Douglas Stalley v. Lake CI Warden

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10881

____________________

DOUGLAS B. STALLEY,

as P.R. of the Estate of Jose Gregory Villegas and

obo ZV and DV, minor children of the deceased,

Plaintiff-Appellant,

versus

SHEILA CUMBIE,

Warden for the Lake Correctional Institution,

et al.,

Defendants-Appellees.

____________________

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Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 5:19-cv-00280-KKM-PRL

____________________

Before JORDAN, LAGOA, and ED CARNES, Circuit Judges.

LAGOA, Circuit Judge:

This case centers around the death of Jose Villegas. Villegas,

a thirty-nine-year-old father of two, was an inmate at the Lake Cor-

rectional Institution (“LCI”) in Clermont, Florida. Villegas was

pronounced dead on March 28, 2017, following an approximately

twenty-minute physical confrontation with LCI correctional offic-

ers, most of which was captured on video.

The interaction began when officers discovered Villegas un-

conscious on the floor of his cell and attempted to provide assis-

tance but the situation escalated once Villegas awakened and

started resisting. Over the next several minutes, Villegas exhibited

various levels of resistance as he went in and out of consciousness,

all while being at least partially restrained. At one point, six officers

were holding Villegas down as he tried to move on the floor. The

altercation ended with the officers holding a limp and fully re-

strained Villegas down in a wheelchair and transporting him to a

nearby medical unit. The trip took about approximately two-and-

a-half minutes. On the way, the officers stopped for approximately

twenty-five seconds to replace the spit shield that had been placed

on Villegas because of his spitting and biting. However, the officers

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did not stop to allow the two nurses on scene to evaluate Villegas

during the transportation process. Upon arrival at the medical unit,

Villegas did not have a pulse, and subsequent efforts to resuscitate

him did not succeed.

According to the autopsy report, Villegas’s cause of death

was restraint asphyxia with excited delirium as a contributing con-

dition. The report also confirmed that Villegas had been under the

influence of “K2,” a synthetic cannabinoid known to sometimes

cause intense delirious and combative reactions.

Douglas B. Stalley filed this lawsuit as the personal repre-

sentative of Villegas’s Estate and on behalf of Villegas’s two minor

children. Stalley sued the officers involved, their supervisors, and

the Florida Department of Corrections (“FDOC”) for negligence

resulting in wrongful death, excessive force, deliberate indiffer-

ence, and supervisory liability. After discovery, the defendants

moved for summary judgment on all of Stalley’s claims. A magis-

trate judge recommended denying the defendants’ motions as to

most of Stalley’s claims, but the district court largely disagreed. Ul-

timately, the district court granted summary judgment in favor of

the defendants as to Stalley’s constitutional claims—i.e., excessive

force, deliberate indifference, and supervisory liability for the fore-

going—and declined to exercise supplemental jurisdiction over the

remaining, state-law wrongful death claim.

Stalley now appeals, challenging only the district court’s dis-

position of the deliberate indifference claim and the associated su-

pervisory liability claim. In doing so, Stalley focuses on the

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correctional officers’ decision to transport the limp and restrained

Villegas to a nearby medical facility without letting the nurses per-

form any sort of medical assessment, including a pulse check, either

on scene or en route. That decision, according to Stalley, poses

triable issues of material fact from which a reasonable jury could

conclude that the officers exhibited deliberate indifference to a se-

rious medical need in violation of the Eighth Amendment.

Following careful review of the record, including the video

footage of the physical altercation at issue, and with the benefit of

oral argument, we affirm the district court’s summary judgment

ruling.

I. BACKGROUND

A. The Relevant Facts1

At a quarter past 4:00 p.m. on March 28, 2017, two LCI cor-

rectional officers were patrolling E-dorm, one of LCI’s general pop-

ulation housing facilities. As part of that process, one officer

walked along the perimeter of the first level and the other walked

the same route on the catwalk above, together checking every cell

on the two levels of E-dorm. 2 At exactly 4:16 p.m., the officer

1 Our discussion of these facts is taken from audio and video recordings of the

events, the testimony of individuals involved, all viewed in the light most fa-

vorable to Stalley, and undisputed facts from the district court’s summary

judgment ruling.

2 A mounted camera captured video footage of the common area of E-dorm

outside of Villegas’s cell on March 28, 2017. The mounted camera’s footage

does not have any audio or show what happened inside Villegas’s cell.

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patrolling the first level reached Villegas’s cell, looked inside, and

saw Villegas lying on the floor. Within seconds, the officer alerted

his coworker, who promptly ran down from the catwalk. The two

of them then entered Villegas’s cell at around 4:16:33 p.m.

Moments later, one of the two officers inside Villegas’ cell

returned to the doorway of the cell to wave a third officer over to

the scene. That third officer helped remove Villegas’s cellmate

from the shared cell and sat him at the closest table in the common

area. Four more officers arrived between 4:18 p.m. and 4:19 p.m.,

including Sergeant Henry Fender, Officer Brent McBride, and Of-

ficer Dalton Tifft. Several other officers later trickled in, including

Officer William Smith and Sergeant Anthony Key.

According to the officers, at that point, Villegas was still un-

responsive and lying on the floor of the cell with signs of vomiting.

There also was a “strong odor of something burning.” Sergeant

Fender, Officer Smith, and Officer Dalton placed Villegas in hand-

cuffs and leg restraints and moved him into a recovery position.3

Sergeant Fender then performed a sternum rub on Villegas to try

to arouse him.4 That is when the approximately two-hundred-and-

seventy-five-pound Villegas awakened and became combative.

3 A “recovery position” is a position in which a person is laid on his side, sup-

ported by his limbs, and with his mouth facing downward. It is used in first

aid to prevent an unconscious person from choking.

4 A “sternum rub” is a method of testing a person’s responsiveness.It entails

firmly rubbing a person’s sternum to cause a painful stimulus and arouse an

unconscious or unresponsive person.

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The officers commanded Villegas to stop resisting and attempted

to hold him down while they worked on fully restraining him.

Sometime during all this, the officers called for medical assistance.

At 4:25:45 p.m., a mental health nurse arrived at the scene

and then briefly spoke with the officers outside of Villegas’s cell be-

fore leaving. Soon after, at 4:27:13 p.m., Laura Fischer, RN, arrived

with a wheelchair, a red jump bag containing certain emergency

supplies, and an automatic external defibrillator (“AED”).5 The

jump bag did not contain any supplemental oxygen. Upon arrival,

Nurse Fischer saw “four to five officers” inside Villegas’s cell trying

to restrain him while he was “violently resisting” and being “com-

bative.” The level of strength that Villegas exhibited, according to

Nurse Fischer, was “super-human” and akin to that of a “grizzly

bear.” She reports that Villegas “literally was lifting [the officers].”

Accordingly, the officers had Nurse Fischer wait in the common

area just outside the cell for her safety while they tried to restrain

Villegas. About two-and-a-half minutes later, at 4:29:41 p.m., an-

other member of the LCI medical staff—Tammy Lee Spencer,

LPN—arrived and stood outside the cell with Nurse Fischer. Nurse

Spencer heard the officers commanding Villegas to stop resisting.

At approximately 4:31:35 p.m., one of the officers began cap-

turing video and audio of the events with a handheld camera. The

footage shows that, at that time, four officers were inside the cell

5 An AED is a portable device that can monitor a heart rhythm, diagnose cer-

tain heart issues, and deliver an electric shock to treat cardiac arrest and restore

a normal rhythm.

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holding Villegas down while directing him to get on his stomach

and stop resisting. Villegas repeatedly attempted to move under-

neath the officers. Meanwhile, another officer escorted Villegas’s

cellmate from the table immediately outside the cell to a bench far-

ther away. Inside the cell, Villegas’s level of resistance escalated at

approximately 4:33 p.m., as he began thrashing around on the floor

with greater strength. This caused the officers to have to redistrib-

ute their weight and hold Villegas down with greater force, all

while repeatedly instructing Villegas to stop resisting. At approxi-

mately 4:33:24 p.m., one of the officers shouted that Villegas was

“trying to grab [them],” and then another officer commanded Vil-

legas to “let go” and “stop trying to grab [them].”

Then, at approximately 4:34 p.m., the officers dragged Ville-

gas out of his cell into the common area. The officers kept ordering

him to stop resisting. The level of resistance escalated once again

a few seconds later, as Villegas thrashed and five officers struggled

to hold him down. During a moment of relative peace, Lieutenant

Milton Gass, Sergeant Key, and Sergeant Fender instructed the

nurses to exit the common area, and someone expressed a need for

“more assistance.” According to Nurse Spencer, it was common

for officers to instruct nurses to leave the area while an inmate was

being aggressive because the nurses are “not trained like correc-

tional officers to handle use of force situations.” Nurse Fischer

agreed that, at that time, it would “absolutely not” have been safe

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for them to try to provide medical assistance. 6 The two nurses left

the wheelchair and jump bag in the common area and went to wait

outside E-dorm, where they had another jump bag. Villegas then

resumed resisting despite the officers’ commands to stop.

Between 4:35 p.m. and 4:36 p.m., six more officers arrived at

the scene. Three of the six officers helped physically restrain Ville-

gas and the other three observed from a close distance. The offic-

ers then rolled Villegas over onto his back, at which point Villegas’s

level of resistance escalated once again. Then, three more officers

arrived.

At approximately 4:36:32 p.m., Sergeant Fender signaled for

another officer to obtain a spit shield. Villegas once again escalated

his level of resistance moments later. During that struggle, one of

the officers commanded Villegas to “keep [his] mouth shut,” as he

attempted to bite the officers. The officers then rolled Villegas over

and worked on securing his arms while he continued to resist. An-

other officer escorted Villegas’s cellmate out of the common area.

At this point, Lieutenant Gass was still the officer in charge as the

first high-ranking officer to arrive; Major Shawn Lee, Captain

James Disano, and Assistant Warden Michael Mashburn arrived

later to observe the incident, but none of them participated nor as-

sumed command.

6 Nurse Fischer testified that, while she was in E-dorm, she did not see the

officers do “anything that shouldn’t have been done.”

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At approximately 4:39:26 p.m., one of the officers restraining

Villegas shouted, “hands on legs,” which meant that all of the re-

straints had been put in place. From that point on, Villegas did not

actively resist. According to Officer Donald Foster, it “appeared to

[him]” that Villegas had passed out at this point, but according to

Lieutenant Gass, Villegas was responsive with “shallow breathing”

and “the fight . . . out of him.” At the direction of Lieutenant Gass,

the officers applied a spit shield to keep Villegas from spitting on

them, and then propped Villegas up against the nearest table in the

common area. Villegas sat motionless with his head down.7

At approximately 4:42:03 p.m., the officers began lifting Vil-

legas off the floor and placing him into the wheelchair. The process

took about ten seconds, and Villegas vomited again while the offic-

ers moved him to the wheelchair. Major Lee claims that Villegas

moved his legs to assist himself in standing up, but Sergeant Scott

Ake claims that Villegas was moving slightly and demonstrating

“passive resistance” as the officers worked on putting him in the

wheelchair. Officer Foster, on the other hand, claims that Villegas

was passed out. They all, however, report that Villegas was breath-

ing at this time. Lieutenant Gass reports the same, claiming that

he intentionally made an assessment to confirm whether Villegas

was breathing and that Villegas looked at him. No one checked

Villegas for a pulse.

7 For purposes of summary judgment, we assume that Villegas was uncon-

scious from this point forward.

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Once Villegas was seated in the wheelchair, the officers im-

mediately began wheeling him out of E-dorm and to F-dorm,

where the nearest medical treatment room was located. Officer

Smith testified that they “always took” inmates in need of medical

treatment to a medical treatment room because “medical supplies

[and] everything that nurses would need” were located in those

rooms. In subsequently justifying the decision to transport Villegas

to F-dorm, Lieutenant Gass maintains that Villegas was responsive

with shallow breathing at that point and that the F-dorm treatment

room was where he would “receive better medical attention” be-

cause it had more medical staff and equipment, including supple-

mental oxygen, and it was more private and secure than the com-

mon area of E-dorm. Lieutenant Gass claims to have not known

that the nurses had left the original jump bag containing some med-

ical supplies in the common area. While they were rushing Ville-

gas to F-dorm, multiple officers kept their hands pressing down on

Villegas’ arms, shoulders, and neck because of his size and in re-

sponse to “the violence that [had] occurred.” Villegas remained

motionless with his head down.

When the officers reached the doorway to exit E-dorm, they

stopped to replace Villegas’s spit shield, which had been torn some-

time during the encounter. This interruption lasted approximately

twenty-five seconds in total. The officers then continued with the

transportation process and exited the premises of E-dorm. At this

point, Lieutenant Gass relieved command to Major Lee. Assistant

Warden Mashburn did not leave with the group and at no point

assumed command over the incident.

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As the officers exited E-dorm with Villegas, they passed

Nurse Fischer and Nurse Spencer, who were waiting outside after

being sent out of the common area during the physical altercation.

Nurse Fischer claims that she immediately attempted to approach

Villegas but was told by an officer “to stop and back up” and told

by Lieutenant Gass that Villegas was breathing, so she and Nurse

Spencer ran to follow the group from a short distance instead. Ac-

cording to Nurse Fischer, the officers were traveling “[a]lmost at a

running pace” and “really wheeling [Villegas] fast,” so she and

Nurse Spencer had to “run[]” to keep up. Nurse Spencer similarly

claims that she and Nurse Fischer were “not allowed” to treat Vil-

legas during the transportation process. But Nurse Spencer noted

that she did not actually ask to treat Villegas at that time because

he had to be moved to a secure setting “for safety reasons” and be-

cause the officers would not have let her. Lieutenant Gass denies

ever telling the nurses that they could not assess Villegas during the

transportation process but concedes that they had previously been

sent out of E-dorm, began following the group during the outside

portion of the transportation process, and were not invited to per-

form any medical assessment during the trip.

