REVISED March 30, 2001
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 99-41023
BETTY THOMPSON; DONALD THOMPSON,
Plaintiffs-Appellees,
versus
UPSHUR COUNTY, TX; ET AL,
Defendants.
R.D. CROSS, Individually and in his official capacity as Sheriff of Upshur County, TX; PAULA WHORTON, Individually and in her official capacity as Jailer, Upshur County; ROBERT CROMLEY, Individually and in his official capacity as Lieutenant, Upshur County Jail,
Defendants-Appellants.
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Consolidated with No. 99-41024
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UPSHUR COUNTY, TX; ET AL, Defendants,
EUGENE TEFTELLER, Individually and in his official capacity as Sheriff, Marion County, TX;
Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Texas
March 15, 2001
Before GARWOOD, HIGGINBOTHAM and STEWART, Circuit Judges.
GARWOOD, Circuit Judge:
In this 42 U.S.C. § 1983 and state law suit for damages
arising from the death of Michael Thompson (Thompson), a pretrial
detainee in the respective jails of Upshur County, Texas, and
Marion County, Texas, defendants-appellants Eugene Tefteller
(Tefteller), formerly Sheriff of Marion County, R.D. Cross (Cross),
Sheriff of Upshur County, and Paula Whorton (Whorton), an Upshur
County jailer, appeal the district court’s denial of their motions
for summary judgment based on qualified immunity. We reverse as to
Tefteller and Cross, but affirm as to Whorton.
Facts and Proceedings Below
At approximately 4:35 p.m. on Monday, August 25, 1997,
Thompson, unmarried and about thirty-three years old, was arrested
in Upshur County, Texas for D.W.I. A breathalyzer test indicated
his blood alcohol level was 0.348%. Because Upshur County’s jails
2 were overcrowded, Thompson, on August 26, after having spent the
night of August 25 in the Upshur County jail where charges were
lodged against him, was transferred by Upshur County to the Marion
County jail pursuant to a pre-existing general agreement between
the two counties. He arrived at Marion County jail on Tuesday,
August 26 at 9:55 p.m.1
Thompson does not appear to have been in special distress
until the early morning hours of Thursday, August 28, when he began
suffering from delirium tremens (DTs).2 Thompson was shaking,
sweating profusely, and hallucinating. Specifically, Thompson saw
snakes coming out of the walls, requested a screwdriver so he could
build a house, and believed he was at a barbecue in Gladewater,
Texas. Upon becoming aware that Thompson might be in need of
medical assistance, Marion County Chief Jailer Linda Bolick
(Bolick) called for an ambulance at 10:47 a.m. The Emergency
1 We take judicial notice that Marion county is located in rural East Texas and has a population of approximately 11,000; its county seat and largest town is Jefferson, with a population of approximately 2,000. Upshur County partially adjoins Marion County, has a population of about 35,000 and its county seat and largest town is Gilmer, which has some 5,000 inhabitants. 2 “Delirium tremens, or the ‘DTs,’ affects roughly 5 percent of alcoholics in the withdrawal stage and about 30 percent of sufferers of rum fits. It generally makes its appearance within three to five days after drinking has ceased. The standard signs of delirium tremens include agitation, fever, sweating, tachycardia and tremor. Patients become so disoriented that they do not know what time it is or where they are. They suffer such confusion that memory lapses block out both recent events and those long past. Vivid visual hallucinations are also common.” 9 Attorneys’ Textbook of Medicine P 59A.22(2) (Gray & Gordy, eds., 3rd ed. 2000).
3 Medical Technicians (EMTs) confirmed Thompson was experiencing DTs,
warned him that injuries and death could result therefrom, told him
that he should go to the hospital and urged him to do so. Thompson
explained that he had experienced DTs before and that if he could
consume three beers he would be fine. Despite the efforts of
Bolick and the EMTs to convince Thompson to go to the hospital, he
refused at least twice. Bolick conferred with the EMTs and all
believed that Thompson had the capacity to make the decision.
Bolick told the EMTs that to force Thompson to submit to health
care against his will would violate his constitutional rights. The
EMTs believed that because Thompson was conscious, they could not
force him to be transported to the hospital. Thompson signed a
refusal of medical treatment form, and nothing in the record
suggests he was forced to do so. Plaintiffs-appellees Betty and
Donald Thompson (Michael’s parents) contend that Thompson was not
competent to refuse medical treatment. There is some evidence that
Marion County sheriff Tefteller had some generally contemporaneous
awareness of these developments as they occurred.3
3 In a disclosure to plaintiffs, Marion County and Tefteller stated that sheriff Tefteller would testify that he had helped Thompson drink some liquids, that Thompson appeared competent to make medical decisions, and that Thompson told him that he had previously experienced DTs but had never sought medical treatment therefor. As a result of this evidence, plaintiffs allege not only supervisory liability, but also that Tefteller was personally deliberately indifferent to Thompson’s medical needs by not taking charge of the situation and forcing Thompson to be transported to the hospital. In the same vein, plaintiffs complain that Tefteller did not seek (or train his employees to seek) an alternative decision-maker for pre-trial detainees who incompetently refuse medical treatment.
