembered Hauglin telling Gacek something to the effect of "let me go call
    somebody. Let me talk to somebody. I'll be right back." Cady claimed that this
    conversation occurred at approximately 5:50 or 5:55 p.m. and that Hauglin
    subsequently left the catwalk.3 Inmate Chris Hill, who was in the cell next to Gacek's,
    testified that Gacek told Hauglin he was "going to hang it up" and that Hauglin told
    Gacek: "[W]ell, come on Gacek. Just give me a minute. I'll be right back. Give me
    a minute and let me call somebody. I'll be right back." According to Hill, Gacek
    said, "[W]hen you come back I'll probably be hanged up." Hill stated that Hauglin
    then left the catwalk. Hill and three other inmates, Kelly Brand, Kurt Angelone, and
    Anthony Salinas, all recounted that shortly after Hauglin left, Gacek stopped
    responding to their questions and that they began pushing their emergency buttons,
    banging on their doors, and yelling for the guards. This occurred for some period of
    time between fifteen and twenty-five minutes before any of the guards appeared.4
    According to Hill, the guards were not responsive to their calls for help:
    Nobody even came on the catwalk. I got up there, started yelling.
    Everybody in that pod was yelling, screaming, get somebody back here.
    Got somebody hanging. Gacek is hanging. Get somebody back here
    now.
    I pushed my button. Same thing. Went off the same way. They
    never came back. It shut off and they never – they never came back.
    3
    Cady also estimated that the officers returned to the catwalk at 6:27 p.m. and
    entered Gacek's cell at 6:42 p.m. These estimates differed from the time recorded on
    the videotape filed by the plaintiffs which showed the officers standing on the
    catwalk at 6:25 p.m. and entering the cell at 6:28 p.m.
    4
    The time that it takes to commit suicide by strangulation is between four and
    six minutes. At least four of the defendants, though not Hauglin, testified that they
    were aware a person can die by strangulation in four to ten minutes.
    -6-
    You know what their response was? Their response was, we couldn't
    hear you the guys?
    After Hauglin and Bormann called the code red, they began preparing for a cell
    entry. A videotape of the cell entry, filed by the plaintiff, shows the events from 6:25
    p.m. to 6:49 p.m. At 6:28 p.m., the cell was opened and a guard carrying a body
    shield entered the cell followed by Captain Snyder and several other officers.
    Members of the fire department arrived at 6:40 p.m., and the paramedics arrived at
    6:49 p.m. Gacek did not respond to any of the resuscitation attempts and was
    pronounced dead at approximately 7:20 p.m.
    I.
    Ordinarily, a denial of summary judgment is not a "final" decision and is
    therefore not immediately appealable. See 
    28 U.S.C. § 1291
    ; Pace v. City of Des
    Moines, 
    201 F.3d 1050
    , 1052 (8th Cir. 2000). However, the Supreme Court has
    recognized that the question of qualified immunity (i.e. whether the facts alleged
    support a claim of violation of clearly established law) is separate from the merits of
    the underlying action for purposes of the collateral order doctrine. Mitchell v.
    Forsyth, 
    472 U.S. 511
    , 528-29 (1985). Therefore, "a district court's denial of a claim
    of qualified immunity, to the extent it turns on an issue of law, is an appealable 'final
    decision' within the meaning of 
    28 U.S.C. § 1291
     notwithstanding the absence of a
    final judgment." 
    Id. at 530
    .5
    5
    Qualified immunity is not a mere defense to liability, but instead an
    entitlement not to stand trial under certain circumstances. Because of the many costs
    associated with subjecting officials to the risks of trial, see generally Harlow v.
    Fitzgerald, 
    457 U.S. 800
    , 816-17 (1982), the Supreme Court has repeatedly stressed
    the importance of resolving immunity questions at the earliest possible stage in
    litigation. See Hunter v. Bryant, 
    502 U.S. 224
    , 227 (1991) (citations omitted).
    -7-
    A government official is shielded by qualified immunity from suit for damages
    if a reasonable official could have believed his or her conduct to be lawful, in light
    of clearly established law and the information possessed by the official. See
    Anderson v. Creighton, 
    483 U.S. 635
    , 641 (1987). "Whether a given set of facts
    entitles the official to summary judgment on qualified immunity grounds is a question
    of law. But if there is a genuine dispute concerning predicate facts material to the
    qualified immunity issue, there can be no summary judgment." Greiner v. City of
    Champlin, 
    27 F.3d 1346
    , 1352 (8th Cir. 1994) (citations omitted).
