Dennis Ryan, Jr. v. Officer Mary Armstrong

United States Court of Appeals

For the Eighth Circuit

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No. 16-1341

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Dennis Ryan, Jr., as trustee for the heirs and next of kin of Jerome Deon Ladette Harrell

lllllllllllllllllllll Plaintiff - Appellant

v.

Officer Mary Armstrong; Officer Patrick Culloton; Officer Craig Stowell; Officer

Gilbert Michalski; Officer Mark Hill; Officer Joseph Klebs; Sergeant Mark

Maslonkowski; Officer Adam Seifferman, individually and in their official

capacity; Captain Pam Jensen, individually and in her official capacity; Stearns County

lllllllllllllllllllll Defendants - Appellees

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Appeal from United States District Court

for the District of Minnesota - Minneapolis

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Submitted: December 13, 2016

Filed: March 7, 2017

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Before LOKEN, MURPHY, and KELLY, Circuit Judges.

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MURPHY, Circuit Judge.

In February 2012 Jerome Harrell surrendered to the Stearns County jail in

response to outstanding traffic warrants. He was booked and held overnight. During

that time he exhibited bizarre and erratic behavior. The following morning

correctional officers decided to remove Harrell from his cell for a medical assessment.

Harrell became unresponsive during the removal procedure and died. The trustee of

Harrell's estate sued Stearns County and various correctional officers (collectively the

defendants) under 42 U.S.C. § 1983 for violations of Harrell's constitutional rights

as well as other claims. The district court granted summary judgment to the

defendants. We affirm in part, reverse in part, and remand for further proceedings.

I.

Early in the evening of February 23, 2012 Jerome Harrell surrendered to the

Stearns County jail in response to outstanding traffic warrants. Although Harrell was

initially cooperative with efforts to book him into the jail, the officer who completed

Harrell's initial classification worksheet marked that Harrell had "special needs" and

noted that he "appear[ed] high." During the intake process Harrell also began talking

about a shooting that had occurred near St. Cloud State University a few days before.

Harrell said he "wanted to help the cops figure [it] out" because "[the cops] think it

was him" even though he had heard the suspect in the shooting "was wearing a face

mask and that the guy had tattoos on his hands" which Harrell did not. Harrell also

mentioned that he had just watched a documentary about the rapper Tupac Shakur

and "needed to come clean." Based on Harrell's comments during the intake process,

a detective from the St. Cloud police department went to the jail at 9:30 pm to meet

with him. The meeting lasted approximately one hour; officers noted that Harrell

"appeared anxious" after it.

At 11:00 pm that night there was a shift change for the correctional officers.

Defendants Mary Armstrong and Patrick Culloton came on duty and were informed

at the start of their shift that Harrell appeared high and had exhibited strange

behavior. One of the duties of officers at the jail was to perform well being checks

(WBCs) every half hour on detainees. Armstrong and Culloton observed that Harrell

was behaving oddly during their half hour checks from the beginning of their shift.

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When Armstrong checked on Harrell, she saw him "spring up from his bunk with

lunging movements and start moving his body as though he was an animal." She also

said that Harrell made "loud howling and screaming vocals" throughout the night.

Culloton stated that Harrell also banged on his cell door. His behavior was disruptive

enough that other detainees asked to have him moved or quieted. Neither Armstrong

nor Culloton talked to Harrell during their shift, however, nor did they enter his cell.

Although they monitored his behavior by regular checks, they did not request any

medical assistance. They were relieved by a new shift of officers shortly before 7:00

am and reported Harrell's behavior to them.

Defendant Mark Hill, one of the officers on the new shift, checked on Harrell

shortly after he came on duty. In the course of his checks, Hill observed Harrell

"making loud howling noises and pounding on the door." He was also "splashing

water from the sink all over the cell with a sheet." At around the same time as Hill

made these observations, supervising officer Pam Gacke asked the jail's medical staff

to assess Harrell. Since the medical staff believed that Harrell needed to be placed

in a restraint chair during that process, he was removed from his cell by a team of four

officers (defendants Craig Stowell, Joseph Klebs, Gilbert Michalski, and Adam

Seifermann). At the time the team went to enter Harrell's cell, it found him

completely naked with a wet sheet draped over his head, screaming and banging on

the door. Team members made a video of him shortly before his removal from the

cell.