4 Jailer Bolick then made arrangements to transfer Thompson back
to Upshur County because its jail, unlike that of Marion County,
had a detoxification cell that would facilitate the observation and
care of Thompson. Less than two hours elapsed between the EMTs’
visit and Thompson’s departure for the Upshur County jail at about
12:30 p.m. During the forty-five minute trip to the Upshur County
jail, Thompson appears to have had a lucid conversation with Upshur
County Deputy Decuir, driver of the Upshur County vehicle which
took Thompson back to Upshur County.
Upon his return to the Upshur County Jail, Thompson was placed
in a special “detox” cell. Defendant jailer Sgt. Whorton began
work that Thursday, August 28, at 3:00 p.m. She was aware that
Thompson was suffering from DTs and had refused medical treatment
in Marion County. She began an observation log on Thompson at 5:00
p.m. and claims to have called a hospital from which she received
medical advice concerning Thompson’s care. The advice was to keep
Thompson in a dark, quiet area, to try to keep him calm, and to
call back if he started convulsing or seizing. Plaintiffs dispute
that any advice was obtained, and submitted an affidavit from
Bonita Fincher, the Nurse Supervisor at East Texas Medical Center.
Ms. Fincher declared that the hospital has a policy of not
providing medical advice over the telephone and that Chevaughn
Shaw, the nurse who spoke with Whorton, was aware of this policy.4
4 In her affidavit, Ms. Fincher implies (but does not expressly state) that Ms. Shaw assured her that no medical advice was given to
5 Thompson’s condition worsened into the evening. He began to
collide with objects in his cell, sometimes falling and striking
his head against the window, floor or concrete bench of his cell.
Whorton was aware of this and noticed what she thought was blood
flowing from Thompson’s ears. After Thompson was placed in a
straight jacket, Whorton entered the cell and cleaned his wounds.
She noted that the blood had not come from his ears, but rather
from a small cut on the back of his head. Additional mattresses
were placed in the cell for Thompson’s protection, but he was not
fitted with a helmet, which, as Whorton knew, was kept available
for such a purpose. After this, Thompson appeared to calm down.
Whorton’s shift ended at 11:00 p.m. Jailers Bishop and Bean
relieved her. Whorton discussed Thompson’s condition with them.
In her affidavit, Bishop stated that: 1) Whorton told her and Bean
to leave Thompson alone unless he was going to bleed to death; 2)
Whorton told her and Bean that “we don’t take inmates to the
hospital unless they’re dying”; 3) after Bishop asked if an
ambulance should be called for Thompson, Whorton responded that she
had already contacted the emergency room and that there was nothing
Sgt. Whorton (Fincher says Shaw stated “she knew the policy and told Sgt. Whorton to either come to the emergency room or call the Health First number for advice”). Fincher’s testimony is clearly hearsay insofar as it attempts to substantively evidence what Shaw actually said to Whorton. Nevertheless, the magistrate found that the absence of advice could be proven at trial, and as will be discussed infra, we do not have jurisdiction to now review that finding. Therefore, for purposes of their interlocutory appeal we assume that Sgt. Whorton did not obtain any medical advice from Ms. Shaw.
6 that could be done for Thompson, that he just had to “sleep it
off”; 4) Whorton informed Bishop and Bean that Thompson would soon
be transferred to Huntsville, and thus wouldn’t be their problem
for much longer; 5) Whorton commanded Bishop and Bean not to summon
medical help for Thompson without calling her at home, i.e. that
Whorton was to make that decision; 6) after Whorton departed,
Bishop and Bean considered calling an ambulance for Thompson, but
did not do so because they were afraid to “go over Sgt. Whorton’s
head”; and 7) Bishop and Bean considered calling Whorton at home to
obtain permission to call an ambulance for Thompson, but they did
not do so because Whorton had instructed them not to bother her at
home unless Thompson was dying.
Thompson accepted water or orange juice two times during the
early hours of Friday, August 29, 1997. At about 7:10 a.m.,
Thompson appeared to have a thirty-second seizure. A few minutes
after the seizure ended, Thompson stopped breathing. Paramedics
were summoned at 7:21 a.m. Thompson was pronounced dead at 9:10
a.m. at East Texas Medical Center. An autopsy revealed the cause
of death to be the result of delirium tremens.
On July 16, 1998, plaintiffs-appellees Betty Thompson and
Donald Thompson filed this action against Upshur County, Upshur
County sheriff R.D. Cross, Upshur County jailer Sgt. Paula Whorton,
Upshur County jailer Lt. Robert Cromley, Marion County, and Marion
County sheriff Eugene Tefteller, asserting claims under 42 U.S.C.
§ 1983, the Texas Survival and Wrongful Death Statute, TEX. CIV.
7 PRAC. & REM. CODE ANN. § 71.021 and the Texas Tort Claims Act, TEX.
CIV. PRAC. & REM. CODE ANN. § 101.001 et seq., for the failure of
defendants to provide reasonable medical care to their son, Michael
Thompson, which resulted in Michael’s death.5
All defendants eventually moved for summary judgment based
solely on the issue of qualified immunity.6 The parties consented
to trial by magistrate McKee and on January 21, 1999, the case was
transferred to him. In separate orders, dated August 16 and 20,
1999, Magistrate McKee denied the motion to strike certain
affidavits tendered by plaintiffs and all motions for summary
judgment (except Cromley’s, which was not considered).
