Anthony Brown v. Rodney Strain, Jr.

Case: 11-30082 Document: 00511670378 Page: 1 Date Filed: 11/18/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 18, 2011

No. 11-30082 Lyle W. Cayce

Clerk

ANTHONY BROWN; MONIQUE BROWN, Individually and as the natural

tutors of their minor child, Gavin Joseph Brown,

Plaintiffs–Appellees

v.

RODNEY J. STRAIN, JR.; BRYAN STEINERT

Defendants–Appellants

Appeal from the United States District Court

for the Eastern District of Louisiana

Before JOLLY, DeMOSS, and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

Defendants–Appellants Rodney J. Strain Jr. and Bryan Steinert appeal

the district court’s order denying in part their motion for summary judgment.

Because we lack jurisdiction, we dismiss the appeal.

I. BACKGROUND

Around 10:12 p.m. on February 18, 2008, St. Tammany Parish Deputy

Bryan Steinert stopped a vehicle being driven by Anthony Brown. During the

course of the stop, Steinert searched the vehicle and discovered an empty pill

bottle and a plastic bag containing cocaine residue. Steinert arrested Brown and

his two passengers, Billy Smith and Casey Lane, and placed them in the back

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No. 11-30082

of the patrol car. Steinert also placed a digital voice recorder in the patrol car

to record the suspects’ conversation while he called and waited for a wrecker to

tow Brown’s vehicle.

While in the back of the patrol car, Brown moved his handcuffed hands

from behind his back, took from Lane’s underwear a plastic bag containing

between five and nine grams of cocaine and at least one Soma pill (a prescription

muscle relaxant), and swallowed them. Before leaving the scene, Steinert

noticed that Brown had moved his hands to the front of his body, and he ordered

Brown out of the patrol car to reset the handcuffs behind Brown’s back.

Around 11:00 p.m., Steinert took the suspects to the nearby sheriff’s annex

in Slidell, Louisiana, where he listened to the audio recording of the suspects’

conversation in the patrol car. From the recording, Steinert learned that one of

the suspects had swallowed something, but claims that he was unable to

determine exactly what was swallowed by whom. Brown maintains that the

recording, which was somewhat difficult to hear, indicates only that one of the

suspects was told to “swallow it” or “eat it” without identifying exactly what was

to be swallowed. He admits hearing, however, that someone swallowed a Soma

pill. A more thorough search of Lane at the annex revealed three additional pills

hidden in her underwear, but no cocaine. Before leaving the annex, Steinert did

not inquire if any of the suspects had ingested any substance or if any of them

needed medical attention, and none of the suspects offered such information.

About two hours after arriving at the annex, Steinert left to drive the

suspects to the jail in Covington, Louisiana, about 30 miles away. Exactly what

happened during this drive is disputed.

Lane asserts that near the Interstate 12 exit for Lacombe,

Louisiana—about halfway between the annex and the jail—she told Steinert

that: Brown had swallowed a bag containing about eight grams of cocaine; he

“was talking funny,” “stuttering and slurring,” “was real pale,” and needed

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medical attention; the jail would not admit or treat him if he arrived in a poor

condition; and he needed “to go to the hospital.” Smith asserts that a few miles

before they reached the jail he told Steinert that: Brown was turning white,

shaking badly, and stuttering; the jail would not accept a person who had

something medically wrong with him; Steinert should have an ambulance

waiting at the jail for them; and if Steinert did not go directly to the hospital,

Brown “wasn’t going to make it.” They further assert that Steinert heard their

statements, was able to see Brown shaking in the back seat of the patrol car

through the rearview mirror, and was aware of Brown’s condition before arriving

at the jail, but that Steinert’s only response was to partially “crack[] the

windows” of the patrol car to give Brown some air and say that they would “be

at the jail soon.”

In contrast, Steinert asserts that he did not hear Lane’s and Smith’s

statements, that he was never told that Brown swallowed a bag of cocaine and

needed medical attention, and that he never became aware of Brown’s condition

until they arrived at the jail and he started helping Brown out of the patrol car.

He claims that the first time he learned that Brown swallowed a bag of cocaine

is when Lane told him such information after they arrived at the jail.

According to a video recording of the sally-port entrance to the jail, the

patrol car arrived at 1:43 a.m. Steinert opened the rear patrol-car door and

Brown tried to exit. Brown had difficulty balancing himself and Steinert

grabbed hold of him to help steady him. Steinert waved for assistance at 1:44

a.m., and several other jail personnel came to assist. Brown soon collapsed and

lay on the floor from 1:45 a.m. to 1:51 a.m., shaking frequently. An ambulance

was called at some point during this period. Several jail nurses came with a

wheelchair at 1:48 a.m. They checked for Brown’s vital signs but performed no

other medical procedures and left the area several minutes later but before the

ambulance arrived. It is undisputed that medical equipment and materials

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useful in treating drug overdoses were available, but none of the jail nurses on

duty were qualified to use such equipment and the on-call physician was not

called. Brown was helped to a seated position at 1:51 a.m. and stayed there,

shaking frequently, until 1:56 a.m., when an ambulance and paramedics arrived.

Between 1:45 a.m. and 1:56 a.m., Steinert and other jail personnel stood around

watching Brown but did not perform any medical procedures. The paramedics

checked Brown’s vital signs, placed him on a gurney, and then placed him in the

ambulance at 2:01 a.m.

