John Whyde, Jr. v. Paul Sigsworth

NOT RECOMMENDED FOR PUBLICATION

File Name: 24a0451n.06

Case No. 22-3581

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHN WHYDE, JR., ) FILED

) Nov 08, 2024

Plaintiff-Appellant,

) KELLY L. STEPHENS, Clerk

)

v.

)

PAUL A SIGSWORTH, in his individual and official capacities )

)

as Sheriff of Erie County, Ohio; ERIE COUNTY, OHIO,

)

through the Erie County Board of Commissioners, in their ON APPEAL FROM

)

official capacities; ERIE COUNTY GENERAL HEALTH THE UNITED STATES

)

DISTRICT BOARD OF HEALTH, in its official capacity; DISTRICT COURT FOR

)

WENDELL CRAIG ELDRIDGE, M.D., in his individual and THE NORTHERN

)

official capacities; AMBER BURGESS, LPN, in her individual DISTRICT OF OHIO

)

and official capacities, Erie County Health Department;

)

HEATHER CROMWELL, RN, in her individual and official

)

capacities, Erie County Health Department; JASON BEATTY

)

and SCOTT J. HAMERNIK, in their individual and official OPINION

)

capacities as Sergeants for Erie County Jail; KAINE KERR,

)

JEANETTE BARRETT, JON SALYERS, and ROBERT

)

PAYTOSH, Corrections Officers at Erie County Jail, in their

)

individual capacities; THOMAS CASEY PROY, Lieutenant, in

)

his individual and official capacities as Jail Administrator of Erie

)

County Jail,

)

Defendants-Appellees. )

Before: GIBBONS, WHITE, and THAPAR, Circuit Judges.

THAPAR, J., delivered the opinion of the court in which GIBBONS, J., joined. WHITE,

J. (pp. 21–40), delivered a separate opinion concurring in the judgment in part and dissenting from

it in part.

THAPAR, Circuit Judge. John Whyde arrived in jail dependent on opioids and Xanax.

But instead of giving Whyde those drugs, jail staff prescribed an opioid-withdrawal protocol.

After his condition worsened and Whyde became a threat to his own safety, corrections officers

No. 22-3581, Whyde v. Sigsworth

forcibly restrained him. Whyde argues those actions violated his rights. The district court granted

summary judgment to the defendants on the basis of qualified immunity, and we affirm.

I.

After John Whyde failed to appear for a court hearing, the Erie County Sherriff’s

Department arrested and booked him into the Erie County Jail on March 27, 2017. At the time,

Whyde had prescriptions for high doses of opioids and Xanax. During booking, a corrections

officer recorded Whyde’s medical information on an Intake Screening Form. The form asked

whether Whyde had any “Current And/Or Past Mental Health Problems.” R. 117-1, Pg. ID 964.

In response, the officer wrote “Yes” and listed four drugs, including Xanax. Id. Additionally,

where the form asked whether Whyde displayed any visible signs of withdrawal, the officer wrote

that Whyde appeared to be withdrawing from opioids—but didn’t mention Xanax.

The next day, Whyde met with Nurse Amber Burgess for a health appraisal. Whyde says

he told Nurse Burgess he had prescriptions for opioids and Xanax. Although Burgess recorded

that Whyde was taking opioids, she didn’t mention Xanax on her Inmate Health Appraisal Form.

For her part, Burgess testified that Whyde never told her about his Xanax prescription. Whyde

also testified that he told Burgess he used four different pharmacies. But Burgess only listed one

pharmacy—the Fremont Wal-Mart—on the form. She testified that this was the only pharmacy

Whyde mentioned. She contacted that pharmacy, which confirmed that Whyde had prescriptions

for opioids—but not Xanax. Whyde also says that, “[f]or unknown reasons,” Burgess became

“dismissive” toward Whyde after learning that he was the brother of one Billy Whyde. Appellant’s

Br. 35.

Burgess then left a message for the jail’s physician, Dr. Wendell Eldridge, informing him

that Whyde had opioid prescriptions. In response, Dr. Eldridge ordered that Whyde undergo an

-2-

No. 22-3581, Whyde v. Sigsworth

opioid-detox protocol. Health District policy prohibited doctors from prescribing opioids to

inmates, but Dr. Eldridge testified that he would have prescribed Whyde an opioid-detox protocol

even if Whyde weren’t in jail. That meant prescribing other medications to replace the opioids

Whyde had been taking. Dr. Eldridge didn’t prescribe a Xanax-withdrawal protocol because he

didn’t know Whyde had been taking that drug.

Before long, Whyde was hallucinating, lost his appetite, became paranoid and disoriented,

and lost control of his bowels. Nurse Burgess noticed Whyde’s deteriorating condition, but she

also identified a simple explanation: he hadn’t taken his withdrawal medications all day. Later

that evening, with some assistance from jail staff, she administered his medications.

Whyde’s condition only worsened. He continued to behave “in a bizarre and disoriented

way.” Appellant’s Br. 45. Specifically, he was yelling and pounding on his cell door and window.

Seeing this behavior, corrections officers worried that Whyde might hurt himself. So, for his own

safety, they decided to remove him from his cell and place him in a restraint chair until his

condition stabilized.

Jail video captures the next moments of the interaction. When officers came to restrain

Whyde, he disobeyed their directions. After he refused officers’ orders to present his hands to be

cuffed, officers opened his cell door. Once the door was open, Officer Kaine Kerr twice ordered

Whyde to turn around. Whyde twice refused, making an indiscernible remark to Officer Kerr in

the process.

Events proceeded quickly after that. Officer Kerr entered the cell and took Whyde to the

ground. Whyde continued to resist the officers’ attempts to restrain him. Once the officers finally

got control of Whyde, they placed him in a restraint chair. Whyde remained there for

approximately seven hours. The sheriff’s department then took him to the emergency room.

-3-

No. 22-3581, Whyde v. Sigsworth

Whyde sued the County, the Health District, and various officials, alleging constitutional

violations. See 42 U.S.C. § 1983. He also brought state-law tort claims against various defendants.

The district court granted summary judgment to the defendants on all claims. Whyde now appeals

three issues: his deliberate-indifference claims, his excessive-force claims, and his state-law

claims for intentional infliction of emotional distress.

II.

We begin with Whyde’s deliberate-indifference claims against Nurse Burgess, Dr.

Eldridge, Lieutenant Proy, the Health District, and the County.

A.

Whyde alleges that Nurse Burgess, Dr. Eldridge, and Lieutenant Proy violated his

Fourteenth Amendment right as a pretrial detainee to be free from deliberate indifference to his

serious medical needs. Because the defendants invoke qualified immunity, Whyde must show the

officials (1) violated a constitutional right (2) that was “clearly established” at the time of the

alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citation omitted). To satisfy

the second prong, Whyde must identify a precedent putting reasonable officials on notice that their

actions were unconstitutional “under the specific circumstances they encountered.” Bell v. City of

Southfield, 37 F.4th 362, 367 (6th Cir. 2022). And the case must have been binding on the officials

at the time they committed the alleged misconduct. Pearson, 555 U.S. at 232; Lawler v. Hardeman

County, 93 F.4th 919, 926 (6th Cir. 2024).

Whyde tries to overcome qualified immunity by relying on Brawner v. Scott County, which

lowered the standard for deliberate-indifference claims by pretrial detainees like Whyde.

Helphenstine v. Lewis County, 60 F.4th 305, 315–16 (6th Cir. 2023) (discussing Brawner, 14 F.4th

585 (6th Cir. 2021)). Before Brawner, a detainee had to show that an official “kn[ew] of and

-4-

No. 22-3581, Whyde v. Sigsworth

disregard[ed] an excessive risk to inmate health or safety.” Id. at 315 (quoting Farmer v. Brennan,

511 U.S. 825, 837 (1994)). But after Brawner, a detainee need only show that an official acted

with “something akin to reckless disregard”—a lower standard that doesn’t require actual

knowledge of a serious risk of harm. Brawner, 14 F.4th at 596 (citation omitted); Lawler, 93 F.4th

at 928 (explaining that Brawner adopted a “more lenient test” than prior caselaw).

Whyde can’t benefit from Brawner. Our court decided that case in September 2021—more

than four years after Whyde’s stay in the Erie County Jail. And to overcome qualified immunity,

Whyde must show that officials violated law that was clearly established at the time of the alleged

misconduct. Lawler, 93 F.4th at 926. Brawner didn’t control in 2017; the Supreme Court’s

decision in Farmer did. See id. at 926–28. And under the Farmer standard, the officials here

aren’t liable unless Whyde can show they “kn[ew] of and disregard[ed]” an “excessive risk” to his

health. Farmer, 511 U.S. at 837. The officials (a) must have known facts from which they could

infer that Whyde was at a substantial risk of serious harm, and (b) must have actually drawn that

inference for themselves. Id.

The dissent suggests that we should conduct the qualified immunity analysis under the

Brawner standard because that’s how the parties briefed the case. Dissenting Op. at 21–22. But

regardless of what the parties think the law is, “courts have an independent obligation to get the

law right.” United States v. Cabbage, 91 F.4th 1228, 1231 (6th Cir. 2024); see also Kamen v.

Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (explaining that a court “retains the independent

power to identify and apply the proper construction of governing law”). That means we must

apply the correct governing law, even if the parties urge otherwise. And the correct law is clear:

the qualified immunity analysis turns on precedent that applied at the time of the alleged

-5-

No. 22-3581, Whyde v. Sigsworth

misconduct. Lawler, 93 F.4th at 926. Here, Whyde can’t overcome the defendants’ assertion of

qualified immunity.

1.