In his order concerning Tefteller, the magistrate found that
there were several “fact issues” that precluded granting summary
judgment based on qualified immunity: 1) whether Thompson was
capable of determining if he required medical attention; 2) whether
5 Section 1983 liability for Cross is based entirely on supervisory liability. Section 1983 liability for Whorton is premised only upon her direct interaction with Thompson and other jailers. As mentioned (see note 3, supra), section 1983 liability for Tefteller is premised upon both supervisory liability and his own individual involvement with Thompson. 6 Tefteller moved for summary judgment on January 20, 1999. Cross and Whorton so moved on February 4, 1999. Cromley also moved for summary judgment, but not until May 20, 1999. Lt. Cromley’s motion for summary judgment was not resolved with the others. Thus, notwithstanding that his name appeared with Cross’s and Whorton’s on the notice of interlocutory appeal to this court, it appears that Lt. Cromley has not appealed to this Court. Marion and Upshur Counties joined in the motions for summary judgment on the ground of sovereign immunity. The counties have not appealed to this Court.
8 a reasonably diligent attempt to locate a surrogate decision-maker
was made; 3) whether Tefteller could have required Thompson to
receive medical attention against his will; 4) whether Tefteller
had a duty to require Thompson to receive medical attention; 5) if
Tefteller could have forced Thompson to receive medical attention,
whether the decision not to do so amounts to deliberate
indifference to Thompson’s right to reasonable medical care; 6)
whether Tefteller failed to properly supervise or train his staff;
7) whether the alleged lack of supervision or training caused the
alleged violation of Thompson’s rights; and 8) whether Tefteller’s
alleged failure to supervise or train constituted deliberate
indifference to Thompson’s right to reasonable medical care.
Similarly, in his order regarding Cross and Whorton, the
Magistrate ruled that the following “fact issues” prevented
qualified immunity from protecting Cross and Whorton: 1) whether
Thompson was capable of determining his medical needs; 2) whether
Whorton received medical advice from a nurse at East Texas Medical
Center as to Thompson’s care; 3) whether Cross failed to properly
supervise or train his staff; 4) whether the alleged lack of
supervision or training caused the alleged violation of Thompson’s
rights; and 5) whether Cross’s alleged failure to supervise or
train amounted to deliberate indifference to Thompson’s right to
reasonable medical care.
Discussion
9 I. Jurisdiction
The denial of a motion for summary judgment based on qualified
immunity is immediately appealable notwithstanding that such denial
was premised upon the existence of “[m]aterial issues of fact”.
Behrens v. Pelletier, 116 S.Ct. 834, 842 (1996); Colston v.
Barnhart, 146 F.3d 282, 284 (5th Cir. 1998). On such an
interlocutory appeal, this Court does not have jurisdiction to
review the district court’s finding that particular factual issues
are “genuine,” that is that the summary judgment evidence would
support a particular finding of fact. Behrens, 116 S.Ct. at 842;
Johnson v. Jones, 115 S.Ct. 2151, 2159 (1995); Colston, 146 F.3d at
284. However, this Court does have jurisdiction to review the
magistrate’s determination that certain facts (or factual disputes)
are “material” to the issue of qualified immunity. White v.
Balderama, 153 F.3d 237, 240 (5th Cir. 1998); Colston, 146 F.3d at
284-85. The scope of clearly established law and the objective
reasonableness of those acts of the defendant that the district
court found the plaintiff could prove at trial are legal issues we
review de novo. Johnson, 115 S.Ct. at 2156, 59; Williams v.
Bramer, 180 F.3d 699, 703 (5th Cir. 1999); Balderama, 153 F.3d at
242; Colston, 146 F.3d at 285 n.2.7
7 See also, e.g., Hare v. City of Corinth, Ms., 135 F.3d 320 at 328 (5th Cir. 1998) (Hare III) (“objective reasonableness is a question of law for the court”); Pierce v. Smith, 117 F.3d 866, 871 (5th Cir. 1997) (“[T]o the extent that the relevant discrete, historic facts are undisputed . . . the question of the objective reasonableness of the
10 Ideally, the district court’s order denying summary judgment
based on qualified immunity explains what facts the plaintiff may
be able to prove at trial, i.e. what particular facts the court
assumed in denying summary judgment urged on the basis of qualified
immunity. This facilitates appellate review by allowing this Court
to focus on the aforementioned purely legal issues. When, as is
true to some extent here, the court below fails to do this and,
instead, denies the motion simply because “fact issues” remain,
this Court has two choices. We can either scour the record and
determine what facts the plaintiff may be able to prove at trial
and proceed to resolve the legal issues, or remand so that the
trial court can clarify the order. Behrens, 116 S.Ct, at 842;
Johnson, 115 S.Ct. at 2159; Glenn v. City of Tyler, 2001 WL 102270,
*3 (5th Cir. February 22, 2001); Wagner v. Bay City, Texas, 227
F.3d 316, 320 (5th Cir. 2000); Mendenhall v. Riser, 213 F.3d 226,
230 (5th Cir. 2000); Balderama, 153 F.3d at 242; Colston, 146 F.3d
at 285-86 & nn. 2-3. We do not believe remand is necessary here.
