Barbara Donald v. Tyler Norris

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11400

____________________

BARBARA DONALD,

as Administrator Ad Litem of the Estate

of Edward Burrell, and for the benefit of his next of kin,

Plaintiff-Appellee,

versus

TYLER NORRIS,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Alabama

D.C. Docket No. 1:17-cv-00491-JB-N

____________________

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2 Opinion of the Court 23-11400

Before JORDAN, NEWSOM, and BRASHER, Circuit Judges.

BRASHER, Circuit Judge:

This appeal is about how to determine whether a state of-

ficer acts within his discretionary authority for purposes of quali-

fied immunity. Edward Burrell suffered a heart attack when he was

serving a sentence in jail. The Chief Deputy Sheriff and Jail Admin-

istrator, Tyler Norris, drove him to the hospital instead of calling

an ambulance. To avoid paying for Burrell’s medical care, Chief

Norris also ordered him released from the jail before his sentence

was over. Burrell died shortly after he reached the hospital. The

administratrix of Burrell’s estate, Barbara Donald, argues that Chief

Norris’s decision to release Burrell early caused a delay in medical

care and, ultimately, Burrell’s death. She brings a federal constitu-

tional claim and an Alabama wrongful-death claim.

We believe Chief Norris acted within his discretionary au-

thority when he ordered jail staff to release Burrell and drove him

to the hospital. Under our caselaw, the discretionary-authority in-

quiry focuses exclusively on the action that caused the plaintiff’s

injury—here, the decision to drive Burrell to the hospital instead of

calling for an ambulance. As to that action, a court must ask

whether the officer had the discretionary authority to act as a gen-

eral matter, not whether the officer made the correct decision in

exercising his authority. Although Chief Norris may have erred

when he drove Burrell to the hospital instead of calling an ambu-

lance, that error did not violate any clearly established constitu-

tional right. Therefore, we conclude that Chief Norris is entitled to

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23-11400 Opinion of the Court 3

qualified immunity as to Burrell’s federal claim and reverse the dis-

trict court’s denial of summary judgment on that claim.

Our resolution of this federal claim leaves a wrongful-death

claim under Alabama law. The district court denied summary judg-

ment on this claim under Alabama’s jailer immunity statute. But

Norris raised the defense of state immunity under section 14 of the

Alabama Constitution, not statutory jailer immunity. On remand,

the district court should determine whether to exercise supple-

mental jurisdiction over the state claim and, if so, decide whether

state immunity bars the claim.

I.

Burrell was an inmate at the Clarke County Jail serving a

sixty-day sentence for a misdemeanor offense. He was sixty-two

years old and had a history of hypertension and diabetes. Around

8:45 p.m. one evening, Burrell used the call button in his pod to tell

the staff that he was having trouble breathing. Two officers

checked Burrell’s blood pressure, and it was extremely high.

Chief Norris was the Chief Deputy Sheriff and Jail Adminis-

trator for the Clarke County Jail. Near 8:55 p.m. that same evening,

Chief Norris left the jail. Around 8:59 p.m., while on the road, Chief

Norris got a call from the jail saying that Burrell was sweating, had

high blood pressure, and was having trouble breathing. A jail nurse

had told jail staff that Burrell needed to go to the emergency room

immediately.

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4 Opinion of the Court 23-11400

Chief Norris knew that “[t]he ambulance service in Clarke

County had exhibited extremely slow response times in the past.”

The owner of the ambulance company that serviced Clarke

County testified that three ambulances covered the entire county,

and that his operators usually did not provide estimated response

times when called. Chief Norris testified that it would ordinarily

“take an ambulance twenty minutes to an hour and a half to get to

the jail once they had been called.” Chief Norris also believed that

he “could get Mr. Burrell to the hospital and in front of a doctor

and a team of nurses within seven or eight minutes.” So he decided

to transport Burrell to the hospital himself, turned around, and

headed for the jail.

On his way to the jail, Chief Norris instructed another officer

to release Burrell on “time served.” According to Chief Norris, the

sheriff directed Chief Norris to release Burrell. But Chief Norris

also admitted that he knew releasing Burrell meant that Burrell,

and not Clarke County, would be responsible for the hospital bill.

While Chief Norris was on his way to the jail, the jail staff

ordered Burrell to change into his street clothes. Burrell changed,

walked down the jail hallway, and met Chief Norris in the jail’s sal-

lyport around 9:06 p.m. Burrell got into the front seat of Chief Nor-

ris’s vehicle, and they sped toward the hospital. Chief Norris

“talked to [Burrell] the whole time” on their way to the hospital

“just to keep him verbal and keep him talking.” Burrell said that he

was hot and Chief Norris rolled down his windows for better

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airflow. Chief Norris also turned on his emergency lights and sirens

to get to the hospital as quickly as possible.

Chief Norris and Burrell arrived at the hospital around 9:10

p.m.—about eleven minutes after Chief Norris first learned that

Burrell was in distress and four minutes after Chief Norris picked

up Burrell at the jail. Someone at the hospital had told Officer Hin-

son that Burrell should be brought “through the lobby . . . to be

seen like the rest of the patients there.” But Chief Norris under-

stood that there was no time “to take [Burrell] into the lobby and

sit down and fill out paperwork.” So Chief Norris pulled up “to the

emergency room door,” entered a passcode, and opened the door

himself. He “hollered for the nurse to bring [him] a wheelchair”

and told her that Burrell was having a heart attack.

Burrell got out of Chief Norris’s vehicle and into the wheel-

chair with some assistance. But as the nurse wheeled Burrell to-

ward the emergency room, Burrell went limp, his head fell back,

and he began to foam at the mouth. Hospital personnel attempted

to resuscitate Burrell for nearly an hour before pronouncing him

dead.