The group continued along the outside path and arrived at

the entrance of F-dorm at approximately 4:44:39 p.m. The group

reached the doors to the treatment room about ten seconds later,

at approximately 4:44:49 p.m. That is when medical staff got in-

volved. Just after they arrived at F-dorm, Nurse Fischer checked

Villegas for a pulse and found none. She also determined that Vil-

legas was not breathing. The officers then moved Villegas to the

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floor so that the staff could begin performing CPR. Moments later,

Villegas vomited once again. The staff continued to perform CPR

until EMS arrived and took over. While maintaining the efforts to

resuscitate Villegas, EMS eventually moved him into an ambulance

and transported him to South Lake Hospital, where he was pro-

nounced dead. 8

8 In sum, correctional officers discovered Villegas lying on the floor of his cell

at approximately 4:16:00 p.m.; officers first entered Villegas’s cell at approxi-

mately 4:16:33 p.m.; at some point after 4:19 p.m., Villegas awakened and be-

came combative with the officers; Nurse Fischer arrived to the scene with a

wheelchair, a jump bag, and an AED at approximately 4:27:13 p.m. and wit-

nessed Villegas violently resisting the officers’ attempts to restrain him; Nurse

Spencer arrived to the scene at approximately 4:29:41 p.m. and heard the of-

ficers order Villegas to stop resisting; the officers moved Villegas out of his cell

and into the common area at approximately 4:34:00 p.m.; the officers in-

structed Nurse Fischer and Nurse Spencer to exit the area at approximately

4:35:12 p.m.; the officers fully restrained Villegas at approximately 4:39:26

p.m.; after applying a spit shield, the officers began lifting Villegas into the

wheelchair at approximately 4:42:03 p.m.; the officers placed Villegas in the

wheelchair and immediately began the process of transporting him at approx-

imately 4:42:12 p.m.; the officers stopped for a total of approximately twenty-

five seconds to replace Villegas’s spit shield at approximately 4:42:39 p.m.; the

officers exited E-dorm with Villegas, and passed Nurse Fischer and Nurse

Spencer without allowing them to assess Villegas, at approximately 4:43:08

p.m.; the officers arrived at the medical treatment room in F-dorm at approx-

imately 4:44:49 p.m.; and, thereafter, medical staff determined that Villegas

did not have a pulse and their efforts to resuscitate him did not succeed. Thus,

if there had been no delays or pauses, the trip from the common area of E-

dorm to the medical unit of F-dorm would have taken approximately two

minutes and thirty-seven seconds. In reality, given the decision to place Ville-

gas into a wheelchair and replace the spit shield, approximately five minutes

and twenty-three seconds passed between when Villegas became fully re-

strained and when the group arrived at the medical unit of F-dorm.

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Dr. Wendy Lavezzi performed an autopsy the next day at

9:00 a.m. The autopsy report describes Villegas’s body as “that of

a normally developed, centrally obese, adult . . . male, weighing

275 pounds [and] measuring 70 inches in length” (slightly over

5’8”). 9 As for external injuries, the autopsy report identifies several

bruises, abrasions, and hemorrhages on Villegas’s head, eyes, neck,

back, arms, hands, knees, and feet. As for internal injuries, the au-

topsy report identifies a few hemorrhages in Villegas’s mouth and

multiple subcutaneous hemorrhages on his back, arms, and legs.

The report indicates that an x-ray was performed and that no frac-

tures were found. The report also indicates that Villegas tested

positive for synthetic cannabinoids and had a slightly enlarged

heart. The report concludes that Villegas’s cause of death was re-

straint asphyxia and that excited delirium was a contributing con-

dition. In other words, the report concludes that the force applied

during the physical altercation impeded Villegas’s blood flow and

put strain on his cardiovascular system, which was exacerbated by

his excited delirium and increased heart rate, and ultimately led to

cardiac arrest.

When testifying about her autopsy report, Dr. Lavezzi ex-

plained that synthetic cannabinoids are stimulants and can “be a

Meanwhile, approximately one minute and forty-one seconds passed between

when the group encountered the nurses during the transportation process and

when the group arrived at the medical unit of F-dorm.

9 The autopsy report first identifies Villegas’s race as black but later describes

his body as being “that of a[n] . . . adult white male.”

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cause of excited delirium.” She also acknowledged that synthetic

cannabinoids can sometimes cause users to exhibit “extreme” or

“super-human” strength. Nurse Fischer similarly testified that K2

sometimes causes users to “act crazy” and “become combative.”

Lieutenant Gass likewise testified that, based on his experience

with observing the behaviors of inmates on the drug as a prison

official, K2 sometimes causes inmates to be “erratic” and “go from

zero to a hundred in a split second.”

Looking back, Nurse Fischer maintains that she should have

been allowed to assess Villegas once he was fully restrained and

placed in the wheelchair. At that point, she could have checked

him for a pulse and performed CPR, if needed. Nurse Spencer

agreed that it “would have been best” if she and Nurse Fischer had

been summoned back to E-dorm to assess Villegas once he was

fully restrained. But Nurse Spencer also acknowledged that the

presence of other inmates in E-dorm was a concern and opined that

it “would have been worth it” to take Villegas to the main medical

building, which “was a little further [than F-dorm]” but was more

spacious and had better equipment than the medical unit in F-

dorm.

Lastly, the FDOC’s use-of-force policy in effect on March 28,

2017, states, in relevant part, that “[a]ppropriate medical treatment

shall be provided immediately [following use of force].” It also

states that “[a] Qualified Health Care Provider shall examine any

person physically involved in a use of force to determine the extent

of injury.”

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B. The Procedural History

On March 22, 2019, Stalley initiated a wrongful death action

in the Circuit Court of the Fifth Judicial Circuit in and for Lake

County, Florida, as the personal representative of the Estate of Vil-

legas and on behalf of his minor children, ZV and DV. The case

was removed to federal court on June 6, 2019.

The operative complaint alleged four claims. First, a state-

law claim of negligence resulting in wrongful death against the

FDOC and Warden Sheila Cumbie. Second, an excessive force

claim under 42 U.S.C. § 1983 against Lieutenant Gass, Sergeant

Key, Sergeant Fender, Sergeant Ake, Sergeant Anildat Amrit, Of-

ficer McBride, Officer Smith, Officer Tifft, Officer Alan Perrotta,

and Officer Foster. Third, a deliberate indifference claim under

§ 1983 against the same group of officers. And fourth, a supervi-

sory liability claim under § 1983 against Lieutenant Gass, Captain

Disano, Major Lee, and Assistant Warden Mashburn.

All of the defendants except for Assistant Warden Mashburn

(hereinafter, the “Group Defendants”) jointly submitted a single

answer to the operative complaint on July 27, 2020. Assistant War-

den Mashburn (hereinafter, “Defendant Mashburn”) submitted his

own answer soon after and has generally opted to submit filings

separate from the Group Defendants’ filings throughout the litiga-

tion.

The Group Defendants and Defendant Mashburn filed their

motions for summary judgment on June 2, 2021, together challeng-

ing all of Stalley’s claims. As to the wrongful death claim, the

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Group Defendants argued that no reasonable jury could find that

negligence occurred. As to the constitutional claims, the Group

Defendants argued that they are entitled to qualified immunity be-

cause no reasonable jury could find that any constitutional viola-

tion occurred and because they did not violate any clearly estab-

lished right. Defendant Mashburn, meanwhile, focused exclusively

on the supervisory liability claim—the only claim brought against

him—and presented substantially similar arguments, although tai-

lored to his individualized circumstances.

In response, Stalley indicated that he did not oppose sum-

mary judgment in favor of Warden Cumbie and Sergeant Amrit

but otherwise objected to both motions’ recitation of the facts and

legal arguments.

On September 24, 2021, after full briefing, the magistrate

judge issued a report and recommendation on the two motions for

summary judgment in accordance with the district court’s referral

order. The magistrate judge recommended: (1) granting summary

judgment in favor of Warden Cumbie and Sergeant Amrit on the

claims brought against them; (2) granting summary judgment in

favor of Lieutenant Gass, Captain Disano, Major Lee, and Assistant

Warden Mashburn on the supervisory liability claim in part—inso-

far as it alleged failure to train or enact policies related to K2; and

(3) denying summary judgment on all other claims, which would

allow the case to proceed to trial on all four counts. The Group

Defendants and Defendant Mashburn both filed written objections

to the magistrate judge’s report and recommendation. Stalley, on

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the other hand, declined to file any objections and instead defended

the report and recommendation in his responses to the Defendants’

objections.

On January 28, 2022, the district court held a hearing on the

report and recommendation and the Defendants’ objections

thereto. Less than a month later, the district court entered an order

in which it adopted in part and rejected in part the report and rec-

ommendation. The district court adopted the magistrate judge’s

recommendations as to Warden Cumbie and Sergeant Amrit but

otherwise departed from the report and recommendation. As to

the excessive force claim, the district court concluded that none of

the force used on March 28, 2017, could be found constitutionally

excessive by a reasonable jury. As to the deliberate indifference

claim, the district court concluded that the decision to transport

Villegas to F-dorm rather than attempt to provide care once he was

fully restrained could not be found to amount to an Eighth Amend-

ment violation. The district court then added that, even if the de-

cision to transport Villegas rather than furnish on-scene care actu-

ally did violate the Constitution, that decision did not violate any

“clearly established” right. In other words, the district court deter-

mined that the officers are entitled to qualified immunity on two

bases: because no underlying constitutional violation occurred and

because, even if one did, no “clearly established” right was violated.

As to the supervisory liability claim, the district court first noted

that Count IV amounts to a shotgun pleading, given that it contains

multiple theories of wrongdoing, and then concluded that the ab-

sence of any underlying constitutional violation undermines any

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claim for supervisory liability. Finally, as to the wrongful death

claim, the district court declined to continue exercising supple-

mental jurisdiction over that state-law claim in light of its determi-

nation that summary judgment was warranted as to all of the re-

lated federal claims. Accordingly, the district court ultimately en-

tered final judgment in favor of the Defendants on the federal

claims and remanded the wrongful death claim to state court.

Stalley timely appealed.

II. STANDARD OF REVIEW

We review de novo a district court’s order granting summary

judgment. Mech v. Sch. Bd., 806 F.3d 1070, 1074 (11th Cir. 2015).

“Summary judgment is appropriate if ‘the evidence before the

court shows that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of

law.’” McCullough v. Antolini, 559 F.3d 1201, 1204 (11th Cir. 2009)

(quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)).

“When considering a motion for summary judgment, . . . ‘courts

must construe the facts and draw all inferences in the light most

favorable to the nonmoving party and when conflicts arise be-

tween the facts evidenced by the parties, [they must] credit the

nonmoving party’s version.’” Feliciano v. City of Miami Beach, 707

F.3d 1244, 1252 (11th Cir. 2013) (alteration in original) (quoting Da-

vis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006)). We may affirm

a grant of summary judgment on any basis in the record, regardless

of whether the district court relied on that basis. See Hill v. Emp.

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22-10881 Opinion of the Court 19

Benefits Admin. Comm. of Mueller Grp. LLC, 971 F.3d 1321, 1325 (11th

Cir. 2020).

III. ANALYSIS

On appeal, Stalley challenges only the district court’s dispo-

sition of the deliberate indifference claim against Gass, Key,

Fender, Ake, Amrit, McBride, Smith, Tifft, Perrotta, and Foster

(Count III) and the supervisory liability claim against Gass, Disano,

Lee, and Mashburn (Count IV) insofar as it is tied to the same con-

duct, i.e., the alleged deliberate indifference.10 The crux of Stalley’s

argument is that, when properly viewed in the light most favorable

to him, the Defendants’ decision to transport the fully restrained

Villegas to F-dorm without attempting to furnish on-scene medical

care presents triable issues of material fact and could be found to

constitute deliberate indifference to a serious medical need in vio-

lation of the Eighth Amendment. In light of binding precedent, we

hold that the Defendants are entitled to qualified immunity be-

cause their conduct did not violate any clearly established right,

and we therefore affirm the district court’s ruling.

A. The Deliberate Indifference Claim

We begin with Count III, Stalley’s deliberate indifference

claim. Under Supreme Court precedent, “deliberate indifference

to [the] serious medical needs of prisoners constitutes the

10 We consider any other challenges to the district court’s summary judgment

ruling to have been forfeited. See United States v. Campbell, 26 F.4th 860, 871–

74 (11th Cir. 2022) (en banc).

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20 Opinion of the Court 22-10881

‘unnecessary and wanton infliction of pain’” in violation of the

Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quot-

ing Gregg v. Georgia, 428 U.S. 153, 173 (1976)). To prevail on a claim

of deliberate indifference, plaintiffs “must satisfy both an objective

and a subjective inquiry,” Farrow v. West, 320 F.3d 1235, 1243 (11th

Cir. 2003), and must establish a “necessary causal link” between the

challenged conduct and their injuries, Marbury v. Warden, 936 F.3d

1227, 1233 (11th Cir. 2019). The objective inquiry turns on

whether the plaintiff experienced an “objectively serious medical

need.” Farrow, 320 F.3d at 1243. The subjective inquiry, on the

other hand, turns on whether the “prison official acted with an at-

titude of ‘deliberate indifference’ to [the] serious medical need.” Id.

A prison official acted with deliberate indifference if he (1) had sub-

jective knowledge of a risk of serious harm, (2) disregarded that

risk, and (3) engaged in conduct that amounts to subjective reck-

lessness. See Farmer v. Brennan, 511 U.S. 825, 836–40 (1994). As we

recently reiterated, this third prong will be satisfied only if the

plaintiff shows “that the defendant actually knew that his con-

duct—his own acts or omissions—put the plaintiff at substantial

risk of serious harm.” Wade v. McDade, 106 F.4th 1251, 1253 (11th

Cir. 2024) (en banc). Even when a defendant has subjective

knowledge of a serious risk, “a defendant who ‘responds reasona-

bly’ to [such] a risk . . . ‘cannot be found liable’ under the Eighth

Amendment.” Id. at 1255 (quoting Farmer, 511 U.S. at 845).

As previewed, the district court entered summary judgment

in favor of the officers on this count based on qualified immunity.

