Pourmoghani-Esfahani v. Gee

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 10-10020 NOVEMBER 9, 2010

________________________ JOHN LEY

CLERK

D.C. Docket No. 8:08-cv-00328-EAJ

MARCELLA POURMOGHANI-ESFAHANI,

Plaintiff - Appellee,

versus

DAVID GEE, Sheriff of Hillsborough County, individually,

SHANNA MARSH, Hillsborough County Deputy, individually,

Defendants - Appellants,

JOHN DOES, Numbers 1 through 7, individually, et al.,

Defendants.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(November 9, 2010)

Before EDMONDSON, HILL, and ALARCON,* Circuit Judges.

PER CURIAM:

In this section 1983 case, Plaintiff-Appellee Marcella Pourmoghani-

Esfahani (“Plaintiff”) alleges that Defendant-Appellant Deputy Shanna Marsh

(“Defendant”) applied excessive force to Plaintiff and was deliberately indifferent

to her serious medical needs while Plaintiff was detained at the Hillsborough

County Jail in Tampa, Florida, in November 2006. On both constitutional claims,

the district court denied Defendant’s motion for summary judgment and qualified

immunity; we affirm the decision on the excessive-force claim but reverse on the

deliberate-indifference claim.

I. BACKGROUND

We review de novo the district court’s denial of summary judgment, and we

accept Plaintiff’s version of the facts drawing all justifiable inferences in

Plaintiff’s favor. See Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008).

*

Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit, sitting

by designation.

2

The parties dispute what happened between check-in at the jail and a later

physical struggle between Plaintiff and Defendant. The entire series of events was

recorded--without sound--on several closed-circuit video cameras placed

throughout the jail. Where the video obviously contradicts Plaintiff’s version of

the facts, we accept the video’s depiction instead of Plaintiff’s account. See Scott

v. Harris, 127 S. Ct. 1769, 1776 (2007) (“When opposing parties tell two different

stories, one of which is blatantly contradicted by the record, so that no reasonable

jury could believe it, a court should not adopt that version of the facts for purposes

of ruling on a motion for summary judgment.”). But the video is often not

obviously contradictory because it fails to convey spoken words or tone and

because it sometimes fails to provide an unobstructed view of the events. So, as

we must while reviewing the district court’s ruling on summary judgment, we have

credited Plaintiff’s version of the record evidence where no obviously

contradictory video evidence is available.1

Early on a morning in November 2006, Tampa Police Department officers

brought Plaintiff to the jail on outstanding warrants after a domestic-disturbance

1

Plaintiff argues that Defendant has only raised issues of evidentiary sufficiency and that

we have no jurisdiction to consider those matters on an interlocutory appeal. To the contrary, in

denying Defendant’s motion for summary judgment, the district court made a legal conclusion

that, based on Plaintiff’s version of the facts, Defendant violated federal law. We have

jurisdiction to review legal conclusions bearing on questions of immunity.

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call. After some disagreements between Plaintiff and Defendant during the initial

minutes after Plaintiff’s arrival, the confrontation escalated rapidly and resulted in

a physical struggle between the two women on the waiting-room floor.

According to Plaintiff, while Plaintiff was seated in the jail waiting room,

Defendant initiated physical contact by grabbing Plaintiff by the arm and trying to

pull her up out of a waiting-room chair. Plaintiff clung to the chair’s arm for

support. Within seconds, Defendant succeeded in grabbing Plaintiff--including by

the hair--and flipped her to the ground. In those first few seconds on the floor,

Plaintiff reflexively clutched Defendant’s legs and grabbed at the area near

Defendant’s utility belt. Then, while Plaintiff was on her knees, Defendant hit her

three times on the back of the head with Defendant’s hand. Within seconds,

additional officers came to assist in subduing Plaintiff: a small group of officers

leaned over Plaintiff, who by that time had been restrained face downward on the

floor.

Then, while Plaintiff remained restrained on the floor, Plaintiff says that

Defendant grabbed Plaintiff’s head and slammed it to the floor seven to eight

times, causing cuts and bruises on her face and leaving a pool of blood on the

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floor.2 The group of officers then lifted Plaintiff to her feet and led her away,

walking to a cell.

Plaintiff was placed into a cell with another female. Plaintiff walked to the

corner of the cell and slid down to a seated position on the floor.3 Within

approximately two minutes of Plaintiff’s arrival in the cell, a jail nurse entered the

cell to check on Plaintiff. After the nurse left, Defendant walked by Plaintiff’s cell

twice within the next approximately five minutes and observed her.