Barbara Donald—the administratrix of Burrell’s estate—

sued Chief Norris on two causes of action: a claim under 42 U.S.C.

§ 1983, which alleged that Chief Norris was deliberately indifferent

to Burrell’s medical needs in violation of the Eighth Amendment,

and a tort claim for wrongful death under Alabama law. Chief Nor-

ris moved for summary judgment on both claims, asserting a de-

fense of qualified immunity against the section 1983 claim and a

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6 Opinion of the Court 23-11400

defense of state immunity against the wrongful-death claim. In her

opposition to summary judgment, Donald supplied a report and

testimony from an expert witness—Dr. Sonja Harris-Haywood.

Dr. Harris-Haywood’s report stated that Burrell’s act of “changing

clothes, walking, [and] climbing into a passenger . . . seat . . . . most

likely exacerbated his symptoms and increase[d] the probab[ilit]y

of a negative outcome, including death.” And Dr. Harris-Haywood

testified that Chief Norris erred by taking Burrell to the hospital

himself instead of calling 911.

The district court held that Chief Norris was not entitled to

qualified immunity because he was not acting within the scope of

his discretionary authority. The district court concluded that Chief

Norris acted outside his discretionary authority when he ordered

Burrell’s release from custody. The district court also determined

that a reasonable jury could find that Chief Norris’s actions violated

Burrell’s constitutional rights. The district court did not address

whether Chief Norris’s actions violated clearly established law.

Similarly, the district court denied Chief Norris’s motion for

summary judgment on Donald’s wrongful-death claim. The dis-

trict court cited the Alabama Jailer Liability Protection Act and con-

cluded that Chief Norris “was not acting in the line and scope of his

duties or in compliance with the law when he ordered . . . Burrell

be released from the jail on the basis of ‘time served.’” The district

court did not expressly decide the question of state immunity.

Chief Norris appealed.

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II.

“[W]e have interlocutory jurisdiction over legal issues that

are the basis for a denial of summary judgment on qualified im-

munity grounds.” Cottrell v. Caldwell, 85 F.3d 1480, 1484 (11th Cir.

1996). Likewise, we have interlocutory jurisdiction over “the denial

of summary judgment based on sovereign immunity.” Tinney v.

Shores, 77 F.3d 378, 383 (11th Cir. 1996). And “[w]e review de novo

whether [an] officer[] [is] entitled to summary judgment based on

immunity.” English v. City of Gainesville, 75 F.4th 1151, 1155 (11th

Cir. 2023).

III.

Donald brings a federal claim and a state claim against Chief

Norris. The federal claim is a claim of deliberate indifference under

the Eighth Amendment, against which Chief Norris asserts a de-

fense of qualified immunity. The state claim is a claim of wrongful

death under Alabama law, against which Chief Norris asserts a de-

fense of state immunity. We address each claim separately, begin-

ning with the federal claim.

A.

Donald’s federal claim arises under section 1983, which pro-

vides a cause of action for damages against anyone who violates

the plaintiff’s federal rights under color of state law. See 42 U.S.C. §

1983. For its part, “[q]ualified immunity protects government offi-

cials performing discretionary functions from liability [under sec-

tion 1983] if their conduct violates no clearly established statutory

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8 Opinion of the Court 23-11400

or constitutional rights of which a reasonable person would have

known.” Jacoby v. Baldwin County, 835 F.3d 1338, 1343–44 (11th Cir.

2016) (cleaned up) (quoting Foy v. Holston, 94 F.3d 1528, 1532 (11th

Cir. 1996)). “The purpose of qualified immunity is to protect offi-

cials from the chilling effect that a fear of personal liability would

create in carrying out their discretionary duties.” Terrell v. Smith,

668 F.3d 1244, 1250 (11th Cir. 2012). To that end, qualified immun-

ity “protect[s] from suit all but the plainly incompetent or one who

is knowingly violating the federal law.” Id. (quoting Lee v. Ferraro,

284 F.3d 1188, 1194 (11th Cir. 2002)).

We use a burden-shifting analysis to determine whether an

officer is entitled to qualified immunity. Brooks v. Miller, 78 F.4th

1267, 1280 (11th Cir. 2023). First, the officer “must show that he

was acting within the scope of his discretionary authority when he

committed the challenged acts.” Id. If the officer establishes that he

was acting within the scope of his discretionary authority, the bur-

den then shifts to the plaintiff. Id. To overcome the qualified-im-

munity defense, the plaintiff must establish that “(1) the defendant

violated a constitutional right, and (2) that constitutional right was

‘clearly established’ at the time of the defendant’s actions.” Id.

(quoting Powell v. Snook, 25 F.4th 912, 920 (11th Cir. 2022)). We ad-

dress each issue in turn.

1.

We will start with the question of discretionary authority.

“A government official acts within his discretionary authority if his

actions were (1) undertaken pursuant to the performance of his

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23-11400 Opinion of the Court 9

duties and (2) within the scope of his authority.” Mikko v. City of

Atlanta, 857 F.3d 1136, 1144 (11th Cir. 2017). Put another way,

“[w]e ask whether the government employee was (a) performing a

legitimate job-related function (that is, pursuing a job-related goal),

(b) through means that were within his power to utilize.” Holloman

ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004).

Although all agree that Chief Norris was responsible for

providing medical care to the inmates in his jail, Donald argues that

Chief Norris exceeded his discretionary authority when he for-

mally released Burrell before driving him to the hospital. Specifi-

cally, Donald argues that Chief Norris had no authority to release

Burrell because he had not yet served his full criminal sentence.

