# White v. Karimou

> District Court, W.D. Arkansas · March 29, 2022

URL: https://www.frixlaw.com/law-library/cases/10011635

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** March 29, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10011635

## How later opinions describe it (automated extraction)

- stating that submission of verifying medical evidence is unnecessary where the need for medical attention would have been obvious to a layperson

## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION

MISTY ELIZABETH WHITE,
as Ancillary Administrator of the
Estate of ROBERT EMERY WHITE, JR.,
Deceased PLAINTIFF

v. Case No. 6:20-cv-6089

CORPORAL ABDEL K. KARIMOU,
Individually and in his Capacity as a
Correctional Officer for the Arkansas
Department of Corrections, et al. DEFENDANTS

MEMORANDUM OPINION
Before the Court is Defendants’ Motion for Summary Judgment. (ECF No. 37). Plaintiff
responded. (ECF No. 44). Defendants have not replied and their time to do so has passed. See
Local Rule 7.2(b). The matter is ripe for consideration. For the following reasons, the motion will
be granted.
I. BACKGROUND
Robert Emery White, Jr. was incarcerated in the Ouachita River Unit of the Arkansas
Department of Corrections (“ADC”). On March 10, 2019, at 8:52 p.m., Mr. White entered his cell
and put a blanket over the doorway, blocking the view inside. At approximately 9:20 p.m., another
inmate, Kendall Rudley, went into Mr. White’s cell to advise him to take the blanket down. He
found Mr. White unresponsive, hanging from a makeshift noose tied to the frame of the cell’s top
bunk. Thinking Mr. White was dead or unconscious, Mr. Rudley yelled for help and another
inmate, Mark McDaniel, came into the cell and untied the noose’s knot from the top bunk. Mr.
McDaniel lowered Mr. White to the ground, with the noose still wrapped around his neck. Mr.
McDaniel observed Mr. White as unresponsive, purple, cold, and drooling at the mouth. The two
inmates stepped outside the cell and yelled for help.
Defendants Abdel Karimou and Jesus Feliberty-Casiano were performing security checks
with another guard when they heard inmates making a commotion in Barracks 3, where Mr.

White’s cell was located. As they entered the Barracks 3 common area, inmates told them that an
inmate “was trying to hang himself” and “was dead.” (ECF No. 37-5, p. 4).1 The guards went to
0F
Mr. White’s cell and Defendant Feliberty-Casiano immediately radioed for a supervisor to come
to the scene.
The guards found Mr. White unresponsive, pale, blue, drooling, and not showing signs of
life, like breathing or movement. Defendant Karimou stepped into the cell while the other two
guards remained at the cell door to keep watch and secure the area. Defendant Karimou shouted
at Mr. White but received no response. The parties dispute whether Defendant Karimou physically
touched or checked Mr. White’s body for a pulse.2 Regardless, Defendant Karimou believed that
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Mr. White was dead and told the other guards as much. The guards did not attempt
cardiopulmonary resuscitation (“CPR”) at that time.
The guards’ supervisor, Defendant Bobby Cohen, arrived at the scene and observed Mr.
White slumped down on the floor, with dark gray or blue skin. The guards informed Defendant
Cohen that Mr. White had hanged himself. Defendant Cohen asked whether they called for

1 Unless otherwise noted, all citations to specific pages in record filings are to the pagination generated at the top of
the page by the CM/ECF system.

2 Defendant Karimou testified at his deposition that he tapped Mr. White’s shoulder to try to rouse him and
subsequently checked Mr. White’s jugular for a pulse and found none. (ECF Nos. 37-1, pp. 127, 129, 134).
Meanwhile, inmate Jacob Townsend provided a written witness statement on March 10, 2019, indicating that neither
Defendant Karimou nor the other guards ever touched Mr. White’s body before medical assistance arrived. (ECF No.
44-5). At this stage, the Court must resolve all genuine fact disputes and make all reasonable inferences in Plaintiff’s
favor. See Jones v. McNeese, 675 F.3d 1158, 1161-62 (8th Cir. 2012). The Court will proceed under the assumption
that Defendant Karimou did not physically touch Mr. White or check his pulse.
medical staff, they responded that they had not, and he immediately radioed for medical staff.
Defendant Cohen did not enter the cell, touch Mr. White, or attempt CPR because he believed Mr.
White was already dead and he wanted to preserve the area for a subsequent state police
investigation.3 While waiting for medical staff to arrive, Defendant Cohen and the guards stayed
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outside the cell and attempted to disburse the gathered crowd of inmates and secure the area. The
summary judgment record is unclear, but it seems that Defendants Christopher Cook, Dustin
Phillips, and Richard Salceda—all ADC guards—arrived on the scene at some point afterwards,
and it does not appear that they touched Mr. White or attempted CPR.
At roughly 9:31 p.m., Nurse Melanie Thomas arrived at Mr. White’s cell in response to
Defendant Cohen’s call for medical assistance. She found Mr. White unresponsive, with a very
white skin color. She removed the noose from around his neck, checked his carotid artery for a
pulse, and found none. His skin was cool to the touch. He did not show signs of life, like breathing
or movement. She began performing CPR and requested that the guards call emergency medical
services. Medics eventually arrived and took over Mr. White’s medical care. Defendant Cohen