The team's efforts to remove Harrell from his cell were videotaped. When

Gacke directed Harrell to back away from his door and lie on his bunk, he did not

comply. Then, as the extraction team entered his cell, Harrell rushed at the first

officer. The team attempted to subdue Harrell, but he continued actively resisting and

bit one of the officers. During this struggle Harrell was knocked to the floor, and

several officers held him down while attempting to place his wrists and ankles in

restraints. One twice used a taser in drive stun mode.

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Once the officers succeeded in handcuffing Harrell, they used scissors to cut

away a sheet he had wrapped around his head. Approximately five minutes after the

officers first entered Harrell's cell, they found he was no longer responsive. They

moved him from his cell to a lower level of the jail where staff attempted to revive

him until an ambulance arrived. Harrell was transported to the hospital where he was

pronounced dead at 10:00 am.

An autopsy found no significant injury or trauma. Harrell's immediate cause

of death was described as "sudden unexpected death during restraint." An

investigator who photographed the interior of Harrell's cell shortly after his removal

noted that "[t]here was . . . a large pool of blood on the floor that had come from a

laceration to Jerome Harrell's head."

The trustee of Harrell's estate filed this lawsuit after his death, alleging that

individual correctional officers and Stearns County had violated Harrell's

constitutional rights with deliberate indifference to his serious medical needs and

excessive force. The individual defendants moved for summary judgment on the

basis of qualified immunity. The district court granted them summary judgment after

concluding they had not violated Harrell's constitutional rights. It also granted

summary judgment on the trustee's claims for failure to train or properly supervise

and dismissed the trustee's remaining state law claims without prejudice. The trustee

appeals.

II.

Summary judgment is appropriate if "there is no genuine dispute as to any

material fact." Fed. R. Civ. P. 56(a). Our review is de novo, construing the facts in

the light most favorable to the nonmoving party. Letterman v. Does, 789 F.3d 856,

858, 861 (8th Cir. 2015). Before the district court and now again on appeal, the

defendants argue that they are entitled to summary judgment on the basis of qualified

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immunity. A government official is entitled to qualified immunity unless he has

violated a clearly established constitutional right. Pearson v. Callahan, 555 U.S. 223,

232 (2009).

A.

The trustee first claims that the district court erred by granting summary

judgment to defendants Armstrong and Culloton1 on the claim that they were

deliberately indifferent to Harrell's serious medical need by failing to seek treatment

for him during their shift. The parties agree that Harrell was a pretrial detainee during

his time at the jail and that his deliberate indifference claim is based on the due

process clause of the Fourteenth Amendment.2 The standard we apply in this context

"borrow[s] from the Eighth Amendment deliberate-indifference standard applicable

to claims of prison inmates." Bailey v. Feltmann, 810 F.3d 589, 593 (8th Cir. 2016).

In order to succeed on a deliberate indifference claim, a pretrial detainee must show

that he "suffered from an objectively serious medical need" and that one or more

defendants "had actual knowledge of that need but deliberately disregarded it." Id.

1

In his opening brief and again at oral argument trustee's counsel suggested that

he had also alleged deliberate indifference by the other individual defendants for their

actions immediately prior to and during the extraction of Harrell from his jail cell.

This claim was not pled in the trustee's complaint, however, and was not otherwise

presented to the district court. Since we do not consider claims made for the first time

on appeal, see Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004), we limit our

consideration of the trustee's deliberate indifference claim to the actions of defendants

Armstrong and Culloton.

2

We have previously noted that in this circuit it is an open question whether the

standard of the Fourth or the Fourteenth Amendment applies to medical care claims

of arrestees. See Bailey v. Feltmann, 810 F.3d 589, 593 (8th Cir. 2016). Since the

trustee asserts here that Harrell was a pretrial detainee and "cites authorities applying

due process analysis," we address his arguments accordingly. Carpenter v. Gage, 686

F.3d 644, 650 (8th Cir. 2012).

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at 593–94. We have repeatedly observed that ascertaining "[w]hether an official was

deliberately indifferent requires both an objective and a subjective analysis." Jackson

v. Buckman, 756 F.3d 1060, 1065 (8th Cir. 2014).3

The objective component of a claim for deliberate indifference to serious

medical needs is satisfied if the medical need in question "is supported by medical

evidence, such as a physician's diagnosis, or is 'so obvious that even a layperson

would easily recognize the necessity for a doctor's attention.'" Bailey, 810 F.3d at

594 (quoting McRaven v. Sanders, 577 F.3d 974, 982 (8th Cir. 2009)). The district

court assumed arguendo that Harrell was suffering from an objectively serious

medical need during his time at the jail, and the defendants have not contested that.