Start with Nurse Burgess. Whyde alleges she knowingly disregarded his risk of withdrawal

when she failed to notify Dr. Eldridge about his Xanax prescription. At the summary judgment

stage, we draw all factual inferences in Whyde’s favor. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). Even so, the record doesn’t support that allegation.

To understand why, consider the three pieces of information that Nurse Burgess had about

Whyde’s Xanax use. First, Whyde says he told her that he had a Xanax prescription. For purposes

of summary judgment, we accept as true Whyde’s testimony that he told this to Nurse Burgess.

But a nurse doesn’t know that an inmate is actually taking drugs just because he says so. As we’ve

explained before, when an inmate tells a nurse that he’s in pain, that “might not be enough to infer

that [the nurse] actually knew he was in pain—she could have thought, for example, that [the

inmate] was misrepresenting his pain in order to get access to pain medications.” Jackson v.

Gibson, 779 F. App’x 343, 348 (6th Cir. 2019). This common-sense principle applies with even

more force here. An inmate might claim to have prescriptions for narcotic drugs in an effort to get

those drugs from a nurse. Thus, for Whyde to say “I’m taking Xanax” couldn’t have given Nurse

Burgess actual knowledge that he was, in fact, taking Xanax.

Second, Whyde’s Intake Screening Form listed Xanax as one of Whyde’s “Current And/Or

Past” medications. R. 117-1, Pg. ID 964. A form stating that Whyde’s Xanax use was either

“[c]urrent” or “[p]ast” doesn’t confer actual knowledge about when Whyde was taking Xanax.

What’s more, a separate question on the form asked about Whyde’s current visible signs of

withdrawal. There, the response mentioned opioids—but not Xanax. A form indicating that

-6-

No. 22-3581, Whyde v. Sigsworth

Xanax was one of Whyde’s “Current And/Or Past” medicines, but not one of the current medicines

from which he was withdrawing, suggests that Xanax was a “[p]ast” medication that Whyde wasn’t

taking when he entered the jail. See id. So, even assuming that Nurse Burgess read this form (as

Whyde alleges), it couldn’t have led her to infer that Whyde was taking Xanax when he arrived in

jail. On the contrary, the best reading of the form was that Whyde was not taking Xanax.

Finally, Xanax wasn’t among the medications that Nurse Burgess verified with Whyde’s

pharmacy. Whyde says he told Burgess that he had used four different pharmacies. Burgess

contacted one of those pharmacies—the Fremont Wal-Mart, which was the only pharmacy she

listed on the Health Appraisal Form during her meeting with Whyde. That pharmacy verified that

Whyde was taking opioids—but not Xanax.

Taking the facts in the light most favorable to Whyde, Nurse Burgess (1) heard from

Whyde that he was taking Xanax; (2) read a form that listed Xanax as one of Whyde’s “current

and/or past” medicines, but not one of the drugs from which he currently seemed to be

withdrawing; and (3) contacted one of the pharmacies Whyde mentioned, which confirmed only

that he was taking opioids—not Xanax. Given this information, Nurse Burgess couldn’t have had

actual knowledge that Whyde was taking Xanax. And that means she couldn’t have known he was

at risk of Xanax withdrawal. No reasonable jury could conclude otherwise.

Regardless of whether Nurse Burgess should have done more to verify whether Whyde

was taking Xanax, it’s irrelevant to our legal analysis. “[E]rrors in medical judgment” or

“negligent behavior” aren’t enough for deliberate indifference under the Farmer standard. Griffith

v. Franklin County, 975 F.3d 554, 568 (6th Cir. 2020) (citation omitted). The Farmer standard

requires actual knowledge, which Nurse Burgess didn’t have. On this record, no reasonable jury

-7-

No. 22-3581, Whyde v. Sigsworth

could conclude that Nurse Burgess actually concluded for herself that Whyde was taking Xanax

and was at risk of withdrawal. See 511 U.S. at 837.

Our conclusion that Nurse Burgess didn’t know that Whyde was taking Xanax is enough

to dispose of Whyde’s first theory of deliberate indifference. But suppose, along with the dissent,

that Whyde’s alleged statement to Nurse Burgess was enough to give her actual knowledge that

he was taking Xanax. Dissenting Op. at 25. Even so, Whyde still couldn’t succeed on his

deliberate-indifference claim.

Under Farmer, Nurse Burgess acted with deliberate indifference only if she “consciously

disregard[ed]” Whyde’s risk of Xanax withdrawal. Farmer, 511 U.S. at 839 (citation omitted).

That means Whyde must identify evidence that Burgess subjectively knew that her actions would

expose him to a risk of harm. Id. at 846 (explaining that an officer must “knowingly and

unreasonably disregard” the risk (emphasis added)). Here, there are no facts in the record that

could lead a jury to conclude that Burgess knowingly exposed Whyde to a risk of Xanax

withdrawal. To be sure, Nurse Burgess didn’t write down “Xanax” on the form she gave to Dr.

Eldridge, which had the effect of exposing Whyde to a risk of withdrawal. But Whyde doesn’t

even argue—let alone point to evidence—that Burgess knowingly failed to write down Xanax. The

most he says is that, “[f]or unknown reasons,” Burgess changed her attitude and became

“dismissive” toward Whyde after learning he was the brother of one Billy Whyde. Appellant’s

Br. 35. But Whyde doesn’t assert that this “dismissive” attitude led Burgess to consciously refuse

to record that he was taking Xanax. See id. Indeed, it would be difficult to make that assertion,

considering that Burgess did inform Dr. Eldridge that Whyde was taking opioids after confirming

that information with one of his pharmacies. Those aren’t the actions of someone who knowingly

decides to expose her patient to a risk of harm. And crucially, Whyde doesn’t point to evidence

-8-

No. 22-3581, Whyde v. Sigsworth

that would allow a jury to conclude otherwise. At most, therefore, Burgess’s failure to write down

Xanax would amount to negligence—which isn’t enough for deliberate indifference under Farmer.

Griffith, 975 F.3d at 568.

Our opinion in Jackson v. Gibson illustrates the point. 779 F. App’x 343. There, as here,

we considered a nurse who took what we assumed were objectively unreasonable steps in

addressing an inmate’s known risk of harm. Id. at 348. But we refused to find deliberate

indifference under Farmer because no facts showed that the nurse subjectively knew that she was

exposing the inmate to a risk of harm. Id. In sum, even if Whyde could show that Nurse Burgess

knew he was taxing Xanax and therefore faced a risk of withdrawal, he can’t point to any facts

that would allow a jury to conclude she consciously disregarded that risk.

Whyde offers another theory of Nurse Burgess’s deliberate indifference: she allegedly

failed to give him sufficient medical treatment after witnessing his withdrawal symptoms. But this

theory also falls short. When Nurse Burgess met with Whyde, she observed that he was agitated,

belligerent, and sweating. But she also noticed that he had refused to take his morning and

afternoon medication. And Whyde’s vital signs were consistent with his refusal to take the opioid-

withdrawal medications that Dr. Eldridge had prescribed.

The undisputed facts show that Nurse Burgess reasonably responded to the medical needs

Whyde presented: she had him take his prescribed medications. Treating him by administering

that medication was a reasonable medical judgment that we are “reluctant to second guess.” See

Griffith, 975 F.3d at 568. The dissent faults us for failing to identify “evidence” that Whyde’s

medications—including “Neurontin, clonidine, Bentyl, hydroxyzine, and ibuprofen”—were

adequate to treat his hallucinations. Dissenting Op. at 25–26. But the severity of the

hallucinations, the degree to which the hallucinations should have been treated with drugs, and the

-9-

No. 22-3581, Whyde v. Sigsworth

particular drugs used to treat them are all medical judgments best left to doctors, not judges. More

importantly, the law does not require a nurse to second guess a doctor’s prescribed medical

treatment. And Dr. Eldridge’s instructions weren’t so obviously deficient that Nurse Burgess knew

she would be placing Whyde at risk if she followed them. See Farmer, 511 U.S. at 837. Nurse

Burgess thus did not exhibit deliberate indifference.

2.

Dr. Eldridge is also entitled to summary judgment on Whyde’s deliberate-indifference

claim. Whyde faults Eldridge for prescribing an opioid-detox program instead of opioids

themselves. But judges aren’t medical professionals, so it’s not our job to second guess a

practitioner’s medical judgments. Id. Accordingly, a medical professional is deliberately

indifferent in only two narrow contexts: where the professional’s medical care was either (1) “so

grossly incompetent” that it “shock[s] the conscience” or (2) “so cursory as to amount to no

medical treatment at all.” Helphenstine, 60 F.4th at 322 (citation omitted). Outside these two

categories, an inmate’s remedy lies in malpractice law, not the federal Constitution.

Dr. Eldridge’s refusal to issue highly addictive prescription drugs to a patient with a

dependency doesn’t fall into either category. “Efforts to wean a prisoner off opiate or narcotic

pain medication to which he has become addicted” do not qualify as deliberate indifference. Baker

v. Stevenson, 605 F. App’x 514, 519 (6th Cir. 2015) (declining to find deliberate indifference under

the Eighth Amendment). Rather, they reflect “a medical judgment that the long-term harms of

addiction and abuse outweigh the short-term benefits of reduced subjective pain.” Id.; see also

Holloway v. Del. Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012) (holding that physician’s

decision to treat opioid withdrawal with non-opioid medications was a reasonable medical

judgment that did not violate Eighth Amendment); Rascón v. Douglas, 718 F. App’x 587, 591

- 10 -

No. 22-3581, Whyde v. Sigsworth

(10th Cir. 2017) (same). And here, as Dr. Eldridge testified, the opioid-withdrawal protocol was

a reasoned medical response to Whyde’s opioid-withdrawal symptoms.1 For a deliberate-

indifference claim, it’s the doctor’s judgment that counts—not the patient’s desires. The

Constitution gives inmates a right to be free from deliberate indifference to their medical needs,

but not a right to receive any particular treatment or desired medication.