helped perform CPR to give the medics a break when needed.
Mr. White was pronounced dead at 9:53 p.m. Dr. Charles Kokes, the chief medical
examiner for the Arkansas Crime Lab, examined Mr. White’s body and determined the cause of
death was hanging and the manner of death was suicide. The Arkansas State Police investigated
and found no reason to believe that Mr. White’s death was anything other than a suicide.
On August 21, 2020, Plaintiff Misty White, the ancillary administrator of Mr. White’s
estate, filed this civil-rights case pursuant to 42 U.S.C. § 1983 and the Arkansas Civil Rights Act

3 Of the guards present at this time, only Defendants Cohen and Feliberty-Casiano were trained and actively certified
to perform CPR. Defendant Karimou was previously CPR certified, but his certification expired at least three years
before the events at issue and had not been renewed. (ECF No. 37-1, p. 61).
(“ACRA”), Ark. Code Ann. § 16-123-105 et seq. Plaintiff alleges that Defendants violated Mr.
White’s rights under the United States and Arkansas Constitutions to be free from cruel and
unusual punishment. Specifically, she alleges that Defendants Karimou, Feliberty-Casiano,
Cohen, Cook, Phillips, and Salceda were deliberately indifferent to Mr. White’s serious medical

needs by making no attempt to provide CPR or other resuscitative efforts to Mr. White for over
seven minutes until medical personnel arrived, which ultimately caused his death. She also alleges
that Defendant Michael Elmore, the captain at the Ouachita River Unit, is liable for failing to
adequately train the other Defendants, resulting in the constitutional deprivation.
On March 2, 2022, Defendants filed the instant motion for summary judgment. Plaintiff
opposes the motion.
II. STANDARD
The standard for summary judgment is well established. A party may seek summary
judgment on a claim, a defense, or “part of [a] claim or defense.” Fed. R. Civ. P. 56(a). When a
party moves for summary judgment, the Court “shall grant summary judgment if the movant shows

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); Krenik v. Cnty. of LeSueur, 47 F.3d 953, 957 (8th Cir. 1995).
This is a “threshold inquiry of . . . whether there is a need for trial—whether, in other words, there
are genuine factual issues that properly can be resolved only by a finder of fact because they
reasonably may be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). A fact is material only when its resolution affects the outcome of the case. Id.
at 248. A dispute is genuine if the evidence is such that it could cause a reasonable jury to return
a verdict for either party. Id. at 252.
In deciding a motion for summary judgment, the Court must consider all the evidence and
all reasonable inferences that arise from the evidence in a light most favorable to the nonmoving
party. Nitsche v. CEO of Osage Valley Elec. Co-Op, 446 F.3d 841, 845 (8th Cir. 2006). The
moving party bears the burden of showing that there is no genuine issue of material fact and that
it is entitled to judgment as a matter of law. See Enter. Bank v. Magna Bank, 92 F.3d 743, 747

(8th Cir. 1996). The nonmoving party must then demonstrate the existence of specific facts in the
record that create a genuine issue for trial. Krenik, 47 F.3d at 957. However, a party opposing a
properly supported summary judgment motion “may not rest upon mere allegations or denials . . .
but must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477
U.S. at 256.
Qualified immunity “is an immunity from suit rather than a mere defense to liability[;] . . .
it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S.
511, 526 (1985). At the summary judgment stage, “qualified immunity cases are somewhat unique
in that the court should [not] deny summary judgment any time a material issue of fact remains on
the [constitutional violation] claim [because to do so] could undermine the goal of qualified

immunity.” Jones v. McNeese, 675 F.3d 1158, 1161 (8th Cir. 2012) (alterations in original).
Instead, the Court “must take a careful look at the record, determine which facts are genuinely
disputed, and then view those facts in a light most favorable to the non-moving party as long as
those facts are not so blatantly contradicted by the record . . . that no reasonable jury could believe
[them].” Id. at 1161-62 (alteration in original) (internal quotation marks omitted).
III. DISCUSSION
Defendants contend that they are entitled to sovereign immunity on the claims against them
in their official capacities. They also contend that they are entitled to qualified immunity on the
claims against them in their individual capacities. The Court will address these arguments in turn.
A. Sovereign Immunity
Plaintiff sued Defendants in both their individual and official capacities. Defendants argue
that they are entitled to sovereign immunity on Plaintiff’s official-capacity claims because they are
employees of the ADC, an agency of the State of Arkansas.