The record shows that Harrell screamed, howled, and banged his head against the

door of his cell for some eight hours. In such a situation "even a layperson would

easily recognize the necessity for a doctor's attention." McRaven, 577 F.3d at 982

(internal quotation marks omitted). We agree with the district court that the key

question here is not whether Harrell's medical need was objectively serious, but

whether Armstrong and Culloton "had actual knowledge of [Harrell's] need but

deliberately disregarded it." Bailey, 810 F.3d at 594.

Establishing the subjective component of a deliberate indifference claim

requires showing "a mental state akin to criminal recklessness" and neither

negligence nor gross negligence are sufficient. Thompson v. King, 730 F.3d 742,

3

In Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), the Supreme Court

rejected analysis of a defendant's subjective state of mind in excessive force cases and

concluded "the appropriate standard for a pretrial detainee's excessive force claim is

solely an objective one." Id. at 2472–73; see also Castro v. Cty. of Los Angeles, 833

F.3d 1060, 1069–71 (9th Cir. 2016) (en banc) (applying Kingsley to deliberate

indifference claims).

We need not decide the applicability of Kingsley to deliberate indifference

claims here; even if subjective analysis of these claims is still warranted we conclude

the district court erred in granting summary judgment to the defendants.

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746–47 (8th Cir. 2013) (internal quotation marks omitted). The requisite mental state

may be established through circumstantial evidence, as "a factfinder may determine

that a defendant was actually aware of a serious medical need but deliberately

disregarded it, from the very fact that the [medical need] was obvious." Id. at 747

(quoting Vaughn v. Gray, 557 F.3d 904, 908–09 (8th Cir. 2009)). Similarly, an

obviously inadequate response may create "an inference that the officer recognized

the inappropriateness of his conduct." Id. (internal quotation marks omitted).

Evaluating the record before us in the light most favorable to the trustee, we

conclude that genuine issues of fact remain on the question of whether defendants

Armstrong and Culloton were deliberately indifferent to Harrell's serious medical

needs when they allowed him to scream, howl, and bang against his cell door for

eight hours without attempting to talk to him or seek medical intervention. It is

undisputed that Armstrong and Culloton knew from the beginning of their shift that

Harrell was acting peculiarly and both witnessed him engage in strange and disruptive

behavior throughout the night. Other detainees even asked Culloton to move Harrell

or to make him quiet down. From this evidence a reasonable factfinder could

conclude that Harrell was suffering from an obvious medical need and that the failure

to talk with Harrell or seek medical treatment for him was a clearly inadequate

response that supports an inference of deliberate indifference. See Thompson, 730

F.3d at 747. A reasonable factfinder could therefore conclude that the defendants

violated Harrell's constitutional rights.

Additional facts in the record would also support that conclusion. For

example, supervising officer Gacke heard about Harrell’s behavior shortly after she

came on duty at 6:30 am on February 24, 2012 and immediately notified medical staff

at the jail that they needed to see him. The fact that she told medical staff at once that

Harrell needed attention on the basis of behavior that he had been exhibiting for

nearly eight hours could support a finding that Harrell's medical need was obvious

and that the failure by Armstrong and Culloton to seek medical intervention was a

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deliberately indifferent response. Moreover, the investigator who examined Harrell's

cell shortly after his removal noted that there was "a large pool of blood on the floor

that had come from a laceration to Jerome Harrell's head." It is unclear when this

pool of blood appeared. Viewing the evidence in the light most favorable to the

trustee, however, it is possible the laceration and blood resulted from Harrell's

banging his head throughout the night as Culloton observed, and that the laceration

and blood appeared while he and Armstrong were on duty. If these facts were

established, they could support a factfinder's determination that Armstrong and

Culloton were deliberately indifferent to Harrell's serious medical needs.

We conclude that the district court erred by granting summary judgment to

Armstrong and Culloton on the ground that they were entitled to qualified immunity.

Because we conclude that a reasonable factfinder could determine that Armstrong and

Culloton were deliberately indifferent to Harrell’s serious medical needs, we must

consider whether Harrell’s right to be free of such treatment was clearly established

at the time. See Pearson, 555 U.S. at 232. Although the district court did not reach

this question, "[w]hether an asserted federal right was clearly established at a

particular time, so that a public official who allegedly violated the right has no

qualified immunity from suit, presents a question of law" which "must be resolved de

novo on appeal." Elder v. Holloway, 510 U.S. 510, 516 (1994). We may therefore

consider whether the constitutional right at issue was clearly established in the first

instance. See Canal Ins. Co. v. Ashmore, 126 F.3d 1083, 1086 (8th Cir. 1997).

