Paul Cleveland v. Sid Gautreaux, III

Case: 18-30968 Document: 00515116918 Page: 1 Date Filed: 09/13/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 18-30968 September 13, 2019

Lyle W. Cayce

Clerk

PAUL A. CLEVELAND; PARIS LEBLANC; MINDY CAPELLO,

Plaintiffs-Appellees,

v.

LILLIAN BELL,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of Louisiana

Before SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.

ANDREW S. OLDHAM, Circuit Judge:

Paul Cleveland’s survivors sued a prison nurse named Lillian Bell under

42 U.S.C. § 1983 for allegedly violating his Fourteenth Amendment rights.

The district court denied qualified immunity to Nurse Bell. We reverse.

I.

Paul Cleveland was seventy-two years old when he was detained at the

East Baton Rouge Parish Prison on September 19, 2014. Upon entering the

Prison, Cleveland completed a health assessment. According to the

assessment, Cleveland had a host of health problems, including diabetes, high

blood pressure, rheumatoid arthritis, and peripheral artery disease. During

his two months at the Prison, Cleveland received medication for his conditions

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No. 18-30968

and had numerous visits with medical staff regarding a variety of health

issues.

On the morning of November 10th, Cleveland received emergency

medical treatment after he became dizzy and nauseated in the bathroom and

fainted. Nurse Ebony White checked his vital signs, treated him for a cut on

the back of his head, and put him on a list to see the next available doctor. In

the late afternoon, Cleveland said he was “going to pass out.” Nurse White

visited Cleveland, and Cleveland said he felt dizzy when sitting up or walking

long distances. Cleveland demanded to go to the hospital for evaluation and

said he wanted “pain medication to knock him out.” He reported no chest pains

or shortness of breath. Nurse White told Cleveland that he did not exhibit any

signs of acute distress, so he would not be sent to the emergency room. Instead,

Cleveland would be placed on the list to see the next available doctor for further

evaluation.

The nurses brought Cleveland back to the “medical tank,” where patients

with health issues are kept for observation by medical staff. Nurse White

wrote in her notes that Cleveland was “very argumentative” while he was in

the medical tank and was banging on the windows. Cleveland was eventually

moved from the medical tank to a single cell.

On November 11th, at around 5:54 p.m., Nurse Bell went with Officer

Richard Camp to Cleveland’s cell to give him his medication. Cleveland was

lying in bed, and Nurse Bell told him to get a cup of water so he could take his

pills. Cleveland said that he was too weak to get up. Nurse Bell told Cleveland

“to stop playing and come get your medication . . . there is nothing wrong with

you.” But Cleveland said that he couldn’t get up. Nurse Bell left and said she

would come back after completing her “pill call” with the other inmates.

Around 8:42 p.m., Nurse Bell returned and asked Officer Camp how

Cleveland was doing. Camp said he “seems to be sleeping” but had been

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turning around in his bed and occasionally hit the wall with his fist. Nurse

Bell said “okay” and returned to the medical department. Her notes in

Cleveland’s medical chart indicate that she completed a high-priority

“[l]ockdown/trusty sick call” at 11:53 p.m. But to Officer Camp’s knowledge,

Nurse Bell did not visit Cleveland again to give him his medicine.

At around 2:32 a.m. on November 12th, Officer Camp saw that Cleveland

had defecated on himself and his mattress. Officer Camp called Officers

Jasmyn Cage and Larry Turner to supervise the cleanup of Cleveland and his

cell. The officers told Cleveland to “get up off the floor and come to the bars to

be handcuffed so that his cell could be cleaned out.” But Cleveland continued

to lie on the floor and said that he was “tired.” The officers entered Cleveland’s

cell, removed his dirty mattress and jumpsuit, and allowed staff to clean his

cell. Cleveland received a clean jumpsuit, but he declined a chance to use the

shower.

During the cleanup, Officer Cage called Nurse Bell. Officer Cage told

her that Cleveland was lying “on the floor and talking about [how] he was tired

and he couldn’t get up.” Nurse Bell said she thought he was “faking” and was

“trying to get back in the infirmary.”

After the call, Officer Camp continued to make his rounds in the Prison.

