Wagner v. Bay City Texas

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 99-40175

_______________

MARY WAGNER,

INDIVIDUALLY AND AS NEXT FRIEND OF

GILBERT GUTIERREZ AND IRMA GUTIERREZ,

Plaintiff-Appellee,

VERSUS

BAY CITY, TEXAS, ET AL.,

Defendant,

ROBERT GARCIA, OFFICER; VICTOR R. HADASH, OFFICER;

RICHARD M. HEMPEL, OFFICER; DAVID MIRELEZ, OFFICER;

SCOTT A. SHERRILL, OFFICER,

Defendants-Appellants.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

September 27, 2000

Before JOLLY, SMITH, and BARKSDALE,

Circuit Judges. This is an appeal of a partial denial of a mo-

tion for summary judgment. The appellant po-

JERRY E. SMITH, Circuit Judge: lice officers argue that qualified immunity pre-

cludes Mary Wagner’s 42 U.S.C. § 1983 and sprayed him with pepper spray. It is un-

claims of excessive force and deliberate certain how many times he was sprayed or

indifference to the need for medical attention how much spray was used. And although one

arising from the arrest of her brother, Gilbert witness stated that the officers sprayed Gutier-

Gutierrez, who died in police custody. Con- rez while inside the restaurant, all other

cluding that there is no reasonable inference witnesses stated that this occurred after

that the officers were objectively unreasonable, Gutierrez was taken outside.

we reverse and render judgment for the

defendant officers and remand for further Next, the officers placed Gutierrez face

proceedings. down on the pavement and eventually were

able to handcuff him. According to the

I. officers, Gutierrez was still struggling at that

In March 1996, Gutierrez entered a fast- point. But, according to one witness, Maria

food restaurant in Bay City, Texas, and, using Juarez, Gutierrez did not appear to be

a receipt that belonged to another customer, struggling at the time he was dragged outside.

he requested to be given free food. When he Juarez stated that after Gutierrez was taken

was told he could not have the food, he cursed outside, she watched the incident from the

one of the managers, who was black, and store and saw Gutierrez on the ground, face

called her a racial epithet. The manager told down, handcuffed.

him to leave and then called the police, who

arrived after Gutierrez already had departed. One of the officers had his knee on Gutier-

rez’s back and “kept pushing Mr. Gutierrez

Gutierrez returned to the restaurant about [sic] neck and head to the ground” with a

an hour later; the manager again called the po- stick. Mirelez confirmed placing his right shin

lice. This time, Officer Hadash arrived and across Gutierrez’s back while attempting to

recognized the man as Gutierrez, whom he ap- restrain Gutierrez. Neither Hadash nor Mirel-

proached, and an altercation ensued. ez mentioned using a baton, however.

According to Hadash, Gutierrez jumped off a

stool and started swinging his fists, striking After Gutierrez was cuffed, three other of-

Hadash several times. Hadash apparently did ficers arrivedSSSergeant Garcia, Officer Hem-

not strike Gutierrez at this time, because he pel, and Officer Sherrill. According to Garcia,

was busy blocking his assailant’s blows. Other when he arrived he observed Hadash and Mi-

witnesses also said Gutierrez struck Hadash, relez on top of Gutierrez. Then, when Sherrill

and it is undisputed that Hadash and Gutierrez and Hempel arrived, Garcia told them to put

eventually ended up struggling on the floor. Gutierrez into a patrol car. Garcia advised

Hadash that Gutierrez could go to the hospital

Officer Mirelez arrived and, seeing the to be decontaminated from the pepper spray,

fight, tried to assist Hadash. The two officers but Hadash declined, because the jail was

struggled to restrain Gutierrez, who continued closer and more secure, and because Gutierrez

fighting. Although different witnesses had been combative.1

provided slightly varying accounts as to the

sequence of events, it is undisputed that one or

both of the officers dragged Gutierrez outside 1

Decontamination consists primarily of

(continued...)