Plaintiff did not respond to Defendants’ arguments on the official-capacity claims. Thus,
the Court assumes she has abandoned and waived her official-capacity claims. See Satcher v.
Univ. of Ark. at Pine Bluff Bd. of Trs., 558 F.3d 731, 735 (8th Cir. 2009) (“[F]ailure to oppose a
basis for summary judgment constitutes waiver of that argument.”); Chipman v. Cook, No. 3:15-
cv-143-KGB, 2017 WL 1160585, at *7 (E.D. Ark. Mar. 28, 2017) (finding that failure to address
a summary judgment argument on a claim is a waiver of that claim); see also Allen v. Missouri,
No. 4:11-cv-2224-JAR, 2013 WL 2156259, at *12 (E.D. Mo. May 17, 2013) (construing the
plaintiff’s failure to respond to a summary judgment motion regarding certain claims as the
plaintiff’s abandonment of those claims). Though, assuming arguendo that Plaintiff has not
abandoned her official-capacity claims, they are barred by sovereign immunity.

The Eleventh Amendment generally bars lawsuits for money damages in federal court
against a state, a state agency, or a state official sued in his or her official capacity. Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 66 (1989). There are certain exceptions to Eleventh
Amendment sovereign immunity. Burk v. Beene, 948 F.2d 489, 493 (8th Cir. 1991). “A state may
waive its sovereign immunity and consent to suit in federal court, and Congress may, by
legislation, abrogate immunity without the state’s consent in order to effectuate the provisions of
the Fourteenth Amendment.” Id. However, “Congress did not abrogate constitutional sovereign
immunity when enacting . . . section 1983.” Id.
Plaintiff’s official-capacity claims against Defendants are essentially claims against their
employing governmental entity, the State of Arkansas. See Veatch v. Bartels Lutheran Home, 627
F.3d 1254, 1257 (8th Cir. 2010); Murray v. Lene, 595 F.3d 868, 873 (8th Cir. 2010). The State
of Arkansas is not a “person” subject to suit for money damages under section 1983. See Will, 491

U.S. at 64, 70.
Plaintiff has not shown that the State of Arkansas or its agencies waived sovereign
immunity or otherwise consented to this suit, and Congress did not abrogate the states’ sovereign
immunity when it enacted section 1983. Plaintiff requests monetary damages, so her official-
capacity claims are barred by the doctrine of sovereign immunity. See Murphy v. State of Ark.,
127 F.3d 750, 754 (8th Cir. 1997) (awarding sovereign immunity in dismissing official-capacity
claims for money damages against state employees in a section 1983 case).
Defendants are entitled to sovereign immunity on Plaintiff’s official-capacity claims.
Those claims will be dismissed with prejudice.
B. Qualified Immunity

Defendants argue that they are entitled to qualified immunity on Plaintiff’s individual-
capacity claims because the evidence shows they did not violate Mr. White’s constitutional rights
and, even assuming that they did, the implicated rights were not clearly established at the time.
A federal cause of action exists for the deprivation, under color of state law, of a citizen’s
“rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42
U.S.C. § 1983. However, the affirmative defense of qualified immunity shields government
officials from liability unless their conduct violates clearly established statutory or constitutional
rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Whether a defendant is entitled to qualified immunity is ordinarily a question of law to be
decided by the trial court. J.H.H. v. O’Hara, 878 F.2d 240, 243 (8th Cir. 1989), cert. denied, 493
U.S. 1072 (1990).
Qualified immunity requires a two-pronged inquiry. Jones, 675 F.3d at 1161. The Court
must determine whether the facts demonstrate a deprivation of a constitutional right. Id. (citing

Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010)). The Court must also decide whether the
implicated right was clearly established at the time of the deprivation. Id. The Court may begin
with either prong and may conclude the analysis if either is not met. Kulkay v. Roy, 847 F.3d 637,
642 (8th Cir. 2017). The Court will begin with whether Defendants committed a constitutional
deprivation and, if that question is answered affirmatively, then the Court will decide whether the
implicated right was clearly established at the time.
1. Constitutional Deprivation
Plaintiff contends that Defendants were deliberately indifferent to Mr. White’s serious
medical needs, in violation of the Eighth Amendment. Defendants disagree.
The Court must determine whether the record establishes that Defendants deprived Mr.

White of a constitutional right. Jones, 675 F.3d at 1161. The Eighth Amendment’s prohibition of
cruel and unusual punishment forbids deliberate indifference to prisoners’ serious medical needs.
Luckert v. Dodge Cnty., 684 F.3d 808, 817 (8th Cir. 2012). Thus, to prevail on her Eighth
Amendment claims, Plaintiff must prove that Defendants acted with deliberate indifference to Mr.
White’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
The deliberate-indifference standard includes “both an objective and a subjective
component: ‘[Plaintiff] must demonstrate (1) that [Mr. White] suffered [from] objectively serious
medical needs and (2) that the prison officials actually knew of but deliberately disregarded those
needs.’” Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (alterations in original). To show
that Mr. White suffered from an objectively serious medical need, Plaintiff must show he was
“diagnosed by a physician as requiring treatment” or had an injury “that is so obvious that even a
layperson would easily recognize the necessity for a doctor’s attention.” Schaub v. VonWald, 638
F.3d 905, 914 (8th Cir. 2011).