    II.
    A prisoner's Eighth Amendment rights are violated if prison officials show
    "deliberate indifference" to the prisoner's "serious medical needs." Estelle v. Gamble,
    
    429 U.S. 97
    , 106 (1976). Section 1983 claims arising out of inmate suicide cases
    have been analyzed in terms of prison officials' failure to provide appropriate medical
    care, so "'deliberate indifference has become the barometer' by which these claims are
    tested." Bell v. Stigers, 
    937 F.2d 1340
    , 1343 (8th Cir. 1991) (quoting Popham v. City
    of Talladega, 
    908 F.2d 1561
    , 1563 (11th Cir. 1990)). A prison official may be held
    liable under the Eighth Amendment for deliberate indifference only if he or she (1)
    knows that the inmate faces "a substantial risk of serious harm" and (2) "fail[s] to take
    reasonable measures" to abate that risk. Farmer v. Brennan, 
    511 U.S. 825
    , 847
    (1994).6
    6
    We have observed that deliberate indifference claims against prison officials
    in inmate suicide cases have arisen under two factual circumstances. See Rellergert
    v. Cape Girardeau County, 
    924 F.2d 794
    , 796 (8th Cir. 1991). First, there have been
    deliberate indifference claims in which the jailers allegedly failed to discover the
    inmate's suicidal tendencies. See, e.g., Hott v. Hennepin County, 
    260 F.3d 901
    , 905-
    06 (8th Cir. 2001). Second, there have been deliberate indifference claims where
    jailers knew about suicidal tendencies but allegedly failed to take reasonable
    preventive measures. See, e.g., Yellow Horse v. Pennington County, 
    225 F.3d 923
    ,
    927 (8th Cir. 2000). Olson's claim would likely be classified in the latter category.
    -8-
    According to the district court, there were three questions of disputed fact
    which, if resolved in Olson's favor, would serve as evidence of deliberate indifference
    and preclude Hauglin from being entitled to qualified immunity. First, after Gacek
    said he was going to "hang it up," there was a dispute as to whether Hauglin
    responded: "[Y]ou do what you got to do and I'll do what I got to do." Second, there
    was conflicting testimony as to whether Hauglin left the catwalk for a period of
    fifteen to twenty-five minutes after Gacek told him he intended to commit suicide.
    Third, there was a dispute as to whether or not Hauglin returned to the catwalk after
    numerous inmates began pressing their emergency buttons and yelling for someone
    to help Gacek before he hanged himself.
    Hauglin claims that the district court's decision is inconsistent with our
    decision in Gregoire v. Class, 
    236 F.3d 413
     (8th Cir. 2000). In Gregoire, 
    236 F.3d at 415
    , the estate of inmate George Bouska sued prison officials for deliberate
    indifference in failing to prevent Bouska's suicide. The plaintiff alleged that Butch
    Joffer, the case manager in Bouska's cell block, showed deliberate indifference by not
    checking on Bouska until approximately forty minutes after Joffer received notice of
    Bouska's intent to commit suicide.7 
    Id. at 416
    . Addressing Joffer's conduct, we
    observed:
    In evaluating an official's response to a known suicide risk, we should
    be cognizant of how serious the official knows the risk to be. Our cases
    indicate that a single phone call to an official who has no other reason
    7
    Bouska's ex-wife had called Joffer at 12:19 p.m. and told him that a few
    minutes earlier, Bouska had called her and said he was going to kill himself.
    Gregoire, 
    236 F.3d at 416
    . She asked Joffer to check on Bouska and reassure him
    that she would not prevent Bouska from seeing his daughters. 
    Id.
     After hanging up
    the phone, Joffer wrote out a brief report, pulled Bouska's case file and read it, and
    spoke with several inmates who stopped by his office. 
    Id.
     Joffer then paged Bouska
    at 1:05 p.m. asking him to come to his office. At 1:12 p.m., Bouska's cell mate
    returned to the cell and found that Bouska had hanged himself. 