Donald asserts that only judges, not jailers, can set an inmate’s sen-

tence length. Because the authority to discharge a criminal sen-

tence early does not belong to sheriffs or sheriffs’ deputies, Donald

contends that Chief Norris lacked discretionary authority and can-

not benefit from qualified immunity.

We disagree. Donald’s focus on whether Chief Norris had

authority to order Burrell’s early release is inconsistent with our

precedents in two ways.

First, Donald’s argument assesses discretionary authority far

too narrowly. When we assess whether an officer acted within his

discretionary authority, “we look to the general nature of the de-

fendant’s action, temporarily putting aside the fact that it may have

been committed for an unconstitutional purpose, in an unconstitu-

tional manner, to an unconstitutional extent, or under

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10 Opinion of the Court 23-11400

constitutionally inappropriate circumstances.” Holloman, 370 F.3d

at 1266. We do not ask “whether it was within the defendant’s au-

thority to commit the allegedly illegal act”—for that is “an untena-

ble tautology.” Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1282 (11th

Cir. 1998) (cleaned up). Instead, we “must ask whether the act com-

plained of, if done for a proper purpose, would be within, or rea-

sonably related to, the outer perimeter of an official’s discretionary

duties.” Id. (quoting In re Allen, 106 F.3d 582, 594 (4th Cir. 1997)).

So when addressing the discretionary authority question, courts

should ask whether the decision the official faced produced choices

of action that were within the “arsenal of powers with which to

accomplish her goals.” Holloman, 370 F.3d at 1267 (cleaned up).

In light of the general nature of the inquiry, Donald’s narrow

focus on Chief Norris’s legal authority to formally release an in-

mate misses the mark. There is no question that Chief Norris had

a “duty to operate the jail and supervise the inmates housed therein

for whose acts he . . . is civilly responsible.” Ala. Code § 14-6-1. And

this duty includes the process of booking and releasing inmates.

Murey v. City of Chickasaw, 385 So. 3d 903, 915 n.2 (Ala. 2023). The

right question to ask for purposes of discretionary authority is

whether Chief Norris acted within that general arsenal of powers,

not whether he made the right choice. If Chief Norris’s course of

action was reasonably related to, or within the “outer perimeter”

of his powers, then his action was within his discretionary author-

ity. See Harbert Int’l, 157 F.3d at 1282.

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Donald says that her narrow focus finds support in Estate of

Cummings v. Davenport, 906 F.3d 934 (11th Cir. 2018). But we disa-

gree. There, we reasoned that, although a sheriff had the authority

to make decisions about an inmate’s medical care, he did not have

discretionary authority to make end-of-life decisions, such as enter-

ing a do-not-resuscitate order or ordering the withdrawal of artifi-

cial life support. Id. at 941. We explained that the Alabama Natural

Death Act “establishe[d] a comprehensive legislative scheme for

end-of-life medical decisions,” and that scheme did not give a jailer

the authority to make end-of-life decisions for an inmate. Id. In

other words, the Alabama Natural Death Act removed the end-of-

life decision from the sheriff all together; he lacked discretionary

authority to make any choice on behalf of the inmate—whether

right or wrong. See id. But, unlike Cummings, there is no Alabama

statute that defines who has the exclusive authority to release an

inmate from jail. And we do not read Cummings to create a special

rule that would shrink the focus of the discretionary-authority in-

quiry when a sheriff or sheriff’s deputy is faced with a medical

emergency.

Second, in addition to being too narrow, Donald’s argument

that Chief Norris had no authority to formally release Burrell “fo-

cuses on the wrong conduct.” Mikko, 857 F.3d at 1144. The Su-

preme Court has rejected the idea that a “defendant official’s viola-

tion of a clear statute or regulation, although not itself the basis of

suit, should deprive the official of qualified immunity.” Davis v.

Scherer, 468 U.S. 183, 193 (1984). Accordingly, we must keep in

mind that “only the conduct that caused the plaintiff’s alleged

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12 Opinion of the Court 23-11400

constitutional injury is relevant to the discretionary authority in-

quiry.” Mikko, 857 F.3d at 1144 (cleaned up) (quoting Harbert Int’l,

157 F.3d at 1283).

Donald’s theory is that Chief Norris subjected Burrell to

cruel and unusual punishment in violation of the Eighth Amend-

ment. The Eighth Amendment’s Cruel and Unusual Punishment

Clause prohibits government officials from “exhibiting ‘deliberate

indifference to the serious medical needs of prisoners.’” Wade v.

McDade, 106 F.4th 1251, 1255 (11th Cir. 2024) (en banc) (cleaned

up) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). So, in a case

like this one, a plaintiff must establish that an officer’s deliberate

indifference caused his injury. See Hale v. Tallapoosa County, 50 F.3d

1579, 1584 (11th Cir. 1995). That is, “the plaintiff must show that

except for the constitutional tort, such injuries and damages would

not have occurred.” Jackson v. Sauls, 206 F.3d 1156, 1168 n.16 (11th

Cir. 2000).

Turning to the specifics of this case, we cannot see how

Chief Norris’s decision to formally release Donald caused his al-

leged constitutional injury. Donald does not argue that Chief Nor-

ris inflicted cruel and unusual punishment by the act of releasing

Burrell from jail too early—that would, after all, be a very odd cruel

and unusual punishment claim. Instead, the gravamen of Donald’s

deliberate indifference claim is that Chief Norris delayed Burrell’s

medical care by driving him to the hospital instead of calling an

ambulance. For example, Donald’s complaint alleges that “[t]he

physical exertion [Chief] Norris forced upon [Burrell] and his

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failure to engage EMS . . . caused and/or contributed to the un-

timely wrongful death of [Burrell].” Donald’s expert testified that,

if Chief Norris would have called 911 instead of driving Burrell to

the hospital, Chief Norris would have “increased [Burrell’s] risk of

survival.” Likewise, Donald’s brief argues that Chief Norris knew

that “releasing Burrell, failing to call 911, and personally transport-

ing Burrell to the hospital would increase the risk of his condition

worsening.”