Qualified immunity is a doctrine that “shields ‘government officials

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22-10881 Opinion of the Court 21

performing discretionary functions . . . from liability for civil dam-

ages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.’” Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th

Cir. 2019) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Accordingly, the doctrine “protect[s] ‘all but the plainly incompe-

tent or those who knowingly violate the law.’” Id. (quoting Malley

v. Briggs, 475 U.S. 335, 341 (1986)). Where, as here, it is undisputed

that the defendants were “acting within the scope of [their] discre-

tionary authority,” the burden is on the plaintiff to satisfy two

prongs: (1) showing that the defendants violated his constitutional

rights, and (2) showing that, “at the time of the violation, those

rights were ‘clearly established . . . in light of the specific context of

the case, not as a broad general proposition.’” Gaines v. Wardynski,

871 F.3d 1203, 1208 (11th Cir. 2017) (quoting Saucier v. Katz, 533

U.S. 194, 201 (2001)). Although the district court determined that

Stalley has not met his burden of satisfying either prong, we need

only address the second one here. See Pearson v. Callahan, 555 U.S.

223, 236–42 (2009) (explaining that federal courts need not address

both prongs of the qualified immunity framework and may exer-

cise their discretion to resolve cases based on only one of the two).

A plaintiff can satisfy his burden as to the clearly-established

prong of the qualified immunity framework in one of the following

three ways:

First, the plaintiff can point to a materially similar case

decided at the time of the relevant conduct by the Su-

preme Court, the Eleventh Circuit, or the relevant

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22 Opinion of the Court 22-10881

state supreme court. [This] first method looks at the

relevant case law at the time of the alleged violation

that would have made it obvious to the officer that

his actions violated federal law. The prior case law

need not be directly on point, but an “existing prece-

dent must have placed the statutory or constitutional

question beyond debate.” Second, the plaintiff can

identify a broader, clearly established principle that

should govern the novel facts of the situation. Third,

the plaintiff can show that the conduct at issue so ob-

viously violated the Constitution that prior case law

is unnecessary. [For this third route,] [t]he plaintiff

must establish that the conduct “lies so obviously at

the core of what the alleged constitutional amend-

ment prohibits that the unlawfulness of the conduct

was readily apparent to the officer, notwithstanding

the lack of fact-specific case law.” This third method,

often referred to as the “obvious clarity” scenario, is a

“narrow exception” to the “normal rule that only case

law and specific factual scenarios can clearly establish

a violation.

J W ex rel. Williams v. Birmingham Bd. of Educ., 904 F.3d 1248, 1259–

60 (11th Cir. 2018) (first quoting White v. Pauly, 580 U.S. 73, 79

(2017); and then quoting Fils v. City of Aventura, 647 F.3d 1272, 1291

(11th Cir. 2011)). In this case, Stalley has attempted to meet his

burden using both the first and second methods, but neither at-

tempt is persuasive.

As for the first method of establishing a clear violation,

Stalley highlights Bozeman v. Orum, 422 F.3d 1265 (11th Cir. 2005),

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22-10881 Opinion of the Court 23

abrogated on other grounds by Kingsley v. Hendrickson, 576 U.S. 389

(2015), as a “materially similar” case. Bozeman was a case in which

an unwell inmate was found naked in his cell, and was flooding the

room with contaminated toilet water, drinking the water, and

vomiting. Id. at 1268. The correctional officers on the scene were

heard telling the inmate that, if they had to enter the cell, they

would “kick his ass” and that he would be “in for a rude awaken-

ing.” Id. As promised, when the officers eventually entered the

inmate’s cell, a physical altercation ensued. Id. at 1268–69. Other

inmates reported hearing sounds of punching, slapping, and gag-

ging in addition to the officers saying “[i]s that all you’ve got?” and

“we don’t think you’ve had enough.” Id. at 1269. The officers then

exited the cell with the inmate, who was described at that point as

“lifeless,” and transported him to an isolation cell over the course

of fourteen minutes. Id. at 1269–70. While doing so, the officers

did not check the inmate’s breathing or pulse, did not administer

CPR, and did not summon medical help, and, when looking back,

offered “no explanation—medical or non-medical—for [those] fail-

ure[s].” Id. at 1273–74. Upon arriving at the isolation cell, the of-

ficers summoned a nurse who came and began life-saving treat-

ment approximately two minutes later. Id. at 1270. Soon after,

paramedics arrived and transported the inmate to a hospital, where

he was pronounced dead with asphyxia as the cause of death. Id.

Based on these “extreme circumstances,” including the officers’

“total” and unexplained “failure to address [the inmate’s] medical

needs during the fourteen-minute [transportation] period,” this

Court held that the delay in care was actionable under the

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24 Opinion of the Court 22-10881

Constitution and fell within the general statement of law that “an

official acts with deliberate indifference when he intentionally de-

lays providing an inmate with access to medical treatment, know-

ing that the inmate has a life-threatening condition or an urgent

medical condition that would be exacerbated by delay.” Id. at

1273–74 (quoting Lancaster v. Monroe County, 116 F.3d 1419, 1425

(11th Cir. 1997)). According to Stalley, Bozeman is comparable

enough to this case to provide the officers with adequate notice

that their conduct would violate the Constitution.

The issue with Stalley’s comparison, however, is that it ig-

nores several material dissimilarities between Bozeman and this

case. First, Bozeman was decided under our previous (and mis-

taken) “more than gross negligence” standard. Bozeman, 422 F.3d

at 1272 (alteration adopted); see Wade, 106 F.4th at 1255 (explicitly

“repudiat[ing] our dueling ‘more than’ [negligence or gross negli-

gence] formulations”). Second, even if Bozeman were decided un-

der the correct standard, the facts are too far afield to clearly estab-

lish a violation here. The officers in Bozeman aggressively fought

with the inmate and then spent fourteen minutes transporting him

to an isolation cell (not a medical unit) before seeking medical care

and could not explain their failure to call for medical assistance any

sooner. Here, after having already attempted to obtain medical as-

sistance for Villegas, who was unwell and at times highly com-

bative, the officers spent five minutes and twenty-three seconds

transporting the fully restrained Villegas, at “[a]lmost a running

pace,” moving so fast that the nurses had to “run[]” to keep up as

they all raced to the medical unit in F-dorm (spending

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22-10881 Opinion of the Court 25

approximately two minutes and forty-six seconds getting Villegas

into the wheelchair and then later pausing for about approximately

twenty-five seconds to replace Villegas’s spit shield). They did so

with the good faith and reasonable belief that the medical unit

would be more private, more secure, and have better medical

equipment, including supplemental oxygen. See supra note 8.

Thus, there are material differences between Bozeman and this case,

including the length of the transportation process, whether the of-

ficers hurried to get the inmate there, and whether the intended

destination was chosen for the purpose of providing better medical

care. Given these differences, it cannot be said that Bozeman “made

it obvious” to the officers here that the decision to transport Ville-

gas to a nearby medical unit in a hurry, rather than to obtain care

on scene or en route, amounted to deliberate indifference.11 J W,

904 F.3d at 1259.

11 In the dissent, our learned colleague also suggests that Valderrama v. Rous-

seau, 780 F.3d 1108 (11th Cir. 2015) controls, based on the premise that “the

delay in care is, itself, a wanton infliction of pain and a constitutional viola-

tion.” Id. at 1116. But the facts in Valderrama bear no similarity to those at

issue here. In Valderrama, Detective Rousseau shot Valderrama in the genitals

while investigating a potential drug crime. Id. at 1110. Rousseau and his col-

league, Sergeant Smith, delayed calling an ambulance for more than three

minutes and, when Smith finally requested the ambulance, she reported “a

laceration” and not a gunshot wound—causing dispatch to “assign[] the call

the lowest priority.” Id. at 1111. Had the officers properly reported the shoot-

ing, the ambulance would have arrived seven minutes faster. Id. And that

seven-minute delay came atop the three-and-a-half minutes the officers waited

to call for an ambulance at all. Id. On these facts, we held that a jury could

find deliberate indifference because the officers delayed Valderrama’s medical

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26 Opinion of the Court 22-10881

As for the second method of establishing a clear violation,

Stalley points to the broad principle that “[t]he knowledge of the

need for medical care and intentional refusal to provide that care

has consistently been held to surpass negligence and constitute de-

liberate indifference.” Ancata v. Prison Health Servs., Inc., 769 F.2d

700, 704 (11th Cir. 1985). That principle “has put all law-enforce-

ment officials on notice that if they actually know about a condition

that poses a substantial risk of serious harm and yet do nothing to

address it, they violate the Constitution.” Patel v. Lanier County, 969

F.3d 1173, 1190 (11th Cir. 2020). But that is not what happened

here.

Viewing the facts in a light most favorable to Stalley, as we

must at the summary judgment stage, the officers spent approxi-

mately five minutes and twenty-three seconds rushing a fully re-

strained and unconscious Villegas, who was struggling to breathe,

to a medical unit, which prevented nurses from performing an on-

scene medical assessment. All agree, however, that the officers

transported Villegas to F-dorm only after they had attempted to

obtain on-scene medical assistance but had to send the nurses away

care “for more than ten minutes for no good or legitimate reason.” Id. at 1120.

As we have explained, that was not the case here, where the officers rushed

Villegas to the unit that they believed was best outfitted to provide suitable

medical care. All of this factual distinction comes on top of the fact that, as

with Bozeman, Valderrama was decided under our old, erroneous “more than

gross negligence” standard. Id. at 1116. As we have explained, and as the con-

currence describes in great detail, this standard has no application in our Cir-

cuit after our en banc decision in Wade. See Wade, 106 F.4th at 1255, We there-

fore find Valderrama no more instructive than Bozeman.

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22-10881 Opinion of the Court 27

due to his violent behavior. Thus, this is not a case where officers

did “nothing to address [Villegas’s condition],” see id.; they first tried

to obtain on-scene medical assistance for Villegas and then, after

that proved too dangerous, fully restrained him and then hurried

him to a medical unit for medical assistance. Nor is it one where

officers “intentional[ly] refus[ed]” medical care that they knew was

necessary; the officers reasonably believed it would be better to

rush Villegas to the medical unit rather than wait for nurses to per-

form an assessment either on scene or en route. See Ancata, 769

F.2d at 703–04; see also Taylor v. Adams, 221 F.3d 1254, 1259–60 (11th

Cir. 2000) (holding that a nurse did not exhibit deliberate indiffer-

ence when, after briefly observing an inmate, she instructed an of-

ficer to transport him to the hospital and never conducted an ex-

amination or provided care herself, given the “emergency circum-

stances”).12 In sum, none of the cases cited by Stalley recognize a

broad principle that clearly establishes that the officers here vio-

lated the law when they (1) opted to transport Villegas to a medical

12 In deciding Taylor, this Court also considered the fact that the nurse’s deci-

sion to transport the inmate was made in compliance with the jail’s policy of

requiring that unconscious detainees be “referred immediately for emergency

care.” 221 F.3d at 1259–60. That compliance was “significant” and “militate[d]

against concluding that [the nurse’s] actions were wanton.” Id. at 1260. But

in this case, Stalley insists that the officers failed to comply with the FDOC’s

policy requiring medical treatment “immediately” following any use of force.

Even assuming they did, a “failure to follow procedures does not, by itself, rise

to the level of deliberate indifference because doing so is at most a form of

negligence.” Id. at 1259. This makes sense, as prisons do not effectively reset

the constitutional standard for Eighth Amendment violations by simply im-

plementing more or less stringent medical and safety policies.

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28 Opinion of the Court 22-10881

unit once he was fully restrained rather than resummon the nurses

to the scene or (2) opted to rush Villegas to obtain medical treat-

ment in the F-dorm (approximately one minute and forty-one sec-

onds away) instead of stopping and waiting for the nurses to per-

form a medical assessment . 13

Further, the officers’ decision to “run[]” an inmate to a med-

ical unit to provide medical care is a reasonable response to a po-

tential medical emergency. See Wade, 106 F.4th at 1260–61. That

response is still reasonable even though there were nurses on site

who might have provided a medical assessment sooner at the cost

of delaying the inmate’s arrival at the F-dorm medical treatment

room. A reasonable decision does not have to be a perfect decision,

and it does not require that any potential harm was actually

averted. See Farmer, 511 U.S. at 844 (“[P]rison officials who actually

knew of a substantial risk to inmate health or safety may be found

free from liability if they responded reasonably to the risk, even if

the harm ultimately was not averted.”); Mosley v. Zachery, 966 F.3d

1265, 1271–72 (11th Cir. 2020) (explaining that multiple different

responses to a threat can ultimately be reasonable and stating that

13 Stalley cites Lancaster v. Monroe County, 116 F.3d 1419, 1425 (11th Cir. 1997),

overruled in part on other grounds, LeFrere v. Quezada, 588 F.3d 1317 (11th Cir.

2009), for the general principle that “an official acts with deliberate indiffer-

ence when he intentionally delays providing an inmate with access to medical

treatment, knowing that the inmate has a life-threatening condition or an ur-

gent medical condition that would be exacerbated by delay.” That principle

does not cover this case, where officers denied one form of care (i.e., an on-

site assessment) only so as to more quickly secure another (i.e., treatment in

the medical unit) with valid medical and safety concerns in mind.

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22-10881 Opinion of the Court 29

a response’s reasonableness is not an “all-or-nothing, one-size-fits-

all approach”).

Gass testified that the officers decided to take Villegas to the

F-dorm treatment room because it had more medical supplies and

more medical staff than the E-dorm common area. We know with

the benefit of hindsight that the decision did not succeed in saving

Villegas’ life. But that does not mean it was an unreasonable deci-

sion, much less a deliberately indifferent one. See Powell, 25 F.4th

at 924 (“Qualified immunity leaves room for mistaken judg-

ments.”) (quotation marks omitted). And the officers did rush Vil-

legas to the F-dorm treatment room; they were faced with a serious

situation and acted seriously in response. Because the officers acted

reasonably in the face of Villegas’ need for medical care, they cer-

tainly were not on notice that their actions constituted an “inten-

tional refusal to provide that care.” Ancata, 769 F.2d at 704. And as

the district court explained, “[t]he decision to take an inmate to a

second location for medical care is itself medical care.”

Turning to the third method of defeating qualified immun-

ity, Stalley makes no attempt to use it. He does not argue that the

officers , here “so obviously” violated the Eighth Amendment that

no previous decision directly on point is required. And given that

no binding judicial decision clearly establishes that the officers vio-

lated the law—either by its resolution of a “materially similar” set

of circumstances (method one) or by its establishment of a broader,

applicable principle (method two)—the officers are entitled to qual-

ified immunity with respect to Count III.