2

When Sherrill and Hempel arrived, Gutierrez male officer of the Bay City police force, the

was lying on his stomach and was no longer claims eventually were dismissed against all but

struggling. The officers had to carry him to place Bay City and Mirelez, Sherrill, Garcia, Hadash,

him in the car; he did not walk on his own. The and Hempel, the officers involved in the arrest.

officers placed him in the car head-first. Sherrill

had to go to the other side of the vehicle to pull The officers moved for summary judgment on

Gutierrez through, placing him on his stomach with the basis of qualified immunity, and the court

his head turned toward the front of the vehicle. granted summary judgment on the excessive force

Sherrill reported that Gutierrez appeared to have claims as to Sherrill, Garcia, and Hempel, because

passed out. According to Garcia, he did not they arrived after the altercation was over. The

attempt to assess whether Gutierrez was injured, court denied summary judgment in all other

nor did he speak to him. respects.

Hadash then drove Gutierrez to the county jail. III.

He recalled hearing “a couple of groans and Wagner argues that with respect to her claim

grunts” during the trip but did not speak to Gutier- for excessive force,2 because the district court

rez during that time. ruled that neither party had submitted enough

evidence about what happened during the

When Hadash arrived, he was met by two course of the arrest to declare whether Hadash

jailers, who again had to assist Gutierrez out of the and Mirelez were entitled to qualified

car. Gutierrez was not combative; indeed, Hadash immunity, we do not have jurisdiction to

did not know whether he was even conscious at

review this purely factual conclusion. The

that point. The jailers carried Gutierrez into the

jail, half dragging him, and laid him face down. At

court stated, preliminarily, that it could not

that point, Hadash looked at Gutierrez and told currently say there was no merit to Wagner’s

Garcia that it appeared Gutierrez was not claims, and it invited the defendants to raise

breathing. the summary judgment issue again once

additional discovery was taken.

The officers removed Gutierrez’s handcuffs and

turned him over, and Hadash began CPR. Once In so ruling, the court pointed to several

his breathing was revived, Gutierrez was inconsistencies in the record regarding the al-

transported to the hospital, where he slipped into a tercation between Hadash and Gutierrez, and

coma and eventually died. to inconclusive evidence as to how much pep-

per spray was used. Thus, it concluded that

II. further discovery would be necessary to

Gutierrez’s sister (Wagner) and his daughter

determine whether the defendants were

(Irma Gutierrez) sued the city and the officers,

entitled to qualified immunity.

alleging violations of Gutierrez’s civil rights

pursuant to § 1983. The complaint set forth claims

of, inter alia, excessive force and a failure to

respond to Gutierrez’s medical needs. Although

the original complaint named Bay City and every 2

Wagner concedes that we have jurisdiction to

review the district court’s ruling denying qualified

immunity on the denial-of-medical-attention claim,

1

(...continued) noting that there is very little factual dispute about

flushing the eyes with water. It can be done at the what the defendants did or did not do in this

hospital, at the jail, or even at the scene. respect.

3

In deciding an interlocutory appeal of a examine the various claims in turn.

denial of qualified immunity, we can review

the materiality of any factual disputes, but not A.

their genuineness. See Colston v. Barnhart, With respect to the excessive-force claim,

146 F.3d 282, 284 (5th Cir.) (on petition for defendants argue that, notwithstanding the dis-

rehearing en banc), cert. denied, 525 U.S. trict court’s assertions to the contrary, there is

1054 (1998). So, we review the complaint no issue of material fact about what occurred

and record to determine whether, assuming during Gutierrez’s altercation with Hadash and

that all of Wagner’s factual assertions are true, Mirelez. Hadash claims that Gutierrez

those facts are materially sufficient to establish attacked him and that he merely defended

that defendants acted in an objectively himself by blocking Gutierrez’s blows.

unreasonable manner. Even where, as here, Although another witness was unable to recall

the district court has determined that there are who was the aggressor, nothing about this wit-

genuine disputes raised by the evidence, we ness’s statement is inconsistent with Hadash’s

assume plaintiff’s version of the facts is true, version of the story. Defendants also argue

then determine whether those facts suffice for that there is no evidence that the officers used

a claim of excessive force under these two full cans of pepper spray.

circumstances.

