Case: 19-11913 Date Filed: 12/05/2019 Page: 1 of 15
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-11913 Non-Argument Calendar ________________________
D.C. Docket No. 6:17-cv-01423-GAP-LRH
WILLINE BRYANT and MAX GRACIA SR., as co-personal Representatives of the Estate of Max Gracia, Jr., II,
Plaintiffs-Appellees,
versus
ROBERT J. BUCK, III, KAREN CLAIRMONT,
Defendants-Appellants. ________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(December 5, 2019)
Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 19-11913 Date Filed: 12/05/2019 Page: 2 of 15
Max Gracia Jr., II, sustained wounds from dog bites during his arrest on
August 6, 2015. Four days later, he died in his jail cell at Orange County Corrections
from septic shock, which resulted from his wounds becoming infected. The personal
representatives of his estate sued various jail officials under 42 U.S.C. § 1983,
alleging that they were deliberately indifferent to Mr. Gracia’s serious medical
needs. The district court denied the summary judgment motions of two of the
defendants, Dr. Robert J. Buck, III and Registered Nurse Karen Clairmont,
concluding that qualified immunity did not shield them from liability. We now
review Dr. Buck’s and Nurse Clairmont’s interlocutory appeal from that order. For
the following reasons, we affirm in part and reverse in part. Dr. Buck was entitled
to summary judgment based on qualified immunity, but Nurse Clairmont was not.
I
The relevant facts at the summary judgment stage are as follows.1
On August 6, 2015, Mr. Gracia incurred dog bite wounds to his legs and hands
from a police canine during his arrest. He was taken to Orlando Regional Medical
Center for treatment. Following his discharge from the hospital, he was admitted to
the infirmary at Orange County Corrections.
1 On summary judgment, we view the facts in the light most favorable to the non-moving party. See McCullough v. Antolini, 559 F.3d 1201, 1202 (11th Cir. 2009). 2 Case: 19-11913 Date Filed: 12/05/2019 Page: 3 of 15
Dr. Buck, a licensed physician and the Medical Director of Orange County
Corrections, admitted Mr. Gracia. As Mr. Gracia had sustained multiple dog bites,
had a history of seizures, and was HIV positive, Dr. Buck ordered daily dressing
changes, antibiotics, anti-seizure medication, and pain medications. Dr. Buck also
noted that his staff should inquire about Mr. Gracia’s use of Atripla, an HIV
medication, and that he should possibly restart it. After this initial intake, Dr. Buck
did not see or inquire about Mr. Gracia again.
Over the next two days, nurses continued to monitor Mr. Gracia. They
recorded that his wounds were reddened with scant, serosanguineous drainage.
On the morning of August 9, 2015, Mr. Gracia complained of weakness and
dizziness. The nurse on duty took his vitals and recorded a “dramatically abnormal”
pulse and an “elevated respiratory rate,” though his temperature, blood pressure, and
oxygen saturation were normal. See D.E. 95-1 at 39–40. Believing Mr. Gracia was
dehydrated from vomiting the day before, the nurse ordered him to increase his
fluids.
That evening, when Nurse Clairmont reported to the infirmary for her shift,
the nurse who was on duty during the day informed her that she had taken Mr.
Gracia’s vitals and his pulse and respiratory rate were elevated. She also informed
Nurse Clairmont that he had complained about dizziness and weakness.
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At around 9:00 p.m., Nurse Clairmont went to Mr. Gracia’s cell to give him
his evening medications. She wrote a progress note stating:
9:00 p.m. Patient observed twisting himself and moaning loudly on bed during med pass when asked by staff to sit up for his pm meds. Patient cried, “I can’t do it,” and proceeded to slide his body onto the floor near the foot of his bed. Patient refused all assistance and refused all care from nursing staff. Patient’s dressings on . . . [his] calf and upper left thigh are noted to be heavily soiled with dried, bloody, drainage upon assessment. Will encourage patient to allow wound care. Will continue to monitor.
D.E. 85-7.
Nurse Clairmont testified in her deposition that she did not change Mr.
Gracia’s dressings at this time because “[h]e was refusing care.” D.E. 85-1 at 80.
She further testified that based on her assessment of Mr. Gracia during this
encounter, she determined that it was not necessary to take his vital signs. There is
no evidence that she made any assessment of Mr. Gracia at this time beyond her
visual observations of his dressings and his demeanor.
Nurse Clairmont believed Mr. Gracia to be “faking or exaggerating his
medical condition.” D.E. 95-1 at 179. As a result, he was issued a disciplinary report.
To continue observing Mr. Gracia, Nurse Clairmont had him moved to a
camera-monitored cell in the infirmary at around 11:16 p.m. From the time that he
was transferred, until 5:15 a.m., Nurse Clairmont did not visit Mr. Gracia.