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30 Opinion of the Court 22-10881

B. The Supervisory Liability Claim

We turn now to Count IV, Stalley’s supervisory liability

claim against some of the Group Defendants (Lieutenant Gass,

Captain Disano, and Major Lee) and Defendant Mashburn (herein-

after, the “Supervisor Defendants”). Stalley contends that, like his

deliberate indifference claim, his supervisory liability claim pre-

sents triable issues of fact insofar as it is tied to the same conduct,

i.e., the alleged deliberate indifference. Stalley argues that all the

Supervisor Defendants were present for some period during the in-

cident on March 28, 2017, and failed to take appropriate action as

supervisors to secure necessary medical care. Stalley further argues

that each of the Supervisor Defendants contributed to a custom,

practice, or unwritten policy at LCI of delaying medical care fol-

lowing the use of force by transporting inmates to medical units

rather than allowing medical assessments to take place on scene.

“The standard by which a supervisor is held liable in her in-

dividual capacity for the actions of a subordinate is extremely rig-

orous.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1308 (11th Cir. 2009)

(quoting Braddy v. Fla. Dep’t of Labor & Emp. Sec., 133 F.3d 797, 802

(11th Cir. 1998)). Further, under our precedent, plaintiffs cannot

maintain a supervisory liability claim tied to an alleged underlying

constitutional violation if it is determined that no such violation

occurred. See id.; Gish v. Thomas, 516 F.3d 952, 955 (11th Cir. 2008);

Hicks v. Moore, 422 F.3d 1246, 1253 (11th Cir. 2005). And even if an

underlying constitutional violation has occurred, “[a] supervisor

cannot be liable . . . if the [subordinate’s] constitutional violation

was not then clearly established.” Dukes v. Deaton, 852 F.3d 1035,

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22-10881 Opinion of the Court 31

1045–46 (11th Cir. 2017); see also Keating v. City of Miami, 598 F.3d

753, 763–67 (11th Cir. 2010). In other words, if a subordinate is

entitled to qualified immunity for his conduct, his supervisor is also

entitled to qualified immunity for that same conduct.

Thus, because we have determined that the officers accused

of exhibiting deliberate indifference are entitled to qualified im-

munity, see supra Section III.A, the Supervisor Defendants blamed

for that alleged deliberate indifference are necessarily entitled to

the same.

IV. CONCLUSION

For these reasons, we affirm the district court’s summary

judgment ruling.

AFFIRMED.

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22-10881 CARNES, J., Concurring 1

ED CARNES, Circuit Judge, Concurring:

I join the majority opinion in full. I write separately to add

to what it says about why we reject our dissenting colleague’s posi-

tion that the defendant officers were deliberately indifferent to the

medical needs of a violent inmate whom they had finally been able

to subdue.

Immediately after the inmate was restrained the officers

rushed him in a wheelchair at a rapid pace to the prison medical

treatment room in a nearby dorm where they believed he could get

the best treatment. It took less than five-and-a-half minutes to get

him there. And that includes the 25 seconds they used to protect

themselves by putting a mask with a shield on the prisoner because

he had earlier attempted to spit on and bite them. They were not

deliberately indifferent to his medical needs, they did not violate

his constitutional rights at all, and they certainly did not violate any

of his clearly established constitutional rights. As the district court

ruled, the officers are entitled to summary judgment on qualified

immunity grounds.

I’ll first discuss the deliberate indifference and qualified im-

munity standards. Then I will set out the law on dicta and about

distinctions between cases, and finally I will explain two inde-

pendently adequate reasons why the decisions that the dissent re-

lies on fail to establish that the officers violated clearly established

law.

I. Deliberate Indifference Under Wade

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2 CARNES, J., Concurring 22-10881

An Eighth Amendment deliberate indifference claim has

both an objective component and a subjective component. See

Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wade v. McDade, 106

F.4th 1251, 1253 (11th Cir. 2024) (en banc). To satisfy the objective

component, the plaintiff must show that the deprivation suffered

was “sufficiently serious.” Farmer, 511 U.S. at 834 (quotation marks

omitted). There is no dispute that “sufficiently serious” compo-

nent is an objective standard. Nor should there be any dispute that

the subjective component of deliberate indifference is subjective —

hence the term “subjective.”

If there were any doubt about the deliberate indifference

standard being subjective, it was settled by the en banc Court only

a few months ago. This is what the Court said:

For reasons we’ll explain, we now hold, in accordance

with the Supreme Court’s decision in Farmer v. Brennan,

that in addition to an “objectively serious” deprivation,

a deliberate-indifference plaintiff must show that the defend-

ant acted with “subjective recklessness as used in the criminal

law,” 511 U.S. 825, 839 (1994), and that in order to do so,

the plaintiff must demonstrate that the defendant actually

knew that his conduct — his own acts or omissions — put the

plaintiff at substantial risk of serious harm. We add the ca-

veat, likewise prescribed by Farmer, that even if the de-

fendant “actually knew of a substantial risk to inmate

health or safety,” he cannot be found liable under the

Cruel and Unusual Punishments Clause if he “re-

sponded reasonably to th[at] risk.” Id. at 844.

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22-10881 CARNES, J., Concurring 3

Wade, 106 F.4th at 1253 (emphasis added). That means, as the en

banc Court explained, that “[a]n official’s failure to alleviate a sig-

nificant risk that he should have perceived but did not” cannot be

condemned as the infliction of punishment, id. at 1257 (quoting

Farmer, 511 U.S. at 838), and “only inflictions of punishment carry

liability” for deliberate indifference, id. (quoting Farmer, 511 U.S. at

839, 841) (quotation marks omitted).

Attempting to stamp out any doubt about the matter, the en

banc Court in Wade reiterated that key holding. See id. at 1255

(“[W]e now repudiate our dueling ‘more than’ [negligence or gross

negligence] formulations and hold instead that a deliberate-indiffer-

ence plaintiff must prove that the defendant acted with ‘subjective reck-

lessness as used in the criminal law,’ and that in order to do so, the

plaintiff must show that the defendant was subjectively aware that his

own conduct put the plaintiff at substantial risk of serious harm.”) (em-

phasis added) (citation omitted).

And then the Court stated that holding a third time. Id. at

1258 (“[W]e hold that a deliberate-indifference plaintiff must show

that the defendant official was subjectively aware that his own conduct —

again, his own actions or inactions — put the plaintiff at substantial risk

of serious harm.”) (emphasis added).

And then a fourth time. Id. (“The first and most important

reason for requiring a deliberate-indifference plaintiff to show that the

defendant subjectively knew that his own conduct caused a substantial

risk of serious harm is that Farmer is best understood to adopt that

rule.”) (emphasis added).

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4 CARNES, J., Concurring 22-10881

And then a fifth time. Id. at 1259 (“Absent a particularized

focus on a prison official’s subjective awareness of the risk created by his

own conduct, there is a danger that he could be held liable for con-

duct that does not remotely resemble the ‘inflict[ion]’ of ‘punish-

ment[.]’”) (emphasis added).

And then a sixth time. Id. (“[O]nly a rule trained on a prison

official’s subjective awareness of the risk caused by his own conduct ––

rather than some preexisting risk –– can account for, and sensibly ap-

ply to, the full range of deliberate indifference cases.”) (emphasis

added).

And, then a seventh time:

For all these reasons, we hold that in order to

show that a defendant acted with “subjective reckless-

ness as used in the criminal law,” Farmer, 511 U.S. at 839,

a deliberate-indifference plaintiff must demonstrate that the

defendant was actually aware that his own conduct caused a

substantial risk of serious harm to the plaintiff.

Id. at 1261 (emphasis added). And, perhaps hoping that the eighth

time would be the charm, and wanting to make its holding ines-

capably clear, in the last sentence of its opinion before announcing

the result the en banc Court reiterated one more time in Wade that:

[T]he plaintiff must demonstrate that the defend-

ant acted with “subjective recklessness as used in the

criminal law,” [Farmer, 511 U.S.] at 839, and to do so he

must show that the defendant was actually, subjectively aware

that his own conduct caused a substantial risk of serious

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22-10881 CARNES, J., Concurring 5

harm to the plaintiff—with the caveat, again, that even if

the defendant “actually knew of a substantial risk to in-

mate health or safety,” he “cannot be found liable under

the Cruel and Unusual Punishments Clause” if he “re-

sponded reasonably to the risk.” Id. at 844–45.

Id. at 1262 (emphasis added).

In spite of all of that fresh-off-the-printer, emphatic iteration

and the emphatic multiple reiterations of the binding circuit law in

Wade, the dissent fails to honor and apply Wade’s crystal-clear hold-

ing that the plaintiff must establish that the “defendant actually

knew” –– actually knew –– that the defendant’s own acts or omis-

sions put the plaintiff at “substantial risk of serious harm.” Id.

Instead of following Wade, the dissent attempts to apply an

objective, should-have-known, best-medical-practices, negligence-

related standard. In the dissent’s view, the officers in this case are

liable under the Eighth Amendment because it was “objectively un-

reasonable” for them to rush from a dorm where two nurses were

present to a nearby dorm with a medical treatment room the offic-

ers believed was better equipped, had oxygen, and had an on-call

doctor so that the inmate could receive better care. See Dissent at

21–22.

The dissent’s conclusion that the officers’ particular re-

sponse to the medical emergency was “objectively unreasonable”

rests on an after-the-fact assessment by medical experts of what

would have been the best medical practice in the circumstances.

Dissent at 11–15. But none of the defendant officers is a doctor or

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6 CARNES, J., Concurring 22-10881

nurse, and there is no evidence that any of them ever had any med-

ical training. See infra at 47–50 (discussing how the plaintiff’s expert

opinion testimony went to best medical practices instead of what

the non-medically trained officers believed in good faith was the

best thing to do for the prisoner).

The bigger point is, as just discussed, that the deliberate in-

difference standard has an irreducibly subjective component. And

there is no evidence at all in this case that any of the officers was

“actually, subjectively aware” that rushing the prisoner to what they

believed was the best medical facility to treat him was conduct that

would “cause[] a substantial risk of serious harm” to him. See

Wade, 106 F.4th at 1262. There is no evidence that they did not be-

lieve they were doing what was best for him.

The dissent’s focus on objective reasonableness contradicts

the standard the Court so recently pronounced in Wade: “a deliber-

ate-indifference plaintiff must show that the defendant acted with

‘subjective recklessness as used in the criminal law,’” with the “ca-

veat” that a defendant “cannot be found liable under the Cruel and

Unusual Punishments Clause if he ‘responded reasonably to that

risk.’” 106 F.4th at 1253 (quoting Farmer, 511 U.S. at 839, 844).

While the dissent acknowledges the existence of those two sepa-

rate components, it conflates the purely subjective requirement of

a defendant knowing that his conduct caused or threatened a sub-

stantial risk of serious harm to the inmate (a subjective compo-

nent), with the exception from deliberate indifference liability if

the defendant, regardless of his subjective mental state, acted

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22-10881 CARNES, J., Concurring 7

reasonably (an objective measure). The dissent conflates those two

separate components by asserting that the officers’ actions were

objectively unreasonable (based largely on the professional

knowledge of medical care providers) and treating that as proof

that the defendants acted with subjective criminal recklessness. See

Dissent at 16–17, 19–23; see also see infra at 47–50 (addressing the

inappropriateness of relying on the knowledge of doctors and

nurses to assess the defendant officers’ own state of mind).

The dissent is mistaken to skip so lightly over the subjective

requirement. We don’t get to the objective measure exception

from liability of acting reasonably unless and until the plaintiff has

proven that the defendant subjectively knew that there was a sub-

stantial risk that his conduct would cause harm. And the plaintiff

hasn’t made that showing here. He has not shown that the correc-

tional officers, none of whom was a doctor, or nurse, or paramedic,

knew they were causing Villegas a substantial risk of harm by rush-

ing him to the medical treatment facility that they thought was best

equipped to provide him with care. If a defendant did not know –

– actually realize and know, as we required in Wade –– that his con-

duct would cause or threaten a substantial risk of serious harm, he

was not deliberately indifferent. And if he is not liable for that rea-

son, we have no need to reach the question of whether he would

be excepted from liability anyway because he acted in an objec-

tively reasonable way. See Wade, 106 F.4th at 1253 (adding to a dis-

cussion of the elements of a deliberate indifference claim “the ca-

veat . . . that even if the defendant actually knew of a substantial

risk to inmate health or safety, he cannot be found liable . . . if he

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8 CARNES, J., Concurring 22-10881

responded reasonably to that risk”) (cleaned up); id. at 1257 (char-

acterizing the objective reasonableness exception as “a coda of

sorts” that the Farmer Court appended to its decision).

In any event, in the quarter of a century since the Supreme

Court’s Farmer decision, it has been settled that the second element

an inmate plaintiff must prove to have a valid deliberate indiffer-

ence claim is that the defendant prison official or officer had “a suf-

ficiently culpable state of mind,” which is “one of deliberate indif-

ference to inmate health or safety.” 511 U.S. at 834 (quotation

marks omitted). In the period between the Farmer decision and our

Wade decision, we articulated the standard for that second element,

the sufficiently culpable state of mind, as being something more

than negligence. See Wade, 106 F.4th at 1254. Whether the stand-

ard was more than mere negligence or more than gross negligence

our decisions did not, to put it charitably, make clear. See id. But

our decision in Wade mooted all of that lack of clarity by adopting

the criminal recklessness standard and tossing out the negligence-

based standards that had plagued our circuit law for years. See id.

at 1254–57.

II. Qualified Immunity

Even if the plaintiff in this case could establish that what the

defendant officers in this case did or failed to do was deliberate in-

difference, that would not be enough to prevail. It would not be

enough because the defendants have raised the defense of qualified

immunity. Given that they were indisputably acting within their

discretionary authority, the defendants are entitled to qualified

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22-10881 CARNES, J., Concurring 9

immunity unless it is shown that under clearly established law in

existence at the time, their actions amounted to deliberate indiffer-

ence. See, e.g., Wade v. Daniels, 36 F.4th 1318, 1323, 1326–28 (11th

Cir. 2022) (concluding that officers performing discretionary duties

were entitled to qualified immunity on deliberate indifference

claim); Marbury v. Warden, 936 F.3d 1227, 1232–33 (11th Cir. 2019)

(same as to a defendant prison official).