To be sure, there is a slight inconsistency in

Moreover, in light of the fact that the dis- the sequence of events as reported by the of-

trict court did not specifically identify those

factual issues as to which it believed genuine 3

(...continued)

disputes remained, we conduct an analysis of

provided no evidence that the officers’ actions,

the record to determine what issues of fact the even assuming they form the basis for liability

district court likely considered genuine. This under § 1983, caused Gutierrez’s condition. They

ensures that the defendants’ right to an assert that Wagner did not show or provide any

immediate appeal will not be defeated because evidence to suggest that the officers were the cause

of the district court’s failure to articulate its of Gutierrez’s condition, and they point out that it

reasons for denying summary judgment. See is the plaintiffs’ burden to establish that his injuries

id. at 285. It follows that we do have resulted from the defendant officers’ actions.

jurisdiction to review the denial of summary

judgment on all of these claims. But the district court correctly concluded that

Wagner made a plausible argument that Gutier-

IV. rez’s injury directly and exclusively resulted from

Defendants argue that there is no issue of his altercation with defendants Hadash and Mirel-

material fact regarding whether they acted in ez. A reasonable jury could conclude that the use

of pepper spray, combined with the fact that the

an objectively unreasonable manner in using

officers repeatedly pushed him face-first to the

the amount of force that they did to subdue ground, could have resulted in Gutierrez’s stopping

Gutierrez and in failing to notice sooner that breathing. Perhaps Wagner could have provided

he was in need of medical attention.3 We expert medical testimony to support her claims, but

common sense compels the conclusion that Gutier-

rez’s injuries resulted from his altercation with the

3 police, and there is no requirement that medical

Defendants also argue that Wagner has

(continued...) testimony be presented to establish causation.

4

ficers and Wagner’s witness, Juarez, and there particular police practice or action was

is some question as to how long the de- unreasonable excessive force in light of clearly

fendants held Gutierrez on the ground, how established law. Like the instant case,

roughly they treated him, and how much pep- Gutierrez involved the restraint of a suspect

per spraySSeven if not two full cansSSwas who subsequently died, apparently as the result

used. At least one witness said Gutierrez was of an improper restraining technique that

no longer struggling when the officers dragged caused asphyxiation. Because it is highly

him outside, yet they continued to treat him relevant to our analysis, we reproduce a large

aggressively, allegedly shoving his face to the portion of the facts of that case to compare

ground. and contrast it with the instant appeal:

We are careful not to engage in second- The officers observed [Rene Gutier-

guessing officers in situations in which they rez] running around in circles in the

have to make split-second, on-the-scene de- middle of the street and slipping and fall-

cisions while confronted with a violent ing on his side. As they parked the pa-

individual.4 But our qualified-immunity trol car and approached Gutierrez, he

inquiry requires us to determine whether the began swinging his arms wildly and

officers’ actions were objectively crawling toward them on his hands and

unreasonable, in light of clearly-established law knees. Gutierrez shouted out that he

at the time, and in light of the information the had been shot; the officers checked, but

officers possessed. See Anderson v. found no bullet wounds on Gutierrez or

Creighton, 483 U.S. 635, 640 (1987). nearby persons with guns. The officers

“Qualified immunity thus protects an official did notice numerous abrasions on his

whose conduct was objectively reasonable, chest and bleeding from his mouth.

even if the conduct infringed upon a con-

stitutional right of the plaintiff.” Gutierrez v. [Officer] Walters cuffed Gutierrez