To satisfy the subjective prong of deliberate indifference, “it is not enough that a reasonable
official should have known of the risk.” Gregoire v. Class, 236 F.3d 413, 417 (8th Cir. 2000).
Rather, Plaintiff must show that Defendants knew of the risk and deliberately disregarded it. Id.
“This knowledge is subject to proof by all the usual ways, including inferences based on the
obviousness of the risk.” Id. However, “even if an official knows of a risk, he is not liable for a
subsequent injury if he responded reasonably to the known risk.” Id. When evaluating whether
Defendants unreasonably disregarded a risk to Mr. White, the Court considers their “actions in
light of the information . . . possessed at the time, the practical limitations of [their] position and
alternative courses of action that would have been apparent to an official in that position.” Id. at
419.

Plaintiff “must show more than negligence, more even than gross negligence, and mere
disagreement with treatment decisions does not give rise to the level of a constitutional violation.
Deliberate indifference is akin to criminal recklessness, which demands more than negligent
misconduct.” Popoalii v. Corr. Med. Servs., 512 F.3d 488, 499 (8th Cir. 2008) (internal quotation
marks and citation omitted). Deliberate indifference may be manifested by “prison guards in
intentionally denying or delaying access to medical care or intentionally interfering with the
treatment once prescribed.” Estelle, 429 U.S. at 104-05 (footnotes omitted). The objective
seriousness of delay in treatment must be measured by reference to the effect of delay, which must
be shown by verifying medical evidence in the record. Laughlin v. Schriro, 430 F.3d 927, 929
(8th Cir. 2005). But see Schaub, 638 F.3d at 919 (stating that submission of verifying medical
evidence is unnecessary where the need for medical attention would have been obvious to a
layperson).
With that framework in mind, the Court will first address Plaintiff’s claim against

Defendant Elmore. Then the Court will address Plaintiff’s claim against the other Defendants.
a. Defendant Elmore
Plaintiff alleges that Defendant Elmore, the captain at the Ouachita River Unit, was
deliberately indifferent because he failed to adequately train the other Defendants to respond to
medical emergencies, causing their deprivation of Mr. White’s Eighth Amendment rights.
Defendants argue that there is no evidence showing that Defendant Elmore had direct involvement
with the events involving Mr. White’s death on March 10, 2019, or that he was aware of any
information that could have been acted on to avoid Mr. White’s death. Plaintiff does not respond
to these arguments, which by itself is enough to grant summary judgment to Defendant Elmore.
See Satcher, 558 F.3d at 735 (“[F]ailure to oppose a basis for summary judgment constitutes

waiver of that argument.”). However, Plaintiff’s claim also fails on the merits.
A supervisor may not be held liable under section 1983 for the constitutional violations of
a subordinate on a respondeat superior theory. Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995).
Rather, a supervisor’s liability only arises if:
[H]e directly participates in a constitutional violation or if a failure to properly
supervise and train the offending employee caused a deprivation of constitutional
rights. The plaintiff must demonstrate that the supervisor was deliberately
indifferent to or tacitly authorized the offending acts. This requires a showing that
the supervisor had notice that the training procedures and supervision were
inadequate and likely to result in a constitutional violation.
Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996) (internal citations omitted).
Nothing in this case indicates that Defendant Elmore directly participated in the events at
issue on March 10, 2019. Instead, Plaintiff alleges that he inadequately trained the other
Defendants to appropriately respond to Mr. White’s emergency. But Plaintiff offers no summary
judgment argument on this issue and provides no evidence that would have alerted Defendant

Elmore that the other Defendants were inadequately trained to respond to medical emergencies or
that the inadequate training would likely cause a constitutional deprivation.
Based on the record, no reasonable jury could conclude that Defendant Elmore violated
Mr. White’s constitutional rights by failing to properly train the other Defendants. See Tlamka v.
Serrell, 244 F.3d 628, 635 (8th Cir. 2001) (noting the absence of evidence on a supervisory
defendant’s alleged failure to train and holding the same); see also Davis v. Fulton Cnty., 90 F.3d
1346, 1350 (8th Cir. 1996) (“The non-moving party . . . may not rest upon mere . . . allegations in
the pleadings, but must set forth specific facts sufficient to raise a genuine issue for trial.”).
Defendant Elmore is entitled to qualified immunity. See Jones, 675 F.3d at 1161. The individual-
capacity claim against him will be dismissed with prejudice.