We recognize three ways in which a plaintiff can show that

the law is clearly established for qualified immunity purposes: (1)

“by pointing to a materially similar decision of the Supreme Court,

of this Court, or of the supreme court of the state in which the case

arose,” Powell v. Snook, 25 F.4th 912, 920 (11th Cir. 2022); (2) by re-

ferring to a “broad statement[] of principle” that is “established

with obvious clarity by the case law so that every objectively rea-

sonable government official facing the circumstances would know

that the official’s conduct did violate federal law when the official

acted,” Terrell v. Smith, 668 F.3d 1244, 1256 (11th Cir. 2012) (quota-

tion marks omitted); or (3) “by convincing us that the case is one

of those rare ones that fits within the exception of conduct which

so obviously violates the constitution that prior case law is unnec-

essary,” Powell, 25 F.4th at 920 (alteration adopted) (quotation

marks omitted).

The dissent relies primarily on the first approach. See Dis-

sent at 2–3. Under that method, the law can be shown to be clearly

established if “case law previously elucidated in materially similar

factual circumstances clearly establishes that the conduct is

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10 CARNES, J., Concurring 22-10881

unlawful.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1209 (11th Cir.

2007). In making that determination, we must not “define clearly

established law at a high level of generality”; instead, we “ask

whether the violative nature of particular conduct is clearly estab-

lished,” which is a question we answer “in light of the specific con-

text of the case, not as a broad general proposition.” Crocker v.

Beatty, 995 F.3d 1232, 1241 (11th Cir. 2021) (quotation marks omit-

ted); see Corbitt v. Vickers, 929 F.3d 1304, 1316 (11th Cir. 2019)

(“[T]he qualified immunity analysis requires a clearly established

right to be defined with specificity.”).

The specificity we require from the facts of materially simi-

lar cases is especially important in the deliberate indifference con-

text. See Mosley v. Zachery, 966 F.3d 1265, 1272 (11th Cir. 2020) (“In

deliberate-indifference cases, as in life, context matters.”); Youmans

v. Gagnon, 626 F.3d 557, 564 (11th Cir. 2010) (concluding that a jail

official did not violate clearly established law, explaining: “Judicial

decisions addressing deliberate indifference to a serious medical

need, like decisions in the Fourth Amendment search-and-seizure

realm, are very fact specific. . . . [S]pecific cases of deliberate indif-

ference are complicated: the threshold of deliberate indifference is

connected to combinations of diverse interdependent factual ele-

ments.”); Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1318 (11th Cir.

2010) (“Questions of deliberate indifference to medical needs based

on claims of delay are complicated questions because the answer is

tied to the combination of many facts; a change in even one fact

from a precedent may be significant enough to make it debatable

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22-10881 CARNES, J., Concurring 11

among objectively reasonable officers whether the precedent

might not control in the circumstances later facing an officer.”).

The dissent also argues that “in a delay-of-care case involv-

ing a life-threatening condition, a prior case directly on point is not

needed” to show clearly established law. Dissent at 8 n.2; see also

id. at 18. That argument attempts to fit within the second method

of showing clearly established law, under which sometimes “au-

thoritative judicial decisions may establish broad principles of law

that are clearly applicable in a variety of factual contexts going be-

yond the particular circumstances of the decision that establishes

the principle.” Griffin, 496 F.3d at 1209 (alteration adopted) (em-

phasis added) (quotation marks omitted). See Dissent at 1–2, 8 n.2,

18, 23. Not “do,” but “may.”

Only in the rarest of circumstances do we strip officials of

qualified immunity based on broadly stated principles of law.

“[S]uch decisions . . . arise where precedents are hard to distinguish

from later cases because so few facts are material to the broad legal

principle that factual differences are often immaterial to the later

decisions.” Corey Airport Servs., Inc. v. Decosta, 587 F.3d 1280, 1287

(11th Cir. 2009) (alterations adopted) (quotation marks omitted).

The reason these cases are so “rare” is that “most judicial prece-

dents are tied to particularized facts.” Id. (quotation marks omit-

ted); see also Powell, 25 F.4th at 921 (“We have recognized that obvi-

ous clarity is a narrow exception to the normal rule that only case

law and specific factual scenarios can clearly establish a violation.”)

(quotation marks omitted); Griffin, 496 F.3d at 1209 (stating that

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12 CARNES, J., Concurring 22-10881

reliance on a case with materially similar facts is the “most com-

mon” way to show clearly established law). As the discussion

about the Lancaster, Bozeman, and Valderrama decisions in Part V,

below, shows, this case is not one of those rare, broad principles of

law cases. Instead, the material facts matter, and no broad principle

holding put the defendants on notice that their actions or inactions

violated clearly established law. See Majority Op. at 26–29.

III. Pre-Wade Decisions Cannot Clearly Establish That

Deliberate Indifference Exists in a Post-Wade Case

The particular facts of each of the cases the dissent cites

make them distinguishable from the present one. As a result, they

cannot and do not clearly establish for qualified immunity purposes

the law that applies to this case with its materially different facts. I

will discuss why that is so, explaining how each of those cases is

distinguishable from this one, in Part V, below.

But first, there is an additional and more general reason that

all of the decisions the dissent relies on are of no use in determining

whether an action or inaction amounts to deliberate indifference

under controlling law. The overriding reason that the decisions are

not helpful, much less controlling –– much, much less clearly con-

trolling –– is that all of those decisions were decided under our old,

pre-Wade deliberate indifference regime. All of those decisions

used negligence-based measures (“more than negligence” or “more

than gross negligence”) of deliberate indifference. That entire neg-

ligence-measure regime was recently scrapped and replaced with a

criminal-recklessness-measure regime. See Wade, 106 F.4th 1252.

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22-10881 CARNES, J., Concurring 13

As a result, all of the pre-Wade decisions, which are the foundation

of the dissent’s position in this case, are obsolete, extinct, gone, in-

sofar as establishing that deliberate indifference does exist in a post-

Wade conduct case. 1

1 That statement needs one addendum. While pre-Wade negligence-standard

decisions cannot be binding precedent establishing deliberate indifference does

exist in post-Wade conduct cases, they can be binding precedent establishing

that deliberate indifference does not exist in post-Wade conduct cases. Here’s

why. If a pre-Wade published decision holds that a particular set of facts did

not meet the more-than-negligence or the more-than-gross-negligence stand-

ard, which was law then, it necessarily follows that materially identical or less

extreme facts cannot meet the more demanding post-Wade deliberate indiffer-

ence standard either. If a set of facts is insufficient to show more than negli-

gence or more than gross negligence, those same facts cannot show the crim-

inal recklessness that Wade requires for deliberate indifference.

This is the same logic this Court has used in other cases to hold that

the failure to meet a less stringent standard compels a holding that a more

stringent one was not met. See United States v. Gray, 260 F.3d 1267, 1279 (11th

Cir. 2001) (holding that because the defendant failed to meet the lower pre-

ponderance-of-the-evidence burden of proof, it necessarily followed that he

could not meet a higher clear-and-convincing burden of proof); Al Najjar v.

Ashcroft, 257 F.3d 1262, 1303 (11th Cir. 2001) (holding that because the appli-

cants failed to show a fear of persecution sufficient for an asylum claim, it fol-

lowed that they could not make the higher showing necessary to support a

claim under the Convention Against Torture); Carrizo v. U.S. Att’y Gen., 652

F.3d 1326, 1331 (11th Cir. 2011) (“A petitioner’s inability to meet the standard

of proof for asylum generally precludes the petitioner from qualifying for

withholding of removal.”); Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1288 n.4

(11th Cir. 2005) (“Because [petitioner] has failed to establish a claim of asylum

on the merits, he necessarily fails to establish eligibility for withholding of re-

moval or protection under CAT.”).

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14 CARNES, J., Concurring 22-10881

All of the dissent’s old-regime decisions finding that deliber-

ate indifference existed are beside the point because they applied

either the more-than-negligence standard or the more-than-gross-

negligence standard. None of them applied the more-difficult-to-

meet Wade criminal recklessness standard. The entire purpose of

going en banc in Wade was to throw into the judicial dumpster the

unsatisfactory negligence-based measures of deliberate indiffer-

ence and the decisions applying those measures, and replace them

with the criminal recklessness standard and decisions applying it.

The dissent calls this treatment of our deliberate indifference prece-

dent a “one-way ratchet.” Dissent at 18–19 n.5. But if our deliberate indiffer-

ence decisions have been ratcheted in one direction, it is this Court’s en banc

decision in Wade that created the ratchet and controls the direction in which

it has moved our case law.

Of course, this is not a case in which we need to decide whether a pre-

Wade decision holding that deliberate indifference did not exist in that earlier

case is binding precedent that it doesn’t exist in this case. Because this is a

qualified immunity case, the defendants don’t have to show that the law is

clearly established that they did not act with deliberate indifference. Instead,

the burden runs in the opposite direction, requiring the plaintiff to show that

it is clearly established the defendants did act with deliberate indifference.

I freely admit that some of the statements in this footnote are dicta.

About that, I plead in my defense that, while not binding no matter how few

or how many judges join it, “[d]icta has its place and serves some purposes.”

McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1314 (11th Cir. 1998) (Carnes, J.,

concurring). For example, “[s]omewhat like statements in a law review article

written by a judge, or a judge’s comments in a lecture, dicta can be used as a

vehicle for offering to the bench and bar that judge’s views on an issue, for

whatever those views are worth.” Id. at 1315.

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22-10881 CARNES, J., Concurring 15

See Wade, 106 F.4th at 1255. And that is exactly what Wade did. The

post-Wade criminal recklessness standard, drawn from criminal

law, is undeniably a more difficult one for a plaintiff to meet than

either of the negligence-measurement standards that had been

used in pre-Wade decisions.

My dissenting colleague distinguishes between pre-Wade de-

cisions using the “more than gross negligence” standard and those

using the “more than mere negligence” one of the same era. Dis-

sent at 18–19 n.5. But it doesn’t matter which of the two outdated

standards was stricter or more outdated or more obsolete for estab-

lishing the existence of deliberate indifference. All of the pre-Wade

era decisions applied one of the two negligence standards, and

Wade jettisoned both of them in favor of the more-difficult-to-meet

criminal recklessness standard.

It necessarily follows that pre-Wade negligence-measure-

ment cases cannot serve as binding precedent to establish deliber-

ate indifference in the post-Wade era. They can’t because when a

deliberate indifference claim was up for decision before Wade ex-

isted, that panel did not apply or purport to apply the criminal reck-

lessness deliberate indifference standard adopted in Wade. That

earlier panel had no occasion to determine whether the facts of the

case amounted to criminal recklessness because that was not the

deliberate indifference standard that applied then.

The dissenting judge is of the view that we can and should

go dumpster diving for those old, pre-Wade cases and try to recycle

them into something they are not but that he wishes they were,

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16 CARNES, J., Concurring 22-10881

which is post-Wade-era criminal-recklessness-standard precedent.

He would have us imagine the result he thinks might have been

reached and the holding he thinks might have been announced if

the post-Wade standard had been applied in the old case instead of

either of the old negligence-based pre-Wade standards. Even

though everyone agrees that is not at all what happened.

In other words, the dissent would have us imagine what

might have happened if the parties in the old case had known to

brief the yet-to-be announced Wade standard; and if they had

known to orally argue that standard; and if the panel in that old

case had applied the not-then-existing Wade standard in the old case

instead of the standard it was required to apply under the then-ex-

isting law. If, if, and if. To perform that fanciful enterprise, we

would have to put ourselves in the former panel’s mind and re-de-

cide the old case anew, guided by conjecture, fueled by speculation

and giving free rein to imagination, with guesses galore. And once

we conjectured and speculated ourselves to what a different panel

might have decided under a different standard in the old case, but

didn’t decide, the dissent would have us pretend that the “holding”

of the old case, which never actually existed, does exist, and that it

binds us even though it is not a prior panel holding in any real sense

of the term. All of this the dissent would have us do to satisfy its

longing for what was not decided in previous cases but might have

been, bringing to mind the plaintive words of Whittier: “For of all

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22-10881 CARNES, J., Concurring 17

sad words of tongue and pen/The saddest are these: ‘It might have

been!’” John Greenleaf Whittier, “Maud Muller.” 2

To put it less poetically, the dissent’s decision-by-what-

might-have-been instead of decision-by-what-was is not how the

judicial process works. It is not how courts decide cases and an-

nounce law. It is not how they ever have. And it’s good that they

haven’t and don’t, because courts do not have the judicial equiva-

lent of a time travel machine. A panel of judges cannot know how

a past panel consisting of different judges on a different occasion

after hearing arguments from different attorneys would have de-

cided a case under a standard different from the one that the older

panel was obligated to apply, and did apply, under what was then

circuit law. Cases are decided, holdings reached, and precedent

made when cases are originally briefed and argued to and decided

by a court. When the time for further appeals runs and the man-

date issues, the judgment in a case becomes final. The decision in

the case becomes the decision in the case once and for all. That’s

basic Judicial Process 101.

Besides, the purpose of qualified immunity is to put officers

on notice at or before the time they act or fail to act about the law

they must obey. Perez v. Suszczynski, 809 F.3d 1213, 1222 (11th Cir.

2016) (“The ‘salient question’ is whether the state of the law at the

time of the incident gave [the officers] ‘fair warning’ that [their]

conduct was unlawful.”) (quoting Hope v. Pelzer, 536 U.S. 730, 741

2 https://perma.cc/5XB3-QNCB (last visited Dec. 4, 2024).

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18 CARNES, J., Concurring 22-10881

(2002)); Harper v. Lawrence Cnty., 592 F.3d 1227, 1237 (11th Cir.

2010) (explaining that officials are not entitled to qualified immun-

ity where they are “on notice of the unlawfulness of their con-

duct”). It is contrary to that purpose to hold officers personally li-

able based not on decisions in effect at the time they acted but based

on how judges, after the officers acted, may imagine that decisions

handed down before the officers acted might, or might not, have

been decided under a different standard by different judges.

