Nerren v. Livingston Police

Patrick Neal NERREN, Plaintiff-Appellee,

v.

LIVINGSTON POLICE DEPARTMENT; Billy Ray Nelson, Sheriff; and

Bob Key,

Defendants,

and

Matthew Parrish, and Robert Alston, Defendants-Appellants.

No. 95-40331.

United States Court of Appeals,

Fifth Circuit.

July 2, 1996.

Appeal from the United States District Court for the Eastern

District of Texas.

Before HIGGINBOTHAM, WIENER and PARKER, Circuit Judges:

WIENER, Circuit Judge:

Plaintiff-Appellee Patrick Neal Nerren filed this pro se civil

rights action against various police and jail officials under 42

U.S.C. s 1983, alleging the denial of reasonable medical attention

in violation of the Fourteenth Amendment. This appeal only

involves Nerren's medical claims against the officers who arrested

him. They contend that the district court erred in denying their

motion for summary judgment based on qualified immunity. As Nerren

has stated a claim under clearly established law, we affirm.

I

FACTS AND PROCEEDINGS

Nerren filed this pro se civil rights action under 42 U.S.C.

s 1983 against the Livingston Police Department, Livingston Police

Officer Matt Parish, Livingston Police Officer Robert Alston, Polk

County Sheriff Billy Ray Nelson, and Polk County Officer Bob Key,

alleging that he was denied medical care. This appeal, however,

involves only the qualified immunity-based summary judgment motions

of Officers Alston and Parish (Arresting Officers). Viewed in the

light most favorable to the nonmovant Nerren, the facts are as

follows. [FN1]

FN1. See Blackwell v. Barton, 34 F.3d 298, 301 (5th Cir.1994)

(review of denial of qualified immunity based motion for summary

judgment reviewed de novo considering the evidence in the light

most favorable to the nonmovant).

On July 18, 1993, Nerren was involved in an automobile

accident in Polk County, Texas. Several people were injured. By

the time Officers Parish and Alston arrived at the accident scene,

Nerren, the driver of one of the vehicles in the accident, had

fled. Several hours later while on routine patrol, Officer Alston

spotted Nerren. Alston radioed for back up and with the help of

Officers Parish and Ken Bohnert, [FN2] arrested Nerren. At the

time of the arrest, Nerren stated that he was in pain and requested

medical attention. [FN3] One of the Arresting Officers told Nerren

that because he "didn't worry about the people he had the

automobile accident *471 with the police where [sic] not worried

about him." Nerren was transported to the Polk County Jail without

receiving any medical attention. [FN4]

FN2. Bohnert, though present at Nerren's arrest, was not named

as a defendant in this suit.

FN3. In their affidavits, the officers state that Nerren never

requested medical attention.

FN4. At the jail, Nerren renewed his request for medical

attention, this time to Officer Key, the shift supervisor at the

jail. Officer Key responded "shut up and go to sleep." These

facts are important to the overall complaint, but are not relevant

to this appeal, which assesses only Nerren's claim against the

Arresting Officers.

The following day Nerren was released on bond and taken by a

relative to the Lufkin Memorial Hospital. Medical records reveal

that at the time of his admission to the hospital, Nerren had

abrasions on his face and chest. Additionally, the records indicate

that a laparoscopic examination revealed a large amount (1000 ccs)

of intra-abdominal blood. Nerren had a torn liver and was taken to

surgery.

In this suit Nerren alleges that the Arresting Officers

knowingly and willfully denied him reasonable medical attention in

violation of his substantive due process rights under the

Fourteenth Amendment. Officers Parish and Alston moved for summary

judgment, arguing that Nerren failed to state a claim for the

denial of medical care because (1) there was no evidence that they

knew Nerren needed medical care; (2) Nerren had not alleged

causation of any injury by their actions; and (3) they were

entitled to qualified immunity because the law was not clearly

established that they had a duty to provide medical care in the

absence of an obvious or expressed need for such care.

The district court referred the case to a magistrate judge.

After a hearing, the magistrate judge recommended dismissing

Nerren's claims against the Livingston Police Department and

Sheriff Nelson as frivolous pursuant to 28 U.S.C. s 1915(d), but

recommended denying the Arresting Officers' qualified immunity

based motions for summary judgment. Applying the reasonable

medical care standard applicable to pretrial detainees at that

time, the magistrate judge held that Nerren's right to medical

attention was clearly established, and that a genuine issue of

material fact existed as to whether the defendants knew of Nerren's

need for medical attention.

