David Ivey v. Audrain County, Missouri

United States Court of Appeals

For the Eighth Circuit

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No. 19-2507

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David Ivey

lllllllllllllllllllllPlaintiff - Appellee

v.

Audrain County, Missouri

lllllllllllllllllllllDefendant - Appellant

Stephanie Hildebrand, individually and in her official capacity as a nurse for the

Audrain County Jail; John Doe, individually and in his official capacity as a guard

for the Audrain County Jail

lllllllllllllllllllllDefendants

Richard White, individually and in official capacity as guard - Audrain County

Jail; Nathanael Atkinson, individually and in official capacity as guard - Audrain

County Jail; Nicholas Jensen, individually and in official capacity as guard -

Audrain County Jail

lllllllllllllllllllllDefendants - Appellants

Advanced Correctional Healthcare, Inc.; M.D. Shawndra Brown-Foote

lllllllllllllllllllllDefendants

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Appeal from United States District Court

for the Eastern District of Missouri - Hannibal

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Submitted: June 16, 2020

Filed: August 4, 2020

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Before LOKEN, ARNOLD, and GRASZ, Circuit Judges.

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ARNOLD, Circuit Judge.

After Mark Ivey tragically died while jailed in Audrain County, Missouri, his

father, a proper plaintiff under Missouri's wrongful death statute, see Mo. Rev. Stat.

§ 537.080.1(1), sued, as relevant, three jail employees under 42 U.S.C. § 1983,

claiming they were deliberately indifferent to Ivey's serious medical needs. He also

sued their employer—the county—on the ground that its failure to train the officers

caused Ivey's death. The district court denied summary judgment to the employees on

the issue of qualified immunity—a decision they now challenge on interlocutory

appeal. The district court denied summary judgment to the county as well, and it also

appeals. We conclude the jail employees are entitled to qualified immunity but that

we lack jurisdiction to resolve the county's appeal. So we reverse and remand.

A police officer arrested Ivey one evening at a convenience store for driving

under the influence of drugs and for possessing drugs and drug paraphernalia. As the

district court explained, at the time of his arrest Ivey "was acting strangely, had

defecated on himself, and was under the influence of heroin, methamphetamine,

fentanyl and methadone." He was transported to an emergency room, diagnosed with

asthma and drug intoxication, and released that night with a letter from the hospital

saying that he was fit for confinement.

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Ivey was booked into the jail shortly after midnight. Working the jail's night

shift were guards Richard White, Nathanael Atkinson, and Nicholas Jensen. About

three hours after being booked, Ivey vomited in his cell. Atkinson and Jensen cleaned

Ivey's cell and took him to the shower so he could wash himself, and Ivey told Jensen

that he was "doing all right, just needed some water." About two hours later Ivey

vomited in his cell again and defecated on himself. From a video monitor White

observed what he described as "seizure-like symptoms" in that Ivey appeared "stiff"

and "slid off the bench onto the floor." White instructed Atkinson and Jensen to check

on Ivey, and again they cleaned Ivey's cell and took him to the shower. When Jensen

asked Ivey if he needed medical attention, he declined. White notified his supervisor,

who instructed White to monitor Ivey and ensure that the nurse who would be

arriving later that morning examine him.

The nurse examined Ivey that morning, and she knew that Ivey had been

diagnosed with asthma and was experiencing drug withdrawal. Her notes report that

Ivey complained, as relevant, of vomiting twice and having a loose stool, but she

disputes that she knew Ivey had had a seizure-like movement or that he had defecated

on himself. White maintains that he told the nurse about these things, but, in any case,

Ivey remained in the jail after the nurse's evaluation and was not transported to a

hospital.

The next evening Ivey vomited in his cell again, and officers again cleaned his

cell and took him to the shower. He ate dinner, and later that evening a qualified

mental health professional assessed his condition and noted that he was responsive,

had no complaints, and was likely withdrawing from drugs. White, Atkinson, and

Jensen later took up their posts on the night shift. At one point Ivey was moved to a

different cell without incident, and officers checked on him every hour from around

nine o'clock that night until three o'clock the next morning, at which time White

noticed that Ivey looked pale and that his chest was not rising and falling. White

therefore entered the cell to get a closer look at Ivey, saw that something was wrong,

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and immediately called for assistance. Officers performed CPR on Ivey but to no

avail; he was pronounced dead at the hospital a short time later. The coroner ruled

that Ivey died of "acute asthma exacerbation," though the court pointed out that Ivey's

cause of death was disputed because his father had produced evidence suggesting that

Ivey's withdrawal from drugs contributed to his death.