According to his written report, every time he passed by Cleveland’s cell,

Cleveland “would rollover [sic] or move.” If he did not see Cleveland move, he

would talk to Cleveland. Officer Camp didn’t hold a conversation with

Cleveland but would call his name and make sure “he either moved or every

now and then . . . would answer.” Officer Camp paid “extra attention to Mr.

Cleveland because of what had occurred.” A deputy had advised Officer Camp

to keep an eye on Cleveland because Cleveland had just come back from the

medical department.

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At 4:05 a.m. on November 12th, Officer Camp passed out food to inmates.

As he gave the inmates their trays, he made sure they were awake. When

Officer Camp went to Cleveland’s cell, he noticed Cleveland was unresponsive.

He had seen Cleveland just five or ten minutes earlier. Cleveland had no pulse,

and attempts to resuscitate him proved unsuccessful.

Cleveland’s survivors sued a bevy of medical professionals and law-

enforcement officers under 42 U.S.C. § 1983 and various other provisions of

law. The district court granted summary judgment to all defendants except

Nurse Bell. It refused to grant Nurse Bell qualified immunity from a claim

alleging deliberate indifference to Cleveland’s medical needs. Nurse Bell

timely appealed.

II.

“Qualified immunity is an immunity from suit rather than a mere

defense to liability.” Pearson v. Callahan, 555 U.S. 223, 237 (2009) (quotation

omitted). “[I]t protects all but the plainly incompetent or those who knowingly

violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quotation

omitted). “[O]nce properly raised by the defendant, the plaintiff has the burden

to negate the assertion of qualified immunity.” King v. Handorf, 821 F.3d 650,

653 (5th Cir. 2016) (quotation omitted).

To negate qualified immunity, the plaintiff must make two showings.

First, the plaintiff must show the defendant violated his constitutional rights.

Pearson, 555 U.S. at 232. Second, the plaintiff must show the asserted right

was clearly established at the time of the alleged misconduct. Ibid. If the

plaintiff fails at either step, the federal court can grant qualified immunity by

addressing either step or both of them. See id. at 236; Morrow v. Meachum,

917 F.3d 870, 874 (5th Cir. 2019).

The Supreme Court has said the Eighth Amendment prohibits

“deliberate indifference” to a prisoner’s medical needs. Farmer v. Brennan, 511

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U.S. 825, 834–47 (1994). And we’ve held the same rule applies to pretrial

detainees like Cleveland under the Fourteenth Amendment. Hare v. City of

Corinth, 74 F.3d 633, 648–49 (5th Cir. 1996) (en banc).

To establish a constitutional violation, a plaintiff must show that the

defendant: (1) was “aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists”; (2) subjectively “dr[e]w the

inference” that the risk existed; and (3) disregarded the risk. Farmer, 511 U.S.

at 837. In describing the second element, the Supreme Court has emphasized

that a “prison official cannot be found liable” unless she “knows of ” an excessive

risk to inmate health or safety. Ibid. A failure to act “unaccompanied by

knowledge of a significant risk of harm” is insufficient to establish a

constitutional violation. Id. at 837–38. It is not enough to identify a significant

risk that the official “should have perceived but did not.” Id. at 838.

In this case, the district court failed to provide any analysis of why it

denied qualified immunity to Nurse Bell. Instead, it gave a one-sentence

conclusory statement: “Taking the facts in the light most favorable to

Plaintiffs permits a conclusion that, on the night before and morning of

Cleveland’s death, she acted with deliberate indifference to Cleveland’s

welfare.” Cleveland v. Gautreaux, 2018 WL 3966269, at *16 (M.D. La. Aug. 17,

2018). The court did not identify which facts showed that Nurse Bell: (1) was

aware of information that could lead to the inference that Cleveland was

experiencing a life-threatening medical emergency; (2) drew the inference and

was subjectively aware of how serious the situation was; and (3) disregarded

Cleveland’s life-threatening medical emergency, despite appreciating its

existence.

When the district court fails to identify which facts it relied on, we must

review the entire record to determine “what facts the district court, in the light

most favorable to the nonmoving party, likely assumed.” Johnson v. Jones,

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515 U.S. 304, 319 (1995). We then review de novo the district court’s

application of the law to those facts. Hare, 135 F.3d at 325.