Parish and Alston filed objections. The district court

overruled the objections and adopted the magistrate judge's report

and recommendation, denying the defendants' motions for summary

judgment. The court held that Nerren had stated a claim for the

denial of reasonable medical care, a clearly established right.

The Arresting Officers timely appealed.

II

DISCUSSION

A. JURISDICTION

[1] We must first determine whether the district court's

denial of the Arresting Officers' motions for summary judgment

based on qualified immunity are immediately appealable orders.

[FN5] In Mitchell v. Forsyth, [FN6] the Supreme Court held that "a

district court's denial of a claim of qualified immunity, to the

extent that it turns on an issue of law, is an appealable 'final

decision' within the meaning of 28 U.S.C. s 1291 notwithstanding

the absence of a final judgment." [FN7] In Johnson v. Jones, [FN8]

the Supreme Court appeared to narrow our interlocutory jurisdiction

somewhat, holding that a district court's order, entered in a

qualified immunity *472 case, is not appealable if it determines a

question of "evidence sufficiency." [FN9] More recently, in

Behrens v. Pelletier, [FN10] the Supreme Court clarified that

Johnson "permits [the defendant] to claim on appeal that all of the

conduct which the District Court deemed sufficiently supported for

purposes of summary judgment met the Harlow standard of 'objective

legal reasonableness.' " [FN11] Thus, in Behrens, the district

court's determination that "material issues of fact remain" did not

preclude appellate review. [FN12]

FN5. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987) ("This

Court must examine the basis of its jurisdiction, on its own

motion, if necessary.").

FN6. 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

FN7. Id. at 530, 105 S.Ct. at 2817-18; see also Hale v.

Townley, 45 F.3d 914, 918 (5th Cir.1995) ("An appellate court has

jurisdiction to review an interlocutory denial of qualified

immunity only to the extent that it 'turns on an issue of law.' "

(quoting Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817)). In

Mitchell, the Court held that a district court's order denying a

defendant's motion for summary judgment was an immediately

appealable collateral order under Cohen v. Beneficial Indus. Loan

Corp., where (1) the defendant was a public official asserting a

defense of immunity, and (2) the issue appealed concerned whether

or not certain given facts showed a violation of clearly

established law. Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816-17.

FN8. Johnson v. Jones, --- U.S. ----, ----, 115 S.Ct. 2151,

2156, 132 L.Ed.2d 238 (1995).

FN9. Id. (holding that "a defendant, entitled to invoke a

qualified immunity defense, may not appeal a district court's

summary judgment order insofar as that order determines whether or

not the pretrial record sets forth a 'genuine' issue of fact for

trial") (emphasis added).

FN10. --- U.S. ----, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996).

FN11. Id. at ----, 116 S.Ct. at 840.

FN12. Id.

In the wake of Behrens, the Johnson modification (if any) on

appellate review applies only when "what is at issue in the

sufficiency determination is nothing more than whether the evidence

could support a finding that particular conduct occurred." [FN13]

Thus, we cannot review the "evidence sufficiency issue" (i.e.,

whether the nonmovant presented sufficient summary judgment

evidence to create a dispute of fact). But we retain interlocutory

jurisdiction to "take, as given, the facts that the district court

assumed when it denied summary judgment" [FN14] and determine

whether these facts state a claim under clearly established law.

FN13. Id.

FN14. Johnson, --- U.S. at ----, 115 S.Ct. at 2159.

Applying the Johnson-Behrens gloss on Mitchell to the instant

case, we conclude that the disputes of fact in this case do not

deprive us of jurisdiction. We have interlocutory jurisdiction to

determine whether Nerren's summary judgment facts state a claim

under clearly established law. Accordingly, we ignore the disputes

of fact, take those facts assumed by the district court in a light

most favorable to Nerren, and determine whether under those facts

Nerren has stated a claim under clearly established law.

B. STANDARD OF REVIEW

[2] We review de novo the denial of a public official's motion

for summary judgment predicated on qualified immunity. [FN15] As

Nerren is proceeding pro se, we will construe his complaint

liberally. [FN16]

FN15. Johnston v. City of Houston, 14 F.3d 1056, 1059 (5th

Cir.1994).

FN16. S.E.C. v. AMX, Intern., Inc., 7 F.3d 71 (5th Cir.1993)

(when litigant is pro se, his allegations and briefs were construed

more permissively); Johnson v. Atkins, 999 F.2d 99 (5th Cir.1993)

(pro se complaint is to be construed liberally).