Whyde argues otherwise, relying on Boretti v. Wiscomb, 930 F.2d 1150 (6th Cir. 1991),

and Richmond v. Huq, 872 F.3d 355 (6th Cir. 2017), amended and superseded, 885 F.3d 928 (6th

Cir. 2018). Those cases can’t help him. Both involved allegations that medical professionals

deliberately provided no treatment in the face of a known medical issue. See Boretti, 930 F.3d at

1152, 1154 (holding that an inmate had a potential deliberate-indifference claim when nurse

refused to treat defendant’s wound because she “did not have time for him and could not be

bothered with his petty excuses”); Richmond, 885 F.3d at 942–43 (finding a potential claim when

doctors allegedly failed to give any medication to psychiatric patient). The same is true of Murray

v. Department of Corrections, 29 F.4th 779 (6th Cir. 2022), which the dissent invokes. Dissenting

Op. at 28–29; Murray, 29 F.4th at 783, 787 (finding potential claim where doctor failed to monitor

a patient’s blood-thinning level, even though previous doctors had already determined that such

monitoring was medically necessary, and even though the doctor himself noted that such a test

“was overdue”). But here, Dr. Eldridge did treat Whyde’s opioid withdrawal: he prescribed a

program of opioid-withdrawal medications designed to remedy that exact issue. Far from ignoring

1

The dissent charges us with failing to identify evidence “that any medical staff examined Whyde to determine his

need for opioid medications” to treat his underlying pain. Dissenting Op. at 30. But that misapprehends the nature of

Whyde’s claim. Whyde isn’t claiming that the injuries giving rise to this lawsuit resulted from the underlying pain

for which he was originally prescribed opioids. Rather, Whyde claims he was injured by withdrawal from those

opioids. And Dr. Eldridge testified that, in his medical judgment, the detox protocol was an appropriate response to

Whyde’s withdrawal.

- 11 -

No. 22-3581, Whyde v. Sigsworth

Whyde’s acknowledged need for withdrawal treatment, Dr. Eldridge provided Whyde with that

treatment. He is thus entitled to summary judgment.

A final note on Dr. Eldridge. Because we hold on the merits that his conduct didn’t violate

the Constitution, we have no occasion to consider whether Dr. Eldridge violated rights that were

“clearly established.” See Pearson, 555 U.S. at 232. But the dissent would reverse his award of

summary judgment. Dissenting Op. at 27. That would require holding that Dr. Eldridge’s conduct

(if proven at trial) not only violated the Constitution, but also violated constitutional law that was

clearly established at the time of the alleged misconduct. See Pearson, 555 U.S. at 232. But

neither Whyde nor the dissent identifies a case that would have put Dr. Eldridge on notice that his

specific conduct was unlawful.

The dissent rests on Murray. See Dissenting Op. at 28–29. But that case is irrelevant to

the qualified immunity analysis: it couldn’t have been “clearly established” at the time the alleged

misconduct occurred (in 2017) because it was decided years later (in 2022). Lawler, 93 F.4th at

926. Additionally, Murray’s facts are, at the very least, different from these ones—enough that

applying Murray here would mean extending it. And we can’t do that in the qualified immunity

context. As we explained above, the doctor in Murray failed to perform blood tests that all agreed

were medically necessary, even though the same doctor noted that such a test “was overdue.”

Murray, 29 F.4th at 783, 787. Dr. Eldridge did nothing like that. Instead, he prescribed treatment

that he deemed to be medically appropriate.

3.

Whyde next appeals the grant of summary judgment on his deliberate-indifference claim

against Lieutenant Proy. But Whyde never responded to that part of the County Defendants’

- 12 -

No. 22-3581, Whyde v. Sigsworth

motion for summary judgment below. So he’s forfeited that claim. Bennett v. Hurley Med. Ctr.,

86 F.4th 314, 324 (6th Cir. 2023).

B.

Whyde also appeals the grant of summary judgment to two municipal entities—Erie

County and its General Health District Board of Health—on his deliberate-indifference claims.

Under section 1983, municipal entities aren’t liable for the acts of their employees or agents.

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Instead, Whyde must show that the

entity had a “policy” or “custom” with a “direct causal link” to the individual defendants’

misconduct. Jones v. Muskegon County, 625 F.3d 935, 946 (6th Cir. 2010).

1.

Start with the Health District. Its policy “prohibit[ed] any inmate of the Erie County Jail

from receiving any opioid prescription medication” or “any benzodiazepine prescription

medication” while at the facility. R. 137-6, Pg. ID 2866. The parties disagree about what that

policy means. According to Whyde, it means that inmates couldn’t receive opioids or

benzodiazepines in jail. According to the Health District, the policy prohibits inmates from

continuing to receive drugs that were prescribed before they arrived in jail, but nevertheless allows

an inmate to receive those same drugs “in weaning doses” as part of a “withdrawal protocol.”

Health Appellee’s Br. at 26 (quoting R. 193, Pg. ID 4592). Viewing this dispute in the light most

favorable to Whyde, we assume that the policy prohibited him from receiving opioids or

benzodiazepines, period.

Even so, Whyde can’t succeed on his claim. As we’ve already explained, refusing to

distribute highly addictive substances to inmates with dependencies doesn’t amount to deliberate

indifference. Accordingly, the Health District’s policy directing doctors to withhold those

- 13 -

No. 22-3581, Whyde v. Sigsworth

substances also passes muster. To be sure, a blanket no-narcotics policy might need to give way

when a physician makes an “individualized determination[]” that a patient’s medical condition

demands treatment with narcotics.2 French, 376 F. App’x at 523. But here, we don’t need to ask

whether the Health District’s policy would have allowed Dr. Eldridge to prescribe Whyde opioids

if Dr. Eldridge deemed it necessary. That’s because Eldridge didn’t deem it necessary. Instead,

he concluded that the opioid-withdrawal protocol would adequately address Whyde’s opioid-

withdrawal symptoms. Indeed, contrary to the dissent’s claim that Dr. Eldridge’s decision was

based on the no-opioids policy, Dr. Eldridge specifically testified that he would have prescribed

this same course of treatment even if Whyde weren’t in jail. R. 117, Pg. ID 946; see Dissenting

Op. at 30. In sum, the Health District’s policy is constitutional because it did not cause Whyde to

receive medical care that “shocks the conscience” or “amount[s] to no treatment at all.”

Helphenstine, 60 F.4th at 322.

In concluding otherwise, the dissent relies on Brawner, 14 F.4th at 598–99. But the

dissent’s discussion of that case glosses over a crucial distinction with this one. In Brawner, a

nurse ordered the “abrupt discontinuation” of three prescribed medicines pursuant to her county’s

no-narcotics policy. Id. The nurse ordered the discontinuation of these medications even though

the inmate’s treating physician testified that it was “inhumane” to discontinue them. Id. at 598.

Crucially, the nurse failed to provide “suitable substitutes” for the discontinued medications. Id.

2

Of course, jails and prisons are always free to ban narcotics and other addictive substances from entering their walls.

We must “defer[] to policies and practices” that, “in the judgment of jail officials,” are necessary to “preserve internal

order and discipline and to maintain institutional security.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). And

it’s easy to see why banning drugs from a jail is necessary to maintain discipline and security. See id.; see also French

v. Daviess County, 376 F. App’x 519, 522 (6th Cir. 2010) (“Where the question is one of administering a highly

addictive drug on a continuing basis in the prison setting, the prison staff should have some discretion.”). Indeed, jails

and prisons may ban such drugs even where they are necessary for adequate medical treatment, so long as the necessary

drugs could be successfully administered elsewhere. For example, instead of bringing drugs into the building, a jail

or prison could transfer the inmate to an outside medical facility and administer the drugs there.

- 14 -

No. 22-3581, Whyde v. Sigsworth

Indeed, Brawner expressly rested on the fact that the inmate “was never prescribed the medications

she had previously been taking or provided with an alternative treatment plan.” Id at 599.

(emphasis added). Here, by contrast, Whyde was “provided with an alternative treatment plan.”

See id. Instead of abruptly discontinuing Whyde’s medications, Dr. Eldridge replaced them with

a withdrawal program. What’s more, far from concluding that the withdrawal program would be

“inhumane,” Dr. Eldridge thought it would best serve Whyde’s medical interests. See id. at 598.

This “suitable substitute” for Whyde’s narcotic medications makes our case unlike Brawner. Id.

2.

Whyde briefly argues that Erie County is liable for the Health District’s policy. But the

challenged policy was the Health District’s, not the County’s. A County and its officials do not

act with deliberate indifference where, as here, they reasonably defer to a medical professional’s

treatment decisions. Grote v. Kenton County, 85 F.4th 397, 412 (6th Cir. 2023). And in any event,

the policies aren’t unconstitutional, as explained above. So the County is entitled to summary

judgment on this claim.

III.

We now turn to Whyde’s excessive-force claims, which he appeals as to Kerr, Salyers,

Hamernik, Barret, Paytosh, and Erie County. Pretrial detainees have a constitutional right against

the use of excessive force. Kingsley, 576 U.S. at 397. Force is excessive when it is “objectively

unreasonable” under all the facts and circumstances. Id.

A.

The individual defendants assert qualified immunity. To overcome this defense, Whyde

must show that the defendants’ actions infringed upon “clearly established” statutory or

constitutional rights of which a reasonable person would have known. Rivas-Villegas v.