II. Standard for Entitlement to Qualified Immunity
The doctrine of qualified immunity serves to shield a
government official from civil liability for damages based upon the
performance of discretionary functions if the official’s acts were
defendant’s conduct–i.e., whether at the time and under the circumstances all reasonable officials would have realized the particular challenged conduct violated the constitutional provision sued on–is . . . a question of law”).
11 objectively reasonable in light of then clearly established law.
Harlow v. Fitzgerald, 102 S.Ct. 2727, 2738 (1982).
As we said in Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir.
1997):
“Where, as here, a section 1983 defendant pleads qualified immunity and shows he is a governmental official whose position involves the exercise of discretion, the plaintiff then has the burden ‘to rebut this defense by establishing that the official’s allegedly wrongful conduct violated clearly established law.’ Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992). We do ‘not require that an official demonstrate that he did not violate clearly established federal rights; our precedent places that burden upon plaintiffs.’ Id.”
The first step in the qualified immunity analysis is to
determine whether the plaintiff has alleged the violation of a
clearly established federal constitutional (or federal statutory)
right. Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998)
(Hare III); Pierce, 117 F.3d at 872. If the plaintiff does so, the
Court must then assess whether the defendant’s conduct was
objectively reasonable in light of clearly established law. Hare
III, 135 F.3d at 326; Pierce, 117 F.3d at 872. Unlike the first
step, the step two inquiry applies the law that was clearly
established at the time of the alleged violation. To ensure that
qualified immunity serves its intended purpose, it is of paramount
import, during step two, to define “clearly established law” at the
proper level of generality. Anderson v. Creighton, 107 S.Ct. 3034,
3039 (1987); Petta v. Rivera, 143 F.3d 895, 899 (5th Cir. 1998);
12 Pierce, 117 F.3d at 872.
“Clearly established” means that the “contours of the right
must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Anderson,
107 S.Ct. at 3039. The defendant’s acts are held to be objectively
reasonable unless all reasonable officials in the defendant’s
circumstances would have then known that the defendant’s conduct
violated the United States Constitution or the federal statute as
alleged by the plaintiff. Id. at 3040; Malley v. Briggs, 106 S.Ct.
1092, 1096 (1986); Pierce, 117 F.3d at 871. The “defendant’s
circumstances” includes facts know to the defendant. However,
because qualified immunity turns only upon the objective
reasonableness of the defendant’s acts, a particular defendant’s
subjective state of mind has no bearing on whether that defendant
is entitled to qualified immunity. Anderson, 107 S.Ct. at 3040;
Pierce, 117 F.3d at 871 n.5. An official is eligible for
qualified immunity even if the official violated another’s
constitutional rights. Goodson v. City of Corpus Christi, 202 F.3d
730, 736 (5th Cir. 2000); Pierce, 117 F.3d at 872.
III. Constitutional Right to Reasonable Medical Care
Plaintiffs correctly observe that pretrial detainees have a
constitutional right, under the Due Process Clause of the
Fourteenth Amendment, not to have their serious medical needs met
13 with deliberate indifference on the part of the confining
officials. Estelle v. Gamble, 429 U.S. 97, 103 (1976); Hare v.
City of Corinth, 74 F.3d 633, 636 (5th Cir. 1996) (en banc) (Hare
II); Lancaster v. Monroe County, 116 F.3d 1419, 1426 (11th Cir.
1997); Colle v. Brazos County, Texas, 981 F.2d 237 (5th Cir. 1993);
Fielder v. Bosshard, 590 F.2d 105, 107 (5th Cir. 1979). Lancaster,
Colle and Fielder establish that delirium tremens is a serious
medical need.
In Fielder, a request by the prisoner’s mother to the jailer
that he receive medical attention for delirium tremens was followed
by a request from the prisoner himself. Fielder 590 F.2d at 108.
These requests were ignored, the jailers stating that they thought
the prisoner was “faking.” Id. This evidence was sufficient to
support the jury’s verdict for the plaintiff. Id.
Colle reversed the district court’s dismissal of the
plaintiff’s complaint and held that the plaintiff properly alleged
a constitutional violation by asserting that the sheriff: 1)
staffed the jail with persons who did not have the authority to
transfer a detainee to the hospital; and 2) had a policy of failing
to monitor the serious health needs of detainees. Colle, 981 F.2d
at 245. The sheriff’s jailers failed to call for medical
assistance as the condition of an inmate they knew to be suffering
from delirium tremens worsened. Id. at 240.
Lancaster reversed the district court’s grant of summary
14 judgment based on defendants’ entitlement to qualified immunity and
held that either a “total failure” to provide or an exacerbating
delay in providing life saving medical treatment to a detainee
suffering from DTs was a violation of constitutional rights.
Lancaster, 116 F.3d at 1425-28. The court cited Fielder for the
proposition that DTs was recognized as a serious medical need. Id.
at 1426. Lancaster established that ignoring the dangers of
alcohol withdrawal and waiting for a “manifest emergency” before
summoning medical help constituted deliberate indifference.8 The
facts in Lancaster were particularly egregious because the
detainee’s wife and father had informed a jailer and the sheriff
that the detainee was a chronic alcoholic, would suffer DTs, and
would need immediate help if he had a seizure.