This claim does not turn on Chief Norris’s decision to for-

mally release Burrell before his transfer to the hospital. If we con-

sider the scenario where all the facts remained the same, except

that Chief Norris never instructed the jail staff to formally release

Burrell from his sentence, nothing changes. Donald suggests that

the decision to formally release Burrell caused his exertion and led

to Chief Norris transporting Burrell to the hospital himself instead

of calling an ambulance. But Donald has produced no evidence that

Chief Norris’s choice to release Burrell required Burrell’s exertion

or Chief Norris to transport Burrell. Chief Norris could have re-

leased Burrell and still called for an ambulance. Conversely, Chief

Norris could have ordered Burrell to walk down the jail hallway

without ever formally releasing him. The formal release itself does

not change the analysis.

Because we must focus on the general nature of the act that

allegedly violated the Constitution and caused Burrell’s injuries,

we conclude that Chief Norris is being sued for acts within his dis-

cretionary authority. Alabama law requires county sheriffs to

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14 Opinion of the Court 23-11400

provide inmates with “necessary medicine and medical attention.”

Ala. Code § 14-6-19(2). And we have recognized that “decision-

making related to the provision of medical care for inmates falls

soundly within prison officials’ discretion.” Est. of Cummings, 906

F.3d at 941 (cleaned up). Here, Chief Norris faced the decision of

how to transport a seriously ill inmate to the hospital, and he re-

sponded by processing Burrell out of the jail and driving Burrell to

the hospital instead of leaving Burrell in the jail and calling an am-

bulance. Whether Chief Norris made the right decision or the

wrong decision in response to this medical emergency, his decision

fell squarely within his duties as a jail administrator.

2.

Now that we have established that Chief Norris was acting

within his discretionary authority, we must determine whether he

violated a clearly established constitutional right. See Brooks, 78

F.4th at 1280. Donald argues that Chief Norris violated Burrell’s

rights under the Eighth Amendment. Even assuming a constitu-

tional violation, we cannot agree that Chief Norris violated a

clearly established right.

We recently clarified “the standard for establishing liability

on an Eighth Amendment deliberate-indifference claim.” Wade,

106 F.4th at 1261–62. “First, of course, the plaintiff must demon-

strate, as a threshold matter, that he suffered a deprivation that

was, objectively, sufficiently serious.” Id. at 1262 (cleaned up)

(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). And

“[s]econd, the plaintiff must demonstrate that the defendant acted

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23-11400 Opinion of the Court 15

with subjective recklessness as used in the criminal law.” Id.

(cleaned up) (quoting Farmer, 511 U.S. at 839). That standard means

that the plaintiff must establish “that the defendant was actually,

subjectively aware that his own conduct caused a substantial risk

of serious harm to the plaintiff.” Id. But “even if the defendant ac-

tually knew of a substantial risk to inmate health or safety, he can-

not be found liable under the Cruel and Unusual Punishments

Clause if he responded reasonably to the risk.” Id. (cleaned up)

(quoting Farmer, 511 U.S. at 844–45).

We need address only whether Burrell’s right to some other

treatment was clearly established because that answer resolves the

qualified-immunity question. See Ashcroft v. al-Kidd, 563 U.S. 731,

735 (2011). “Clearly established means that, at the time of the of-

ficer’s conduct, the law was sufficiently clear that every reasonable

official would understand that what he is doing is unlawful.” Dis-

trict of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (cleaned up) (quot-

ing al-Kidd, 563 U.S. at 741). Plaintiffs can prove that the law was

clearly established in three ways. Wilson v. Sec’y, Dep’t of Corr., 54

F.4th 652, 661 (11th Cir. 2022). One way is to “point[ ] to a materi-

ally similar case decided by the Supreme Court, the Eleventh Cir-

cuit, or the [Alabama] Supreme Court that clearly establishes the

statutory right.” Id. (cleaned up). Another is to establish that “a

broad statement of principle within the Constitution, statute, or

case law clearly establishes the constitutional right.” Id. (cleaned

up) (quoting Hill v. Cundiff, 797 F.3d 948, 979 (11th Cir. 2015). And

third, a plaintiff may prove “that the defendants engaged in con-

duct so egregious that a constitutional right was clearly violated,

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16 Opinion of the Court 23-11400

even in the total absence of case law.” Id. (cleaned up) (quoting Hill,

797 F.3d at 979).

To assess whether previous cases clearly establish the law

“under the ‘materially similar’ inquiry, we ask whether the factual

scenario that the official faced is ‘fairly distinguishable from the cir-

cumstances facing a government official’ in a previous case.” Terrell

v. Smith, 668 F.3d 1244, 1256 (11th Cir. 2012) (quoting Vinyard v.

Wilson, 311 F.3d 1340, 1352 (11th Cir. 2002)). If the facts are distin-

guishable, “the cases are not materially similar and, thus, provide

insufficient notice to the official to clearly establish the law.” Terrell,

668 F.3d at 1256.

Donald cannot point to any materially similar precedent that

clearly establishes a violation of his constitutional rights “under

similar circumstances.” Wesby, 583 U.S. at 65 (quoting White v.

Pauly, 580 U.S. 73, 79 (2017)). Donald cites some of our decisions

that say “[l]ack of funds . . . cannot justify an unconstitutional lack

of competent medical care or treatment of inmates.” Anderson v.