    Id.
    -9-
    to think an inmate is a suicide risk, most likely does not create a strong
    likelihood that infliction of self-harm will result.
    
    Id.
     at 418 (citing Bell v. Stigers, 
    937 F.2d at 1344
    ; Lambert v. City of Dumas, 
    187 F.3d 931
    , 938 (8th Cir. 1999)). We emphasized that deliberate indifference is akin
    to criminal recklessness, which demands more than negligent misconduct. See
    Gregoire, 
    236 F.3d at 419
     ("we cannot characterize Joffer's subsequent actions as
    deliberately indifferent. They are at most negligent."); see also Rellergert v. Cape
    Girardeau County, 
    924 F.2d 794
    , 797-98 (8th Cir. 1991) ("the jury might reasonably
    conclude that [jailor] Bedell acted imprudently, wrongly, or negligently. However,
    as a matter of law, we conclude that this evidence cannot permit the conclusion that
    Bedell acted with deliberate indifference."); Williams v. Kelso, 
    201 F.3d 1060
    , 1065
    (8th Cir. 2000) ("At best, plaintiff's proof in this appeal amounts to negligent conduct,
    not deliberate or willful conduct on [the jailors'] part.").
    There are important distinctions between Joffer's alleged knowledge and
    conduct in Gregoire and that of Hauglin. The first key difference is the level of actual
    knowledge possessed by the prison official at the time of his response. The Gregoire
    court emphasized that prior to the phone call from Bouska's ex-wife, Joffer had
    interacted with Bouska and had no reason to believe that Bouska was a suicide risk.
    Gregoire, 
    236 F.3d at 416
    . Furthermore, the phone call from Bouska's ex-wife gave
    Joffer the impression that Bouska's ex-wife was most concerned with relaying the
    message that she would not prevent Bouska from seeing his children, not the message
    that Bouska was actually going to commit suicide. 
    Id. at 418, n.3
    . Thus, in Gregoire,
    we held that as a matter of law, Joffer did not have actual knowledge that there was
    a substantial likelihood that the inmate would inflict harm upon himself; therefore,
    the delay in Joffer's response did not constitute deliberate indifference. In Hauglin's
    case, on the other hand, there was direct, first-hand communication from Gacek to
    Hauglin of Gacek's intent to commit suicide and the method by which Gacek intended
    to carry out his threat. These alleged facts are sufficient to show that Hauglin knew
    firsthand of a "substantial risk of serious harm," Farmer, 
    511 U.S. at 847
    , knew it was
    -10-
    an immediate threat, and saw that Gacek had selected a method and had equipment
    at hand.
    Second, there were no allegations of intentional delay in Gregoire. Joffer was
    alleged to have taken forty minutes writing a report and reading through Bouska's file
    before intervening, conduct which served as evidence that he underestimated the
    suicide risk, but not that he "completely disregarded" it. 
    236 F.3d at 416, 418
    .8 In
    this case, Olson has alleged that Hauglin encouraged Gacek's behavior and then
    refused to return to the catwalk to help. After Gacek said he was going to "hang it
    up," Hauglin is alleged to have said, "[Y]ou do what you got to do and I'll do what I
    got to do," a statement from which the jury could infer deliberate indifference.
    According to several inmates, Hauglin purposefully left and stayed away from the
    catwalk, even as they pressed their emergency buttons and yelled for the guards to
    come help.9
    8
    The court explained, "If an official completely disregarded a phone call such
    as [Bouska's ex-wife's], alerting the official to a suicide risk, such act may well
    constitute deliberate indifference. However, Joffer did take some action to respond
    to the risk." 
    236 F.3d at 418
    .
    9
    An analogous set of facts may be found in Rodgers v. Chapleau, 
    238 F.3d 423
    ,
    
    2000 WL 1785837
     (6th Cir. 2000) (unpublished per curiam), a case which is not
    precedential yet which is nonetheless instructive. In Rodgers, an inmate witness
    testified that at approximately 9:00 or 10:00 p.m., Rodgers told the guard on duty that
    he was going to hang himself, and the guard responded, "Wait until my shift ends."
    
    Id. at *1
    . According to the inmate witness, Rodgers repeated his threat at 11:35 p.m.,
    ten minutes before the shift was going to end, and the guard told him, "Wait until
    tomorrow and talk to the psychiatrist." 