It is a "longstanding principle that 'clearly established law' should not be

defined 'at a high level of generality.'" White v. Pauly, 137 S. Ct. 548, 552 (2017)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). For a right to be clearly

established, "existing precedent must have placed the statutory or constitutional

question beyond debate." Id. at 551 (internal quotation marks omitted). A plaintiff

need not produce a case directly on point for us to conclude that the right he alleges

was violated was clearly established at the time of the violation, however. Id. In all

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cases, "[t]he dispositive question is whether the violative nature of particular conduct

is clearly established . . . in light of the specific context of the case." Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (citations omitted) (internal quotation marks

omitted).

As previously recognized, we "deemed it clearly established by 2008 that a

pretrial detainee . . . has a right to be free from deliberately indifferent denials of

emergency medical care." Bailey, 810 F.3d at 593. It may be inferred on this record

that defendants Armstrong and Culloton were deliberately indifferent to Harrell's

objectively serious medical need. We conclude that the violated right alleged by the

trustee was clearly established at the time of these actions. See also Thompson, 730

F.3d at 749 (affirming denial of qualified immunity to a correctional officer in a case

where "anyone witnessing [the detainee's] condition at the jail would have recognized

he needed medical attention" and the defendant "did nothing in response"). We

therefore reverse the grant of qualified immunity to defendants Armstrong and

Culloton on the trustee's deliberate indifference claims.

B.

The trustee also claims that the district court erred in granting qualified

immunity to the defendants on his excessive force claims. We analyze the excessive

force claims of pretrial detainees under an objective reasonableness standard.

Kingsley, 135 S. Ct. at 2473. Whether the application of force is unreasonable "turns

on the 'facts and circumstances of each particular case.'" Id. (quoting Graham v.

Connor, 490 U.S. 386, 396 (1989)). We must assess the actions of each officer "from

the perspective of a reasonable officer on the scene, including what the officer knew

at the time, not with the 20/20 vision of hindsight." Id. Factors relevant to assessing

the objective reasonableness of force used by officers include:

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the relationship between the need for the use of force and the amount of

force used; the extent of the plaintiff's injury; any effort made by the

officer to temper or to limit the amount of force; the severity of the

security problem at issue; the threat reasonably perceived by the officer;

and whether the plaintiff was actively resisting.

Id.

The trustee's excessive force claim stems from the defendants' actions in

extracting Harrell from his jail cell on the morning of February 24, 2012. The

trustee's excessive force allegations primarily focus on two categories of force used

by the defendants: (1) the placing of body weight on Harrell while he was on the

ground in a prone position, and (2) the deployment of a taser in drive stun mode on

two occasions against Harrell during the extraction. After careful review of the

record, including the video of the extraction procedure, we conclude that the

defendants' actions, both individually and in combination, were objectively

reasonable under the circumstances. We therefore conclude that the defendants are

entitled to qualified immunity on the trustee's excessive force claim.

Several factors support the foregoing conclusion. Among the most important

is the observation that Harrell was actively resisting the extraction procedure by

ignoring directives to lie down on his bunk and resisting the defendants' efforts to

subdue him once they entered his cell. The defendants' testimony about the degree

of Harrell's resistance is corroborated in that multiple defendants purportedly

sustained minor injuries, including a defendant who was bitten by Harrell. The video

of the extraction shows that the whole procedure lasted no more than five minutes and

that the defendants used the weight of their bodies to restrain Harrell for

approximately three minutes while he was actively resisting. The defendants' use of

a taser was also restricted to the period in which Harrell was fighting the defendants'

efforts to subdue him. The defendants are alleged to have twice used the taser set to

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drive stun mode, not an incapacitating mode. See De Boise v. Taser Int'l, Inc., 760

F.3d 892, 895 n.5 (8th Cir. 2014). The autopsy performed after Harrell’s death

showed that he had suffered no significant injury or trauma and listed the immediate

cause of death as "sudden unexpected death during restraint."