Ivey's father maintains that White, Atkinson, and Jensen violated Ivey's

constitutional rights because they were deliberately indifferent to Ivey's serious

medical needs. He maintains that the officers failed to do "what any reasonable

person would have done—call 911." Or, he goes on to say, the officers could have

called the nurse, a doctor, or at least spoken to medical personnel at the jail about

Ivey's condition, and since they didn't, "medical personnel never knew how

desperately ill [Ivey] was." Had the officers informed medical personnel of Ivey's

condition on or soon after Ivey exhibited symptoms that first night in jail, the

argument goes, Ivey could have been transported to a hospital and treated, in which

case he would not have died.

The officers moved for summary judgment on the ground that they were

entitled to qualified immunity—a legal doctrine that "shields government officials

from liability when their conduct does not violate clearly established constitutional

rights of which a reasonable person would have known." See Thiel v. Korte, 954 F.3d

1125, 1128 (8th Cir. 2020). The district court denied their motion on the ground that

genuine issues of material fact remained for a jury to settle. We have jurisdiction to

review the denial of a motion for summary judgment that was based on qualified

immunity. See Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009).

Prison officials violate the Due Process Clause of the Fourteenth Amendment

when they show deliberate indifference to a pretrial detainee's objectively serious

medical needs. See Morris v. Cradduck, 954 F.3d 1055, 1058 (8th Cir. 2020). To

succeed on this kind of claim, a plaintiff must demonstrate that a pretrial detainee had

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an objectively serious medical need that the defendants knew of and yet deliberately

disregarded. Id.

In denying qualified immunity, the district court found that Ivey's asthma and

drug withdrawal could constitute objectively serious medical needs. It also found that

the officers knew that Ivey had asthma because the hospital's letter said Ivey needed

an inhaler and because a jail intake questionnaire reported Ivey's asthma. The court

noted, moreover, that Ivey's seizure-like movements could have been a severe

consequence of drug withdrawal and a serious medical need that should have been

addressed. Finally, after noting that a factfinder could find deliberate indifference

from the fact that a medical need was obvious, the court determined that a jury here

could conclude the officers were deliberately indifferent to Ivey's objectively serious

medical needs. The officers challenge these determinations, and for purposes of this

appeal we will accept as true the facts that the district court found or likely assumed.

We have said that qualified immunity involves the resolution of two

questions—whether a defendant has violated a constitutional or statutory right and,

if so, whether that right was clearly established at the time of the defendant's conduct.

See, e.g., Santiago v. Blair, 707 F.3d 984, 989 (8th Cir. 2013). We have the discretion

to decide either question first, see id., and we think this case can be resolved on the

second question, namely, whether the officers violated clearly established law. To

prevail, Ivey's father has the burden to show that legal authorities establish beyond

debate that a constitutional violation has occurred, so that, in responding to Ivey, the

officers were plainly incompetent or knowingly violated the law. See Estate of Walker

v. Wallace, 881 F.3d 1056, 1060–61 (8th Cir. 2018).

The Supreme Court has cautioned courts not to define clearly established law

at too high a level of generality. See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018) (per curiam). We have recognized this principle in cases involving deliberate

indifference to a pretrial detainee's objectively serious medical needs. See, e.g., Ryan

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v. Armstrong, 850 F.3d 419, 426–27 (8th Cir. 2017); Barton v. Taber, 820 F.3d 958,

966 (8th Cir. 2016). The district court here defined the right at issue quite broadly

when it said that "it is unlawful to delay medical treatment for a detainee exhibiting

obvious signs of medical distress." Assuming the court's statement is true as a general

matter, its application to the situation that the officers faced here is unclear because

they encountered a detainee who declined medical assistance, and Ivey's father has

not shown that the law clearly establishes what officers must do in that situation.

At oral argument Ivey's father identified McRaven v. Sanders, 577 F.3d 974

(8th Cir. 2009) as a case that shows the officers violated Ivey's clearly established

constitutional rights. There, officers arrested someone who admitted taking several

drugs and who exhibited poor coordination, slurred speech, a flushed face, droopy

eyelids, and a low pulse, blood pressure, and temperature. Once the arrestee entered

a holding cell, he moved only once in five hours, during which time a nurse examined

him and concluded, without knowing he had taken drugs, that he was merely sleeping

off alcohol. The arrestee died at the end of that five-hour period. Id. at 978–79. We

denied qualified immunity to jail personnel in that case because they relied on the

nurse's opinion that the arrestee need not be hospitalized when they knew that opinion

was based on inaccurate information. Id. at 981–82.