- 15 -

No. 22-3581, Whyde v. Sigsworth

Cortesluna, 142 S. Ct. 4, 7 (2021). For a right to be clearly established, “existing precedent must

have placed the statutory or constitutional question beyond debate,” although the plaintiff does not

necessarily need to show “a case directly on point.” Id. at 7–8 (citation omitted). Because

excessive-force claims turn on the facts and circumstances of each case, “[s]pecificity is especially

important” in this context. Id at 8 (citation omitted). Ultimately, Whyde has not identified any

case specific enough to have placed the alleged conduct beyond constitutional debate.

1.

Whyde alleges Officer Kerr used excessive force when he took Whyde to the ground. But

Whyde can’t point to a case showing that Officer Kerr’s force was excessive. To the contrary, our

caselaw suggests that Kerr acted reasonably. “If a suspect actively resists arrest and refuses to be

handcuffed,” officers do not violate the Constitution even when they use tasers, batons, or pepper

spray to subdue him. Hagans v. Franklin Cnty. Sheriff’s Off., 695 F.3d 505, 509 (6th Cir. 2012).

And active resistance can take the form of “verbal hostility” or a “deliberate act of defiance.”

Goodwin v. City of Painesville, 781 F.3d 314, 323 (6th Cir. 2015). It can also take the form of an

individual’s refusing to move his hands for police to handcuff him, at least when “coupled with

other acts of defiance.” Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015).

Here, Whyde actively resisted the officers’ orders. He refused to put his hands through the

chute so that officers could handcuff him. He also refused to comply with both of Officer Kerr’s

instructions to “turn around.” Instead, he faced forward and said something indiscernible to Kerr.

In sum, Whyde “refus[ed] to move [his] hands for the police to handcuff [him],” and that refusal

was “coupled with other acts of defiance,” like refusing to turn around and engaging in verbal

hostility. Rudlaff, 791 F.3d at 641; Goodwin, 781 F.3d at 323. That means his conduct amounted

to active resistance. Id.

- 16 -

No. 22-3581, Whyde v. Sigsworth

In light of Whyde’s active resistance, Officer Kerr was entitled to take Whyde to the

ground. This use of force is comparable to others that we’ve held reasonable. See Cretacci v.

Call, 988 F.3d 860, 869 (6th Cir. 2021) (holding that it was reasonable for officer to shoot inmate

with a pepperball launcher when the inmate refused to obey an order to get on the ground); Bozung

v. Rawson, 439 F. App’x 513, 519–20 (6th Cir. 2011) (holding that it was reasonable for officer to

employ a straight-arm bar takedown during the execution of an arrest warrant, even where the

arrestee was cooperative and where no evidence suggested he was armed or posed a threat);

Earnest v. Genessee County, 841 F. App’x 957, 960 (6th Cir. 2021) (holding that a takedown was

reasonable where suspect “resisted arrest and refused to put his hands behind his back despite

repeated instructions to do so”). Our caselaw thus indicates that Kerr’s use of force was

reasonable. At a minimum, Officer Kerr is entitled to qualified immunity, since it was far from

clearly established that his use of force was excessive.

The fact that this episode took place inside a jail only strengthens our conclusion. Our

reasonableness determination “must . . . account for the [government’s] legitimate interests” in

managing a jail. Kingsley, 576 U.S. at 397. We must “defer[] to policies and practices” that, “in

the judgment of jail officials,” are necessary to “preserve internal order and discipline and to

maintain institutional security.” Id. Kerr’s need to ensure order and security in the jail authorized

him to use a takedown maneuver on an uncooperative inmate who refused to be handcuffed.

Whyde’s cited cases are not to the contrary. As an initial matter, to meet his burden of

defeating qualified immunity, Whyde must point to “existing precedent” that has “placed the

statutory or constitutional question beyond debate.” Bell, 37 F.4th at 367 (quoting Rivas-Villegas,

142 S. Ct. at 8 (emphasis added)). That eliminates most of Whyde’s cases, which either don’t have

precedential effect or were decided years after Kerr’s conduct.

- 17 -

No. 22-3581, Whyde v. Sigsworth

The remaining case Whyde cites is nothing like the facts before us. In Coley v. Lucas, a

detainee had already been restrained with handcuffs, a belly chain, and leg irons. 799 F.3d 530,

539 (6th Cir. 2015). Without any provocation, an officer pushed that restrained detainee face-first

into a wall. Id. We held that the officer’s use of force was excessive. Id. But here, Whyde wasn’t

restrained and was actively resisting. So Coley is inapposite.

The dissent suggests that Kerr’s force was unreasonable because there was a “tenuous” link

between the need for force and the amount of force that Kerr used. Dissenting Op. at 36. But we

can’t strictly scrutinize the officer’s decisions by asking, with the benefit of hindsight, whether a

lesser amount of force might have theoretically done the job. Instead, Whyde needs a case holding

that Kerr’s “specific conduct” was unlawful. See id.; Rivas-Villegas, 142 S. Ct. at 8. But neither

he nor the dissent points to one. The dissent further argues that Kerr’s force was unreasonable

because Whyde was “calm.” Dissenting Op. at 36. But Whyde openly defied the officers’ orders

after yelling and banging on his cell, and Whyde himself acknowledges that he was behaving “in

a bizarre and disoriented way.” Appellants’ Br. 45. Under these circumstances, Kerr’s use of a

takedown maneuver was reasonable. No clearly established law holds otherwise.

2.

Whyde also sues Kerr, Salyers, Hamernik, Barrett, and Paytosh for allegedly using

excessive force against him after he was taken to the ground. He says that Kerr punched him,

Salyers stepped on his leg, Hamernik made the decision to place him in a restraint chair, Barrett

held his jaw, and Paytosh manhandled him. But Whyde himself admits that he physically resisted

the officers’ efforts to subdue him. Appellant’s Br. 18 (conceding that Whyde was “actively

resisting”; id. at 16 (explaining that Whyde “resisted” the officers and “struggled with” them).

And Whyde doesn’t cite a binding case holding that the officers’ use of force after the takedown

- 18 -

No. 22-3581, Whyde v. Sigsworth

was unreasonable in the face of his resistance. Additionally, Whyde faults the officers for leaving

him in the restraint chair for over six hours. But Whyde hasn’t developed a legal argument for

how this violated clearly established law. The officers are entitled to qualified immunity, and we

therefore affirm the grant of summary judgment to the officers on this claim.

B.

Whyde also brings Monell claims against Erie County and Sheriff Sigsworth in his official

capacity. First, he says that the sheriff’s office ratified the officers’ use of force when Sigsworth

testified, in a deposition, that he believed the use of force was appropriate.3 See Jackson v. City of

Cleveland, 925 F.3d 793, 828 (6th Cir. 2019). Relying on Leach v. Shelby County Sheriff, 891

F.2d 1241 (6th Cir. 1989), and Marchese v. Lucas, 758 F.2d 181 (6th Cir. 1985), Whyde suggests

that the Sheriff’s after-the-fact approval of the officers’ conduct is evidence of a custom or policy

of approving excessive force. Appellant’s Br. 27–28. “Since Leach and Marchese, however, we

have clarified the scope of this ‘ratification’ theory in a way that dooms [Whyde’s] claim.” Pineda,

977 F.3d at 495. In Pineda, we explained that a single after-the-fact ratification isn’t enough to

establish Monell liability. Id. Instead, to overcome section 1983’s causation hurdle, a plaintiff

must demonstrate “a clear and persistent pattern” of earlier, comparable violations that the

defendant approved of or failed to investigate. Id. For example, in Leach, “there was a record of

approximately 14 other instances of similar abuse in a two-year period” before the abuse that the

sheriff allegedly ratified. Id. (citing Leach, 891 F.2d at 1247). Here, Whyde hasn’t pointed to any

previous approvals of, or failures to investigate, excessive force. So his claim against the sheriff’s

office fails. See id.

3

“We assume for this case that the sheriff’s office qualifies as a distinct ‘legal entity’ apart from [Erie] County because

the defendants have not challenged” Whyde’s naming of this office. Pineda v. Hamilton County, 977 F.3d 483, 494

(6th Cir. 2020).

- 19 -

No. 22-3581, Whyde v. Sigsworth

Second, Whyde faults the County for not investigating the officers’ actions against him.

But as just explained, a single failure to investigate can’t give rise to liability under section 1983,

which requires, at minimum, “[a] series of investigative failures before the plaintiff’s injury.” Id.

Whyde hasn’t alleged that the County consistently refused to investigate allegedly unconstitutional

uses of force before Whyde’s stay in jail. Thus, the district court properly granted summary

judgment to the County and sheriff’s office on Whyde’s Monell claims.

IV.

Finally, Whyde appeals the grant of summary judgment to the defendants on his state-law

claims for intentional infliction of emotional distress. Under Ohio law, the officials enjoy

immunity for actions taken in good faith within the scope of their employment. Ohio Rev. Code.

Ann. § 2744.03(A). Because the state and federal immunities turn on the same facts, we review

the Ohio immunity defense “through the lens of the federal qualified immunity analysis.” Hopper

v. Plummer, 887 F.3d 744, 759 (6th Cir. 2018) (citation omitted). Indeed, the Ohio statutory-

immunity defense “stands or falls with the federal qualified immunity defense.” Id. (cleaned up).

We have already concluded that the officials are entitled to qualified immunity on Whyde’s federal

claims. Accordingly, they are also entitled to Ohio statutory immunity from Whyde’s state-law

claims for intentional infliction of emotional distress. Id. The district court correctly granted

summary judgment on these claims.

* * *

We affirm.

- 20 -

No. 22-3581, Whyde v. Sigsworth

HELENE N. WHITE, Circuit Judge, concurring in the judgment in part and

dissenting in part.