The dissenting judge floated his retrospective, reconstruc-

tion theory of reimagining and remaking past precedent before the

en banc Court in Wade in a concurring opinion. See 106 F.4th at

1265 (concurring opinion of Jordan, J.). But a majority of the

judges participating in the Wade decision did not join his opinion

or express any support for his position. Id. at 1252, 1262 (reflecting

that only three judges of the other twelve judges who participated

in the decision joined Judge Jordan’s concurrence).

The dissent insists that Wade “said nothing whatsoever

about abrogation” and could not have “sub silentio[] abrogated

three decades of Eighth Amendment case law.” Dissent at 18–19

n.5. But Wade was not silent about its repudiation of the pre-exist-

ing more-than-negligence and more-than-gross-negligence stand-

ards. It could hardly have been less sub silentio about that. Eight

times the en banc Court explicitly stated that there was a new

standard, criminal recklessness as used in the criminal law, that sup-

planted the old negligence-based standards. See Part I, supra at 1–5.

To take just one example, the en banc Court stated:

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22-10881 CARNES, J., Concurring 19

[W]e granted rehearing en banc to clarify the stand-

ard for establishing liability on an Eighth Amendment

deliberate-indifference claim. Having reconsidered

the issue, we now repudiate our dueling more than [negli-

gence or gross negligence] formulations and hold instead

that a deliberate-indifference plaintiff must prove that the

defendant acted with subjective recklessness as used in the

criminal law, and that in order to do so, the plaintiff

must show that the defendant was subjectively aware that

his own conduct put the plaintiff at substantial risk of seri-

ous harm.

106 F.4th at 1255 (emphasis added) (citation omitted) (quotation

marks omitted). Choosing a standard of deliberate indifference

was, after all, why en banc review was conducted.

My dissenting colleague also asserts that “to constitute abro-

gation an en banc decision like Wade ‘must demolish and eviscerate

each of [the prior decision’s] fundamental props,’” which he thinks

Wade did not do. Dissent at 18–19 n.5 (quoting United States v. Du-

bois, 94 F.4th 1284, 1293 (11th Cir. 2024)) (brackets in Dissent). The

term “fundamental props” refers to independent “bases” — i.e., “al-

ternative rationales” — supporting one “holding.” Del Castillo v.

Sec’y, Fla. Dep’t of Health, 26 F.4th 1214, 1223 (11th Cir. 2022) (quo-

tation marks omitted); see also Dubois, 94 F.4th at 1293 (quoting Del

Castillo, 26 F.4th at 1223 on “fundamental props”). If the holding

of a prior panel “rests on two bases, only one of which has been

rejected by the Supreme Court [or this Court sitting en banc] while

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20 CARNES, J., Concurring 22-10881

the other basis has not been,” then the prior panel’s holding has not

been abrogated. Del Castillo, 26 F.4th at 1223.

But that’s not what happened here. The pre-Wade prece-

dent on which the dissent relies depended on the application of ei-

ther of two negligence-based standards that Wade explicitly stated

that it was now “repudiat[ing]”: the old more than negligence and

the old more than gross negligence standards. 106 F.4th at 1255

(“[W]e now repudiate our dueling ‘more than’ [negligence-based]

formulations . . . .”). Repudiate, demolish, eviscerate are syno-

nyms. And regardless of which verb one chooses to express the

passing of the negligence-based standards, they are finished, gone,

kaput insofar as establishing that deliberate indifference occurred is

concerned. 3

The dissent protests that I want to “do away with 30 years

of Eleventh Circuit deliberate indifference precedent.” Dissent at

18–19 n.5. That misconceives my position in two fundamental

ways. First, I don’t “want” anything except to recognize what our

recent Wade decision held, and to give effect to its holding “repu-

diating” the past negligence-based standards in favor of a criminal

recklessness standard, even though it is a more difficult one for a

plaintiff to meet. What effect the Wade decision has on pre-existing

precedent is the result of the Wade decision, not my “want[s].”

3 But perhaps not insofar as the decisions holding that deliberate indifference

did not exist are concerned. See supra at 13–14 n.1.

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22-10881 CARNES, J., Concurring 21

Second, I do not believe that Wade rendered all of our pre-

Wade decisions obsolete. Each of those decisions still holds that

under its particular facts the conduct involved was either more or

less than negligence or more or less than gross negligence, depend-

ing on which of those two pre-Wade standards were applied. Those

holdings do still exist. What has changed is that those holdings,

which address only the two old, negligence-based standards, are

not enough to bind a post-Wade panel to hold that deliberate indif-

ference does exist under those facts. They are not enough to do

that because the standard has changed and those pre-Wade deci-

sions did not apply the criminal recklessness standard that Wade

requires. They did not even pretend to do so.

For all of these reasons, I disagree with the dissent’s attempt

to survey the precedential graveyard, resurrect the dead parts of

prior precedent, and Frankenstein them into life in ways that our

precedential system of law never intended and does not permit.

Pre-Wade decisions, applying as they did their greater-than-negli-

gence or greater-than-gross-negligence deliberate indifference

standards, cannot be used as precedent that clearly establishes de-

liberate indifference in the post-Wade era with its more exacting

criminal recklessness standard. None of the dissent’s pre-Wade de-

cisions –– which is to say all of those that are cited in support of

the dissenting position –– can be used to establish the existence of

deliberate indifference in this post-Wade case. None of them.

IV. Dicta

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22 CARNES, J., Concurring 22-10881

In any event, even if we went along with the dissent’s un-

precedented, radical approach to retrofitting past decisions into

new precedent, it would make no difference in this case. It would

not because the decisions the dissent relies on to clearly establish

the law, don’t. And they don’t for reasons in addition to the fact

that they were decided using outmoded negligence-based

measures instead of the new Wade criminal recklessness standard.

One reason they don’t has to do with the impotency of dicta when

it comes to precedent.

Showing clearly established law almost always requires

pointing to the holding in a materially similar case, and it bears re-

peating that “[a] decision can hold nothing beyond the facts of that

case.” United States v. Birge, 830 F.3d 1229, 1233 (11th Cir. 2016) (al-

teration adopted) (quoting Edwards v. Prime, Inc., 602 F.3d 1276,

1298 (11th Cir. 2010)); Chavers v. Sec’y, Fla. Dep’t of Corr., 468 F.3d

1273, 1275 (11th Cir. 2006) (“The holdings of a prior decision can

reach only as far as the facts and circumstances frame the precise

issue presented in that case.”); Castillo v. Fla., Sec’y of DOC, 722 F.3d

1281, 1290 (11th Cir. 2013) (“We have pointed out many times that

regardless of what a court says in its opinion, the decision can hold

nothing beyond the facts of that case.”); Black v. United States, 373

F.3d 1140, 1144 (11th Cir. 2004) (“[T]he holdings of a prior decision

can reach only as far as the facts and circumstances presented to the

Court in the case which produced the decision.”) (quotation marks

omitted).

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22-10881 CARNES, J., Concurring 23

As we have explained, “[s]tatements in an opinion that are

not fitted to the facts, or that extend further than the facts of that

case, or that are not necessary to the decision of an appeal given

the facts and circumstances of the case, are dicta.” Pretka v. Kolter

City Plaza II, Inc., 608 F.3d 744, 762 (11th Cir. 2010) (citations omit-

ted) (quotation marks omitted). Anything in an opinion that goes

“beyond the facts of that case” is dicta. Edwards, 602 F.3d at 1298.

And “[d]icta is not binding on anyone for any purpose.” Welch v.

United States, 958 F.3d 1093, 1098 (11th Cir. 2020) (quotation marks

omitted); see Birge, 830 F.3d at 1233 (“We are not bound by the dicta

contained in our earlier opinions.”).

Because dicta cannot establish law — period — it certainly

cannot clearly establish law for purposes of defeating a qualified

immunity defense. Santamorena v. Ga. Mil. Coll., 147 F.3d 1337, 1342

n.13 (11th Cir. 1998) (“We have already stated that the law cannot

be established by dicta. Dicta is particularly unhelpful in qualified

immunity cases where we seek to identify clearly established law.”)

(alteration adopted) (quotation marks omitted); Jones v. Cannon, 174

F.3d 1271, 1288 n.11 (11th Cir. 1999) (“This Circuit has held that

dicta cannot clearly establish the law for qualified immunity pur-

poses.”); Hamilton v. Cannon, 80 F.3d 1525, 1531 (11th Cir. 1996) (re-

versing a denial of qualified immunity where “the district court re-

lied upon dicta . . . as having clearly established the law, something

that dicta cannot do”), superseded on other grounds as recognized in

Waldron v. Spicher, 954 F.3d 1297, 1306 (11th Cir. 2020).

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24 CARNES, J., Concurring 22-10881

The categorical irrelevance of dicta in qualified immunity

cases stems from the purpose of the doctrine itself, which exists “to

ensure that before they are subjected to suit, officers are on notice

their conduct is unlawful.” Hope, 536 U.S. at 739 (quotation marks

omitted). That means “[f ]or a constitutional right to be clearly es-

tablished, its contours must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.”

Id. (quotation marks omitted). Dicta cannot put officers on notice

that their conduct is unlawful because dicta cannot make any ac-

tion or inaction unlawful. Dicta is simply not the law, no matter

how eloquent or emphatic the wording. See Birge, 830 F.3d at 1233.

If it were otherwise, in addition to having to heed clearly estab-

lished law, officers would have to heed a judge’s musings and “spec-

ulative pronouncements about hypothetical questions.” See McDon-

ald’s Corp. v. Robertson, 147 F.3d 1301, 1315 (11th Cir. 1998) (Carnes,

J., concurring). We’ve never considered judges, law enforcement

officers, or others to be bound by musings and speculative pro-

nouncements of judges. As we explained in Pretka: “We are not

required to follow dicta in our own prior decisions. Nor for that

matter is anyone else.” 608 F.3d at 762 (citations omitted).

V. The Distinguishable Decisions the Dissent Relies On

As we have repeatedly held, a case that is fairly distinguisha-

ble from the one at hand cannot be binding precedent that clearly

establishes the law for qualified immunity purposes. See Davis v.

Waller, 44 F.4th 1305, 1312 (11th Cir. 2022) (“A case that is fairly dis-

tinguishable from the circumstances facing a government official

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22-10881 CARNES, J., Concurring 25

cannot clearly establish the law for the circumstances facing that

government official.”) (alterations adopted) (quotation marks

omitted); Griffin, 496 F.3d at 1209 (“When fact-specific precedents

are said to have established the law, a case that is fairly distinguish-

able from the circumstances facing a government official cannot

clearly establish the law for the circumstances facing that govern-

ment official; so, qualified immunity applies.”) (quoting Vinyard v.

Wilson, 311 F.3d 1340, 1352 (11th Cir. 2002)); see also Majority Op.

at 21–25.

That leads us to the decisions the dissent asserts clearly es-

tablish that the defendant officials violated the law in this case. I

have already explained (repeatedly, I confess), why those pre-Wade

negligence-era decisions cannot possibly clearly establish deliberate

indifference in post-Wade criminal recklessness-era cases like the

present one because they applied different deliberate indifference

standards. See Part III, supra at 12–21. But even putting aside for

the time being the fact that the dissent’s decisions are all pre-Wade

decisions inapplicable to an assertion of deliberate indifference,

there is another independently adequate reason that those deci-

sions would not defeat the qualified immunity defense in this case

anyway. That additional reason is that they are all distinguishable

on the facts from this case.

A. The Lancaster Decision

The dissent puts forward the Lancaster decision as support

for its position that the defendants in this case violated clearly es-

tablished law. See Lancaster v. Monroe Cnty., 116 F.3d 1419 (11th Cir.

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26 CARNES, J., Concurring 22-10881

1997), overruled in part on other grounds involving state law as recog-

nized in LeFrere v. Quezada, 588 F.3d 1317 (11th Cir. 2009). The dis-

sent cites Lancaster for the proposition that it is clearly established

that “an official acts with deliberate indifference when he knows

that an inmate is in serious need of medical care, but he fails or

refuses to obtain medical treatment for the inmate,” or if the offi-

cial “intentionally delays providing an inmate with access to medi-

cal treatment, knowing that the inmate has a life-threatening con-

dition or an urgent medical condition that would be exacerbated

by delay.” Id. at 1425; see Dissent at 1–2. But those broad state-

ments in the opinion cannot clearly establish those propositions be-

cause they are not Lancaster’s holding, and they have no application

in a materially dissimilar case like the present one. 4

4 The dissent proposes that Lancaster clearly established the law against these

defendants both on the theory that it’s a materially similar case and on the

theory that it states general principles of law that apply with obvious clarity.

See Dissent at 2–3. As I’ll explain, Lancaster is not materially similar to this case.

And to the extent Lancaster is one of those “rare” decisions establishing a broad

principle of law to which “few facts are material,” no such principle put the

defendant officials in this case on notice that they were violating the Eighth

Amendment. Corey, 587 F.3d at 1287 (quotation marks omitted). As the dis-

cussion that follows in the text demonstrates, the “particularized facts” matter

in Lancaster (as they almost always do), and they matter in this case, too. Id.

(quotation marks omitted). And the proposition that officers or officials vio-

late the Constitution when they “fail[] or refuse[] to obtain medical treatment”

or “intentionally delay[]” the provision of care, Lancaster, 116 F.3d at 1425, has

no application in this case.

It has no application here because these defendant officers plainly did

not fail or refuse to obtain medical treatment for Villegas nor did they

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22-10881 CARNES, J., Concurring 27

We did make some broad statements in the Lancaster opin-

ion. See 116 F.3d at 1425. But statements in an opinion are one

thing and holdings are another. Regardless of what an opinion

says, the holding of a case cannot extend beyond the facts of the

case. See, e.g., Birge, 830 F.3d at 1233; Castillo, 722 F.3d at 1290; Black,

373 F.3d at 1144. It’s a ground rule principle of law that no judicial

decision can establish law for a case with materially distinguishable

facts. See Santamorena, 147 F.3d at 1342 n.13; Jones, 174 F.3d at 1288

n.11; Hamilton, 80 F.3d at 1531. And Lancaster’s facts are materially

different from the facts in this case. As a result, Lancaster did not,

and could not, clearly establish that what the defendants did in this

case amounts to deliberate indifference.