After Defendant left the cell area, Plaintiff’s cellmate at intervals tried to get

the guards’ attention: she knocked on the cell’s glass, waved her arm, and pointed

to Plaintiff. An officer responded within approximately four minutes; and within

two minutes after that response, a nurse returned to check on and to provide

medical care to Plaintiff. A second nurse and another male officer arrived

approximately two minutes later. During this period, Defendant returned to the

cell and oversaw events. According to the jail incident report in the record, as a

result of this second examination, the medical nurse determined that Plaintiff

2

Defendant denies that the face slammings occurred. The video does not establish

whether the slammings occurred and does not establish whether a pool of blood was on the floor.

3

Plaintiff says that she was unconscious and has no recollection of what transpired while

she was in the cell; she offers no independent account of the facts during this time and looks to

the videotape’s account of the events. So, we also look to the videotape evidence for the time

when Plaintiff was in the jail cell.

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appeared to be “having symptoms of a possible overdose and had an apparent

seizure.” From the time a nurse saw Plaintiff on the second occasion, Plaintiff

received ongoing medical care for approximately fifteen minutes at the jail before

being transported to the hospital for evaluation.

The hospital’s medical records indicate that Plaintiff was found to have a

controlled nosebleed, a contusion to the forehead, and face abrasions. Plaintiff’s

physical exam indicated that she suffered “no obvious discomfort.” While there,

Plaintiff underwent clinical testing: her CT scan showed no brain hemorrhage or

skull fracture; but Plaintiff did test positive for marijuana and cocaine and had a

blood-alcohol level of .141. As a result of the testing, Plaintiff received no

stitches or other notable treatment--just Motrin--while she was at the hospital. At

discharge, Plaintiff’s medical records note that she had a pain score of 1 out of 10

and that her condition was “[i]mproved”; Plaintiff was released back to the jail

fourteen hours later.4

Plaintiff later filed a complaint in the district court. The judge granted

4

Plaintiff does not in her brief dispute the contents of the hospital medical records. But

Plaintiff does additionally rely on a professional neuropsychological assessment performed

seven-and-a-half months after the jail incident. The report states that Plaintiff “sustained

injuries” as a result of the jail incident and that the jail incident “may have exacerbated” her

neuropsychological difficulties. But the report also concluded that “poly-substance abuse, and

history of seizure disorder of unknown [origin] may be the primary or contributing factors to her

current deficits.”

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Defendant summary judgment on some of Plaintiff’s claims but denied summary

judgment and qualified immunity to Defendant on these two constitutional claims.

II. DISCUSSION

A. EXCESSIVE FORCE

We affirm the denial of qualified immunity on the excessive-force claim.

We stress that we do not decide today that Defendant, in reality, used

unjustified or even unnecessary force. On this record (even with the video), we

cannot know. But, for the sake of this appeal, we have taken the “facts” as

Plaintiff asserts them. If we take her “facts” as true, we then accept that the force

that Defendant used was obviously--in the light of the preexisting law--beyond

what the Constitution would allow under the circumstances.

B. DELIBERATE INDIFFERENCE

Deliberate indifference to a detainee’s serious medical needs requires 1) an

objectively serious medical need and 2) a defendant who acted with deliberate

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indifference to that need. See Burnette, 533 F.3d at 1330. A “serious medical

need” is “one that is diagnosed by a physician as requiring treatment or one that is

so obvious that a lay person would recognize the need for medical treatment.” Id.

For liability, the defendant must 1) have subjective knowledge of a risk of serious

harm, 2) disregard that risk, and 3) display conduct beyond gross negligence. Id.

Deliberate indifference may result not only from failure to provide medical

care at all, but also from excessive delay: “Even where medical care is ultimately

provided, a prison official may nonetheless act with deliberate indifference by

delaying the treatment of serious medical needs.” McElligott v. Foley, 182 F.3d

1248, 1255 (11th Cir. 1999).

On the facts of this case--even when accepting Plaintiff’s version of the

facts as true--it is not possible to conclude that Defendant acted with deliberate

indifference to Plaintiff’s medical needs. On the question of medical needs, that

Defendant disregarded a risk of serious harm to Plaintiff or displayed conduct

beyond gross negligence is not borne out by this record.

To the contrary, Plaintiff received reasonably prompt medical attention.

Directly after their struggle, Defendant dispatched Plaintiff to her cell; a nurse saw

Plaintiff within approximately two minutes of Plaintiff’s arrival there.