Although I agree that summary judgment was appropriate on most of John Whyde, Jr.’s

claims, I would reverse the grant of summary judgment on certain deliberate-indifference claims

against Amber Burgess (the jail nurse), Wendell Craig Eldridge (the jail doctor), and the Erie

County General Health District (their employer), as well as the excessive-force claim against

Kaine Kerr (a jail officer). Additionally, I would vacate the grant of summary judgment on the

state-law claims against Burgess, Eldridge, and Kerr.

I.

The majority first concludes that Whyde cannot rely on this court’s decision in Brawner v.

Scott County, 14 F.4th 585 (6th Cir. 2021), and its progeny. See Maj. Op. at 5–6. Before Brawner,

we analyzed claims by prisoners and pretrial detainees similarly, asking whether the plaintiff “had

an ‘objectively’ serious medical need” that a government official disregarded with a mental state

“akin to criminal-law recklessness.” Howell ex rel. Howell v. NaphCare, Inc., 67 F.4th 302, 311

(6th Cir. 2023) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Brawner held that

Kingsley v. Hendrickson, 576 U.S. 389 (2015), abrogated earlier circuit precedent requiring the

same mental state for prisoners’ and pretrial detainees’ claims and further held that civil-law

recklessness governs pretrial detainees’ claims. See 14 F.4th at 596–97. Because Brawner was

decided after the conduct at issue here, however, the majority says that Brawner could not have

been clearly established law for qualified-immunity purposes and cites our recent decision in

Lawler ex rel. Lawler v. Hardeman County, 93 F.4th 919 (6th Cir. 2024), in support. See Maj. Op.

at 5–6.

None of the defendants raises this timeline issue. They do not argue in their briefs that

Brawner cannot apply to the qualified-immunity inquiry. To the contrary, they extensively discuss

- 21 -

No. 22-3581, Whyde v. Sigsworth

Brawner and argue only that the facts of this case fail to meet the recklessness standard it adopted.

Further, after this court decided Brawner, defendants appear to have litigated the case before the

district court based on that decision. And the district court analyzed Whyde’s claims under the

post-Brawner standard.1 Further, defendants did not bring Lawler to our attention in a letter under

Federal Rule of Appellate Procedure 28(j). Indeed, the first time Lawler, or the timeline issue

more generally, entered this case was at oral argument, at the prompting of the court. Cf.

Waterhouse v. Tennessee Valley Auth., No. 20-5978, 2021 WL 1230371, at *2 (6th Cir. Mar. 17,

2021) (“Because both parties argued in favor of applying state law and we have previously applied

state law to tort actions against TVA, the district court did not err by applying Tennessee law.”

(citation omitted)).

I also note that Lawler’s conclusion regarding Brawner’s applicability to the clearly-

established-law inquiry for conduct predating Brawner does not affect the inquiry in Whyde’s

excessive-force claim against Kerr because Kingsley held before the conduct at issue here that the

objective-reasonableness standard governs such claims by pretrial detainees.

II.

Even assessing clearly established law from a pre-Brawner standpoint, reversal of the grant

of summary judgment on the deliberate-indifference claim against Burgess is warranted.

Criminal-law recklessness requires “that the official was aware of facts from which an

inference of substantial risk of serious harm . . . could be drawn and . . . actually drew the

inference.” Brawner, 14 F.4th at 591. That is, the official must be consciously aware of, then

1

I note that, before Lawler, this court often applied Brawner and related cases in qualified-immunity contexts even

when the conduct at issue predated Brawner. See, e.g., Greene v. Crawford Cnty., 22 F.4th 593, 603–04, 606–07,

614–15 (6th Cir. 2022); Helphenstine v. Lewis Cnty., 60 F.4th 305, 311, 316–17, 326–27 (6th Cir. 2023); Howell, 67

F.4th at 308, 311–12, 317–18; Mercer ex rel. Ohlinger v. Athens Cnty., 72 F.4th 152, 156–57, 160–61, 164 (6th Cir.

2023).

- 22 -

No. 22-3581, Whyde v. Sigsworth

disregard, the risk. Civil-law recklessness requires that the official disregarded a risk “that is either

known or so obvious that it should be known.” Id. at 594 (quoting Farmer, 511 U.S. at 836–37).

The difference between those two standards is whether the official subjectively knew the risk

versus whether the risk was sufficiently obvious.

Here, a jury could reasonably conclude that Burgess consciously disregarded the risk posed

by Xanax cessation. Whyde’s intake screening form listed Xanax. And Burgess, who performed

Whyde’s health appraisal, testified that she routinely reviews such forms during appraisals. See

United States v. Ware, 282 F.3d 902, 906–07 (6th Cir. 2002) (noting that a jury can infer from

evidence of routine or standard process that an event occurred on a given occasion); Brawner,

14 F.4th at 592 n.1, 597 (noting routine practice concerning intake forms listing a detainee’s

medications). More to the point, Whyde testified that he told Burgess about his Xanax prescription

during the appraisal. And the risks of Xanax withdrawal, or at least the need to inform Eldridge

of Whyde’s Xanax use, should have been clear to a reasonable person in Burgess’s shoes,

especially given her medical background. See Brawner, 14 F.4th at 597–98 (noting the nurse’s

specialized training and experience); French v. Daviess Cnty., 376 F. App’x 519, 522 (6th Cir.

2010) (“Xanax is a highly addictive medication, which can cause serious withdrawal symptoms

like seizures and delirium if discontinued abruptly.”).

Burgess’s failure to address Whyde’s worsening medical state during his detention further

supports that a jury reasonably could conclude that she consciously disregarded the risk to Whyde.

A few days after his appraisal, while in the shower room, Whyde told a corrections officer that he

was hallucinating, and the officer called Burgess to meet them at Whyde’s cell. Whyde told

Burgess that he felt “sick” and was “seeing stuff.” R. 110, PID 583. And during medication

rounds later that evening, Whyde told Burgess that he thought she was trying to poison him.

- 23 -

No. 22-3581, Whyde v. Sigsworth

The majority minimizes these facts in asserting that Whyde points to nothing showing “that

Burgess knowingly failed to write down Xanax” during her appraisal of Whyde. Maj. Op. at 8. It

therefore contends that, “[a]t most, … Burgess’s failure to write down Xanax would amount to

negligence—which isn’t enough for deliberate indifference under Farmer.” Id. at 9. But Burgess

testified that she knew the jail had a standard procedure to manage withdrawal from substances

like Xanax and that it is important for detainees to receive proper treatment based on their

conditions and medications. It is also common knowledge even among laypersons, and especially

among medical providers, that Xanax is a dependence-inducing drug. And a reasonable jury could

certainly infer that Burgess knew the risk of Xanax cessation. As Farmer put it: “Whether a

prison official had the requisite knowledge of a substantial risk is a question of fact subject to

demonstration in the usual ways, including inference from circumstantial evidence, and a

factfinder may conclude that a prison official knew of a substantial risk from the very fact that the

risk was obvious.” 511 U.S. at 842.

The majority makes much of the Xanax notation on Whyde’s intake form appearing in the

field labeled “current and/or past” mental-health issues, reasoning that “[a] form stating that

Whyde’s Xanax use was either ‘[c]urrent’ or ‘[p]ast’ doesn’t confer actual knowledge about when

Whyde was taking Xanax.” Maj. Op. at 6 (second and third alterations in original). And it points

out that, when Burgess contacted the Fremont Wal-Mart—one of the four pharmacies Whyde told

Burgess he used, the Fremont Wal-Mart verified only that Whyde was taking opioids. Id. at 7.

This reasoning fails to view the evidence in the light most favorable to Whyde. A jury

could reasonably reach the majority’s conclusion that Burgess was unaware that Whyde was taking

Xanax at the time of his booking—but it also could reasonably conclude otherwise. And, given

the temporal ambiguity of Whyde’s statement that he used four pharmacies, a jury could

- 24 -

No. 22-3581, Whyde v. Sigsworth

reasonably conclude that the Fremont Wal-Mart’s confirming only the opioid prescription does

not compel a different conclusion. Indeed, the majority’s reasoning is tantamount to saying that if

a jury were to conclude based on this evidence that, more likely than not, Burgess knew Whyde

was taking Xanax, the jury would have found facts unreasonably, and the majority would overrule

their conclusion. And lest we forget, Whyde also told Burgess he was taking Xanax.2

The majority then says that “[t]he undisputed facts show that Nurse Burgess reasonably

responded to the medical needs Whyde presented” later in his detention by offering him the

medications that Eldridge prescribed, and that his medical condition and vital signs “were

consistent with his refusal to take the opioid-withdrawal medications.” Maj Op. at 10.

But even if Burgess thought that Whyde’s symptoms were consistent with opioid

withdrawal, a jury could conclude that Burgess did not respond reasonably based on Whyde’s

telling Burgess that he was hallucinating and thought she was trying to poison him. See

Helphenstine, 60 F.4th at 322–23 (ruling that a jury could conclude that a doctor was deliberately

indifferent in failing to order hospitalization for a detainee in drug or alcohol withdrawal with

vomiting, incontinence, and dehydration and instead ordering two prescriptions); Greene, 22 F.4th

at 608–09 (ruling that a jury could conclude that officers unreasonably relied on crisis-services

worker’s determination that a detainee suffering from severe alcohol withdrawal did not need

further medical treatment in part because detainee “had not slept in over 24 hours . . . and

continued to suffer from severe hallucinations after [the] evaluation”). It does not appear that any

of Whyde’s prescribed medications—consisting primarily of Neurontin, clonidine, Bentyl,

2

The majority also notes that “a separate question on the form asked about Whyde’s current visible signs of

withdrawal. There, the response mentioned opioids—but not Xanax.” Maj. Op. at 6. This point is a red herring. It

does not negate the fact that another field on the intake form included Xanax. Moreover, the booking officer who

completed Whyde’s form recorded Whyde’s state as he entered the jail, so it would be unsurprising if Whyde either

did not yet show current visible signs of withdrawal from Xanax or showed only signs of Xanax withdrawal

indistinguishable to a nonmedical official’s eye from the signs of opioid withdrawal.