City of Atlanta, 778 F.2d 678, 688 n.14 (11th Cir. 1985); see also Ancata

v. Prison Health Servs., Inc., 769 F.2d 700, 705 (11th Cir. 1985) (same);

Donald also points us to our precedents holding that “if necessary

medical treatment has been delayed for non-medical reasons, a

case of deliberate indifference has been made out.” Ancata, 769 F.2d

at 704; see also Johnson v. Lewis, 83 F.4th 1319, 1328 (11th Cir. 2023).

Those decisions are distinguishable because none of them

contemplate officers that “responded reasonably to the risk.” Wade,

106 F.4th at 1262 (quoting Farmer, 511 U.S. at 844–45). The officers

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in Anderson provided no medical treatment at all after a detainee

told them that he was overdosing on pills and needed to go to the

hospital. Anderson, 778 F.2d at 680–81. Likewise, in Ancata, the

plaintiff alleged that prison employees (1) failed to provide care

they subjectively believed was necessary, (2) intentionally failed to

provide care because the inmate couldn’t pay for it, and (3) pro-

vided cursory medical treatment for a serious medical condition.

See Ancata, 769 F.2d at 703–04. And in Johnson, doctors failed to pro-

vide an inmate with prescription medication for over five years. See

83 F.4th at 1324. But Donald has cited nothing that would put Chief

Norris on notice that his decision to drive Burrell to the hospital in

his own vehicle rather than call an ambulance was an unreasonable

response to Burrell’s medical emergency.

Likewise, there is no broad statement of principle—unre-

lated to a set of particularized facts—that clearly establishes the un-

constitutionality of Norris’s actions. “Whether one puts it in terms

of duty or deliberate indifference, prison officials who act reasona-

bly cannot be found liable under the Cruel and Unusual Punish-

ments Clause.” Farmer, 511 U.S. at 845. And, of course, “objective

reasonableness turns on the ‘facts and circumstances of each par-

ticular case.’” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015) (dis-

cussing use of force). No broad principle suggests that Chief Norris

acted unreasonably under the specific facts and circumstances of

this case.

Donald cites one of our decisions for the proposition that

“[a] finding of deliberate indifference necessarily precludes a

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18 Opinion of the Court 23-11400

finding of qualified immunity [because] prison officials who deliber-

ately ignore the serious medical needs of inmates cannot claim that

it was not apparent to a reasonable person that such actions vio-

lated the law.” Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1186

(11th Cir. 1994) (quoting Hamilton v. Endell, 981 F.2d 1062, 1066 (9th

Cir. 1992), overruled in part on other grounds as recognized in Snow v.

McDaniel, 681 F.3d 978, 986 (9th Cir. 2012)), overruled in part on other

grounds by Hope v. Pelzer, 536 U.S. 730 (2002)). But that argument

falls short because we later expressly rejected the statement Donald

relies on from Hill because it “incorrectly jumble[d] the merits of

an Eighth Amendment violation with the separate concept of an

immunity defense.” Marsh v. Butler County, 268 F.3d 1014, 1030 n.8

(11th Cir. 2001) (en banc), abrogated in part by Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 561–63 (2007). Indeed, the formulation from

the Hill dicta would eliminate the “clearly established” part of the

qualified-immunity analysis as we know it.

Finally, we cannot say that Chief Norris’s conduct was so

egregious that it obviously violated the Constitution. With the ben-

efit of hindsight, we can criticize his decision making: Chief Norris

could have called 911 first to check if an ambulance was nearby, or

he could have reduced Burrell’s exertion by ordering him to stay in

his jail clothes or be carried by guards through the hallway. But that

sort of cool, deliberative, Monday-morning-quarterbacking is ex-

actly what qualified immunity protects against. Officers like Chief

Norris “are often forced to make split-second judgments—in cir-

cumstances that are tense, uncertain, and rapidly evolving.” Gra-

ham v. Connor, 490 U.S. 386, 397 (1989). Here, Chief Norris and

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23-11400 Opinion of the Court 19

Burrell arrived at the emergency room only eleven minutes after

jail personnel determined that Burrell needed to go to the hospital.

Chief Norris also identified reasonable—even if, perhaps, medically

erroneous—reasons for believing that it was better to drive Burrell

than wait on an ambulance. Chief Norris’s actions were not so un-

reasonable in the light of the circumstances that he obviously vio-

lated Donald’s constitutional rights.

B.

We turn now to Donald’s claim of wrongful death under Al-

abama law. Chief Norris moved for summary judgment on the ba-

sis of state immunity, and the district court denied Chief Norris’s

motion. But Chief Norris argues—and Donald does not dispute—

that the district court conflated state immunity with immunity un-

der the Alabama Jailer Liability Protection Act.

Under Alabama law, state immunity is not coextensive with

the Jailer Liability Protection Act. State immunity comes from the

Alabama Constitution, which provides “[t]hat the State of Alabama

shall never be made a defendant in any court of law or equity.” Ala.

Const. art. I, § 14. The Supreme Court of Alabama has previously

held that state immunity bars individual-capacity claims against

sheriffs. Parker v. Amerson, 519 So. 2d 442, 446 (Ala. 1987). And be-

cause “deputy sheriffs are immune from suit to the same extent as

sheriffs[,]” the Supreme Court of Alabama has extended state im-

munity to deputy sheriffs as well. Alexander v. Hatfield, 652 So. 2d

1142, 1144 (Ala. 1994). That extension includes deputy sheriffs who

act as a warden or as jailers. Ex parte Burnell, 90 So. 3d 708, 715 (Ala.