The situation the officers faced here was materially different. The arrestee in

McRaven was, as the court described him, "incapacitated" and therefore presumably

unable to communicate his needs or express his distress. Ivey, on the other hand, was

conscious and able to communicate. In fact, he told the officers that he did not want

medical assistance and raised various complaints to the nurse who checked on him.

So even assuming the officers knew Ivey had asthma or was withdrawing from drugs,

the record shows Ivey affirmatively declined their offers to assist him with those

difficulties. Ivey's symptoms were also different from the ones exhibited in McRaven.

Though vomiting may indicate a serious medical need, we imagine that happens

commonly in a jail that houses people charged with driving under the influence. Cf.

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Thompson v. King, 730 F.3d 742, 748 (8th Cir. 2013). As for his having defecated on

himself while in jail, we are mindful that he also defecated on himself at the time of

arrest, and yet an emergency room still deemed him fit for confinement. Perhaps the

most serious symptom Ivey displayed was the "seizure-like" movement, but it's

unclear whether Ivey had an actual seizure, something else, or nothing at all; in any

event, he indicated to the officers when they asked him if he needed medical

assistance that all was well, and it's not beyond debate that the officers violated the

constitution when they took him at his word.

In short, we do not think that McRaven shows that the officers here violated

clearly established law and were thus plainly incompetent or knowing violators of the

law. See Wallace, 881 F.3d at 1060; cf. Krout, 583 F.3d at 569–70. And since Ivey's

father offers no other "controlling authority or a robust consensus of cases of

persuasive authority" governing the situation the officers faced here, Lane v. Nading,

927 F.3d 1018, 1022 (8th Cir. 2019), or convinced us that we are dealing with an

"obvious" constitutional violation, see Kisela, 138 S. Ct at 1153, we conclude they

are entitled to qualified immunity.

The dissenting opinion asserts that the officers are not entitled to summary

judgment because there are factual disputes as to whether they failed to give Ivey

asthma medicine as prescribed and whether they failed to monitor him properly the

night he died. The difficulty with this is that Ivey's father raised neither of these

arguments on appeal, a matter that the dissent does not dispute. More than that, we

don't think he advanced them in the trial court either. The dissent disagrees, though

it concedes that "Ivey's father focused his argument primarily on the jail employees'

failure to report the first seizure to medical officials," and offers a number of citations

to the complaint and to the summary-judgment papers to show that Ivey's father

raised these theories. But those citations are unavailing.

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First of all, Ivey's father nowhere asserts a claim based on the officers' failure

to provide Ivey asthma medication. He mentions that failure in his summary-judgment

papers, but only to undergird his contention that the officers knew of Ivey's

objectively serious medical needs but did not report them to medical personnel, a

claim we have rejected on qualified-immunity grounds. Second, none of the citations

to matters outside the complaint shows that Ivey's father raised a deliberate-

indifference claim based on the officers' failure to monitor Ivey on the night he died.

Though some vague assertions in the complaint might be taken to mean that Ivey's

father did so, he has since cleared away any ambiguity. He explained in his brief on

appeal that he "has never asserted that the Defendants did see Mark Ivey have

seizure-like movements as he died. Defendants saw Mark Ivey have a seizure a full

day before his death. And they said nothing to medical about it. That is the basis for

their deliberate indifference." So even if Ivey's father raised such a claim in his

complaint—a matter we find debatable—he has abandoned it. Though we may affirm

a district court's decision on any ground that the record supports, see King v. Fletcher,

319 F.3d 345, 347 (8th Cir. 2003), we usually do so when a party advances that

alternative ground, not when we raise the matter sua sponte without giving the

appellant a chance to respond.

The principle of party presentation counsels against adopting theories of a

plaintiff's case that he does not advance, much less one that he expressly disclaims.

As the Supreme Court recently reiterated, judges should "decide only questions

presented by the parties." See United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579

(2020) (quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987)

(Richard Arnold, J., concurring in denial of reh'g en banc)). We decline to reconfigure

and reframe the plaintiff's case.

We turn now to the county's appeal from the district court's denial of its motion

for summary judgment. In addition to resolving, at this stage, matters relating to

qualified immunity, we may also decide pendent claims "inextricably intertwined"

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with those matters. See Manning v. Cotton, 862 F.3d 663, 671 (8th Cir. 2017). Claims

are inextricably intertwined with a properly presented issue when its resolution

"necessarily resolves the pendent claims as well." Id.