At 5:15 a.m., an officer called Nurse Clairmont to Mr. Gracia’s cell and
notified her that Mr. Gracia was not breathing. He was rushed to the emergency 4 Case: 19-11913 Date Filed: 12/05/2019 Page: 5 of 15
department and pronounced dead within the hour. An autopsy confirmed that Mr.
Gracia’s cause of death was “septic shock as a result of infected dog bite wounds.”
D.E. 95-1 at 180.
II
The personal representatives of Mr. Gracia’s estate sued Dr. Buck, Nurse
Clairmont, Orange County, and three other nurses. They alleged that the defendants
were deliberately indifferent to his serious medical needs in violation of the United
States Constitution.2
Dr. Buck and Nurse Clairmont each filed separate motions for summary
judgment based on qualified immunity. Two of the other defendants, Elsa Galloza-
Gonzalez and Lynn Marie Harter, joined Dr. Buck’s motion for summary judgment.
The plaintiffs did not oppose, and the district court granted, summary judgment in
favor of Nurse Gonazelz and Nurse Harter. The parties stipulated to dismiss
Maryanne Evans after she filed for personal bankruptcy.
The district court denied Dr. Buck’s and Nurse Clairmont’s requests for
summary judgment. The district court explained that a reasonable jury could find
Dr. Buck deliberately indifferent as a medical provider because he “examined an
2 The district court dismissed the claim against Orange County because it did not have a policy that caused Mr. Gracia’s injury and the plaintiffs did not plausibly allege a widespread pattern of deliberate indifference.
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HIV positive patent with a severe dog-bite wound and deliberately declined to play
any active role in his subsequent treatment.” D.E. 103 at 9–10. It further determined
that a jury could find Dr. Buck liable as a supervisor based on his “policies and
customs,” noting that the infirmary was extremely understaffed and nurses often
treated patients, rather than doctors. D.E. 103 at 10–11. As to Nurse Clairmont, the
district court concluded that a reasonable jury could find that she was deliberately
indifferent by ignoring Mr. Gracia’s apparently serious medical condition based on
her unfounded belief that he was malingering.
Dr. Buck and Nurse Clairmont filed this interlocutory appeal. A denial of
summary judgment based on the determination that a government official is not
entitled to qualified immunity for alleged constitutional deprivations is immediately
appealable. See Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985).
III
We review de novo a district court’s denial of a summary judgment motion
based on qualified immunity and resolve all issues of fact in favor of the plaintiffs.
See McCullough v. Antolini, 559 F.3d 1201, 1202 (11th Cir. 2009). Summary
judgment is appropriate if the evidence before the court demonstrates that “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a).
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When a government official asserts a qualified immunity defense, he bears the
initial burden of showing that “he was acting within his discretionary authority.”
Glasscox v. City of Argo, 903 F.3d 1207, 1213 (11th Cir. 2018) (citation and internal
quotation marks omitted). Once he makes this showing, the burden shifts to the
plaintiff to show that: “(1) the defendant violated a constitutional right, and (2) this
right was clearly established at the time of the alleged violation.” Id. (quoting
Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004)).
Here, it is undisputed that Dr. Buck and Nurse Clairmont were acting within their
discretionary authority, so we begin our analysis at the second step.
The plaintiffs contend that Dr. Buck and Nurse Clairmont violated Mr.
Gracia’s constitutional rights by being deliberately indifferent to his serious medical
needs, in violation of the Fourteenth Amendment. To establish a deliberate-
indifference claim, they must demonstrate: (1) that Mr. Gracia had a serious medical
need; (2) that the defendants were deliberately indifferent to that need; and (3) that
the defendants caused Mr. Gracia’s injury. See Taylor v. Hughes, 920 F.3d 729, 733
(11th Cir. 2019).3
3 As a pretrial detainee, Mr. Gracia’s deliberate indifference claim is governed by the Fourteenth Amendment, rather than the Eighth Amendment. See Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272, 1279 (11th Cir. 2017). His claims, nevertheless, are evaluated under the same standard as a prisoner’s deliberate indifference claim under the Eighth Amendment. See id. 7 Case: 19-11913 Date Filed: 12/05/2019 Page: 8 of 15
IV
We analyze whether the district court correctly denied summary judgment for
Dr. Buck and Nurse Clairmont in turn.
A
Deliberate indifference has three components: “(1) subjective knowledge of a
risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere
negligence.” Lane v. Philbin, 835 F.3d 1302, 1308 (11th Cir. 2016) (citation and
internal quotation marks omitted). The plaintiffs cannot demonstrate that Dr. Buck
was deliberately indifferent to Mr. Gracia’s medical needs, as his treating physician
or as a supervisor.