b. Other Defendants
Plaintiff argues the other Defendants were deliberately indifferent because they failed to
attempt CPR on Mr. White for over seven minutes until Nurse Thomas arrived at the scene. “An
officer trained in CPR, who fails to perform it on a prisoner manifestly in need of such assistance,
is liable under § 1983 for deliberate indifference.” McRaven v. Sanders, 577 F.3d 974, 983 (8th
Cir. 2009). The Court first addresses whether Defendants were trained to perform CPR.
It seems undisputed that Defendant Cohen was CPR certified—he testified at his deposition
that all sergeants with the ADC must be CPR certified and, although he could not recall when, he
would have become CPR certified when he became a sergeant. Based on that testimony, and
lacking any contrary record evidence, it can reasonably be inferred that Defendants Phillips and
Cook, who were also sergeants at the ADC, were likewise CPR certified. See Nitsche, 446 F.3d at
845. Defendant Feliberty-Casiano was CPR certified, despite not being a sergeant.4
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Defendant Karimou was once CPR certified for a previous job, but his certification expired
at least three years before the events at issue and had not been renewed. (ECF No. 37-1, p. 61).
Defendants appear to argue that because his certification was not active, he was not trained to
administer CPR for purposes of the deliberate indifference analysis. Plaintiff appears to suggest
the opposite, that his prior training made him capable of performing CPR. The Court resolves the
dispute in Plaintiff’s favor and assumes that, even though Defendant Karimou’s CPR certification
was expired, he could have performed CPR on March 10, 2019.
The parties’ briefs and statements of fact do not mention Defendant Salceda at all. There
is no record evidence that he was CPR certified on March 10, 2019. He was only a corporal with
the ADC, so the record does not allow the reasonable inference that he was certified in CPR. In
the absence of any evidence showing Defendant Salceda was trained to perform CPR, no

reasonable jury could find him deliberately indifferent for not providing CPR to Mr. White. See
McRaven, 577 F.3d at 983 (providing for deliberate indifference when an officer who is trained in
CPR refuses to perform it on a prisoner manifestly in need of it). Accordingly, Defendant Salceda
is entitled to qualified immunity. The deliberate indifference claim against him will be dismissed
with prejudice.
It is undisputed that when the CPR-certified Defendants arrived at Mr. White’s cell, they
were told he tried to hang himself and was dead. They found Mr. White unresponsive, not

4 Defendants’ brief asserts that Defendant Feliberty-Casiano was not CPR trained. (ECF No. 39, pp. 10-11). However,
Defendants point to no record evidence supporting this assertion and Plaintiff provides other evidence showing that
he was, in fact, actively certified. (ECF No. 44-1). At best, this presents a dispute of fact that the Court resolves in
Plaintiff’s favor.
breathing or moving in any way, and exhibiting an unnatural skin color. It is likewise undisputed
that Defendants all subjectively believed Mr. White was dead. Nurse Thomas testified that after
she arrived on the scene, her medical standard of care would not allow her to assume Mr. White
was dead, but a layperson would have thought Mr. White was dead after observing him. It is

undisputed that Defendants were not trained medical personnel.
The question becomes whether Defendants Karimou, Feliberty-Casiano, Cohen, Phillips,
and Cook—all laypeople who were trained in CPR—were deliberately indifferent by failing to
check Mr. White’s pulse and perform CPR when they believed he had hanged himself and was
dead, observed that he was not breathing or moving, and did not know how long he had been in
such a state. The parties mainly discuss two Eighth Circuit opinions on this issue: McRaven v.
Sanders, 577 F.3d 974 (8th Cir. 2009), and Tlamka v. Serrell, 244 F.3d 628 (8th Cir. 2001).
Plaintiff contends that under the two cases, Defendants were deliberately indifferent. Defendants
contend that those cases are factually distinguishable from this case and do not support a finding
of deliberate indifference here.

In Tlamka, corrections officers ordered inmates to stop performing CPR on a fellow inmate
who had a heart attack in the prison yard, despite the CPR noticeably improving the inmate’s
condition. Tlamka, 244 F.3d at 630-31. The inmate’s condition immediately deteriorated after
CPR ceased and the guards, all trained in CPR, made no effort to resume CPR until a prison nurse
arrived up to ten minutes later. Id. at 631. The nurse’s subsequent medical efforts were
unsuccessful, and the inmate died. Id. On appeal, the Eighth Circuit reversed the lower court’s
grant of qualified immunity, holding that in the absence of any explanation, a reasonable jury could
find the guards deliberately indifferent for refusing to resume CPR. Id. at 633-35.
McRaven featured a pretrial detainee who had been arrested for driving under the influence.
McRaven, 577 F.3d at 978. Officers collected a urine sample from the detainee, which tested
positive for the presence of several drugs. Id. The officers consulted a nurse at the facility
regarding whether the detainee should be sent to the hospital, but did not tell the nurse about the

drug test results. Id. The nurse, believing the detainee was simply drunk, declined to send the
detainee to the hospital. Id. at 979. The detainee was placed in a cell to sleep off the effects. Id.
A cellmate later informed the guards that the detainee recently stopped breathing, and a guard
trained in CPR entered the cell and shook the detainee but made no attempt to perform CPR. Id.
Roughly seven minutes later, paramedics arrived and took the detainee to the hospital, where he
died. Id. On appeal, the Eighth Circuit affirmed the lower court’s denial of qualified immunity,
holding that in the absence of any explanation, a reasonable jury could find the trained guard who
did not perform CPR to have been deliberately indifferent. Id. at 983-84.
This case presents an important distinction from the facts of Tlamka and McRaven. In
those cases, the record indicated that an inmate had very recently stopped breathing or was