Under the totality of these circumstances, we conclude that none of the

defendants' actions, either singly or in combination, amounted to an objectively

unreasonable application of force. See Blazek v. City of Iowa City, 761 F.3d 920,

923 (8th Cir. 2014) (noting that we have rejected an excessive force claim where an

officer "'forcefully threw' the plaintiff to the ground, pinned him down, and placed

his weight into the plaintiff's back before handcuffing him" even though the plaintiff

had only been passively resisting); Carpenter, 686 F.3d at 649–50 (affirming grant of

qualified immunity on excessive force claims to officers who twice tased an

individual resisting arrest). The trustee has thus failed to show that there are genuine

factual issues that remain on the question of whether the defendants violated Harrell's

right to be free from excessive force. We therefore affirm the district court's grant of

summary judgment on the basis of qualified immunity to the defendants on the

trustee's excessive force claim.

C.

The trustee also pled a failure to train claim. The district court granted the

defendants' motion for summary judgment on this claim on the ground that municipal

liability cannot attach absent liability on an underlying substantive claim. See Abbott

v. City of Crocker, 30 F.3d 994, 998 (8th Cir. 1994). Since we have reversed the

grant of summary judgment on the trustee's substantive deliberate indifference claim,

we also reverse on the trustee's failure to train claim.

The district court declined to exercise supplemental jurisdiction over state law

claims pled in the trustee's complaint and therefore dismissed them without prejudice.

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See 28 U.S.C. § 1367(c)(3). Since we are remanding some of the trustee's federal

claims for further proceedings, we also vacate the dismissal of the trustee's state law

claims and remand them to the district court.

III.

Accordingly, we affirm in part and reverse in part the judgment of the district

court. The case is remanded for further proceedings consistent with this opinion.

LOKEN, Circuit Judge, concurring in part and dissenting in part.

I concur in Part II.B. of the court’s opinion. I respectfully dissent from Parts

II.A., II.C., and III. In my view, the grant of summary judgment in favor of

defendants Mary Armstrong and Patrick Culloton should be affirmed for the reasons

stated by the district court in its Memorandum Opinion and Order dated January 5,

2016. I would therefore affirm the judgment of the district court.

KELLY, Circuit Judge, concurring in part and dissenting in part.

I concur in sections II.A and II.C of the court’s opinion, but I respectfully

dissent as to II.B. In my view, genuine issues of material fact remain on the trustee’s

excessive force claim. I do not dispute that the officers were entitled to use some

degree of force to remove Harrell—who was acting oddly, kicking the door, and

howling—from his cell. See Kingsley, 135 S.Ct. at 2472–73 (noting that to be held

unconstitutional, force knowingly used against pretrial detainee must be objectively

unreasonable). But evidence was offered that, viewed in the light most favorable to

the trustee, the force the officers continued to use was excessive under the

circumstances. See Murchison v. Rogers, 779 F.3d 882, 886–87 (8th Cir. 2015)

(noting that our review of the grant of summary judgment is de novo, and we view

the evidence in the light most favorable to the non-movant, giving the non-movant

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the benefit of all reasonable inferences). The video of the extraction showed five to

six officers crowding into Harrell’s eight by ten foot cell, in which a bunk and a toilet

consume most of the space. Harrell was almost immediately taken to the ground and

was quickly handcuffed behind his back. For approximately the first minute and a

half of the extraction, although he is heard yelling, Harrell is not visible on the video

because he is surrounded by the officers. When Harrell appears, he is face down on

the floor, naked and with a wet sheet tightly wrapped around his face; he is still being

restrained but he has stopped making any noise at all.

The trustee presented evidence that the officers understood that placing a

person in the prone position and applying pressure to his back, as the officers

admitted they did here, could cause breathing difficulty. The trustee also presented

evidence that the officers recognized that Harrell exhibited symptoms of a condition

known as excited delirium syndrome (EDS), which they knew could exacerbate the

risk of asphyxiation. While the court views the video as showing Harrell actively

resisting for three minutes, in my opinion, the video shows that after about 80 to 90

seconds, Harrell stopped struggling. While their weight was still on Harrell’s back,

the officers shackled his ankles with his legs crossed and bent back at the knees.

Viewing the evidence in the light most favorable to the trustee, a reasonable jury

could find that too many officers entered a small cell and exerted too much pressure

on a distraught man lying prone, thus placing him at high risk of asphyxiation. A

reasonable jury could likewise find that Harrell’s bizarre behavior warranted the use

of multiple officers to restrain him in the manner that they did. But these are factual

matters that remain in dispute, and are not for the court to decide at summary

judgment.

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