Having reviewed the record, we find no evidence that on November 11th

or 12th, Nurse Bell subjectively “dr[e]w the inference” that Cleveland was

experiencing a life-threatening medical emergency. Farmer, 511 U.S. at 837.

The record contains statements from Nurse Bell indicating that she thought

there was nothing wrong with Cleveland and believed he was faking illness.

But nothing suggests that these statements reflected anything other than her

sincere opinion at the time. Even if we construe her statements in the light

most favorable to Plaintiffs, they are insufficient to establish that Nurse Bell

knew how serious the situation was. The Supreme Court has made clear that

actual knowledge is an essential element of Plaintiffs’ burden, as mere

negligence cannot establish a constitutional violation. Id. at 835–38. Given

the lack of evidence about Nurse Bell’s subjective awareness of a substantial

risk of serious harm to Cleveland, Plaintiffs cannot show a constitutional

violation at step one of the qualified-immunity analysis.

Plaintiffs have also failed to show a potential violation of clearly

established law at step two. The Supreme Court has repeatedly told us “not to

define clearly established law at a high level of generality.” Mullenix v. Luna,

136 S. Ct. 305, 308 (2015) (per curiam) (quotation omitted). The dispositive

question in this step of the qualified-immunity analysis is “whether the

violative nature of particular conduct is clearly established.” Ibid. (quoting al-

Kidd, 563 U.S. at 742). Cases that are “too factually distinct to speak clearly

to the specific circumstances here” are not enough to deny qualified immunity.

Id. at 312.

The district court relied on two of our decisions for the applicable clearly

established law. See Cleveland, 2018 WL 3966269, at *16 (citing McCormick

v. Stalder, 105 F.3d 1059 (5th Cir. 1997), and Fielder v. Bosshard, 590 F.2d

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105 (5th Cir. 1979)). We assume without deciding that our precedent could, in

an appropriate case, clearly establish the law. See, e.g., Taylor v. Barkes, 135

S. Ct. 2042, 2045 (2015) (per curiam) (summarily reversing the Third Circuit

for relying on circuit precedent to deny qualified immunity, but “[a]ssuming

for the sake of argument that a right can be ‘clearly established’ by circuit

precedent despite disagreement in the courts of appeals”). Even so, McCormick

does not fit the bill. That case held that the plaintiff ’s constitutional claim

regarding tuberculosis treatment was “properly dismissed as frivolous.”

McCormick, 105 F.3d at 1062. McCormick does not clearly establish anything.

And this case is much different from Fielder. While in jail, Fielder began

to experience hallucinations, behave erratically, and shake physically. Fielder,

590 F.2d at 108. Ten hours after these symptoms began, he said: “Help me. I

need a doctor.” Ibid. Jail staff never brought him to a medical professional,

and he was found dead in his cell at 7 a.m. the next day. Ibid. Here, by

contrast, Cleveland received emergency medical attention two days before he

died. The decision not to hospitalize him after he fainted on November 10th

was based on a different nurse’s medical judgment after she examined

Cleveland. Nurse Bell’s involvement began only on November 11th. That

night, she tried to give Cleveland his medication, but he refused it. A few hours

later, she returned to check up on Cleveland but decided not to visit him after

being told that he seemed to be sleeping. As we noted in Fielder, there “is a

vast difference between an earnest, albeit unsuccessful attempt to care for a

prisoner” and deliberate indifference. Ibid. Fielder’s very different facts could

not put Nurse Bell on “fair notice” that she was acting unconstitutionally.

Mullenix, 136 S. Ct. at 314 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).

Our Court has previously held that a “record of extensive medical

treatment spanning the final two and one half months” of an inmate’s

incarceration—combined with “the lack of evidence to establish the necessary

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culpable intent”—was sufficient for qualified immunity. Gobert v. Caldwell,

463 F.3d 339, 351–52 (5th Cir. 2006). Cleveland’s case is closer to Gobert than

to Fielder. Nurse Bell is therefore entitled to qualified immunity.

* * *

The district court’s denial of summary judgment to Nurse Bell is

REVERSED.

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