otherwise in need of and benefitting from CPR. The guards in those cases knew as much and still
refused to perform live-saving measures. In this case, the undisputed facts show that, based on the
information available to them at the time, Defendants believed that Mr. White had committed
suicide, and thus life-saving measures would have been futile.
The summary judgment record shows that before Defendants arrived at Mr. White’s cell,
other inmates told them that Mr. White “was dead.” (ECF No. 37-5, p. 4). Defendants went to
Mr. White’s cell and found that he was unresponsive, was not breathing or moving, and had an
unnatural skin color. Defendant Karimou examined Mr. White and informed the other guards that
Mr. White appeared to be dead. Nurse Thomas testified that this was a reasonable assumption for
laypeople like Defendants to make. It is undisputed that Defendants did not attempt CPR because
they believed Mr. White was dead. Instead, Defendant Cohen radioed for medical staff and the
guards concentrated on securing the scene and disbursing the gathered crowd of inmates. Other
evidence in the record—specifically, Dr. Kokes’ expert report opining that CPR would not have

helped Mr. White—also supports Defendants’ assumption.
Plaintiff has not offered any evidence to controvert these facts. At most, she points to
Defendants’ depositions, where they each agreed that the situation that night was a serious medical
emergency. However, that testimony does not establish that they were aware that there was a
chance to resuscitate Mr. White and nonetheless chose not to act. See Gregoire, 236 F.3d at 417
(requiring proof that defendants knew of a risk to the inmate’s health and deliberately disregarded
it, measuring their “actions in light of the information . . . possessed at the time, the practical
limitations of [their] position and alternative courses of action that would have been apparent to
an official in that position”). The subjective component of deliberate indifference cannot be met
without such a showing. Thus, no reasonable jury could find that Defendants “actually drew the

inference that [Mr. White’s] life was still at risk and consciously disregarded it.” Robinson v.
Riley, No. CV 0:19-826-PJG, 2021 WL 6052616, at *11 (D.S.C. Dec. 21, 2021).
Nor has Plaintiff offered any evidence that Mr. White was alive at the time he was found,
or that CPR or other resuscitative efforts could have saved him. Thus, she has not established a
genuine dispute of material fact as to whether Mr. White was beyond the point of resuscitation
when he was discovered. See Reed v. Woodruff Cnty., Ark., 7 F.3d 808, 811 (8th Cir. 1993)
(affirming dismissal of a deliberate indifference claim against a guard who did not perform CPR
on an inmate who died from hanging when there was no evidence that CPR could or would have
revived the inmate); see also Grafton v. Bailey, No. CV 13-2940, 2018 WL 2325410, at *11 (W.D.
La. May 22, 2018) (granting qualified immunity on a deliberate indifference claim against a prison
guard who did not perform CPR on an unconscious inmate who later died, and finding no evidence
showing that CPR would have helped the inmate or that the lack of CPR caused or contributed to
the inmate’s death). In the absence of evidence on this issue, any jury verdict in Plaintiff’s favor

would be based purely on speculation as to when Mr. White died and whether life-saving measures
could or would have been effective.
Consequently, there is no basis upon which a reasonable jury could find that Defendants
were deliberately indifferent to Mr. White’s serious medical needs. The facts of this case are
undoubtedly tragic. Mr. White’s surviving family members understandably want to believe that if
Defendants had attempted to administer aid, their loved one could still be alive. It can be argued
that everything that could have been done to determine whether Mr. White had a chance of survival
was not done. However, although the record reflects that Defendants’ conduct may have arguably
been negligent, it does not amount to deliberate indifference under governing caselaw. Plaintiff
has not shown that Defendants violated Mr. White’s Eighth Amendment rights, so they are entitled

to qualified immunity.
2. Clearly Established Right
The above finding could end the Court’s qualified-immunity analysis. See Kulkay, 847
F.3d at 642. But if the Court assumes arguendo that Defendants violated Mr. White’s
constitutional rights, the next question becomes whether the implicated right was clearly
established at the time of the deprivation. Jones, 675 F.3d at 1161. “The qualified immunity
standard gives ample room for mistaken judgments by protecting all but the plainly incompetent
or those who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (internal
quotation marks omitted).
Defendants raise qualified immunity at the summary judgment stage, so Plaintiff must
produce evidence to create a genuine issue of fact regarding whether Defendants violated “clearly
established” law. Johnson v. Fankell, 520 U.S. 911, 915 (1997). The Court must consider the
information upon which the officials acted, but this does not mean a review of the officials’

subjective intent. Coffman v. Trickey, 884 F.2d 1057, 1063 (8th Cir. 1989). Rather, the Court
must measure the objective reasonableness of Defendants’ conduct by reference to clearly
established law, as “[n]o other circumstances are relevant to the issue of qualified immunity.”
Davis v. Scherer, 468 U.S. 183, 191 (1984) (internal quotation marks omitted).
“This is not to say that an official action is protected by qualified immunity unless the very
action in question has previously been held unlawful; but it is to say that in the light of preexisting
law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). In
other words, “there does not have to be a previous case with exactly the same factual issues.”
Nance v. Sammis, 586 F.3d 604, 611 (8th Cir. 2009). But the implicated right cannot be defined
“at a high level of generality.” Ashcroft, 563 U.S. at 742.