City of San Antonio, 139 F.3d 441, 445 (5th “for his safety and mine.” He did not

Cir. 1998) (citing Anderson, 483 U.S. at 641). arrest Gutierrez, but police reports

Consequently, “even law enforcement officials indicate that Walters intended to do so

who reasonably but mistakenly use excessive later. Walters also noted that

force are entitled to immunity.” Id. at 447 (in- Gutierrez’s eyes were glassy, he was

ternal citations and punctuation omitted). walking unsteadily, and his speech was

slurred. When Walters asked Gutierrez

In Gutierrez, we offered a lengthy if he had taken any drugs, Gutierrez said

discussion of how to determine whether a that he had “shot some bad coke.” Solis

later testified that Gutierrez was

“exhibiting that he was high on some

4

See Graham v. Connor, 490 U.S. 386, 396-97

type of drugs.”

(1989) (noting that we do not utilize “the 20/20

vision of hindsight,” and that we consider “the fact [Officer] Solis called an ambulance

that police officers are often forced to make split- (“EMS”), allegedly for a possible toxic

second judgmentsSSin circumstances that are tense, ingestion overdose. While waiting for

uncertain, and rapidly evolvingSSabout the amount the EMS to arrive, Gutierrez sat calmly

of force that is necessary in a particular situation”).

5

with his back against a rear door of the lon rope with a loop on one end and a

patrol car. As traffic in the intersection clasp on the other (a “hog-tie”).

increased, Walters placed Gutierrez face Walters placed the loop around

down in a prone position in the back Gutierrez’s feet, and Solis linked the

seat and drove the patrol car into a clasp around the handcuffs, drawing

neighboring parking lot. Gutierrez was Gutierrez’s legs backward at a

quiet and peaceful, and his feet were not 90-degree angle in an “L” shape, thereby

restrained in any way. “hog-tying” him. Whether the officers

then placed Gutierrez in a face down

When the EMS arrived, Walters position on the rear seat or with his face

told EMS Technicians Ernest Lavin and pointed toward the rear of the front seat

Michelle Cevallos that Gutierrez had is disputed, but as the officers set off for

admitted to injecting bad cocaine. Lavin the hospital, he was conscious and

and Walters removed Gutierrez from the struggling.

back seat of the patrol car and walked

him toward the EMS vehicle. When Walters and Solis drove to the hos-

Gutierrez got to the rear of the EMS pital at a normal rate of speed with their

unit, he turned around and sat down. lights and sirens off and the rear of the

Gutierrez suddenly began to push and patrol car darkened. While Walters

tried to get into the EMS vehicle, yelling drove, Solis occasionally checked to see

“put me in.” As abruptly, he kicked if Gutierrez’s restraints were secure, but

Lavin in the chest, and shouted “get me he did not check to see if Gutierrez was

out.” Due to this violence, Lavin still breathing or otherwise monitor him.

refused to transport Gutierrez to the Approximately ten minutes into the jour-

hospital. Walters then asked Lavin ney, all sounds of Gutierrez struggling

whether Gutierrez could be safely stopped. Upon arriving at the hospital,

transported in a patrol car, to which Walters went into the hospital to

Lavin replied that Gutierrez appeared to summon medical personnel while Solis,

be having psychiatric problems rather believing Gutierrez to be asleep, began

than a reaction to bad drugs. to nudge him. At that time, Gutierrez

was face down on the seat, a position

Walters and Lavin returned Gutier- that allegedly restricted the amount of

rez to the back seat of the patrol car to oxygen that could reach his heart and his

transport him to a local hospital for heart’s ability to pump oxygen-enriched

examination, allegedly placing him face blood throughout his body. Medical

down in the back seat. Gutierrez began personnel came out to the car, the

to kick the back of the driver’s seat, the restraints were removed, and the

metal cage, and the windows of the pa- medical personnel discovered that

trol car with his bare feet. Walters and Gutierrez did not have a pulse. They

Solis agreed that Gutierrez’s legs would then took him into the emergency room

have to be restrained, “for his safety and where doctors pronounced him dead.

ours.” Solis got his personal leg-re-

straint device from the patrol car, a ny- Id. at 443.