In Lancaster, the decedent, Harold Michael Lancaster, was

arrested for driving under the influence of alcohol at around 7:45

p.m.; his blood alcohol content was more than three times the legal

intentionally delay providing care. As the district court correctly stated, “[t]he

decision to take an inmate to a second location for medical care is itself medical

care,” and the officers did that “promptly.” Lieutenant Gass, one of the de-

fendant officers, testified that the purpose of quickly ferrying Villegas to the

medical treatment room was to provide him with medical care. The dissent

characterizes the officers’ actions as a “delay of medical care for over five

minutes.” Dissent at 16. But as I’ll show, the officers used those five minutes

and 23 seconds to rush Villegas to the place they believed he would receive

the best treatment. See infra at 33–36, 40–41, 45, 45–46 n.7. In that time, the

officers prepared Villegas for transport by equipping him with a spit shield,

momentarily propping him up against a table, and placing him into a wheel-

chair; then they rushed Villegas to a medical treatment room, stopping once

for 25 seconds to replace his spit shield. See Majority Op. at 8–11. Nowhere

in that five-minutes-and-change was there any “delay.”

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28 CARNES, J., Concurring 22-10881

limit. 106 F.3d at 1421 & n.2. He was taken to the Monroe County

Jail and put into the drunk tank, a holding cell with three bunk beds

where people arrested for DUI were detained to sober up. Id. at

1421. Three other inmates were already occupying the bottom

bunks, so he had to take a top bunk. Id.

“Shortly after Lancaster was admitted to the jail,” and at

multiple times throughout the night, his wife and father contacted

the jail and officers on duty, and at least one officer who was not on

duty, to inform them that if Lancaster began to sober up, he could

go into delirium tremens and have seizures. Id. at 1421–23. They

told the officers that he had recently been in the hospital due to

seizures and that the last one almost killed him. Id. at 1422. Lan-

caster’s wife and father wanted to pick him up from the jail and see

that he got the care he needed. Id. at 1421–22. They weren’t al-

lowed to do so.

To begin with, Lancaster’s wife called the jail shortly after he

was admitted and spoke to a dispatcher, warning him that Lancas-

ter “was sick, that he could go into delirium tremens (DTs), and

that he would have seizures when the alcohol wore off.” Id. at 1421

(footnote omitted). Her call was then transferred to the jailer on

duty, and she informed him that Lancaster had been in the hospital

recently with grand mal seizures. Id. at 1421–22. She also told the

jailer that if her husband went very long without alcohol, he would

have another seizure, and the last one had almost killed him. Id. at

1422.

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22-10881 CARNES, J., Concurring 29

After that conversation, Lancaster’s father called the sheriff

at home and conveyed the same information to him, telling him

that Lancaster had seizures before and he “would have a seizure in

eight to ten hours if he did not get alcohol or medicine, and that

his last seizure had almost killed him.” Id. The sheriff refused to

release Lancaster to his family, but he assured Lancaster’s father

that he would instruct those at the jail to check on him every fifteen

minutes. Id. And the sheriff did call the jail and did tell the jailers

to “check on Lancaster closely all night.” Id. But that instruction

had little or no effect.

After speaking with the sheriff, Lancaster’s family contacted

another jail official at his home. Id. That official called a jailer (not

the one Lancaster’s wife had spoken with earlier) at approximately

9:30 p.m. and relayed what the family had told him –– “that Lan-

caster was very sick” and that he “was going to have seizures when

he began to sober up, and the jailers needed to keep a close watch

on him.” Id.

The family did not stop there with their efforts to save Lan-

caster. His father went to the jail and told a jailer he wanted to see

his son and get him out of jail. Id. The jailer refused to let him even

see his son. Id. Lancaster’s father warned the jailer that his son had

seizures, sometimes three to four within seven to ten minutes of

each other. Id. The jailer promised to look in on him every twenty

minutes. Id.

At midnight, a new jailer came on duty and was informed

by the one he replaced that Lancaster should be kept under close

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30 CARNES, J., Concurring 22-10881

watch because he “had experienced seizures from alcohol with-

drawal in the past and might go into seizures that night.” Id. at

1423. When that jailer made his rounds that night, he saw that

Lancaster was on the top bunk. Id.

Around 5:30 a.m. Lancaster’s wife “called the jail to find out

if [her husband] had experienced a seizure yet.” Id. She spoke with

the jailer who had come on duty at midnight, warning him: “that

Lancaster was a chronic alcoholic and would go into DTs”; that he

“had been in the hospital about a month before due to seizures”;

“that it was approaching time for Lancaster to have a seizure”; and

“that Lancaster would need help immediately if he had a seizure.”

Id.

Lancaster’s cellmates witnessed Lancaster “visibly shaking”

during the night, “climbing across the top bunk beds and trying to

get out of his cell through the bars and the ceiling,” and saw him

having trouble cleaning himself after using the toilet. Id. at 1422.

Lancaster had complained of headaches and when he got down

from his bunk, his cellmates had to help him get back into bed. Id.

At approximately 9:30 a.m., Lancaster sat up in his bunk,

made a choking noise, was visibly shaking, fell backwards out of

his top bunk and landed on the floor, hitting his head. Id. at 1423.

He began bleeding from his mouth. Id. One of his cellmates be-

lieved he was having a seizure, and the cellmates yelled for help, but

it took at least ten minutes for anyone to arrive. Id. A dispatcher

had heard their calls for help and walked towards the drunk tank

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22-10881 CARNES, J., Concurring 31

where she instructed Lancaster’s cellmates to turn him on his side.

Id.

A jailer also arrived at the cell. Id. But neither the dispatcher

nor the jailer entered the cell to help Lancaster because of a policy

that forbade them from entering a cell without a deputy present.

Id. The dispatcher left to call an ambulance. Id. From the time the

dispatcher had arrived at the cell until a deputy got there so anyone

could enter the cell, seven more minutes elapsed. Id. In all, at least

seventeen minutes elapsed between the time of Lancaster’s serious

head injury, when he began bleeding from his mouth and the other

inmates started yelling for help, and the time when an officer finally

entered Lancaster’s cell to help him. See id. After he was taken by

ambulance to a hospital, he died from an intracranial hemorrhage.

Id.

The holding of Lancaster, framed by and limited to the ma-

terial facts of that case, as the law requires, is that deliberate indif-

ference (under the negligence-measure standard then in effect) is

established where: a pre-trial detainee who was arrested on a DUI

offense has a serious medical condition caused by extreme alcohol

addiction; the defendant officials are repeatedly warned about the

serious condition by multiple family members who have first-hand

knowledge of it; the officials are informed that the medical condi-

tion will cause the detainee to have delirium tremors and seizures

that have almost killed him before, and that pose a serious risk of

causing his death when they happen, as they inevitably will; those

explicit warnings are given multiple times over a period of more

than 12 hours; the defendants refuse to make any effort at all to get

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32 CARNES, J., Concurring 22-10881

the detainee any medication or medical care, or to release him to

the custody of his family who are anxious to see that he is taken

care of; and the defendants make no effort to prevent the extremely

inebriated man from taking a top bunk from which a fall during

the inevitable seizures could well prove fatal, as it did.

That’s the holding of Lancaster because those are the facts of

that case, and regardless of what an opinion says, no holding can

extend beyond the facts of the case. See supra at 21–24. The holding

of Lancaster is not that “an official acts with deliberate indifference

when he knows that an inmate is in serious need of medical care,

but he fails or refuses to obtain medical treatment for the inmate”

or if the official “intentionally delays providing an inmate with ac-

cess to medical treatment, knowing that the inmate has a life-

threatening condition or an urgent medical condition that would

be exacerbated by delay.” 116 F.3d at 1425. Those broad statements

are not the holding because they do not include or refer to the spe-

cific facts of the case that produced the decision. Those statements

from the Lancaster opinion extend far beyond the specific and ex-

treme facts of that case and, therefore, are not necessary for the

result in it. The holding of Lancaster is far more narrow when the

case is read against all of the extreme facts that led to the result in

the case.

Consider the material differences between this case and the

Lancaster case. They show how the holding of that case, confined

to its facts as it must be, does not fit this case. Because the facts are

materially different, the holding in the Lancaster case can’t have

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22-10881 CARNES, J., Concurring 33

provided notice to the defendant officers in this case that their ac-

tions violated the Constitution, which is required for a denial of

qualified immunity on the theory that a “materially similar case”

has clearly established the law. See Davis, 44 F.4th at 1312; Griffin,

496 F.3d at 1209.

In Lancaster the defendant officials’ delay in seeking medical

help for the inmate was more than 12 hours, all of which was spent

simply waiting for him to have the serious medical event that was

all but certain to occur, and that did occur. See 116 F.3d at 1421–23.

There was no legitimate purpose in waiting for a predictable, and

predicted, bad event to happen; it was delay for delay’s sake. See id.

In the present case, by contrast, the time between the de-

fendant officers subduing Villegas — who had been violently resist-

ing and attempting to harm them — so they could get him to the

location where he could receive the best medical treatment reason-

ably available was five minutes and 23 seconds. Five-and-a-half

minutes spent getting an inmate to a medical treatment room is

not twelve hours spent just waiting for a highly predictable and re-

peatedly predicted medical calamity to happen. That is a stark con-

trast.

Even more starkly contrasting is how the officers used the

time. In Lancaster there was no legitimate reason for the twelve-

hour delay in obtaining medical care for the seriously ill inmate.

None. In the present case, by contrast, the defendants did not stand

around waiting for twelve hours or even twelve minutes. When

they finally got Villegas restrained, they immediately rushed him

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34 CARNES, J., Concurring 22-10881

to the nearest treatment room, getting him there as fast as they

could. And unlike the defendant officers in Lancaster, these officers

did not have twelve hours to think about what to do; instead, they

decided what to do, as they had to, immediately and on the spot in

the midst of an emergency medical event. Cf. Long v. Slaton, 508

F.3d 576, 580 (11th Cir. 2007) (noting that “we are loath to second-

guess the decisions made by police officers in the field” because “of-

ficers are often forced to make split-second judgments . . . in cir-

cumstances that are tense, uncertain, and rapidly evolving”) (alter-

ation adopted) (quotation marks omitted).

And the difference in motive or purpose provides another

stark contrast between Lancaster and this case. 5 We examine the

subjective mind state of the defendant officers to determine

whether they were actually aware that their actions put the inmate

at a substantial risk of serious harm. See Wade, 106 F.4th at 1255;

Farmer, 511 U.S. at 837–38. The officers in this case reasonably be-

lieved that Villegas would receive better healthcare in the medical

treatment room in F-dorm, which had better facilities, equipment,

and personnel than in E-dorm where Villegas had acted out vio-

lently and been subdued. Lieutenant Milton Gass, a defendant

5 As will soon be discussed in more detail, courts should and do consider the

reason for the alleged delay of medical care when determining whether it

amounts to deliberate indifference. See infra at 42–45 (citing Valderrama v.

Rousseau, 780 F.3d 1108, 1116 (11th Cir. 2015); McElligott v. Foley, 182 F.3d 1248,

1255 (11th Cir. 1999); Youmans, 626 F.3d at 566 n.11; Goebert v. Lee Cnty., 510

F.3d 1312, 1327 (11th Cir. 2007); Ancata v. Prison Health Servs., Inc., 769 F.2d

700, 704 (11th Cir. 1985)).

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22-10881 CARNES, J., Concurring 35

officer, testified that they moved Villegas to F-dorm because they

believed that once there he would have access to “further medical

equipment,” could receive supplemental oxygen, and there was an

“on-call doctor” in that location. It was not unreasonable for the

officers to believe that, and nothing in Lancaster establishes, much

less clearly establishes, that it was.

As the district court pointed out, the officers got Villegas to

the F-dorm medical treatment room “promptly.” To say the least.

Once they got him strapped safely into a wheelchair, they rushed

him to the medical treatment room at F-dorm — “[a]lmost at a

running pace,” so fast that the nurses outside E-dorm were “run-

ning” to keep up with them, as Nurse Paula Fischer testified. The

officers were rushing Villegas to the better medical facility because

they were attempting to save him. There is no other explanation

for why they were in such a hurry to get Villegas to the medical

facility. As Lieutenant Gass explained: “[O]ur intent [was] to get

him there as soon as possible to render him treatment so that he

w[ould] be okay . . . .” That is action fueled by deliberate concern,

which is the opposite of inaction and deliberate indifference.

By contrast, there was no apparent benevolent motive in

Lancaster where the defendant officers did not rush the inmate an-

ywhere, but instead detained him for more than 12 hours, rebuffing

the pleas of his family, while those officers waited for the almost-

certain-to-happen life-threatening medical event to occur, which it

did. See 116 F.3d at 1421–23.

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36 CARNES, J., Concurring 22-10881

The dissenting opinion emphasizes that, while transporting

Villegas to the treatment room, the officers in this case paused for

approximately twenty-five seconds to replace the torn spit shield

covering Villegas’s face. See Dissent at 14, 21–22. But no case holds

that it is unreasonable for officers to take less than half-a-minute to

protect themselves from an inmate who had just moments before

engaged in extremely aggressive behavior and strenuously fought

them. Before rushing him to medical care, the officers had to strug-

gle to restrain Villegas, a 275-pound man who was on K2 (a syn-

thetic cannabinoid) and was “violently resisting” them with “super-

human” strength like that of a “grizzly bear” and “literally was lift-

ing [the officers].”

The use of a spit shield was especially appropriate because

during the fierce fight Villegas had been attempting to bite and spit

at the officers. Spitting by itself presented a health risk. LPN

Tammy Spencer explained that “a lot of inmates have HIV” or

“hepatitis,” and “you don’t want that in your face.” And biting pre-

sented even more of a risk. No decision, including Lancaster, clearly

establishes that it is unreasonable for officers in these circumstances

to take twenty-five seconds to put a spit shield between themselves

and an inmate who had immediately before attempted to spit on

and bite them. 6

6 The dissent accuses the defendant officers of “twice actively preventing the

nurses” from approaching Villegas to administer medical care. Dissent at 22;

see also id. at 8, 13, 17, 18, 23. That mischaracterizes the facts, and in any event

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22-10881 CARNES, J., Concurring 37

would not establish that the defendants had the subjective mindset required

for a deliberate indifference claim.