- 25 -

No. 22-3581, Whyde v. Sigsworth

hydroxyzine, and ibuprofen—could have treated hallucinations adequately or, in fact, at all. The

majority points to no evidence, and I am aware of none, indicating as much.3 Further,

hallucinations are obviously severe withdrawal symptoms—so severe that they often necessitate

hospitalization. But upon hearing Whyde’s report of hallucinations, Burgess did not contact

Eldridge or make other arrangements for further diagnosis or treatment. Whyde’s symptoms

ultimately deteriorated to the point that a mental-health professional recommended that he be

hospitalized. Once admitted, he was diagnosed with acute psychotic disorder due to acute

polysubstance withdrawal and delirium.

The majority responds that “the law does not require a nurse to second guess a doctor’s

prescribed medical treatment.” Maj. Op. at 10. But Burgess was not entitled to blindly rely on

Eldridge’s instructions, either. See Howell, 67 F.4th at 315 (“[A non-medically trained officer’s]

deference [to a medical professional’s opinion], however, may not be absolute or indefinite[.]”);

Stojcevski v. Macomb Cnty., 827 F. App’x 515, 522 (6th Cir. 2020) (“[A]n officer who seeks out

the opinion of a doctor is generally entitled to rely on a reasonably specific medical opinion for a

reasonable period of time after it is issued, absent circumstances such as the onset of new and

alarming symptoms.” (cleaned up and emphasis added)). And Jackson v. Gibson, which the

majority cites in support of this point, is inapposite. 779 F. App’x 343 (6th Cir. 2019). In Jackson,

3

Neurontin, the brand name of gabapentin, is a nerve medication often used to treat epilepsy. Gabapentin, Cleveland

Clinic, https://perma.cc/4LN9-55EX; Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject

to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be

accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”); Rowe v. Gibson,

798 F.3d 622 (7th Cir. 2015) (discussing when and how it is appropriate for courts to take notice of “medical

information … gleaned from the websites of highly reputable medical centers”). Clonidine is an antihypertensive

drug that treats elevated blood pressure and heart rate. Clonidine Tablets, Cleveland Clinic, https://perma.cc/42G6-

WKXY. Bentyl, the brand name of dicyclomine, is an antispasmodic medication that treats gastrointestinal distress.

Dicyclomine Capsules or Tablets, Cleveland Clinic, https://perma.cc/KQQ2-BPZZ. Hydroxyzine is an antihistamine

that treats anxiety. Hydroxyzine Solution, Cleveland Clinic, https://perma.cc/X4XV-JWA5. And ibuprofen is

typically an over-the-counter drug used to treat mild to moderate pain and inflammation. Ibuprofen Capsules or

Tablets, Cleveland Clinic, https://perma.cc/R8ZN-RVTY.

- 26 -

No. 22-3581, Whyde v. Sigsworth

the defendant nurse testified that she referred the plaintiff for an appointment with a physician

after she examined his foot injury. Id. at 347. Not so here. Jackson therefore does not support

granting Burgess summary judgment.

III.

I would also reverse the grant of summary judgment to Eldridge on the deliberate-

indifference claim based on the discontinuation of Whyde’s pain medications. A jury could

reasonably conclude that Eldridge consciously disregarded Whyde’s chronic pain by failing to

treat him adequately.

Of course, as the majority accurately observes, there is a distinction “between cases where

the [detainee asserts] a complete denial of medical care and those cases where the claim is that [the

detainee] received inadequate medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th

Cir. 1976). “[C]ourts are generally reluctant to second guess medical judgments,” id., and, “[a]s a

general rule, a patient’s disagreement with [a] physician[] over the proper course of treatment

alleges, at most, a medical-malpractice claim, which is not cognizable under § 1983,” Darrah v.

Krishner, 865 F.3d 361, 372 (6th Cir. 2017).

“Medical officials, however, ‘may not entirely insulate themselves from liability under

§ 1983 simply by providing some measure of treatment’” and calling it a day. Howell, 67 F.4th at

313 (quoting Jones v. Muskegon Cnty., 625 F.3d 935, 944 (6th Cir. 2010)). “[G]rossly inadequate

medical care” amounts to a constitutional violation. Helphenstine, 60 F.4th at 322 (quoting Miller

v. Calhoun Cnty., 408 F.3d 803, 819 (6th Cir. 2005)). Thus, “medical care which is so cursory as

to amount to no treatment at all may amount to deliberate indifference,” id. (quoting Terrance v.

Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 843 (6th Cir. 2002)), as can “a decision to

- 27 -

No. 22-3581, Whyde v. Sigsworth

provide an ‘easier and less efficacious treatment,’” Darrah, 865 F.3d at 372 (quoting Warren v.

Prison Health Servs., Inc., 576 F. App’x 545, 552 (6th Cir. 2014)).

The evidence here is adequate to meet that standard. Eldridge knew that Whyde had

prescriptions from his outside physicians for high dosages of pain medications, supporting an

inference that Eldridge further knew that Whyde had a serious pain condition for which the

physicians believed the medications were necessary. Eldridge nonetheless ordered cessation of

these medications and substituted ibuprofen in their place. He did nothing to verify whether

Whyde in fact needed these medications to treat his pain, such as examining him, arranging for a

nurse to examine him, or contacting his treating physician. Apparently, it did not matter whether

“those medications were necessary to treat [Whyde’s] pain” because, Eldridge testified, “[t]here[]

[was] a policy that there were no opioids in the jail.” R. 117, PID 947. Eldridge also testified that

even if a detainee like Whyde were “in a significant amount of pain,” in jail, “he would just have

to suffer.” Id. at 946. Nor did Eldridge arrange for Whyde to go to a hospital where he could

receive adequate treatment.

We have held that interrupting or failing “to adhere to a prescribed course of treatment may

satisfy the subjective component of” a deliberate-indifference claim. Richmond v. Huq, 885 F.3d

928, 939 (6th Cir. 2018), abrogated on other grounds by Brawner, 14 F.4th at 591–97. In Murray

v. Department of Corrections, for example, this court affirmed the denial of a prison physician’s

motion for summary judgment on qualified immunity grounds because the physician “failed to

adhere to [a prisoner’s] treatment plan that was established by” an outside medical team for the

prisoner’s deep-vein thrombosis. 29 F.4th 779, 789 (6th Cir. 2022). The physician “understood

the importance of monitoring” the prisoner’s blood-thinning level given the nature of his condition

and anticoagulation medications. Id. The physician also “was aware of the [outside medical]

- 28 -

No. 22-3581, Whyde v. Sigsworth

team’s established plan of care” and knew that the prisoner’s level “was not being tested with

regularity.” Id. The physician thus was aware of, yet disregarded, the risks to the prisoner—who

ultimately suffered pain and other symptoms before a stroke left him permanently blind, see id. at

784—and a jury could find the physician deliberately indifferent, see id. at 789. The same is true

here—that Eldridge knew an outside physician prescribed high dosages of opioid pain medications

supports an inference that he knew the risk of severe pain posed by cessation. True, as the majority

points out, see Maj. Op. at 11, the physician in Murray deviated from the prescribed course of

treatment by not doing any blood tests at all, rather than by conducting an alternative test. But the

point remains the same: failing to follow Whyde’s prescribed course of treatment is enough to

satisfy the subjective component of a deliberate-indifference claim against Eldridge, making

summary judgment in Eldridge’s favor inappropriate.

In reasoning to the contrary, the majority seizes on a statement from Baker v. Stevenson,

an unpublished decision, that “[e]fforts to wean a prisoner off opiate or narcotic pain medication

to which he has become addicted are not an unconstitutional form of punishment but a medical

judgment that the long-term harms of addiction and abuse outweigh the short-term benefits of

reduced subjective pain.” 605 F. App’x 514, 519 (6th Cir. 2015); see Maj. Op. at 10. That

statement appears in the court’s discussion of the need to weigh narcotics’ potential benefits

against their potential risks—a principle applicable to any medical treatment. As Baker said,

“a reviewing court is asked to pass judgment on the attempts by prison medical staff to navigate

between the Scylla of debilitating pain and the Charybdis of addiction to prescription drugs.”

605 F. App’x at 519; see also id. (“[A] particular response to a prisoner’s substantial risk of serious

harm might either 1) fail to mitigate the risk or 2) create or enable a different substantial risk of

serious harm to the prisoner.”).

- 29 -

No. 22-3581, Whyde v. Sigsworth

Applying this benefit-risk principle, the Baker court said that the facts there did not show

deliberate indifference. Id. at 520. The plaintiff in that case had a documented history of

substance-use issues. See id. at 520. Medical staffers observed him “acting in ways inconsistent

with his claims of constant and debilitating pain.” Id. Several physicians, including specialists,

examined him for his reported pain and reviewed his medical information before determining that

narcotics were unwarranted. See id. at 515–17. And the plaintiff’s purported need for narcotics

was “based only upon his ‘personal experience’ and ‘information and belief’ that methadone is the

only adequate means of treatment.” Id. at 520.

