# Barbara Donald v. Tyler Norris

> Court of Appeals for the Eleventh Circuit · March 13, 2025 · 131 F.4th 1255

URL: https://www.frixlaw.com/law-library/cases/10822827

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** March 13, 2025
- **Citations:** 131 F.4th 1255
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 16 later opinions in the Frix Law Library

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## Opinion text

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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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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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23-11400 Opinion of the Court 5

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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23-11400 Opinion of the Court 7

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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23-11400 Opinion of the Court 11

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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23-11400 Opinion of the Court 17

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10822827. Public record. Not legal advice.