C. NERREN'S CLAIM

First, we must parse Nerren's complaint. As already noted,

Nerren alleges that by denying him medical attention, both police

and jail officials, deprived him of his due process rights under

the Fourteenth Amendment. This appeal, however, deals with but a

single facet of Nerren's complaint--namely, the allegations that,

in the time interval between his arrest and booking, the Arresting

Officers denied him medical attention. [FN17] In other words, we

here address only Nerren's claims that his substantive due process

rights were violated while he was an arrestee.

FN17. Apparently, Nerren has also alleged that he was later

denied medical attention by, inter alia, the prison officials

themselves. These claims are not addressed in this appeal.

D. ARRESTEES AND PRETRIAL DETAINEES

[3] Today, we make explicit that which was heretofore either

implicit or taken for granted in our case law: An arrestee's

complaint for denial of substantive due process and a pretrial

detainee's complaint for denial of substantive due process are

evaluated under the same standards. [FN18] We discern no reason to

carve out a separate standard for *473 arrestees, a subset of

pretrial detainees. [FN19] After the initial incidents of a

seizure have concluded and an individual is being detained by

police officials but has yet to be booked, an arrestee's right to

medical attention, like that of a pretrial detainee, derives from

the Fourteenth Amendment. [FN20]

FN18. See e.g. Fields v. City of South Houston, Texas, 922

F.2d 1183 (5th Cir.1991) (applying pretrial detainee standards to

an arrestee's claim that arresting officer denied arrestee medical

attention).

FN19. Bell v. Wolfish, 441 U.S. 520, 523, 99 S.Ct. 1861,

1865-66, 60 L.Ed.2d 447 (1979).

FN20. This holding leaves unmolested an arrestee's additional

and specific Fourth Amendment protections to be free from an

unreasonable arrest and excessive force at the time of arrest. As

we said in Valencia v. Wiggins, 981 F.2d 1440, 1443 (5th Cir.1993),

"[a]s the Fourth Amendment protects against unreasonable

'seizures,' it seems primarily directed to the initial act of

restraining an individual's liberty, such as an investigatory stop

or arrest." An arrestee's Fourteenth Amendment due process rights

are in addition to and overlap with that protection. We simply

recognize that arrestees as a subset of pretrial detainees have

substantive due process rights under the Fourteenth Amendment which

are, as Judge Friendly said, "quite apart from any 'specific' of

the Bill of Rights." Johnson v. Glick 481 F.2d 1028, 1032 (2d

Cir.1972).

E. QUALIFIED IMMUNITY

[4] Assessing the defense of qualified immunity is a two-step

process. [FN21] First, using "currently applicable constitutional

standards," [FN22] we determine whether the plaintiff has

"allege[d] the violation of a clearly established constitutional

right." [FN23] If so, we then decide if the defendant's conduct

was objectively reasonable, because " '[e]ven if an official's

conduct violates a constitutional right, he is entitled to

qualified immunity if the conduct was objectively reasonable.' "

[FN24]

FN21. See Salas v. Carpenter, 980 F.2d 299, 305 (5th

Cir.1992).

FN22. Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th Cir.1993).

FN23. Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114

L.Ed.2d 277 (1991).

FN24. Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir.1993)

(quoting Salas, 980 F.2d at 310).

1. Currently Applicable Law

[5] Under currently applicable constitutional standards,

Nerren has stated a claim for the denial of his substantive due

process rights. Recently, we held that a state official's episodic

act or omission violates a pretrial detainee's due process right to

medical care if the official acts with subjective deliberate

indifference to the detainee's rights. [FN25] We then defined

subjective deliberate indifference as subjective knowledge of a

substantial risk of serious medical harm, followed by a response of

deliberate indifference. [FN26]

FN25. Hare v. City of Corinth, 74 F.3d 633, 647-48 (5th

Cir.1996) (en banc). Although the district court did not and could

not have considered Nerren's complaint in light of Hare, to vacate

and remand for reconsideration based on Hare is unnecessary for two

reasons. First, we have de novo review over the legal aspects of

a interlocutory qualified immunity based motion for summary

judgment. Second, Hare is a Fifth Circuit "housekeeping" opinion;

a single opinion that clearly and concisely articulates and unifies

our court's case law in this area.

FN26. Id. at 650.