Dr. Buck only treated Mr. Gracia on August 6, 2015, when he admitted him
to the Orange County Corrections infirmary. Even the plaintiffs’ expert, Dr. Thomas
D. Fowlkes, testified in his deposition that he did not believe Dr. Buck breached the
standard of care in his treatment of Mr. Gracia during this initial intake.
The district court concluded that Dr. Buck’s failure to take further action after
the initial intake constituted deliberate indifference, relying on our decision in
Taylor, 920 F.3d at 734. In Taylor, a pretrial detainee died from internal bleeding
after he was kept in a jail holding cell overnight. See id. at 731. The jail guards
were not entitled to qualified immunity because even though they knew the inmate
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had been in a car crash that day, they ignored him crying out in pain for several
hours. See id. at 734.
Unlike the situation in Taylor, Dr. Buck did not ignore Mr. Gracia while
knowing that he was at risk of serious harm. Instead, at a time when Mr. Gracia
appeared to be stable, Dr. Buck had his full-time medical staff take over his care.
There is no evidence that delegating follow-up visits to nurses rather than doctors
was negligent, let alone more than “mere negligence.” See Lane, 835 F.3d at 1308.
See also Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272, 1280 (11th Cir. 2017)
(“[M]edical treatment violates the Constitution only when it is ‘so grossly
incompetent, inadequate, or excessive as to shock the conscience or to be intolerable
to fundamental fairness.’”) (citation omitted). Indeed, Dr. Fowlkes testified that he
did not believe there “was any requirement for [Dr. Buck] to physically return to see
Mr. Gracia at any point before his death[.]” D.E. 95-1 at 24. On this record, Dr.
Buck’s treatment of Mr. Garcia was not deliberately indifferent to his medical needs.
The district court also denied Dr. Buck qualified immunity because there
“remain[ed] material questions of fact as to whether, as a supervisor, [Dr.] Buck’s
policies and customs resulted in deliberate indifference.” D.E. 103 at 10.
Specifically, the district court concluded that Dr. Buck could be liable based on two
of the infirmary’s policies or customs: (a) the treatment policy made little distinction
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between nurses and doctors; and (b) the infirmary was severely understaffed. See
id. at 10–11.
The district court’s analysis seems to conflate the municipal liability claim
that was initially pled against Orange County with the supervisory liability claim
pled against Dr. Buck. The plaintiffs initially alleged that Orange County’s policies
and practices—including its failure to properly fund, train, and staff the Orange
County Corrections infirmary—resulted in deliberate indifference. That claim was
dismissed because the plaintiffs did not plausibly allege that such policies or customs
existed. The supervisory liability claim against Dr. Buck, in contrast, asserted that
he failed to properly supervise Mr. Gracia’s treatment and care. 4
A supervisor cannot be liable under § 1983 based on vicarious liability or
respondeat superior. See Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).
But a supervisor may be liable if he “personally participates in the alleged
unconstitutional conduct or when there is a causal connection between the actions
of a supervising official and the alleged constitutional deprivation.” Id.
Dr. Buck did not personally participate in the unconstitutional conduct, as
discussed above. The plaintiffs assert, however, that Dr. Buck caused the
4 Even if the claim against Dr. Buck were based on the policies or practices identified by the district court, the plaintiffs could not show that such policies caused Mr. Gracia’s death. The plaintiffs do not allege that Mr. Gracia died because nurses were incapable of properly treating him or because of understaffing. Instead, as discussed below, they claim that Nurse Clairmont was monitoring Mr. Gracia but failed to treat him because she believed he was malingering. 10 Case: 19-11913 Date Filed: 12/05/2019 Page: 11 of 15
constitutional violation by failing to adequately train his nursing staff in recognizing
the onset of sepsis. He may be liable for failure to train if he had “actual or
constructive notice that a particular omission in the[ ] training program cause[d] [his]
employees to violate citizens’ constitutional rights,” and “armed with that
knowledge,” chose to retain the training program. See Keith v. DeKalb Cty., Ga.,
749 F.3d 1034, 1052 (11th Cir. 2014) (citation and internal quotation marks
omitted). Actual or constructive notice may be established by showing a pattern of
similar constitutional violations by untrained employees. See id. at 1053.
There is no evidence that, prior to this incident, Dr. Buck had reason to believe
the nurses on his staff lacked adequate training to recognize sepsis. Although the
plaintiffs alleged that there had been other incidents of deliberate indifference by
medical staff at Orange County Corrections, none of them involved sepsis.
Accordingly, Dr. Buck cannot be liable for failure to train. See id. See also Cottone,
326 F.3d at 1361–62 (holding that the plaintiffs could not state a claim against the
supervisors for failing to train or supervise officers because there were no allegations
that the defendants knew about the officers’ unconstitutional conduct so they were
not on notice of the need to correct or stop it).