Plaintiffs rely most heavily upon Weaver v. Tipton County,
Tennessee, 41 F.Supp.2d 779, 782 (W.D. Tenn. 1999). In Weaver, a
prisoner who had a history of seizures and alcohol withdrawal
appeared to have a seizure and was told he was going to be taken to
the hospital. The prisoner stated that he was fine and that a trip
to the hospital was unnecessary. The next day a psychologist told
the jailer the prisoner needed to be taken to the emergency room.
8 Id. The Lancaster court appears to have melded or confused deliberate indifference (the standard for § 1983 liability) with objective reasonableness (the standard for entitlement to qualified immunity). In this circuit, the concepts, though related, are distinct. Hare III, 135 F.3d at 327-38. Nevertheless, we believe Lancaster supports the proposition that delaying medical treatment for a detainee suffering from DTs until a crisis occurs is objectively unreasonable.
15 The prisoner was never taken to the emergency room and was never
again offered a trip to the hospital. He died six days after
entering the jail, four days after initially refusing a trip to the
hospital. The jailers moved for summary judgment solely on the
basis of qualified immunity. The district court denied the motion
because it concluded that, in the Sixth Circuit, when a plaintiff
alleges deliberate indifference to a prisoner’s needs, the defense
of qualified immunity is precluded. Id. at 785. The district
court noted its disagreement with the Sixth Circuit’s construction
of Farmer v. Brennan, 114 S.Ct. 1970 (1994), in this respect, and
likewise indicated its agreement with the Fifth Circuit’s opinion
in Hare III, which held that the defense of qualified immunity is
not precluded by a deliberate indifference claim. Weaver, 41
F.Supp.2d at 785 n.5.
Plaintiffs’ reliance upon Weaver is misplaced. Weaver, in
obedience to its understanding of Sixth Circuit law, merely
concluded that an allegation of deliberate indifference precluded
the defense of qualified immunity without reference to whether the
conduct of the defendant was objectively reasonable, contrary to
the law of this circuit. Moreover, Weaver is not only a decision
of a district court outside of this circuit, and not a decision of
this Court, but it was handed down almost eighteen months after
Thompson died, and cannot be considered part of any body of law
that was then clearly established.
16 IV. Standards for Section 1983 Liability
A. Individual
Deliberate indifference in the context of an episodic failure
to provide reasonable medical care to a pretrial detainee means
that: 1) the official was aware of facts from which an inference of
substantial risk of serious harm could be drawn; 2) the official
actually drew that inference; and 3) the official’s response
indicates the official subjectively intended that harm occur. Hare
II, 74 F.3d at 643, 649-50. However, deliberate indifference
cannot be inferred merely from a negligent or even a grossly
negligent response to a substantial risk of serious harm. Id. at
645, 49.
B. Supervisory
“Under section 1983, supervisory officials are not liable for
the actions of subordinates on any theory of vicarious liability.”
Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). A sheriff
not personally involved in the acts that deprived the plaintiff of
his constitutional rights is liable under section 1983 if: 1) the
sheriff failed to train or supervise the officers involved; 2)
there is a causal connection between the alleged failure to
supervise or train and the alleged violation of the plaintiff’s
rights; and 3) the failure to train or supervise constituted
deliberate indifference to the plaintiff’s constitutional rights.
Smith v. Brenoettsy, 158 F.3d 908, 911-12 (5th Cir. 1998); Doe v.
17 Taylor Independent School District, 15 F.3d 443, 452-54 & nn.7-8
(5th Cir. 1994) (en banc) (adopting the City of Canton v. Harris,
109 S.Ct. 1197, 1205 n.10 (1989), standard of municipal liability
for supervisory liability, thus omitting gross negligence from the
Hinshaw test); Hinshaw v. Doffer, 785 F.2d 1260, 1263 (5th Cir.
1986).
Proof of more than a single instance of the lack of training
or supervision causing a violation of constitutional rights is
normally required before such lack of training or supervision
constitutes deliberate indifference. Snyder v. Trepagnier, 142
F.3d 791, 798-99 (5th Cir. 1998); Belt, 828 F.2d at 304-305. The
plaintiff must generally demonstrate at least a pattern of similar
violations. Snyder, 142 F.3d at 798. Furthermore, the inadequacy
of training must be obvious and obviously likely to result in a
constitutional violation. City of Canton, 109 S.Ct. at 1205 n.10
(1989); Snyder v. Trepagnier, 142 F.3d at 799. Standing alone, an
expert’s opinion is generally not enough to establish deliberate
indifference. Id.
V. Qualified Immunity Standard Applied Here
A. Allegation of a Constitutional Violation
Plaintiffs allege that Tefteller and Whorton were deliberately
indifferent to the serious health needs of Thompson and that
Tefteller and Cross promulgated or failed to promulgate policies
that manifest their deliberate indifference toward the serious
18 medical needs of their detainees. Plaintiffs have satisfied their
burden to allege, at a high level of generality, a constitutional
violation. It remains whether defendants’ acts were objectively
reasonable in light of clearly established law.