The Court must ask whether the law, at the time of the events in question, gave Defendants
“fair warning” that their specific conduct was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741
(2002); see also Bills v. Dahm, 32 F.3d 333, 334 (8th Cir. 1994) (“[T]o be clearly established, [t]he
contours of the right must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right.”). To show this, Plaintiff must identify “either controlling
authority or a robust consensus of cases of persuasive authority that placed the statutory or
constitutional question beyond debate at the time of the alleged violation.” Kelsay v. Ernst, 933
F.3d 975, 979 (8th Cir. 2019) (en banc) (internal quotation marks omitted). The inquiry “must be
undertaken in light of the specific context of the case, not as a broad general proposition.” Mullenix
v. Luna, 577 U.S. 7, 12 (2015) (per curiam) (internal quotation marks omitted).
Plaintiff argues that the Eighth Circuit’s opinions in McRaven and Tlamka established by
no later than 2009 that a prison official commits deliberate indifference if he is trained to give CPR

but refuses to perform it on a prisoner manifestly in need of it. Defendants argue that this case is
distinguishable from McRaven and Tlamka, and thus there is no clearly established law prohibiting
Defendants’ conduct.
The Court agrees with Defendants. As discussed in the previous section, the Eighth Circuit
clearly established in McRaven and Tlamka that when a guard is trained in CPR and is aware that
an inmate is manifestly in need of CPR, the guard cannot refuse to help. Other federal circuit
courts have held similarly. See Lemire v. Cal. Dept. of Corr. & Rehab., 726 F.3d 1062, 1082 (9th
Cir. 2013); Jones v. City of Cincinnati, 521 F.3d 555, 560 (6th Cir. 2008); Bozeman v. Orum, 422
F.3d 1265, 1273 (11th Cir. 2005), abrogated on other grounds by Kingsley v. Hendrickson, 576
U.S. 389, 397 (2015). In all those cases, there was some indication in the record that the inmate

had very recently stopped breathing or was otherwise in need of urgent CPR, but the defendant
guards ignored that and chose not to perform life-saving measures.
However, this case differs from those cases. It is undisputed that, based on the information
available to them at the time, Defendants believed that Mr. White was dead. Thus, they did not
provide CPR because they did not think it would help him. Plaintiff cites no cases involving that
set of circumstances.
This is a critical distinction, as federal courts around the country have recognized. Many
courts have held that when a guard reasonably believes that an inmate is dead, it is not deliberate
indifference if the guard does not attempt CPR. See, e.g., Hearst v. Mason, No. 1:11-cv-304, 2014
WL 1203269, at *6-8 (W.D. Pa. Mar. 24, 2014) (collecting cases). For example, the Eighth Circuit
held that a deliberate indifference claim should be dismissed against a guard who did not provide
CPR to an inmate who hanged himself when the guard’s observations led him to believe the inmate
was dead, and no evidence existed to the contrary. See Reed, 7 F.3d at 811. The Fifth Circuit

ruled the same in a factually similar case, explaining:
[T]he deputies saw Smith lying on the floor in his cell; three different people felt
for a pulse, found none and assumed Smith was dead; they neither removed the
shoestring noose from Smith’s neck nor attempted to resuscitate him; they took
pictures of Smith’s body and the scene of the suicide; and twenty minutes elapsed
before the ambulance crew arrived, removed the noose from Smith’s neck, and
began life-saving techniques. While the deputies’ conclusion that Smith was
already dead and their resulting failure to make any attempt to save Smith’s life are
arguably negligent, negligent conduct alone does not amount to deliberate
indifference.
Brumfield v. Hollins, 551 F.3d 322, 333 (5th Cir. 2008). In an unpublished opinion, the Fourth
Circuit also concluded that guards were not deliberately indifferent for not providing CPR to an
inmate who hanged himself, holding:
Based on the absence of pulse and respiration, in combination with [the inmate’s]
appearance and the temperature of his body, [defendants] believed that [the inmate]
was dead . . . Because the officers believed that [the inmate] was dead, their failure
to attempt to resuscitate him was at most negligent.
Ward v. Holmes, 28 F.3d 1212, at *7 (4th Cir. 1994) (unpublished).
Multiple federal district courts have reached the same conclusion, finding no deliberate
indifference when prison guards, based on their observations and information available to them,
believed that an inmate hanged himself and was dead, and thus, did not attempt CPR. See Hearst,
2014 WL 1203269, at *6-8; Monzon v. Parmer Cnty., Tex., No. 2:06-cv-39-J, 2007 WL 1732384,
at *6 (N.D. Tex. June 15, 2007); Clinton v. Cnty. of York, 893 F. Supp. 581, 586-87 (D.S.C. 1995);
see also Robinson, 2021 WL 6052616, at *11 (finding no deliberate indifference when guards did
not perform CPR on inmates who had been attacked because the guards believed the inmates were
dead).
These cases are highly instructive, both for the Court’s earlier finding that Defendants were
not deliberately indifferent to Mr. White’s serious medical needs, as well as for calling into doubt