The county maintains that we may resolve its appeal because our conclusion

that the officers are entitled to qualified immunity means that the county cannot be

liable. That would be correct if we had held that no constitutional violation occurred

here. See Mogard v. City of Milbank, 932 F.3d 1184, 1192 (8th Cir. 2019). But that

is not our holding. We hold only that the officers are immune from suit because they

did not violate Ivey's clearly established rights. That does not mean that they did not

violate the constitution, see Webb v. City of Maplewood, 889 F.3d 483, 487–88 (8th

Cir. 2018), which would absolve the county from responsibility for their

unconstitutional acts, if any. See Mogard, 932 F.3d at 1192. When the determination

of the county's liability does not flow ineluctably from a resolution of the qualified-

immunity issue, the question of whether it is liable for failing to train its officers is

not inextricably intertwined with the matter of qualified immunity. See Manning, 862

F.3d at 671. So we lack jurisdiction to decide the county's appeal.

Reversed and remanded.

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

The court today concludes the defendant jail employees are entitled to qualified

immunity because it believes Ivey’s father failed to establish a violation of clearly

established law related to his son’s death while in custody. But even applying our

rigorous “clearly-established” jurisprudence, I believe Ivey’s claims should survive

summary judgment. Here’s why.

“Summary judgment is appropriate only if ‘the movant shows that there is no

genuine issue as to any material fact and the movant is entitled to judgment as a

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matter of law.’” Tolan v. Cotton, 572 U.S. 650, 656–57 (2014) (quoting Fed. R. Civ.

P. 56(a)). “In making that determination, a court must view the evidence ‘in the light

most favorable to the opposing party.’” Id. at 657 (quoting Adickes v. S.H. Kress &

Co., 398 U.S. 144, 157 (1970)). Such an approach is required “even when . . . a court

decides only the clearly-established prong of the [qualified immunity] standard.” Id.

The Supreme Court has highlighted “the importance of drawing inferences in favor

of the nonmovant” when deciding whether the law was clearly established. Id.

Under such an approach, my view of this case differs from the court in a few

key ways — ways that impact whether the inaction of the jail officials violated clearly

established law.

First, the hospital’s fit-for-confinement letter indicated the jail should provide

Ivey “2 Puffs” of an albuterol inhaler every four hours as needed to treat his asthma

symptoms. Ivey was never provided albuterol while in jail. The jail employees

emphasize the “as needed” part of the instruction and ask the court to infer it was not

needed here because Ivey never asked for it. But such an inference in favor of the

moving party is not proper under Rule 56. To the contrary, the proper inference at

this stage is that Ivey should have received albuterol every four hours, or at least been

asked if he needed it. Neither occurred. Considering at least one of the causes of

Ivey’s death was determined to be acute asthma exacerbation, failing to give him

prescribed asthma medication seems legally significant. See Dadd v. Anoka Cty., 827

F.3d 749, 757 (8th Cir. 2016) (“When an official denies a person treatment that has

been ordered or medication that has been prescribed, constitutional liability may

follow.”); Phillips v. Jasper Cty. Jail, 437 F.3d 791, 796 (8th Cir. 2006) (explaining

“the knowing failure to administer prescribed medicine can itself constitute deliberate

indifference”).

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Second, as the court acknowledges, one of the defendants observed Ivey on the

video monitor exhibiting seizure-like symptoms and sliding off his bench on to the

floor during his first night at the facility. This was after he had vomited in his cell

twice and defecated on himself. Taken in a light most favorable to Ivey, these are

obvious signs of medical distress. The court minimizes these facts by claiming “it’s

unclear whether Ivey had an actual seizure, something else, or nothing at all.” Ante

at 7. But because it is unclear, I believe the proper inference to be drawn for purposes

of summary judgment is that Ivey in fact had a seizure. This is important because the

parties dispute whether the jail employees told any medical professional — including

the jail nurse who saw Ivey the next morning — about the episode. And both the

nurse and the jail doctor admitted they may have changed their approach in treating

or monitoring Ivey had they known he had a seizure.