Because the plaintiffs failed to show that Dr. Buck violated the constitution,
we do not reach the “clearly established law” prong of the qualified immunity
11 Case: 19-11913 Date Filed: 12/05/2019 Page: 12 of 15
analysis. See Cottone, 326 F.3d at 1362. Dr. Buck is entitled to qualified immunity
and the district court erred in denying his motion for summary judgment.
B
In evaluating whether Nurse Clairmont was entitled to qualified immunity,
the district court correctly decided the threshold inquiry—that the plaintiffs made a
sufficient showing that she violated Mr. Gracia’s constitutional rights. But the
district court failed to reach the next step of the analysis: determining whether the
right was clearly established. As we explain, it was.
First, viewing the evidence in the light most favorable to the plaintiffs, as we
must, the record supports that Nurse Clairmont was deliberately indifferent to Mr.
Gracia’s serious medical needs. When she started her shift on August 9, 2015, she
knew that Mr. Gracia had recently sustained dog bites, that his pulse and respiratory
rate were elevated, and that he had complained about dizziness and weakness. Her
own progress notes reflect that later that evening she saw him “twisting himself and
moaning loudly on the bed,” crying “I can’t do it,” and sliding his body onto the
floor near the foot of his bed. See D.E. 85-7. Yet, other than ordering that he be
moved to a camera-monitored cell, she did not take any action. She did not change
his dressings, perform an assessment, or check his vitals, despite the infirmary’s
policy requiring nurses to take patients’ vital signs once per shift.
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Nurse Clairmont argues that she did not have subjective knowledge of the risk
of sepsis because (a) she mistakenly believed Mr. Gracia was malingering, and (b)
she did not know that he was at risk of septic shock specifically. A reasonable jury
could find that she was aware of his serious medical needs—despite her contention
that she believed he was faking—because there was ample evidence that he was
suffering, and she did not even perform an assessment to verify if he was
malingering. See Taylor, 920 F.3d at 734 (holding that guards could not willfully
disregard evidence that the inmate required medical assistance based on the
Trooper’s statement that he was “just drunk”). Nor did Nurse Clairmont need to
know specifically that Mr. Gracia was at risk of sepsis to have knowledge of his
medical needs. See id. (explaining that officers can be liable for deliberate
indifference even if they do not know a detainee’s “specific medical condition”).
See also McElligott v. Foley, 182 F.3d 1248, 1256 (11th Cir. 1999) (holding that a
jury could infer that the prison medical staff were aware of a substantial risk of harm
to the inmate, even though they did not know he had cancer, because they were aware
he was in pain).
Nurse Clairmont also contends that her care was not “grossly incompetent”
because she continued to monitor Mr. Gracia. She relies on Dang v. Sheriff,
Seminole County, Florida, 871 F.3d at 1282, for support. She compares her conduct
to that of one of the nurses in Dang, who also incorrectly believed that an inmate’s
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behavior was voluntary. See id. There, however, the nurse assessed the inmate,
“noting that his vitals were normal and his pupils were equal and reactive to light,”
despite her mistaken belief of malingering. See id. Here, in contrast, Nurse
Clairmont performed no such assessment, letting Mr. Gracia suffer for hours as his
condition deteriorated. A jury could find that monitoring him—without doing any
medical assessment whatsoever or checking his vitals—amounted to no care at all.
See McElligott, 182 F.3d at 1257 (holding that a reasonably jury could find prison
medical staff deliberately indifferent because they knew the extent of the inmate’s
pain but did nothing to treat him or respond to the deterioration of his condition).
The situation might be different had Nurse Clairmont done some sort of a check or
assessment. But that is not what happened.
Second, Nurse Clairmont’s failure to treat Mr. Gracia violated his clearly
established constitutional rights. At the time of Mr. Gracia’s incarceration, “it was
clearly established that knowledge of the need for medical care and intentional
refusal to provide that care constituted deliberate indifference.” See Harris v.
Coweta Cty., 21 F.3d 388, 393 (11th Cir. 1994). See also McElligott, 182 F.3d at
1257 (“Our cases . . . have recognized that prison officials may violate the Eighth
Amendment’s commands by failing to treat an inmate’s pain.”). The record reflects
that from at least around 9:00 p.m., until around 5:15 a.m. (about 8 hours), Nurse
Clairmont knew that Mr. Gracia—who had sustained dog bites—was crying out in
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pain and lying on the floor, but she failed to take any action to assess or treat him.
Accordingly, the district court correctly concluded that Nurse Clairmont is not
entitled to qualified immunity and properly denied her motion for summary
judgment.
V
We reverse the district court’s denial of summary judgment for Dr. Buck, but
we affirm the denial of summary judgment for Nurse Clairmont. We remand for
further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.