In the instant case, Nerren has alleged that his face and

chest were marred with abrasions, he was in pain, and he informed

the Arresting Officers that he needed medical attention. Moreover,

the police had subjective knowledge that Nerren had recently been

involved in a multiple vehicle injury accident. Nevertheless,

after allegedly acknowledging Nerren's request of and need for

medical attention, the Arresting Officers denied his request for

the express reason that he had fled the scene of the accident

without regard for the plight of the other victims. Accepting

Nerren's allegations as true, the Arresting Officers had subjective

knowledge of Nerren's need of medical attention yet turned a deaf

ear to his request. If the evidence at trial supports these

allegations, a reasonable juror could conclude that the Arresting

Officers were deliberately indifferent to Nerren's constitutional

right to medical attention. [FN27] Thus, Nerren has cleared the

first hurdle of qualified immunity: Under currently applicable

law, Nerren has alleged a violation of a clearly established right.

FN27. There is sufficient summary judgment evidence to raise

a fact issue as to the Arresting Officers' deliberate indifference,

thereby precluding summary judgment.

*474 2. Objectively Reasonable?

[6] Next, we must turn back the judicial clock to 1993 and

determine if the Arresting Officers' conduct was nonetheless

objectively reasonable at that time. We conclude that it was not.

At least since 1987, it has been clear that pretrial detainees, a

set that includes arrestees, are entitled to reasonable medical

care unless the failure to supply that care is reasonably related

to a legitimate governmental objective. [FN28] A pretrial

detainee's specific right to medical attention has evolved over

time from his general right to be free from punishment. Pretrial

detainees, as distinguished from convicted prisoners, are those

individuals who have been charged with a crime but who have yet to

be tried on the charge. [FN29]

FN28. Pfannstiel v. City of Marion, 918 F.2d 1178, 1186 (5th

Cir.1990) (citing Bell, 441 U.S. at 535, 99 S.Ct. at 1871-72);

Cupit v. Jones, 835 F.2d 82, 85 (5th Cir.1987).

FN29. Bell, 441 U.S. at 523, 99 S.Ct. at 1865-66.

[7] We contrast pretrial detainees and convicted prisoners

because the due process clause of the Fourteenth Amendment accords

pretrial detainees rights not enjoyed by convicted inmates under

the Eighth Amendment prohibition against cruel and unusual

punishment. [FN30] Specifically, "while a sentenced inmate may be

punished in any fashion not cruel and unusual, the due process

clause forbids punishment of a person held in custody awaiting

trial but not yet adjudged guilty of any crime." [FN31] This

standard, applied to medical attention, "entitles pretrial

detainees to reasonable medical care unless the failure to supply

it is reasonably related to a legitimate governmental objective."

[FN32]

FN30. Jones v. Diamond, 636 F.2d 1364, 1368 (5th Cir.1981) (en

banc), overruled on other grounds, 790 F.2d 1174 (1986).

FN31. Id. (emphasis added); see also Valencia, 981 F.2d at

1445 (citing Bell 441 U.S. at 539, 99 S.Ct. at 1874) ("[I]f a

particular condition or restriction of pretrial detention is

reasonably related to a legitimate governmental objective, it does

not, without more, amount to punishment. Conversely, if a

restriction or condition is not reasonably related to a legitimate

goal--if it is arbitrary or purposeless--a court permissibly may

infer that the purpose of the governmental action is punishment

that may not constitutionally be inflicted upon detainees qua

detainees.").

FN32. Jones, 636 F.2d at 1378.

[8] The Arresting Officers have failed to present a legitimate

governmental objective for denying Nerren medical attention.

Moreover, Nerren has alleged facts presented sufficient summary

judgment evidence from which a reasonable juror could find an

expressed intent to punish: The Arresting Officers' statements

implied that they were refusing medical attention to Nerren because

he was not concerned about the other accident victims. From this

a reasonable juror could conclude that Nerren was denied medical

attention as punishment for fleeing the accident. It is

inescapable that such a punishment could not be objectively

reasonable conduct by the Arresting Officers because Nerren was not

subject to any punishment. His punishment, nevertheless, came in

the form of the denial of his constitutional right to medical

attention. In sum, whether Nerren's allegations are analyzed under

a pretrial detainee's more general right under Bell and Valencia to

be free from punishment or his more specific right to medical

attention announced in Jones and Hare, Nerren has stated a claim

and the Arresting Officers' conduct was objectively unreasonable.

We thus conclude that the district court's denial of the Arresting

Officers' motion for summary judgment is correct.

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.