Third, the nurse testified that, because of Ivey’s withdrawal symptoms, he

required “constant observation.” This is consistent with the jail policy for detainees

at risk of progressing to severe levels of a withdrawal, which directs them to be “kept

under constant observation by the medical and correctional staff.” According to the

nurse, jail employees should have observed Ivey on a video monitor at all times. Yet

we know both that before his death Ivey again experienced seizure-like movements,

this time for two and half minutes, and that the jail employees failed to respond to this

apparent seizure for nearly an hour. There is no evidence the jail employees saw the

seizure and ignored it. Thus, assuming the nurse’s testimony regarding a policy of

constant observation is accurate, we may infer the jail employees violated jail policy

by not constantly observing Ivey.1 This inference supports a conclusion the jail

employees were deliberately indifferent.

1

It is possible the jail employees were observing Ivey and, for some reason,

simply missed the seizure. And a jury could conclude that reason was merely

negligence as opposed to deliberate indifference. The jury could also choose not to

believe the nurse’s testimony that Ivey was supposed be under constant monitoring.

But I believe those questions are for the jury to decide.

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The upshot of these inferences is this: Viewed in a light most favorable to Ivey,

the facts demonstrate jail employees ignored medical instructions regarding Ivey’s

needed asthma medication, failed to report Ivey’s first observed seizure to health

officials, and either defied medical instruction and jail policy requiring Ivey’s

observation or observed a second seizure and then failed to respond for nearly an

hour. I believe a reasonable jail employee in July of 2016 would know such conduct

was constitutionally deficient. See Dadd, 827 F.3d at 757 (concluding jail employees

“had fair warning about the constitutionality of a failure to provide [prescribed] pain

medication”); Phillips, 437 F.3d at 796 (holding evidence an inmate was not given

the prescribed amount of anti-seizure medicine was enough to create a genuine issue

of material fact on the issue of whether jail employees were deliberately indifferent);

Gordon ex. rel Gordon v. Frank, 454 F.3d 858, 863 (8th Cir. 2006) (“A reasonable

officer would know that it is unlawful for officers to delay medical treatment for an

inmate with obvious signs of medical distress, especially one who communicates the

distress directly to officers.”).

According to the court, my conclusion improperly adopts theories neither

raised nor endorsed by the plaintiff. Respectfully, I disagree.

It is true Ivey’s father focused his argument primarily on the jail employees’

failure to report the first seizure to medical officials. However, he repeatedly raised

the failure to medicate and monitor Ivey to the district court in the operative

complaint, the brief opposing summary judgment, and the evidence presented in

support of the same.2 See Second Am. Compl.,¶¶ 21, 35–40, 93, 108, 123, ECF No.

2

The court quotes from Ivey’s father’s appellate brief to demonstrate what it

believes is his abandonment of any claim based on the failure of the jail employees

to monitor him. Ante at 8. I interpret this quote to mean Ivey’s father does not charge

jail employees with observing and failing to report the second seizure. It says nothing

about the jail employees’ failure to monitor him and therefore I see no basis to view

it as an abandonment of his claim.

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63; Pl.’s Resp. to Defs. Mot. for Summ. J., 8, 9, 11, 15, ECF No. 100. It is no surprise

then that the district court recognized Ivey’s asthma and withdrawal issues and

determined “if plaintiff’s evidence is believed, a reasonable correctional officer would

have realized that Ivey’s constitutional rights were violated when his collective

symptoms were ignored.” Mem. and Order, 7–9, ECF 120 (emphasis added). There

is plenty in the record and in the district court’s opinion about the medication and

second seizure from which we can draw when conducting our qualified immunity

analysis. See King v. Fletcher, 319 F.3d 345, 347 (8th Cir. 2003) (explaining we may

affirm the district court’s denial of summary judgment “on any basis supported by the

record”).

Indeed, we should consider all the facts in the record when assessing a claim

of deliberate indifference, especially where the defendants argue — contrary to the

district court’s conclusion — that the alleged failures were mere negligence and thus

not actionable. One way to decide whether the guards purported failure to report the

seizure was merely a mistake or an act of deliberate indifference is to consider how

the guards otherwise handled Ivey’s medical needs. A pattern of mistakes and

oversights indicates that failure to report was not merely a mistake, but rather the

result of deliberate indifference. So even if it would not be proper to view the failure

to medicate and constantly observe Ivey as independent acts of deliberate indifference

(as the court claims), the facts are nonetheless relevant to the qualified immunity

analysis.

For these reasons, I believe Ivey’s case should survive the summary judgment

stage and a jury should decide whether or not the jail officials were indeed

deliberately indifferent to Ivey’s serious medical needs. Because the court holds

otherwise, I respectfully dissent from that portion of the opinion.3

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3

I concur with the court’s judgment that we lack jurisdiction to decide the

county’s appeal.

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