Those facts stand in stark contrast to the facts of this case. Unlike in Baker, the majority

here points to no “objective findings” by medical staff that were “inconsistent with [Whyde’s]

subjective complaints” of pain. Id. at 516. Nor does it point to evidence that any medical staff

examined Whyde to determine his need for opioid medications to treat his chronic pain.4 In this

respect, the health appraisal that Burgess conducted appears limited to asking Whyde about his

medical history, reading his vital signs, confirming his reported prescriptions with his outside

pharmacies, and communicating this information to Eldridge. Eldridge never examined Whyde or

arranged for someone to examine Whyde for his reported pain. And Eldridge neither testified, nor

argues before this court, that his decision to stop Whyde’s treatment with opioid medications was

based on an individualized clinical assessment. Rather, Eldridge’s decision was based on the

Health District’s blanket policy prohibiting opioids in the jail, regardless of how much pain a

detainee might suffer as a result—in other words, a non-medical reason. Cf. Blackmore v.

4

The majority contends that this “misapprehends the nature of Whyde’s claim,” which arises from withdrawal, rather

than “the underlying pain for which he was originally prescribed opioids.” Maj. Op. at 11 n.1. But the underlying

pain for which Whyde obtained an opioid prescription is clearly relevant to whether forcing him into withdrawal (with

or without a detoxification protocol) was appropriate.

- 30 -

No. 22-3581, Whyde v. Sigsworth

Kalamazoo Cnty., 390 F.3d 890, 899 (6th Cir. 2004) (“When prison officials are aware of a

prisoner’s obvious and serious need for medical treatment and delay medical treatment of that

condition for non-medical reasons, their conduct in causing the delay creates the constitutional

infirmity.”). And Whyde’s purported need for opioid medications was not based solely on his

word. Given that Eldridge knew Whyde had valid prescriptions from his outside physicians for

high dosages of opioid medications, a jury could conclude that Eldridge understood that other

medical professionals had examined Whyde and determined that the medications were necessary.

Further, Brawner concluded that a jury could reasonably find that a jail nurse was

deliberately indifferent to the risk of a detainee suffering seizures in failing to ensure the detainee

could access either her medications—three controlled substances, including narcotics—or

adequate substitutes. See 14 F.4th at 597–98. It is thus not true that the Constitution always

permits jail or prison staff to choose to wean a detainee or prisoner off such substances, as the

majority’s discussion of Baker might imply. And Whyde’s opioid pain medications were

controlled substances, not categorically forbidden ones. As a matter of regulation and medical

practice, controlled substances are clinically appropriate—indeed, often necessary—to treat

certain conditions. See, e.g., Deborah Dowell et al., U.S. Dep’t of Health & Hum. Servs., CDC

Clinical Practice Guideline for Prescribing Opioids for Pain—United States, 2022, Morbidity &

Mortality Wkly. Rep., Nov. 4, 2022, at 2, https://perma.cc/6LJ2-Z94Y (noting that while they carry

risks, “[o]pioids can be essential medications for the management of pain”). The majority’s

unqualified reasoning would deprive many Americans in pretrial detention and prison of the

medications they genuinely need.

The majority also contends that, even if Dr. Eldridge’s conduct did violate the Constitution,

“neither Whyde nor the dissent identifies a case that would have put Dr. Eldridge on notice that

- 31 -

No. 22-3581, Whyde v. Sigsworth

his specific conduct was unlawful.” Maj. Op. at 12. And it posits that Murray “is irrelevant to the

qualified immunity analysis” because it was decided several years after the events that gave rise

to this case occurred. Id. But “we are not required to find a case in which the very action in

question has previously been held unlawful.” Darrah, 865 F.3d at 374 (cleaned up). Rather, “in

the light of pre-existing law, the unlawfulness must be apparent.” Id. (cleaned up). And “this

Circuit’s precedent is clear that neglecting a prisoner’s medical need and interrupting a prescribed

plan of treatment, even for a relatively short period, can constitute a constitutional violation.” Id.

It was therefore clearly established that Eldridge’s conduct was unlawful. See id. (“[I]t was

‘clearly established’ in 2011, at the time of Darrah’s transfer to MCI, that neglecting to provide a

prisoner with needed medication, choosing to prescribe an arguably less efficacious treatment

method, and continuing on a treatment path that was clearly ineffective could constitute a

constitutional violation.”).

IV.

Responsibility for Eldridge’s refusal to continue administering Whyde’s prescribed opioids

does not end with him. Because the Health District assertedly had a blanket policy against opioid

medications in the jail, a jury could find the Health District liable for a constitutional violation,

too.

“A municipality is a ‘person’ under 42 U.S.C. § 1983, and so can be held liable for

constitutional injuries for which it is responsible.” Morgan v. Fairfield Cnty., 903 F.3d 553, 565

(6th Cir. 2018). “The scope of that responsibility does not include respondeat superior liability:

a municipality is liable only for its own wrongdoing, not the wrongdoings of its employees.” Id.

The plaintiff must “demonstrate that the alleged federal violation occurred because of a municipal

‘policy or custom.’” Helphenstine, 60 F.4th at 323 (quoting Monell v. Dep’t of Soc. Servs., 436

- 32 -

No. 22-3581, Whyde v. Sigsworth

U.S. 658, 694 (1978)). A “direct causal link” between a municipality’s “deliberate conduct” and

the “constitutional violation” is needed for the municipality to “be deemed the ‘moving force’

behind the violation.” Graham ex rel. Graham v. Cnty. of Washtenaw, 358 F.3d 377, 383 (6th Cir.

2004) (quoting Waters v. City of Morristown, 242 F.3d 353, 362 (6th Cir. 2001)). “The upshot is

that municipalities can be held liable for harms caused by direct actions of the municipalities

themselves,” as well as “harms caused by the implementation of municipal policies or customs.”

Morgan, 903 F.3d at 565.

In Brawner, this court held that a reasonable jury could find a county liable on a pretrial

detainee’s deliberate-indifference claim under facts similar to those here.5 The court first

concluded that a jury could find that a jail nurse was deliberately indifferent to the risk that the

detainee would suffer seizures from abruptly discontinuing any of the three controlled-substance

medications that outside physicians had prescribed. See 14 F.4th at 597–98. The court then

concluded that a jury could find “that this violation was the result of the County’s policies,” id. at

597, including “the execution of [a] . . . no-controlled-substances polic[y],” id. at 598. It noted

medical testimony that abrupt discontinuation could cause seizures as well as prior decisions

“suggest[ing] that abrupt discontinuation of substances that could lead to withdrawal symptoms

and potential seizures might pose constitutional problems.” Id. at 599 (collecting cases). The

court then reasoned that, because there was adequate time between the detainee’s arrival at the jail

and her seizures’ onset for her to have received her medications or adequate substitutes, “a

reasonable jury could find that [the nurse’s] failure to treat [the detainee] appropriately was due to

5

I note that the qualified-immunity inquiry is inapplicable to municipalities. See Hart v. Hillsdale Cnty., 973 F.3d

627, 645 (6th Cir. 2020).

- 33 -

No. 22-3581, Whyde v. Sigsworth

the County’s application of the no-narcotics policy, which caused [the detainee’s] injuries.” Id. at

599–600.

Here, too, a reasonable jury could conclude that application of a Health District policy

caused Eldridge’s failure to treat Whyde adequately. As noted earlier, Eldridge testified that he

could not give Whyde opioid medications because “[t]here[] [was] a policy that there were no

opioids in the jail.” R. 117, PID 947.6 The Health District also admitted in response to Whyde’s

request under Federal Rule of Civil Procedure 36 that it “had a policy in place . . . prohibiting any

inmate of the Erie County Jail from receiving any opioid prescription medication while housed in

the facility.” R. 137-6, PID 2866. And there was ample time for Eldridge to apply the policy:

Whyde arrived at the jail on Monday, March 27, 2017, and reported his prescription medications

to the booking officer. Burgess, the jail nurse, performed Whyde’s health appraisal, confirmed his

opioid prescriptions, informed Eldridge as much, and received treatment instructions from

Eldridge the next day. And the jail transported Whyde to a hospital emergency department on

April 1.

V.

Summary judgment on Whyde’s excessive-force claim against Kerr based on the takedown

was also inappropriate.

To prevail on an excessive-force claim, a pretrial detainee must show that an official used

force “purposefully, knowingly, or (‘possibly’) recklessly” and that the force was “objectively

unreasonable.” Hale v. Boyle Cnty., 18 F.4th 845, 852 (6th Cir. 2021) (quoting Kingsley, 576 U.S.

6

As the majority points out, Eldridge also testified that he would have put Whyde on a Clonidine protocol if Whyde

“were not in the jail and presented to [Eldridge] as a patient with these levels of pain medications.” R. 117, PID 946.

But, later in his testimony, Eldridge also confirmed that if “th[e] medications were necessary to treat his pain … he

just [would] have to suffer the pain in the jail.” Id. at 947. In other words, even if Eldridge considered opioid

medications medically necessary, he would have been bound by the Health District’s policy.

- 34 -

No. 22-3581, Whyde v. Sigsworth

at 396). “[O]bjective reasonableness turns on the ‘facts and circumstances of each particular

case.’” Kingsley, 576 U.S. at 397 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). It

“take[s] account of the legitimate interests in managing a jail,” as well as “policies and practices

needed to maintain order and institutional security.” Id. at 399–400. And it considers the totality

of the circumstances, including:

the relationship between the need for the use of force and the amount of force used;

the extent of the plaintiff’s injury; any effort made by the officer to temper or to

limit the amount of force; the severity of the security problem at issue; the threat

reasonably perceived by the officer; and whether the plaintiff was actively resisting.

Id. at 397.

“[A]dditional factors” come into play when an official used force in “respond[ing] to a

medical or mental health emergency”:

(1) whether the person [on whom the official used force] was experiencing a mental

health or medical emergency, and whether that emergency created “an immediate

threat of serious harm” to [that person] or others; (2) whether “some degree of force

[was] reasonably necessary to ameliorate the immediate threat;” and (3) whether

“the force used [was] more than reasonably necessary under the circumstances.”