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20 Opinion of the Court 23-11400

2012). By contrast, the Supreme Court of Alabama has held that

state immunity does not extend to non-deputy jailers. Ex parte Shel-

ley, 53 So. 3d 887, 897–98 (Ala. 2009). In response to the court’s de-

cision in Shelley, the Alabama “Legislature enacted the Jailer Liabil-

ity Protection Act,” which provides immunity to non-deputy jailers

under certain circumstances. Johnson v. Conner, 754 F.3d 918, 920

(11th Cir. 2014).

The district court treated these immunities alike, but they

are not. For instance, to be eligible for immunity under the Jailer

Liability Protection Act, the officer must “act[ ] in compliance with

the law.” Ala. Code § 14-6-1. State immunity—at least as previously

applied to sheriffs and their deputies—carries no similar require-

ment. See, e.g., Poiroux v. Rich, 150 So. 3d 1027, 1038 (Ala. 2014)

(“Suits against [sheriffs] for actions taken in the line and scope of

their employment inherently constitute actions against the State,

and such actions are prohibited by § 14.”) (quoting Ex parte Don-

aldson, 80 So. 3d 895, 898 (Ala. 2011) (quotations omitted)). Because

Chief Norris is a deputy sheriff who was acting as a jail administra-

tor, state immunity—not jailer immunity—governs the analysis.

See Burnell, 90 So. 3d at 715. And Norris told the district court that

he claimed state immunity, not statutory immunity under the Jailer

Liability Protection Act, in his summary judgment briefing. The

heading of the relevant section of Norris’s summary judgment brief

is titled “PLAINTIFF’S WRONGFUL DEATH CLAIM IS

BARRED BY STATE IMMUNITY.” And the brief cites section 14

of the Alabama Constitution.

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23-11400 Opinion of the Court 21

Because the district court applied the wrong legal standard,

the district court did not consider the parties’ arguments about the

application of state immunity. We note that district judges are di-

vided on whether and how state immunity applies to sheriffs and

their deputies under Alabama law. Compare Reynolds v. Calhoun, 650

F. Supp. 3d 1272, 1276 (M.D. Ala. 2023) with King v. Moon, 697 F.

Supp. 3d 1273, 1279–80 (N.D. Ala. 2023). The parties also argue

that, regardless of the standard, the facts here support their respec-

tive positions. But we are “a court of review, not a court of first

view.” Callahan v. United States Dep’t of Health & Hum. Servs. through

Alex Azar II, 939 F.3d 1251, 1266 (11th Cir. 2019). And we cannot

definitively resolve questions of state law in any event. Accord-

ingly, we vacate the district court’s order denying summary judg-

ment and remand for the district court to determine whether to

exercise supplemental jurisdiction over this claim and, if so,

whether to grant or deny summary judgment under state immun-

ity.

IV.

We REVERSE the district court’s denial of qualified im-

munity and REMAND with instructions to enter summary judg-

ment for Chief Norris on the federal claim. On Donald’s state

claim, we VACATE the district court’s denial of immunity and

REMAND with instructions for the district court to determine

whether to exercise supplemental jurisdiction over this claim and,

if so, whether to grant or deny summary judgment under state im-

munity.

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1 JORDAN, J., Dissenting 23-11400

JORDAN, Circuit Judge, Dissenting.

The qualified immunity issues in this case are difficult, and

the majority provides a plausible rationale for its decision. In my

view, however, the district court correctly ruled that Chief Norris

did not carry his burden of showing that he was exercising discre-

tionary authority. As a result, I do not believe he is entitled to qual-

ified immunity and respectfully dissent.

*****

The discretionary authority prong of qualified immunity

asks whether the official being sued acted “in the regular course of

discharging his official duties.” Cruz v. Beto, 603 F.2d 1178, 1183

(5th Cir. 1979). In other words, was the official performing a legit-

imate job-related function “through means that were within his

power to utilize[?]” Holloman ex rel Holloman v. Harland, 370 F.3d

1252, 1265 (11th Cir. 2004).

Chief Norris, as the official being sued under 42 U.S.C. §

1983, bears the burden of establishing the discretionary authority

prong. See Cruz, 603 F.2d at 1181. See also Lee v. Ferraro, 284 F.3d

1188, 1194 (11th Cir. 2002) (explaining that an official claiming qual-

ified immunity must “prove that ‘he was acting within the scope of

his discretionary authority when the allegedly wrongful acts oc-

curred’”) (citation omitted). He has to “demonstrate objective cir-

cumstances which would compel the conclusion that his actions were

undertaken pursuant to the performance of his duties and within

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23-11400 JORDAN, J., Dissenting 2

the scope of his authority.” Barker v. Norman, 651 F.2d 1107, 1121

(5th Cir. Unit A July 30, 1981) (emphasis added).

Where a plaintiff claims that the official “engaged in a myr-

iad of unlawful and improper conduct, only the conduct that

caused [the] alleged constitutional injury is relevant to the discre-

tionary authority inquiry.” Harbert Int’l, Inc. v. Jones, 157 F.3d 1271,

1283 (11th Cir. 1998). But it is not unusual for an injury to have

multiple but-for and proximate causes. See Bostock v. Clayton

County, 590 U.S. 644, 656 (2020) (“Often, events have multiple but-

for causes.”); Staub v. Proctor Hospital, 562 U.S. 411, 420 (2011) (“[I]t

is common for injuries to have multiple proximate causes.”);

Thomas v. Broward County Sheriff’s Office, 71 F.4th 1305, 1313 (11th

Cir. 2023) (concluding that discrimination against an employee

could have had multiple proximate causes).