    Id.
     After the guard left, at shift change,
    Rodgers hanged himself. 
    Id.
     Everyone in the cell block started yelling for help, but
    no guard appeared until about fifteen minutes later. 
    Id.
     At that time, the new guard
    discovered Rodgers hanging in his cell. 
    Id.
     The Sixth Circuit held that these
    allegations were sufficient to create genuine issues of fact as to whether the first
    guard was aware of the risk of serious harm to the inmate and whether he consciously
    disregarded it. 
    Id. at *4
    . The court explained that viewing the facts in the light most
    favorable to the plaintiff, (1) the guard had first-hand knowledge of the inmate's
    -11-
    Hauglin's second argument is that he took affirmative steps to respond to
    Gacek's suicide threat, so that even assuming the factual disputes that the district
    court held determinative, his conduct was not unreasonable as a matter of law and
    should entitle him to qualified immunity.10 Hauglin's response to Gacek's threat
    included talking with Gacek and trying to convince him not to commit suicide and
    telling Bormann to call a code red emergency. It is undisputed that Hauglin took
    some measures in response to Gacek's threat. However, taking the facts in the light
    most favorable to Olson,11 there is also evidence of intentional delay (allegations that
    Hauglin said, "do what you have to do," left the catwalk, and refused to return for
    fifteen to twenty-five minutes). As we stated in Tlamka v. Serrell, 
    244 F.3d 628
    , 633
    intent to commit suicide; (2) despite the inmate's alleged statements, the guard took
    no precautions to help him; and (3) the guard failed to respond to the prisoners'
    general outcry even though moments earlier, the inmate had informed the guard of his
    suicidal desire. 
    Id.
     Similarly, in Hauglin's case, taking the facts in the light most
    favorable to Olson, there is evidence that Hauglin had first-hand knowledge of
    Gacek's intent, that despite Gacek's threats, Hauglin left the catwalk, and that
    according to the testimony of a number of inmates, Hauglin failed to respond when
    they pressed their emergency buttons and yelled for help.
    10
    In addition, Hauglin argues that the district court erred in holding that there
    was a dispute of fact as to whether Hauglin failed to recognize or discover Gacek's
    suicidal tendency, but that there was no dispute of fact as to whether Hauglin failed
    to intervene. However, the district court explained these contradictory results as
    follows: the dispute of fact was over the period from 5:50 p.m. to 6:17 p.m. and
    included questions about Hauglin's knowledge and his response to Gacek's threat to
    hang himself and whether this conduct constituted deliberate indifference; the court
    granted Hauglin's summary judgment motion on the failure to intervene claim insofar
    as it was alleged that Hauglin failed to intervene in the period after he called the code
    red at 6:17 p.m.
    11
    At this stage of the litigation, we must take the facts as recited in the
    depositions of the various inmates as being true. See Tlamka v. Serrell, 
    244 F.3d 628
    , 634 (8th Cir. 2001).
    -12-
    (8th Cir. 2001): "It is well settled that an intentional delay in obtaining medical care
    for a prisoner who needs it may be a violation of the eighth amendment." (quoting
    Ruark v. Drury, 
    21 F.3d 213
    , 216 (8th Cir. 1994)). We recognize that for a delay in
    medical care to rise to an Eighth Amendment actionable level, the prison official must
    be aware of information "such that a reasonable person would know that the inmate
    requires medical attention." Tlamka, 224 F.3d at 633. In this case, if Hauglin knew
    that there was a substantial risk of serious harm to Gacek because of Gacek's direct
    communication to Hauglin of his present intent to commit suicide and his chosen
    method; and if Hauglin deliberately disregarded the risk of Gacek committing suicide
    by encouraging him to do so, leaving the catwalk, and refusing to return when other
    inmates tried to inform him of Gacek's hanging, then his conduct would rise to an
    Eighth amendment actionable level.
    III.
    For the reasons stated herein, the district court's denial of summary judgment
    to Thomas Hauglin on this 
    42 U.S.C. § 1983
     action filed against him in his individual
    capacity for deliberate indifference to Jeremy Gacek's serious medical needs is
    affirmed.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -13-