One of the times that my dissenting colleague thinks the officers “ac-

tively prevented” the nurses from attending to Villegas, is when the officers

passed the nurses in the hallway outside E-dorm while they were on their way

to the F-dorm treatment facility. See Dissent at 13. Nurse Fischer testified that

as she approached Villegas in the wheelchair, one officer told her to “stop and

back up.” To the extent the officers “prevented” Nurse Fischer from providing

care at this time, they did so only because they were in the middle of obtaining

another form of care for him, by rushing Villegas at high speed to the medical

treatment room they believed was best equipped to treat him. See infra at 33–

36. Stopping to allow a nurse to check Villegas now would have delayed his

arrival at that better facility. (Perhaps if they had done so, that delay would

have been the basis of the plaintiff’s deliberate indifference suit.) There is no

evidence in the record to support the view that the officers had enough

knowledge about emergency medical treatment that they could have known

to prioritize a quick hallway check over transport to a medical treatment

room, especially given that it occurred in a high-pressure, fast-moving emer-

gency. See infra at 47–50.

As for the second time that the dissent believes the officers “actively

prevented” the nurses from treating Villegas, apparently that refers to the 25

seconds during this same dash down the hallway when the officers stopped to

replace Villegas’ spit shield. See Dissent at 14, 22. As I have explained, it was

not deliberate indifference for the officers to do that. See supra at 36. And the

record does not show that the officers “prevented” the nurses from treating

Villegas in that moment. The nurses got the impression that they weren’t

“allowed” to approach Villegas, but they did not testify that they asked for and

were denied permission to access Villegas during those 25 seconds. Nor is

there evidence that the nurses tried to approach him at that time and that the

officers physically stopped them.

Anyway, whether the officers briefly “prevented” the nurses from ac-

cess to Villegas is beside the point. They prioritized safety by equipping Ville-

gas with a spit shield, and they prioritized speed by doing so quickly and then

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The Lancaster decision, read against the extreme and materi-

ally distinguishable facts of that case, does not establish — much

less clearly establish — that what the defendants in this case did in

their effort to get Villegas medical treatment quickly was deliber-

ately indifferent. It is the law of this circuit that a case that is fairly

distinguishable from a later one cannot control the later one, much

less clearly establish the law in a way that rules out qualified im-

munity in the later case. See, e.g., Davis, 44 F.4th at 1312; Griffin, 496

F.3d at 1209; Vinyard, 311 F.3d at 1352.

And that independently adequate reason is in addition to the

other reason: Lancaster was decided when panels of this Court were

required to apply a different standard of deliberate indifference —

rushing on to the medical treatment room without pausing. Those facts do

not show that they were “subjectively aware that [their] own conduct . . . put

the plaintiff at substantial risk of serious harm.” Wade, 106 F.4th at 1258.

The dissent also refers to the fact that earlier the officers had ordered

the nurses out of the E-dorm common area when they moved Villegas — who

was still violently resisting — out of his cell. See Dissent 10. It was unsafe for

the nurses to approach Villegas at this time; the officers didn’t prevent medical

attention. See Majority Op. at 6–8. Nurse Fischer herself testified that it would

have been unsafe for her to treat Villegas at that time and that trying to do so

would “absolutely not” have been appropriate.

And the dissent notes the Chief Deputy Medical Examiner’s opinion

that once Villegas was in his wheelchair in E-dorm, that would have been a

good time for the nurses to evaluate him. See Dissent at 11–12. But the officers

did not “prevent” care by immediately transporting Villegas to F-dorm instead

of summoning the nurses; they made that split-second decision in the urgent,

high-pressure circumstances that they faced.

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a negligence-based measure instead of one measured by criminal

recklessness.

B. The Bozeman Decision

The dissent also relies on Bozeman v. Orum, 422 F.3d 1265

(11th Cir. 2005). See Dissent at 3–6. In that case, prison officers

used physical force to subdue a prisoner in his cell. 422 F.3d at

1268–69. (It was enough force, in fact, to render the prisoner un-

conscious even after he had surrendered, leading us to reject the

officers’ qualified immunity defense on excessive-force claims. Id.

at 1271–72.) With the prisoner apparently “lifeless” — not making

any “movements or sounds” and with his “body h[anging] and

flopp[ing] in an uncontrolled manner” — the officers took fourteen

minutes to carry him to an isolation cell. Not to a medical treat-

ment room, but to an isolation cell. Id. at 1269–70. Only after they

had arrived at the isolation cell and were “wait[ing] for [it] to be

prepared” did the officers “notice[] that [the prisoner] appeared un-

conscious” and only then did they call for medical help. Id. at 1270.

In assessing the Bozeman officers’ qualified immunity de-

fense, we noted the rarity with which a “general principle” will

clearly establish the law in an Eighth Amendment deliberate indif-

ference case. After quoting the language from Lancaster on which

the dissenting opinion in this case relies, we explained:

This general statement of law ordinarily does not preclude

qualified immunity in cases involving a delay in medical

treatment for a serious injury. The cases are highly fact-

specific and involve an array of circumstances pertinent to

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40 CARNES, J., Concurring 22-10881

just what kind of notice is imputed to a government

official and to the constitutional adequacy of what

was done to help and when. Most cases in which de-

liberate indifference is asserted are far from obvious

violations of the Constitution.

Id. at 1274 (emphasis added). But Bozeman was the rare case where

“the assumed circumstances . . . [were] stark and simple, and the

decisional language from cases such as Lancaster obviously and

clearly applie[d] to the extreme circumstances” in Bozeman: “the of-

ficers knew [the prisoner] was unconscious and not breathing and

— for fourteen minutes — did nothing.” Id. That’s a key fact. The

officers did nothing at all. Given those extreme circumstances, they

violated clearly established Eighth Amendment law (under the

negligence measured deliberate indifference standard in effect at

that time). Id.

None of that is true here. Villegas did not appear “lifeless,”

cf. id. at 1269–70; he was still noticeably breathing while the officers

moved him to the F-dorm treatment room. And the officers did

not do “nothing” or waste critical minutes by moving Villegas to

an isolation cell lacking any medical resources. Cf. id. at 1270, 1274.

Instead, they rushed him directly to the medical treatment room

best equipped to provide him with care. In comparison to the four-

teen minutes of delay in Bozeman, there was no delay in this case:

the officers prepared Villegas to move and then, in five-and-a-half

minutes of nearly running with him in a wheelchair, they rapidly

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22-10881 CARNES, J., Concurring 41

moved him to the place where he could receive the best available

care.

This case is far less like Bozeman than Pourmoghani, a case in

which we held that a jail official was not deliberately indifferent

where a detainee signaled for help and “the response . . . occurred

promptly,” i.e., “within approximately five minutes.” 625 F.3d at

1318. We explained that “[t]he term ‘delay’ hardly seems to fit the

facts at all; but to the extent that one could call the time involved

in this case ‘delay,’ it was only a matter of minutes.” Id. The same

is true here.

With its materially distinguishable facts, Bozeman cannot

clearly establish that the officers’ actions in this case constituted de-

liberate indifference. See, e.g., Davis, 44 F.4th at 1312; Griffin, 496

F.3d at 1209; Vinyard, 311 F.3d at 1352; see also Majority Op. at 21–

25. And that, again, is in addition to the independently adequate

reason that it was decided under a lower bar deliberate indifference

standard than the one applicable to this case.

C. The Valderrama Decision

The dissent also relies on Valderrama v. Rousseau, 780 F.3d

1108 (11th Cir. 2015). See Dissent at 6–8. But the facts of that case

are even further off the mark than the other cases the dissent puts

forward.

In Valderrama, Detective Rousseau pulled over a car, ap-

proached it, and apparently without any justifiable reason shot an

unarmed passenger “in his groin area,” inflicting “a close range

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42 CARNES, J., Concurring 22-10881

gunshot wound.” 780 F.3d at 1116, 1117 n.7. The bullet penetrated

the man’s penis, exited his scrotum and one testicle, entered his

thigh, and exited just below his buttock. Id. at 1110. The injuries

were life-threatening. Id. at 1122. The man, who was bleeding pro-

fusely through his clothing, thought he was going to die and

begged Sergeant Yasmina Smith, who was also at the scene, to call

an ambulance for him. Id. at 1117 & n.7. Instead, she told him to

sit down. Id. at 1117.

After a three-and-a-half-minute delay, Sergeant Smith did call

an ambulance but she lied to the dispatcher, stating that the injury

was “ahh, a laceration,” meaning a cut, instead of a gunshot

wound. Id. at 1111. As we explained in the Valderrama opinion,

“[g]iven the minor injuries generally associated with lacerations,

fire and rescue dispatch assigned the call the lowest priority,” which

resulted in it taking “eleven minutes for the ambulance to arrive

after Sergeant Smith reported the laceration.” Id.

If she had told the dispatcher the truth and reported the in-

jury as a gunshot wound, “the request would have received the

highest priority, and an ambulance would have arrived within four

minutes of the call” instead of the eleven minutes it took. Id. In

that way Sergeant Smith delayed the seriously wounded and bleed-

ing man getting medical care by seven additional minutes, running

the total unnecessary delay up to ten-and-a-half minutes. See id.

As bad as that is, the length of the unnecessary delay in Val-

derrama is not the worst of it in that case. The reason for the delay

is. We have held that “the reason for the delay and the nature of

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22-10881 CARNES, J., Concurring 43

the medical need is relevant in determining what type of delay is

constitutionally intolerable.” Id. at 1116 (quoting McElligott, 182

F.3d at 1255); accord Youmans, 626 F.3d at 566 n.11; Goebert, 510 F.3d

at 1327 (In deciding whether delay in providing medical care

amounts to deliberate indifference, “we have consistently consid-

ered . . . the reason for the delay.”); cf. Ancata, 769 F.2d at 704 (11th

Cir. 1985) (concluding prison officials were deliberately indifferent

when “necessary medical treatment ha[d] been delayed for non-

medical reasons”).

In the Valderrama case, the reasons for the delay in obtaining

medical assistance were not just bad but were of the worst sort. As

we stated in the opinion in that case:

Based on the evidence, a jury could infer that

Detective Rousseau and Sergeant Smith spoke about

the shooting before calling for assistance and that they

discussed the need to concoct a story that would jus-

tify Detective Rousseau’s use of deadly force and,

therefore, complicitly delayed reporting and misre-

ported Mr. Valderrama’s injuries in order to delay the

arrival of emergency personnel on the scene.

780 F.3d at 1118. That explains the otherwise inexplicable lie that

Sergeant Smith told the dispatcher about the nature of the wound.

See id. at 1118–20. The two officers intentionally delayed getting

medical personnel to the scene where a badly wounded and bleed-

ing man desperately needed help and they did so to advance their

own unworthy interests. See id.

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44 CARNES, J., Concurring 22-10881

A jury could find from the evidence in Valderrama that dur-

ing the delay which the two officers deliberately engineered, and

while the victim of the shooting was bleeding from his life-threat-

ening gunshot wound, Detective Rousseau did his best to concoct

a story that would cover up his wrongdoing. See id. He unsuccess-

fully searched the car the victim had been in, attempting to find any

object that he could say he had mistaken for a firearm when he fired

the shot. Id. at 1118–19. He found none. Id. And even worse,

Rousseau used some of the delay time he had given himself at the

expense of the badly wounded victim, trying to convince another

man he had arrested on drug charges earlier, and who was still in

the backseat of Rousseau’s police car, to lie for him. Id. at 1111,

1118–19. He told the man if he would falsely say that he’d seen a

shiny, metallic object in the victim’s hand at the moment Rousseau

shot him, Rousseau would dismiss the charges against the man. Id.

The man turned down the offer. See id. at 1118–19.

The present case is glaringly different from the Valderrama

case. Unlike the officers in Valderrama, the officers in this case did

not “seek to protect themselves from the potential legal and pro-

fessional ramifications of injuries inflicted by one of the officers

while an arrestee bleeds through his clothing from a gunshot

wound” that one of them had inflicted. Id. at 1122–23. The officers

in this case did not lie about anything, and they didn’t ask an ar-

rested suspect to lie for them. They didn’t seek to cover up any

wrongdoing, and they didn’t slow walk any needed medical care or

intentionally delay providing it.

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Instead, these officers did what they could to get Villegas to

what they believed was the best medical care and treatment room

reasonably available for him. And they didn’t take their time doing

so. There was no slow-poking it along, no stalling for time, but a

quick dash to what they believed to be better medical treatment.

All of that makes this case obviously distinguishable from

the Valderrama case, which means that even if that case had been

decided in the post-Wade era with its different deliberate indiffer-

ence standard, it still could not be binding precedent that the offic-

ers’ actions in this case amounted to deliberate indifference, much

less to deliberate indifference under clearly established law. See, e.g.,

Davis, 44 F.4th at 1312; Griffin, 496 F.3d at 1209; Vinyard, 311 F.3d at

1352; see also Majority Op. at 21–25. 7

7 The dissent quotes the part of Valderrama that quotes from Brown v. Hughes,

894 F.2d 1533, 1538 (11th Cir. 1990), this sentence: “[I]t may be that deliberately

indifferent delay, no matter how brief, would render defendants liable as if

they had inflicted the pain themselves.” Dissent at 7–8; Valderrama, 780 F.3d

at 1122; Brown, 894 F.2d at 1538 (emphasis added). The dissent argues that we

should treat that statement as a broad principle of law. See Dissent at 7–8; see

also id. at 8 n.2, 18, 23. But that explicitly speculative and conjectural statement

(“may be”) is dicta. The statement is dicta because it was in no way necessary

to the decision of the Brown case; it wasn’t necessary because the delay in that

case was not at all brief but was “on the order of hours.” See 894 F.2d at 1538

(“Even if we were to recognize as de minim[i]s delays of a few seconds or minutes,

a deliberate delay on the order of hours in providing care for a serious and painful

broken foot is sufficient to state a constitutional c

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