In her deliberate indifference claim, Ms. Donald challenges

two interrelated decisions made by Chief Norris. The first is his

decision to have his subordinates release Mr. Burrell from custody

while he was still serving a valid sentence of imprisonment. The

second is his decision to take Mr. Burrell to the hospital himself

rather than call for an ambulance. Although Mr. Burrell’s death is

temporally closer to the decision of Chief Norris to serve as the

personal transport to the hospital, he needed Mr. Burrell to be out

of custody so that the county would not be on the hook for the

medical expenses. Significantly, there is evidence in the record

from Dr. Harris-Haywood that Chief Norris exacerbated Mr. Bur-

rell’s symptoms and increased the probability of death in

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3 JORDAN, J., Dissenting 23-11400

effectuating the release, by requiring him to walk 100 feet, change

into his street clothes without a chair on which to sit, and climb

into the passenger seat of the car. At least one of these things—

having Mr. Burrell change into his street clothes without a chair on

which to sit—was independent of Chief Norris taking Mr. Burrell

to the hospital. After all, Chief Norris could have transported Mr.

Burrell to the hospital while he was dressed in his prison attire. I

therefore think that the majority is mistaken in believing that Chief

Norris’ decision to release Mr. Burrell, before taking him to the

hospital, is entirely irrelevant to the discretionary authority analy-

sis.

We are at the summary judgment stage, and for qualified

immunity purposes the evidence has to be viewed in the light most

favorable to Ms. Donald. See Tolan v. Cotton, 572 U.S. 650, 655–56

(2014). Insofar as proximate cause is concerned, a reasonable jury

could find that both the decision to transport Mr. Burrell to the

hospital without calling an ambulance and the decision to release

him from custody were substantial factors (i.e., but-for and proxi-

mate causes) in Mr. Burrell’s death. See Jackson v. Sauls, 206 F.3d

1156, 1168 (11th Cir. 2000) (“For damages to be proximately caused

by a constitutional tort, a plaintiff must show that, except for that

constitutional tort, such injuries and damages would not have oc-

curred and further that such injuries and damages were the reason-

ably foreseeable consequences of the tortious acts or omissions in

issue.”). For me, then, Chief Norris has to show that both chal-

lenged decisions were exercises of discretionary authority. If he

cannot do so, he is not entitled to qualified immunity.

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23-11400 JORDAN, J., Dissenting 4

*****

Under the discretionary authority prong of the qualified im-

munity analysis the question is not whether the official in question

acted properly (i.e., legally) but rather whether the actions were an

authorized part of the job: “[W]e look to the general nature of the

defendant’s action, temporarily putting aside the fact that it may

have been committed for an unconstitutional purpose, in an un-

constitutional manner, to an unconstitutional extent, or under con-

stitutionally inappropriate circumstances.” Mikko v. City of Atlanta,

857 F.3d 1136, 1144 (11th Cir. 2017) (citation and internal quotation

marks omitted). “[W]e consider a government official’s actions at

the minimum level of generality necessary to remove the constitu-

tional taint.” Holloman, 370 F.3d at 1266.

In Estate of Cummings v. Davenport, 906 F.3d 934 (11th Cir.

2018), we explained in great detail what it means to look at the

“general nature” of the official’s action. In Davenport the estate of

a deceased inmate (Cummings) in part asserted a § 1983 deliberate

indifference claim against an Alabama prison warden (Davenport).

The inmate had been stabbed by another inmate and taken to a

hospital, where he was listed in critical condition. See id. at 937.

The estate alleged that the warden had told the hospital authorities

to not take any heroic measures to save the inmate’s life. See id. at

938. The warden also allegedly instructed the hospital authorities

to stop giving the inmate medication and to disconnect him from

a life-support machine even though his mother wanted him to stay

on life support because he was breathing and responding to verbal

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5 JORDAN, J., Dissenting 23-11400

commands. See id. The district court denied the warden’s motion

to dismiss the deliberate indifference claim on qualified immunity

grounds, ruling that the warden had failed to show that he exer-

cised discretionary authority in making end-of-life decisions for the

inmate. See id. at 938–39.

We affirmed the district court’s denial of qualified immun-

ity. We held that the “Alabama Natural Death Act, Ala. Code § 22-

8A-1 et seq., compels the conclusion that the office of a prison war-

den grants no authority to enter a do-not-resuscitate order or to

order the withdrawal of artificial life support on behalf of a dying

inmate.” Id. at 941. Although Alabama law gave a prison warden

the right to make medical decisions for inmates in his custody, we

did not find discretionary authority for end-of-life decisions based

on that general power. Instead, we examined the hierarchy of per-

sons under the Act who could make end-of-life decisions for per-

manently incapacitated individuals without a living will or a desig-

nated a health-care proxy, and concluded that the warden was not

one of those persons because the inmate had not designated him as

a surrogate. Our reasoning bears quoting at length:

The Act establishes that Davenport lacked the discre-

tionary authority to instruct the [hospital authorities]

to enter a do-not-resuscitate order for Cummings or

to withdraw his artificial life support. Under the Act,

only an authorized surrogate can consent to a do-not-

resuscitate order, or “determine whether to provide,

withdraw, or withhold life-sustaining treatment or ar-

tificially provided nutrition and hydration[.]” Nothing

in the Act empowered Davenport, as a prison warden,

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23-11400 JORDAN, J., Dissenting 6

to act as the surrogate of a dying inmate. Davenport

could outrank Cummings’s relatives in the hierarchy

of priority—or figure in the hierarchy at all—only if

a court appointed him Cummings’s guardian and

“specifically authorize[d] [him] to make decisions re-

garding the withholding of life-sustaining treatment

or artificially provided nutrition and hydra-

tion[.]” And Davenport has never suggested that he

received such an appointment.