6

In Gutierrez, we began our analysis by ad- edSSor at least with respect to whether the of-

dressing the officers’ claims for qualified im- ficers were aware that all of the conditions ex-

munity based on the fact that there was no istedSSand because there was a material fact

clearly-established law at the time that dispute about whether the San Antonio Police

specifically held that hog-tying constituted Department had made its officers aware of the

excessive force. We stated that “[s]uch a SCDS report, in Gutierrez we held that these

dogmatic argument is unjustified.” Id. at 445. issues made it impossible to determine whether

Rather, we noted that “[i]n Anderson, the the officers’ actions were objectively

Supreme Court stated that whether a clearly reasonable, thereby precluding summary

established right has been violated judgment on their qualified immunity defenses.

‘substantially depends upon the level of

generality at which the relevant “legal rule” is

to be identified.’” Id. (quoting Anderson, 483 We contrasted Estate of Phillips v.

U.S. at 639). What was required to overcome Milwaukee, 123 F.3d 586 (7th Cir. 1997), in

a claim of qualified immunity, then, was not which that court held that two officers had not

that the specific police action had been held been objectively unreasonable where the

unlawful, but only that it be apparent “in the suspect they restrained died as the result of

light of pre-existing law” that such action asphyxia. Two police officers attempted to re-

would be unlawful. Anderson, 483 U.S. at strain Phillips, an obese man exhibiting

640. psychiatric problems, by lowering him to the

floor and handcuffing his arms and legs (but

Next, we noted the difficulty the lower not together in a hog-tie). One officer gently

courts have had in deciding which various put her knee on his back to keep him from

police tools, instruments, and actions should rising while they called for a patrol wagon to

be characterized as “deadly force,” a subset of take him to a hospital for mental observation.

excessive force, or force “carrying with it a

substantial risk of causing death or serious

bodily harm.” Gutierrez, 139 F.3d at 446 (in- The officers continuously monitored Phil-

ternal citations and punctuation omitted). lip’s condition, and when he ceased breathing

With respect to the specific practice of hog- shortly thereafter, they began resuscitation ef-

tying, we noted that while there were no cases forts and revived him, although he died the

that held such police procedure unlawful, the next day in the hospital. The coroner found

San Diego Police Department had issued a that Phillips’s medical condition, obesity, and

well-circulated report that warned of the positional asphyxia jointly contributed to his

dangers of Sudden Custody Death Syndrome death.

(“SCDS”).

The Phillips court held the officers’

That report concluded that SCDS could be conduct to be objectively reasonable, because

caused by the combination of “(1) drug use, merely “restraining a person in a prone

(2) positional asphyxia, (3) cocaine psychosis, position with constant monitoring, cannot be

and (4) hog-tying or carotid choke holds.” Id. characterized, in itself, as ‘deadly’ force.” Id.

Because there were material fact disputes as to at 593-94. In Gutierrez, we noted that the

whether all four of these conditions exist- Phillips court had expressly distinguished this

7

factual situation, however, from one in which violated clearly established law and behaved

police hog-tie a person who subsequently dies. unreasonably, because the other three SCDS

See Gutierrez, 139 F.3d at 451. factors plainly were not present.