B. Objective Reasonableness of Defendant’s Acts
At the outset, we highlight the importance of appreciating the
difference between the objective reasonableness standard for
qualified immunity set forth in Part II, supra, and the subjective
deliberate indifference standard for section 1983 liability set
forth in Part IV, supra. These standards are often confused. See
Hare III, 135 F.3d at 327-28. Examples of behavior that does (and
does not) constitute deliberate indifference are relevant in
assessing the scope of clearly established law and, therefore, are
relevant in determining whether the defendants’ actions were
objectively reasonable. Id. However, when the defendant moves for
summary judgment based on qualified immunity, it is the plaintiff’s
burden to demonstrate that all reasonable officials similarly
situated would have then known that the alleged acts of the
defendants violated the United States Constitution. Pierce, 117
F.3d at 872. That is different from the burden of establishing a
genuine issue as to the defendant’s deliberately indifferent
subjective state of mind.
When assessing the scope of clearly established law for step
two, it is necessary to articulate the asserted constitutional
19 right more specifically.
1. Sheriff Tefteller
In his order denying Tefteller’s motion for summary judgment,
the Magistrate identified several issues of fact deemed to be
genuine respecting Tefteller’s ultimate section 1983 liability.
However, many of the “fact issues” relevant to qualified immunity
involved questions of law, e.g., whether Tefteller had a duty under
then current law to force Thompson to undergo medical treatment.
The section of the order devoted to the objective reasonableness of
Tefteller’s actions is very short and ends with the statement that
“fact issues exist as to the objective reasonableness of Sheriff
Tefteller’s acts and/or omissions . . . .” The order identifies
various assertions of the parties but does not specifically
identify what particular facts the magistrate assumed to be both
genuinely disputed and material in that respect. Nor does the
magistrate actually find that Tefteller’s actions were not
objectively reasonable, merely that unspecified “fact issues”
existed in that respect. Tefteller challenges the materiality of
the “fact issues”, including Thompson’s competence, and urges that
his undisputed actions were objectively reasonable in light of
clearly established law.
As to the scope of clearly established law, the question is
whether an unmarried adult, under no guardianship or finding of
incompetency, who is a pretrial detainee at the jail of a small
rural county, holding him on transfer from and as accommodation to
20 a larger neighboring county where he is charged and was arrested
for DWI, and who while at the smaller county jail becomes
delusional and hallucinatory from DTs, has a clearly established
constitutional right to have his jailers at the smaller county
either force him to submit to medical care for his DTs against his
clearly communicated refusal to do so, or make reasonable efforts
to locate a substitute decision maker, in lieu of promptly
returning him to the custody of the larger county’s jail from which
he was transferred and which has detoxification facilities the
smaller county’s jail lacks.
As explained in Part III, supra, clearly established law
prevents a jailer from responding to a serious medical need with
deliberate indifference. However, neither Fielder, Lancaster, nor
Colle clearly established that any jailer–much less one whose
status respecting the inmate is analogous to that of the Marion
County jail respecting Thompson--must either force a conscious,
incompetent, but clearly refusing inmate to undergo medical
treatment or seek a surrogate decision-maker for the same.9
9 As we stated in Pierce, 117 F.3d at 882:
“We . . . recognize that the egregiousness and outrageousness of certain conduct may suffice to obviously locate it within the area proscribed by a more general constitutional rule: ‘there has never been a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages liability . . .’ K.H. Through Murphy [v. Morgan, 914 F.2d 846] at 851 [7th Cir. 1990]. But the same common sense which informs this teaching likewise prevents
21 Neither is there any statutory duty to impose medical care or
locate a surrogate in these or similar circumstances.
TEX. HEALTH & SAFETY CODE ANN. § 313.004 (West 2000) requires a
reasonably diligent search for a surrogate only for adult patients
in hospitals or nursing homes who are “comatose, incapacitated, or
otherwise mentally or physically incapable of communication....”
TEX. HEALTH & SAFETY CODE ANN. § 551.041 (West 2000) applies to
mental institutions and requires consent of three licensed
physicians before medical care is imposed.
Notwithstanding that clearly established law does not require
the imposition of medical care or the location of a surrogate
decision-maker, this Court must still query whether Tefteller’s
actions were objectively reasonable in light of that law that was
then clearly established.
The materiality of Thompson’s competence when he refused
treatment is disputed. In addition, the plaintiffs claim Thompson
its expansion to the point of rendering qualified immunity an insignificant aberration or infringing on the settled doctrine that ‘[i]t is not enough, to justify denying immunity, that liability in a particular constellation of facts could have been, or even that it was, predicted from existing rules and decisions. . . . Liability in that particular set [of facts] must have been established at the time the defendant acted.’ Id. As the en banc Eleventh Circuit stated in Lassiter [v. Alabama A&M University, 28 F.3d 1146 (11th Cir. 1994)]: ‘For qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.’ Id. at 1150.”
22 was forced to sign the release form, but there is no evidence of
that and the magistrate did not identify that as a genuine issue of
fact.
Viewing the facts most favorably to the plaintiffs, Thompson
was disoriented and experienced hallucinations throughout Thursday
morning but was able to and did clearly communicate refusals when
repeatedly invited to be transported to the hospital. Thompson
also signed a voluntary refusal of treatment form. While these
facts support a finding that Thompson was generally incompetent
Thursday morning, the undisputed facts of clearly communicated
refusal to consent and signing of the treatment form cannot be
ignored when considering the objective reasonableness of
Tefteller’s policies and personal involvement with Thompson. Put
another way, it would be improper to consider only the fact of
Thompson’s incompetence and not what Thompson actually said and
did.