Id. at 941 (statutory citations omitted). We acknowledged the

“firmly established legal principles” that a warden in Alabama has

“legal custody” of inmates and is responsible for the provision of

medical care to them, but turned aside the argument that these

principles gave the warden the authority to make end-of-life deci-

sions for the inmate: “We have no quarrel with these firmly estab-

lished legal principles. But they do not compel the conclusion that

an Alabama warden has the authority to enter a do-not-resuscitate

order or to consent to the withdrawal of artificial life support on

behalf of a dying inmate. And the Act makes clear that an Alabama

warden does not in fact have that authority.” Id. at 941–42 (citation

and internal quotation marks omitted and punctuation altered).

Finally, we explained that the “principle that we ‘look to the

general nature of the defendant’s action’ to determine whether an

official was acting within his discretionary authority does not

change our conclusion.” Id. at 942. Although the warden argued

that he was “entitled to qualified immunity because he had some

general authority to make medical decisions for inmates,” his

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7 JORDAN, J., Dissenting 23-11400

argument “misunderst[ood] our precedents.” Id. “The reason we

take care not to ‘assess the defendant’s act at too high a level of

generality,’” we said, “is not to give officials additional slack; it is to

avoid the ‘tautology’ of asking whether a defendant had the author-

ity to violate the law[.] What we strip away from the defendant’s

allegedly unconstitutional action to isolate its ‘general nature’ is

nothing more than its alleged unconstitutionality: ‘that it may have

been committed for an unconstitutional purpose, in an unconstitu-

tional manner, to an unconstitutional extent, or under constitu-

tionally inappropriate circumstances.’” Id. (citations omitted).

Davenport teaches that, in assessing discretionary authority,

we look at the specific action that the official took while stripping

away only its alleged illegality. Davenport, moreover, is not an out-

lier. Consider Barker, decided by the former Fifth Circuit more

than 40 years ago. In that case, a police officer was sued under §

1983 for retaining allegedly stolen property when it was apparent

that the property was not going to be used as evidence against the

person who demanded its return. See 651 F.2d at 1131. Even

though a law enforcement official is generally allowed to seize and

hold property believed to be stolen, and even though the police

officer in question argued that he was justified in keeping the prop-

erty because he “believe[d] it to have been stolen,” we ruled that

he had not shown that he was exercising discretionary authority.

See id. He “established no objective circumstances from which one

could conclude that his retention of the property was undertaken

pursuant to the performance of his duties and within the scope of

his authority.” Id. at 1131–32. As a result, he “ha[d] not established

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23-11400 JORDAN, J., Dissenting 8

his entitlement to claim official immunity from liability for this

cause of action[.]” Id. at 1132.

Barker, like Davenport, looked at the official’s authority to

take the specific action complained of (i.e., the authority to retain

private property that was not going to be used as evidence and was

demanded by its owner) and not the action at its greatest level of

generality (i.e., the authority to retain private property believed to

be stolen). Here we must assess chief Norris’ specific action—re-

leasing Mr. Burrell from custody, while he was serving a valid sen-

tence, without a court order.

*****

“We look to state law to determine the scope of a state offi-

cial’s discretionary authority[.]” Davenport, 906 F.3d at 940. Ala-

bama law generally provides that a sheriff “has the legal custody

and charge of the jail in his or her county and all prisoners commit-

ted thereto, except in cases otherwise provided by law.” Ala. Code

§ 14-6-1. But there is nothing in § 14-6-1 that authorizes or allows a

sheriff, without a court order, to release a prisoner who is serving

a valid custodial sentence. Indeed, the Alabama Supreme Court

has said that a sheriff operating a county jail must “keep[ ] the pris-

oners safely until of their custody he is relieved by legal authority,”

Shields v. State, 16 So. 85, 86 (Ala. 1894) (emphasis added), and Chief

Norris has not pointed to anything in Alabama law that gave him

the authority to order Mr. Burrell’s release from lawful custody

without a court order.

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9 JORDAN, J., Dissenting 23-11400

The majority says that, unlike the situation in Davenport,

there is no Alabama statute that defines who has the exclusive au-

thority to release an inmate from jail. But that is too crabbed a

view of the explanatory and expansive language in Davenport. In

any event, the Alabama statute that sets out the general duties of

sheriffs does not include the authority to release inmates, without

a court order, while they are serving lawful sentences. See Ala.

Code § 36-22-3. To the contrary, that statute provides that sheriffs

are to “obey the lawful orders and directions of [circuit, district, and

probate] courts,” § 36-22-3(a)(2), and one would think that this

command includes lawful sentences imposed in criminal cases.

Moreover, another Alabama statute—this one concerning sheriffs

and inmates—strongly suggests that the release date of an inmate

is not for the sheriff to decide. See Ala. Code § 36-22-8 (“The sheriff

must keep, in his office and subject to the inspection of the public

during office hours, a well-bound book, to be procured at the ex-

pense of the county, in which he must enter a description of each

prisoner received into the county jail, showing the name, age, sex,

color and any other distinguishing marks, together with the charge

for which such prisoner is held, the order and date of commitment

and the order and date of release.”) (emphasis added). See also Ala.

Code § 14-6-15 (“[W]hen a prisoner is discharged from, or other-

wise leaves such jail, the sheriff shall report to such clerk, within

two days next succeeding, the name of such prisoner and by what

authority and when he so left or was discharged.”) (emphases added).

Again, Chief Norris bears the burden on the discretionary

authority prong of qualified immunity. The little that he has

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23-11400 JORDAN, J., Dissenting 10

presented does not “compel the conclusion,” Barker, 651 F.2d at

1121, that he was exercising discretionary authority when he de-

cided to release Mr. Burrell from custody, without a court order,

so that he could personally transport him to the hospital.

*****

I don’t know whether Ms. Donald will be able to prevail on

her deliberate indifference claim for the death of Mr. Burrell. But I

believe that Chief Norris is not entitled to qualified immunity on

that claim. I respectfully dissent.