Gutierrez therefore presents us with several Instead, this case resembles, in several re-

yardsticks by which to measure Wagner’s spects, Phillips, in which that court held that

claim for excessive force, and it is also highly the officers’ restraint of the suspect was not

relevant to the claim for denial of medical as- objectively unreasonable, even where he sub-

sistance. First, and perhaps most importantly, sequently died of asphyxiation. Although

as defendants note, Gutierrez was not “hog- there is not as much evidence here of

tied,” and, as a result, the “very limited” “constant monitoring” of Gutierrez’s breathing

holding of Gutierrez cannot support a finding and medical condition, defendants did state

that Hadash and Mirelez violated clearly- that they heard him groaning during the trip to

established law when they handcuffed Gilbert the police station and thus had reason to

and placed him in the patrol car. believe he was still breathing. And, unlike the

plaintiff’s obesity in PhillipsSSa fact,

Likewise, several of the other required con- according to the doctors, that contributed to

ditions in the SCDS report are not present his risk of harm and that the officers could

here, including the fact that there is no easily observeSShere there were no apparent

evidence Gutierrez was a drug user, much less physical signs that Gutierrez was substantially

that there was a risk of “cocaine psychosis.” at risk.

Thus, although there arguably is support in

Gutierrez for the concept that in this case In addition, defendants point out that

there was a substantial risk of harm from po- nothing about the use of chemical spray or

sitional hypoxia,5 that theory cannot serve as even a choke-hold was objectively-

the basis for Wagner’s claim that the officers unreasonable conduct where the suspect

physically resisted arrest.6 The officers’

actions were all consistent with the idea that

5

Although the defendants here argue that they merely were trying to restrain a violent

Gutierrez was placed on his stomach, with his head individual.

facing forward, not down, the court in Gutierrez

noted that “[e]ven if the jury concludes that the Thus, those actions were objectively

officers placed Gutierrez on his side, it may still reasonable in the context of this dangerous

conclude that the officers’ failure to monitor him situation that Gutierrez created, and we

. . . amounted to deliberate indifference, thereby therefore reverse the denial of summary

permitting Gutierrez to roll into a face down po- judgment on the excessive-force claim. Even

sition during the time that the officers transported

accepting all of Wagner’s pleaded facts as

him to the hospital.” Id. at 448 n.4. Moreover, it is

not evident whether the person needs to be face

down to be in danger of asphyxiation, since the

6

SCDS report seems to suggest that it is the fact See Gassner v. City of Garland, 864 F.2d

that “all of their weight is concentrated on their 394, 400 (5th Cir. 1989) (upholding use of a

chest, thereby interfering with the mechanical pro- choke-hold); Baldwin v. Stalder, 137 F.3d 836,

cess of inhalation and exhalation” that is 840-41 (5th Cir. 1998) (upholding use of chemical

problematic. Id. at 448. spray).

8

true, there is no issue of material fact on this again informs our analysis as to the objective

claim. reasonableness of the officers’ actions. As

noted with respect to the excessive force

B. claim, clearly-established law did not put the

A pretrial detainee’s constitutional right to officers on notice that this type of restraint

medical care, whether in prison or other would lead to the medical problems Gutierrez

custody, flows from the procedural and eventually suffered. At most, one of the four

substantive due process guarantees of the required criteria for SCDS was present, and

Fourteenth Amendment.7 Liability for failing even then there is no evidence that Gutierrez

to provide such care attaches if the plaintiff was actually placed face-down in the patrol car

can show that a state official acted with as would be required by the positional-

deliberate indifference to a substantial risk of asphyxia prong.

serious medical harm and that injuries resulted.

Hare, 74 F.3d at 647-48. “Deliberate As a result, because Wagner has failed to

indifference” requires that the official have establish even that the officers were objectively

subjective knowledge of the risk of harm. Id. unreasonable in their treatment of Gutierrez,

at 650. Mere negligence will not suffice, and a fortiori there is no way she can prevail on a

“[d]eliberate indifference, i.e., the subjective claim that defendants intended to harm him.

intent to cause harm, cannot be inferred from She offers no evidence that would refute Had-

a . . . failure to act reasonably.” Id. at 649 ash’s claim that he heard Gutierrez moaning