Unless all reasonable sheriffs would recognize the
unconstitutionality of failing to instruct their staffs to impose
medical care or locate a surrogate decision-maker in situations
where the adult detainee is disoriented and hallucinating from DTs
but repeatedly and clearly communicates refusal of medical care and
signs a form refusing treatment, Tefteller’s actions were
objectively reasonable, particularly given the prompt action to
return Thompson to Upshur County. Given the absence of even a
single case constitutionally requiring the imposition of medical
23 care or location of a surrogate in this or any similar context, it
cannot be said that all reasonable sheriffs would recognize the
unconstitutionality of Tefteller’s supervisory or personal acts or
omissions.10
Because neither of the rights Thompson asserts were clearly
established at the time of his death, chief jailer Bolick’s actions
were objectively reasonable. At virtually the first sign of a
serious threat to Thompson’s health, she summoned an ambulance and
shortly thereafter transferred Thompson to a jail that she believed
would provide closer supervision. Clearly established law required
no more. This confirms that Tefteller’s acts in training and
supervising his staff were objectively reasonable and that sheriff
Tefteller’s personal involvement with Thompson was objectively
10 Tefteller relies upon two United States Supreme Court decisions, Cruzan v. Director of Missouri Department of Health, 497 U.S. 261 (1990), and Bowen v. American Hospital Association, 476 U.S. 610 (1986), for the proposition that he was required by law to honor Thompson’s request not to be given medical treatment. There is no question that a competent person has a “liberty interest...in refusing unwanted medical treatment.” Cruzan, 497 U.S. at 262. But here, plaintiffs claim Thompson was not competent. Cruzan does nothing more than allow a state to require clear and convincing evidence that the decisions of the surrogate decision-maker are consistent with the desires of the incompetent patient. In Cruzan the surrogate demanded that food and hydration be withheld. Tefteller’s actions were objectively reasonable because under all the circumstances here clearly established constitutional law did not require him to impose medical care or locate a surrogate, not merely because of the absence of informed consent. Again, in reaching this conclusion it is necessary to look beyond the assumed actual incompetence of Thompson and consider what he actually said and did as well as the other circumstances.
24 reasonable.11 Thus, based on his own acts and the acts of his
staff, Sheriff Tefteller is entitled to qualified immunity.
2. Sheriff Cross
The magistrate’s order denying sheriff Cross’s and Sgt. Whorton’s
motion for summary judgment suffers from infirmities similar to those
in his order denying sheriff Tefteller’s motion.
Plaintiffs do not allege that sheriff Cross was personally aware
of Thompson’s situation until after he died. Thus, the issue as to
sheriff Cross’s claim of qualified immunity is whether his policies were
objectively reasonable in light of then clearly established law.
Plaintiffs do not assert that Cross had a policy of ignoring or failing
to monitor the medical needs of detainees. Plaintiffs allege that Cross
failed to provide medical training to his staff, including failure to
inform jailers of the serious health risks posed by DTs. Plaintiffs
point to Sgt. Whorton’s admissions in her deposition that she had no
medical training and was not aware that DTs was a serious medical need
that could result in death.
Fielder and Lancaster establish that DTs is a serious medical need
and Colle denied qualified immunity when policies were in place that
prevented serious medical needs (in Colle, DTs) from being met. These
cases do not clearly establish that sheriffs must provide medical
11 Sheriff Tefteller is also entitled to qualified immunity in his capacity as Marion County policymaker for the same reasons that sheriff Cross is entitled to qualified immunity in his capacity as Upshur County policymaker, as discussed infra.
25 training on the dangers posed by DTs, only that they not have policies
in place that preclude serious medical needs, like DTs, from being met.
Plaintiffs have not identified any policies promulgated by sheriff Cross
(or by Tefteller) that would deny or even impede the prompt provision
of medical care to a detainee in distress. Plaintiffs have not
identified any law that requires a sheriff or police chief to educate
his staff on the dangers of DTs or any of Cross’s (or Tefteller’s)
policies that would impair the provision of timely medical assistance
to inmates suffering DTs.
We note in this connection that there is no evidence that inmates
in either Upshur County or Marion County had ever previously suffered
adverse serious health problems which the jail personnel handled
inappropriately. Nor is there any evidence that either jail had
previously had any inmates who suffered adverse consequences from the
delay or failure of jail personnel to furnish or procure medical
treatment for DTs or the like or from the failure of jail personnel to
recognize either the potential seriousness of an inmate’s DTs or that
an inmate, though able to adequately communicate refusal of medical
treatment, was incompetent to so refuse. Nor is there any evidence of
the extent or frequency either in Texas generally or in the nation as
a whole of instances in which jail inmates suffered any serious adverse
consequences from the failure of jail personnel to recognize the
potential dangerousness of an inmate’s DTs or that an inmate with DTs
though able to adequately communicate refusal of medical treatment was
incompetent to do so, or in which the failure to train jail personnel
26 respecting the medical seriousness of DTs was seriously harmful to
inmates. In these circumstances, and given the lack of precedent on the
matter, we conclude that not all reasonable sheriffs situated similarly
to either sheriff Cross or sheriff Tefteller would realize that the
United States Constitution required them to have their jail personnel
medically trained respecting the likely medical seriousness of an inmate
suffering from DTs and the need to have such an inmate promptly receive
medical care or respecting the inability of such an inmate to legally
or competently refuse medical treatment despite being able to adequately
communicate such refusal. The failure of the sheriffs to furnish such
training cannot reasonably be analogized to welfare officials selling
foster children into slavery (see note 9, supra), at least not so long
as the doctrine of qualified immunity is to retain any significance
beyond the strictly aberrational or symbolic.