After this initial evaluation by a nurse, Defendant was informed that

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Plaintiff had a possible nose injury (but not that it was broken): this report gave

Defendant no subjective notice of a medical emergency exceeding the capabilities

of the jail nurses or that required a different course of action than the one

Defendant actually took. Two minutes after the nurse’s initial check, Defendant

observed Plaintiff in her cell while Defendant completed paperwork posted on the

exterior of Plaintiff’s cell and on an adjacent cell. During this time, the video

shows Plaintiff sitting on the cell floor apparently resting or asleep but not

obviously in distress; Defendant was presented with no reason to perceive a

serious medical need. Neither Plaintiff nor her cellmate sought Defendant’s

attention at that time.

When Plaintiff’s cellmate later did signal for help, the response--again--

occurred promptly. A nurse and an officer attended to Plaintiff within

approximately five minutes of the cellmate’s first attempts to signal for help.

Nothing indicates that Defendant ignored the cellmate’s signals. And once

someone did recognize the cellmate’s signals for help, the jail nurse promptly

returned; Plaintiff then received continuous medical care until she was taken to the

hospital.

The medical treatment that Plaintiff received will support no conclusion of

deliberate indifference by Defendant. The term “delay” hardly seems to fit the

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facts at all; but to the extent that one could call the time involved in this case

“delay,” it was only a matter of minutes. Cf. Brown v. Hughes, 894 F.2d 1533,

1538-39 (11th Cir. 1990) (finding deliberate indifference where inmate with a

broken foot was delayed treatment for a few hours); Aldridge v. Montgomery, 753

F.2d 970, 972-73 (11th Cir. 1985) (finding deliberate indifference where inmate

had bleeding cut under his eye with treatment delayed for two and a half hours).

Plaintiff contends that Defendant should have immediately sent Plaintiff to

the hospital after the alleged face slammings, that is, should have totally skipped

over the jail nurses’ care. But Plaintiff has pointed to no evidence in the record

that Defendant possessed subjective knowledge of a medical need that required

something more drastic than first being promptly checked by the jail’s nurse. And

when, during the second examination, a nurse suspected that Plaintiff had

symptoms of a possible overdose and seizure, an ambulance arrived shortly

thereafter to take Plaintiff to the hospital. Even if this information indicates that

Plaintiff had a serious medical need--as Defendant concedes it does--it does not

indicate that Defendant disregarded a risk of serious harm to Plaintiff or displayed

conduct beyond (or conduct even approaching) gross negligence.

As a result, we must reverse the district court’s decision and conclude that

Defendant is entitled to summary judgment on the claim for deliberate indifference

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to a serious medical need.

Even if a constitutional violation based on deliberate indifference was

shown, Defendant is entitled to qualified immunity. Questions of deliberate

indifference to medical needs based on claims of delay are complicated questions

because the answer is tied to the combination of many facts; a change in even one

fact from a precedent may be significant enough to make it debatable among

objectively reasonable officers whether the precedent might not control in the

circumstances later facing an officer. No preexisting law clearly established that

an approximately two-to-five-minute delay of medical care--either while Plaintiff

moved from the waiting room to her cell or then while the cellmate waited for a

guard to respond to her signaling--is a constitutional violation, especially with

facts like this case.5

Plaintiff acknowledges that no precedent supports her position but still

contends that the law was, at the pertinent time, already clearly established

because the violation was so obvious that every objectively reasonable officer in

Defendant’s position would have known that what Defendant did following the

struggle was not enough. See generally Lee v. Ferraro, 284 F.3d 1188, 1198-99

5

The district court referenced a delay of 12 minutes (the time between the nurse’s first

and second visits): under the preexisting law at the pertinent time, hardly a clear constitutional

violation given all the circumstances.

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(11th Cir. 2002) (sometimes constitutional violation is clear even without case law

on point). The constitutional violation of deliberate indifference was not obvious

given the preexisting law, even if we are mistaken in concluding that the

Constitution’s prohibition of deliberate indifference was not violated at all.

III. CONCLUSION

The district court’s order denying summary judgment and qualified

immunity to Defendant on the excessive-force claim is AFFIRMED. But we do

not rule out today that Defendant might yet be due qualified immunity as the facts

become developed.6 The district court’s order denying summary judgment and

qualified immunity to Defendant on the claim for deliberate indifference to serious

medical needs is REVERSED.

AFFIRMED in part, REVERSED in part, and REMANDED.

6

For example, the district court may use special verdicts or written interrogatories to a

jury to resolve disputed facts before finally ruling on qualified immunity.

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