whether Mr. White’s implicated right was clearly established at the time. As the Court detailed
earlier, Defendants arrived at Mr. White’s cell after being told by inmates that he tried to hang
himself and was dead. They observed Mr. White as unresponsive and lacking any signs of life,
like breathing or movement. His skin was an unnatural color. Based on those observations, they
thought he was dead and did not provide aid.
Plaintiff has pointed to no authority involving similar circumstances to create a genuine
dispute of material fact as to the objective reasonableness of Defendants’ actions under the law at
the time. After careful consideration, the Court finds that Plaintiff has not satisfied her burden of
showing controlling authority or a robust selection of persuasive caselaw that gave Defendants fair
warning that their conduct was unconstitutional on March 10, 2019. See Hope, 536 U.S. at 741.

Accordingly, Defendants are entitled to qualified immunity.
3. Conclusion
When viewed in the light most favorable to Plaintiff, the record does not establish that
Defendants violated Mr. White’s constitutional rights or that the implicated rights were clearly
established at the time. Consequently, Defendants are entitled to qualified immunity. Plaintiff’s
section 1983 claims against them in their individual capacities will be dismissed with prejudice.
C. State-Law Claims
Once Plaintiff’s section 1983 claims are dismissed, the only remaining claims will be the
ACRA claims. The Court may decline to exercise supplemental jurisdiction over state claims if it
“has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). In other
words, the Court maintains discretion to either dismiss or remand the state claims, or keep them in
federal court. Lindsey v. Dillard’s, Inc., 306 F.3d 596, 599 (8th Cir. 2002). When determining
whether to exercise supplemental jurisdiction, the Court considers factors such as judicial

economy, convenience, fairness, and comity. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
357 (1988); Quinn v. Ocwen Fed. Bank FSB, 470 F.3d 1240, 1249 (8th Cir. 2006) (per curiam).
The Eighth Circuit prefers the Court to decline to exercise supplemental jurisdiction when
all federal claims have been eliminated before trial. See Johnson v. City of Shorewood, Minn., 360
F.3d 810, 819 (8th Cir. 2004) (“[I]n the usual case in which all federal-law claims are eliminated
before trial, the balance of factors to be considered under the pendent jurisdiction doctrine . . . will
point toward declining to exercise jurisdiction over the remaining state-law claims.”). This
preference aims to avoid encroachment on a state court’s jurisdiction over matters of state law.
See Curtis v. Sears, Roebuck & Co., 754 F.2d 781, 786-87 (8th Cir. 1985) (explaining that
exercising jurisdiction over purely state-law claims is disfavored and noting that “if the federal

court goes ahead and tries the state-law claim, it will conduct a full-blown trial and enter judgment
on a claim over which it could not constitutionally have been given independent jurisdiction”).
“Needless decisions of state law should be avoided both as a matter of comity and to promote
justice between the parties, by procuring for them a surer-footed reading of applicable law.”
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); see also Gregoire 236 F.3d at
420 (“We stress the need to exercise judicial restraint and avoid state law issues wherever
possible”).
Under these circumstances, it would be inappropriate to exercise supplemental jurisdiction
over the remaining state-law claims. See Curtis, 754 F.2d at 785 (stating that exercising
supplemental jurisdiction is likely improper when dealing with state-law claims that could have
been asserted on their own without raising any theory of recovery under federal law). Plaintiff’s
state-law claims will be dismissed without prejudice.5
4F
IV. CONCLUSION
For the above-stated reasons, the Court finds that Defendants’ Motion for Summary
Judgment (ECF No. 37) should be and hereby is GRANTED. Plaintiff’s claims brought pursuant
to 42 U.S.C. § 1983 are DISMISSED WITH PREJUDICE. Plaintiff’s state-law claims are
DISMISSED WITHOUT PREJUDICE. A judgment of even date shall issue.
IT IS SO ORDERED, this 29th day of March, 2022.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge

5 If “[Plaintiff chooses] to refile [her state-law] claims in state court, it appears that the Arkansas ‘savings statute’
protects [her] from any statute of limitations issue.” Sitzes v. City of W. Memphis, Ark., No. 3:08-cv-0026-WRW,
2009 WL 9072639, at *4 n.34 (E.D. Ark. Apr. 10, 2009) (citing Ark. Code Ann. § 16-56-126; Carton v. Mo. Pac. R.R.
Co., 295 Ark. 126 (1988), aff’d, 606 F.3d 461 (8th Cir. 2010)).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10011635. Public record. Not legal advice.