Sheriff Cross’s challenged actions and inaction in promulgating
policies has not been shown to be other than objectively reasonable, and
Cross is entitled to qualified immunity.
While the issues of qualified immunity and deliberate indifference
are separate and distinct, we note that, as a matter of law, plaintiffs
could not succeed in showing that sheriff Cross, in his role as Upshur
county policymaker, was deliberately indifferent to the serious medical
needs of Thompson. Our precedent makes clear that deliberate
indifference on the part of a policymaker cannot generally be shown
from a single violation of constitutional rights or expert testimony.
27 Snyder v. Trepagnier, 142 F.3d 791, 798-99 (5th Cir. 1998). As noted
above, no more than the single incident made the basis of this suit has
been shown here.
3. Sgt. Whorton
Clearly established law forbids a significantly exacerbating delay
or a denial of medical care to a detainee suffering from DTs.
Therefore, for her conduct to be objectively reasonable, Sgt. Whorton’s
acts must not have resulted in either. Whorton was aware that: 1)
Thompson’s blood alcohol level was over 0.3% when he was arrested; 2)
Thompson was hallucinating and, at times, speaking incoherently; 3)
Thompson was injuring himself in his cell; and 4) Thompson was
experiencing DTs. She responded to this situation in a variety of ways:
1) close observation of Thompson; 2) placing Thompson in a straight
jacket (but without the helmet kept available for that sort of
situation); 3) dressing a wound on Thompson’s head; 4) placing
mattresses in Thompson’s cell; 5) calling the hospital to ask for
medical advice, though we must assume for purposes of this interlocutory
appeal that no medical advice was obtained; and 6) instructing jailer
Bishop not to summon medical help for Thompson unless she was contacted
and not to contact her unless Thompson was dying.
None of these responses involved arranging for professional medical
assistance for Thompson’s serious medical need—DTs. In fact, jailer
Bishop’s affidavit indicates that Whorton’s instructions prevented her
from summoning medical help after Whorton’s shift ended. We believe
28 that in light of clearly established law, all reasonable jailers would
have recognized the constitutional obligation to summon medical
assistance well before Thompson died, at least on the magistrate judge’s
assumption that Whorton did not receive the advice she claimed to have.
Further, again at least on the same assumption, we believe that all
reasonable jailers would have recognized the constitutional obligation
not to instruct her subordinates not to disturb her at home or summon
an ambulance unless a detainee was on the verge of death. To that
extent the law was clearly established. We do not believe that
Thompson’s refusal of medical care in Marion County could be reasonably
understood to absolve Whorton of her constitutional duty to summon
professional medical assistance several hours later or justifies her
imposition of the verge of death standard for the provision of
professional medical assistance. Accepting, as we now must, the facts
which the magistrate deemed genuinely in dispute, we cannot find error
in the denial of Whorton’s motion for summary judgment on the basis of
qualified immunity.
Of course, this does not mean that Whorton in fact acted with
deliberate indifference. Whorton may have subjectively intended that
Thompson be harmed (deliberate indifference) or she may have negligently
(or grossly negligently) believed that his DTs was not a serious medical
need then calling for other response on her part. The issue of
Whorton’s state of mind is for the trier of fact, assuming (as we must
on this interlocutory appeal, though not on appeal after an adverse
29 final judgment) that a jury could find the facts respecting Whorton as
the magistrate judge assumed.
VI. Plaintiffs’ Texas Tort Claims Act Claim
Sheriff Tefteller does not address the magistrate’s denial of his
motion for summary judgment on plaintiffs’ Texas Tort Claims Act claim.
Thus, we cannot disturb the magistrate’s disposition of that motion.
However, the district court would be within its discretion to dismiss,
without prejudice, the remaining claims against sheriff Tefteller
because the section 1983 claim that provided the basis of federal
jurisdiction must be dismissed with prejudice.12
Conclusion
Sheriffs Tefteller and Cross are entitled to qualified immunity
because their conduct has not been shown to be other than objectively
reasonable in light of clearly established law. Sgt. Whorton has not,
given the assumptions we must make on this interlocutory appeal,
demonstrated error in the denial of her motion for summary judgment.
Accordingly, we REVERSE the magistrate’s denials of sheriff Tefteller’s
and sheriff Cross’s motions for summary judgment based on qualified
immunity. We AFFIRM the magistrate’s denial of Sgt. Whorton’s motion
for summary judgment based on qualified immunity.
AFFIRMED in part, and REVERSED in part
12 This would also apply to Cross. The magistrate judge has not ruled on the defense motions respecting the state law claims against Cross and Whorton, so they are not before us.