Palma v. Johns, 27 F.4th 419, 429 (6th Cir. 2022) (third and fourth alterations in original) (quoting

Estate of Hill v. Miracle, 853 F.3d 306, 314 (6th Cir. 2017)).7

Because the objective-reasonableness inquiry is just that—an objective one—“a pretrial

detainee can prevail by providing only objective evidence that the challenged governmental action

is not rationally related to a legitimate governmental objective or that it is excessive in relation to

that purpose.” Kingsley, 576 U.S. at 398.

7

Palma involved an excessive-force claim under the Fourth Amendment, see 27 F.4th at 428, but “a pretrial detainee’s

excessive force claim brought under the Fourteenth Amendment’s Due Process Clause is subject to the same objective

standard,” Clay v. Emmi, 797 F.3d 364, 369 (6th Cir. 2015).

- 35 -

No. 22-3581, Whyde v. Sigsworth

A jury could reasonably conclude that Kerr’s takedown at the beginning of the officers’

extraction of Whyde from his cell was objectively unreasonable. “The relationship between the

need for the use of force and the amount of force,” id. at 397, was tenuous. Kerr’s ostensible goal

was to handcuff Whyde—who was at the time calm, isolated in his cell, and facing four other

officers, as apparent from video evidence of the extraction—and lead him to a restraint chair

outside the cell. “[T]he extent of [Whyde’s] injury,” id., is also notable. He has put forth evidence

that he suffered a forehead abrasion and contusion and a traumatic brain injury. And Kerr did not

try “to temper or to limit the amount of force,” id., by first grabbing Whyde’s wrists or using a

chemical agent, for example. There is some evidence suggesting that not trying these other

measures first was inconsistent with Erie County Sheriff’s Office policy. See Mullins v. Cyranek,

805 F.3d 760, 768 (6th Cir. 2015) (“Whether or not an officer is following police procedures is

certainly relevant to the question of reasonableness in excessive force cases . . . .”).

The majority says that Kerr’s takedown was necessary “to ensure order and security in the

jail.” Maj. Op. at 17; see also Kingsley, 576 U.S. at 399. But a reasonable jury could conclude

otherwise. Neither the majority nor Kerr cites the testimony of any officer who thought that

Whyde threatened institutional security or order, and “nothing in the facts [otherwise] suggests a

loss of discipline or order at the time.” Coley v. Lucas Cnty., 799 F.3d 530, 539 (6th Cir. 2015).

Whyde was alone, contained in his cell, and facing five officers. Scott Hamernik, the officer who

arranged for and oversaw the cell extraction and subsequent use of the restraint chair, testified that

officer safety did not motivate the officers’ decisions. Whyde’s hitting the door and windows of

his cell, which allegedly gave rise to the decision to place him in the restraint chair, had stopped

well before the takedown, and he testified that he was not hitting the glass hard enough to break it

and was making noise to call over an officer out of distress from his hallucinations of monkeys

- 36 -

No. 22-3581, Whyde v. Sigsworth

threatening to kill him. Another officer, Jason Beatty, testified that hitting a cell door and window

is “a normal way for inmates . . . to get [officers’] attention,” and “all the inmates do it.” R. 111,

PID 643.

To justify Kerr’s takedown, the majority further reasons that Whyde “actively resisted the

officers’ orders” to put his hands through the food chute of his cell door so the officers could

handcuff him. Maj. Op. at 16. It says that Whyde “also refused to comply with both of Officer

Kerr’s instructions to ‘turn around’” after Kerr entered the cell, and that Whyde instead “faced

forward and said something indiscernible to Kerr.” Id.

“Active resistance” consists of “some outward manifestation” of “volitional and conscious

defiance.” Shumate v. City of Adrian, 44 F.4th 427, 443 (6th Cir. 2022) (quoting Eldridge v. City

of Warren, 533 F. App’x 529, 534 (6th Cir. 2013)). It includes the “physical[]” acts of “struggling

with, threatening, [and] disobeying officers.” Kent v. Oakland Cnty., 810 F.3d 384, 392 (6th Cir.

2016) (quoting Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015)). It also includes some acts

of verbal hostility. See Goodwin v. City of Painesville, 781 F.3d 314, 326 (6th Cir. 2015). Because

“noncompliance alone does not indicate active resistance,” however, “something more” typically

must accompany mere words to qualify as resistance—for example, when verbal hostility is “the

final straw in a series of consciously-resistive acts” and “include[s] a statement that the [speaker]

would fight the officers so that they would have a reason to kill [the speaker].” Id. (cleaned up).

The published decision and one of the unpublished decisions the majority cites illustrate this

distinction. See Cretacci v. Call, 988 F.3d 860, 870 (6th Cir. 2021) (disobeying order to get on

the ground by standing up and yelling); Earnest v. Genesee Cnty., 841 F. App’x 957, 958–61 (6th

Cir. 2021) (concluding that an officer’s takedown was reasonable after the officer found a drunk

driver initially unresponsive in a crashed car, the driver subsequently swung his arm at an EMT,

- 37 -

No. 22-3581, Whyde v. Sigsworth

the driver physically resisted efforts to remove him from the vehicle and toward a stretcher, and

the officer repeatedly instructed the driver to put his hands behind his back).

Whyde passively—not actively—resisted. No one contends that Whyde verbally

threatened the officers. Even if he said that he would not turn around for handcuffing and

accordingly stood still, merely “refus[ing] to comply with an officer’s command and verbally

indicat[ing] as much” is not active resistance. Kent, 810 F.3d at 393; see also Smith v. City of

Troy, 874 F.3d 938, 945 (6th Cir. 2017) (reversing summary judgment on excessive-force claim

based on leg sweep due to factual disputes, including whether the plaintiff “left the scene of an

accident or simply wandered away in a stupor due to [a] seizure”); Osborn v. City of Columbus,

No. 22-3570, 2023 WL 2523307, at *5 (6th Cir. Mar. 15, 2023) (concluding that summary

judgment was unwarranted because a plaintiff’s “attempt[] to pull his hand away when [an officer]

initially reached for his arms . . . could be considered minimal, passive resistance that cannot

justify the Officers’ uses of force,” including a takedown); Rudlaff, 791 F.3d at 641 (“[Active

resistance] includes refusing to move your hands for the police to handcuff you, at least if that

inaction is coupled with other acts of defiance.” (emphasis added)).

Further, viewing the facts in the light most favorable to Whyde, Kerr’s takedown

contravened clearly established law. This court has “determined that the use of a takedown

maneuver, in a variety of scenarios, can amount to excessive force”—including, for example, when

a detainee has “merely insulted an officer, refused to comply with orders, and continually raised

his hand.” LaPlante v. City of Battle Creek, 30 F.4th 572, 581 (6th Cir. 2022) (collecting cases).

Indeed, since well before the events in this case, it has been “‘beyond debate’ that performing a

takedown on a detainee who is” not actively resisting is objectively unreasonable. Evans v.

Plummer, 687 F. App’x 434, 442 (6th Cir. 2017) (quoting White v. Pauly, 580 U.S. 73, 79 (2017)

- 38 -

No. 22-3581, Whyde v. Sigsworth

(per curiam)); see also Meadows v. City of Walker, 46 F.4th 416, 422 (6th Cir. 2022) (“It has been

clearly established for several years in the Sixth Circuit that an officer cannot use injurious physical

force to subdue a suspect that is not actively resisting arrest.”); Guy v. Metro. Gov’t of Nashville

& Davidson Cnty., 687 F. App’x 471, 476 (6th Cir. 2017) (concluding that it was clearly

established by 2013 that using a chemical agent on a non-threatening and passively resisting

pretrial detainee was excessive).

VI.

Finally, I would vacate the grant of summary judgment to Burgess, Eldridge, and Kerr on

the claims for intentional infliction of emotional distress under Ohio law.

Ohio law grants the employees of political subdivisions a limited immunity from civil

liability for “any act or omission in connection with a governmental or proprietary function.” Ohio

Rev. Code Ann. § 2744.03(A). But employees are not immune for conduct (1) “manifestly outside

the scope of [their] employment or official responsibilities”; (2) done “with malicious purpose, in

bad faith, or in a wanton or reckless manner”; or (3) for which a statute “expressly impose[s]”

liability. Id. “When federal qualified immunity and Ohio state-law immunity under

§ 2744.03(A)(6) rest on the same questions of material fact, [a court] may review the state-law

immunity defense ‘through the lens of the federal qualified immunity analysis.’” Hopper v.

Plummer, 887 F.3d 744, 759 (6th Cir. 2018) (quoting Chappell v. City of Cleveland, 585 F.3d 901,

907 n.1 (6th Cir. 2009)).

The district court followed this reasoning in granting summary judgment on the state-law

claims. Because the “statutory immunity defense stands or falls with the[] federal qualified

immunity defense,” id. at 760, I conclude that the district court’s grant of summary judgment on

- 39 -

No. 22-3581, Whyde v. Sigsworth

the state tort claims against Burgess, Eldridge, and Kerr based on its reasoning regarding qualified

immunity was improper.

The defendants contend that, even if statutory immunity does not apply, Whyde’s claims

do not have merit, and this court should affirm regardless of its disposition on qualified immunity.

But this court is one “of review, not of first view.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7

(2005).

* * *

For the reasons stated, I would reverse the grant of summary judgment on the deliberate-

indifference claims against Burgess, Eldridge, and the Health District and the excessive-force

claim against Kerr, and I would vacate the judgment on the state-law claims against Burgess,

Eldridge, and Kerr and remand for further consideration.

- 40 -