(citations omitted). during the short trip to the jail (indicating that

he was still breathing), and she provides no

Thus, for Wagner to prevail on her claim of reason to question the veracity of the officers’

deliberate denial of medical care, she needs to testimony that as soon as they discovered

establish more than the typical quantum of ev- Gutierrez had stopped breathing, Hadash im-

idence necessary to overcome a qualified im- mediately began CPR.8

munity defense. That is, she must show not

only that the defendants’ actions in failing to

provide Gutierrez medical attention before he 8

Perhaps Wagner could have provided expert

arrived at the jail were objectively medical testimony that would refute a claim that

unreasonable, but also that defendants Hadash began resuscitation efforts shortly after

intended the consequence of those actions. Gutierrez stopped breathing, but she did not offer

any such evidence. And while the district court felt

Because the risk of harm from asphyxiation, that discovery in addition to the affidavits and

of which Wagner alleges defendants should depositions already produced would help illumi-

have been aware, primarily was the result of nate the actual sequence of events that occurred

Gutierrez’s being handcuffed and placed on his during Gutierrez’s altercation with Officers Had-

ash and Mirelez, the medical information that could

chest in the back of the patrol car, Gutierrez

have helped Wagner’s denial-of-medical-care claim

was information entirely within her control from

the outset of this case. Moreover, even Wagner

7

See Hare v. City of Corinth, 74 F.3d 633, 639 concedes that the factual record with respect to this

(5th Cir. 1996) (en banc) (comparing such right to claim is well-established and not in dispute.

a prisoner’s Eighth Amendment right to be free

from cruel and unusual punishment). (continued...)

9

Indeed, according to the undisputed Importantly, there is no suggestion in the

evidence, Hadash’s recuperative efforts record that the delay in the decontamination

continued until the EMS arrived at the jail, and caused Gutierrez to stop breathing; indeed, the

Gutierrez was revived, though he later slipped evidence is that the jail was closer than the

into a coma. As defendants persuasively hospital. Because decontamination was the

argue, these “actions are a far cry from the only reason Garcia suggested the hospital as

deliberate indifference required to establish an alternative destination, then, nothing else

liability.” about his statement should imply that

defendants had knowledge that Gutierrez was

The district court was troubled by the fact in need of any other immediate medical

that the officers on the scene took little or no attention.

actions to evaluate Gutierrez’s medical While we are required to make all

condition before transporting him to the jail. reasonable inferences in favor of the non-

It also felt that defendants would be hard- movant, here there is simply a dearth of

pressed to establish a legitimate governmental evidence suggesting that defendants had

interest in not taking Gutierrez to the hospital subjective knowledge and a deliberate

for decontamination of the pepper spray, indifference to Gutierrez’s needs.

opining that because he was apparently Accordingly, even if we accept all of Wagner’s

unconscious at the time, therefore he no longer factual assertions as true, she still has failed to

posed a continuing threat that required that he show an issue of material fact regarding

be transported directly to the jail. This deliberate indifference to Gutierrez’s need for

decision was particularly worrisome to the medical attention, and the district court erred

court, because Hadash allegedly ignored in refusing summary judgment on this claim as

Garcia’s suggestion that Gutierrez be taken to well.

the hospital.

The order appealed from, denying summary

But again, the district court’s observations judgment, is REVERSED, and judgment is

are made through the lens of 20/20 hindsight. RENDERED for the defendant officers, and

Garcia’s suggestion that Gutierrez be taken to this matter is REMANDED for further

the hospital was based solely on a need to proceedings.

decontaminate the effects of the pepper spray.

The undisputed record establishes, however,

that such decontamination effectively could

occur in any number of places, including the

jail, the hospital, or even on the scene.

8

(...continued)

Thus, we are not required to make any inference

that such medical evidence exists or would be

discoverable; the record simply is silent in this

respect. Consequently, Wagner has failed to create

a material fact dispute as to whether Hadash

immediately began resuscitation efforts.

10