The ambulance left the jail and headed for the hospital about three miles

away at 2:09 a.m. While in the ambulance, Brown suffered two heart attacks

and his body temperature rose to 107 degrees. This caused anoxic

encephalopathy (a shortage of oxygen to the brain) and, ultimately, permanent

brain damage. Brown survived but is totally disabled and is currently being

taken care of by his family, which includes his wife Monique and his minor son

Gavin (collectively with Brown, “Plaintiffs”).

Plaintiffs filed a civil action in the Eastern District of Louisiana on

February 18, 2009, against St. Tammany Parish Sheriff Rodney Strain and

Deputies Bryan Steinert, Julie Boynton, and Wayne Wicker, each in their

individual and official capacities. They brought claims for: (1) negligence under

Louisiana state law; and (2) deliberate indifference based on the Eighth and

Fourteenth Amendments under 42 U.S.C. § 1983. Defendants moved for

summary judgment on all claims. On December 13, 2010, the district court

granted the motion for summary judgment in part and denied it in part. The

only three issues to survive summary judgment were the state-law negligence

claim and the § 1983 claims against Steinert in his personal capacity and Strain

in his official capacity. Only the two § 1983 claims are currently before us.

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II. JURISDICTION AND STANDARD OF REVIEW

“Although a denial of a defendant’s motion for summary judgment is

ordinarily not immediately appealable, the Supreme Court has held that the

denial of a motion for summary judgment based upon qualified immunity is a

collateral order capable of immediate review.” Kinney v. Weaver, 367 F.3d 337,

346 (5th Cir. 2004) (en banc) (citing Mitchell v. Forsyth, 472 U.S. 511, 530

(1985)). Such an order is only immediately appealable, however, “to the extent

that the district court’s order turns on an issue of law.” Kovacic v. Villarreal,

628 F.3d 209, 211 (5th Cir. 2010).

“The standard of review that we apply in an interlocutory appeal asserting

qualified immunity differs from the standard employed in most appeals of

summary judgment rulings.” Kinney, 367 F.3d at 347. Because “in an

interlocutory appeal we lack the power to review the district court’s decision that

a genuine factual dispute exists[,] . . . [we] consider only whether the district

court erred in assessing the legal significance of the conduct that the district

court deemed sufficiently supported for purposes of summary judgment.” Id. at

348 (citing Behrens v. Pelletier, 516 U.S. 299, 313 (1996)).

III. APPLICABLE LAW

A. Qualified Immunity

“The doctrine of qualified immunity protects public officials from liability

for civil damages ‘insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.’” Jennings v. Patton, 644 F.3d 297, 300 (5th Cir. 2011) (quoting Pearson

v. Callahan, 555 U.S. 223, 231 (2009)). To determine whether a public official

is entitled to qualified immunity, we inquire: “(1) whether the facts that the

plaintiff has alleged make out a violation of a constitutional right; and (2)

whether the right at issue was ‘clearly established’ at the time of the defendant’s

alleged misconduct.” Id. (citing Pearson, 555 U.S. at 815–16). It is undisputed

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that the right at issue—to receive medical care during pretrial

confinement—was clearly established at the time of Steinert’s alleged

misconduct. See Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996)

(en banc). A pretrial detainee’s right to medical care is violated if “an officer acts

with deliberate indifference to a substantial risk of serious medical harm and

resulting injuries.” Mace v. City of Palestine, 333 F.3d 621, 625 (5th Cir. 2003).

Thus, Steinert would not be entitled to qualified immunity if Plaintiffs had

alleged facts showing that Steinert was deliberately indifferent to the

substantial risk of medical harm Brown faced after ingesting the cocaine.

B. Plaintiffs’ Constitutional Claims

“The appropriate standard to apply in analyzing constitutional challenges

brought by pretrial detainees depends on whether the alleged unconstitutional

conduct is a ‘condition of confinement’ or ‘episodic act or omission.’” Tamez v.

Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (quoting Scott v. Moore, 114 F.3d 51,

53 (5th Cir. 1997) (en banc)). This action is properly analyzed as an “episodic act

or omission” case because Plaintiffs allege that Brown’s constitutional rights

were violated by Steinert’s refusal to provide Brown with immediate medical

treatment, which is “a particular act or omission of one or more officials.” Id. at

769–70 (quoting Scott, 114 F.3d at 53) (internal quotation marks omitted). We

apply the “deliberate indifference” standard in episodic act or omission cases.

Id. at 769. Under that standard, Plaintiffs must establish that Steinert “acted

with subjective deliberate indifference to [Brown’s] need for medical care.” Id.

at 770. To show subjective deliberate indifference, Plaintiffs must present

evidence: (1) that Steinert had “subjective knowledge of facts from which an

inference of substantial risk of serious harm could be drawn”; (2) that Steinert

“actually drew that inference”; and (3) that Steinert’s response to the risk

indicates that he “subjectively intended that harm to occur.” Id. (internal

quotation marks omitted).

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IV. DISCUSSION

A. Plaintiffs’ Claim Against Steinert

Whenever a “district court denies an official’s motion for summary

judgment predicated upon qualified immunity, the district court can be thought

of as making two distinct determinations, even if only implicitly.” Kinney, 367

F.3d at 346. “First, the district court decides that a certain course of conduct

would, as a matter of law, be objectively unreasonable in light of clearly

established law.” Id. Here, the district court explicitly determined that “[i]f

Steinert had the knowledge that Mr. Brown needed urgent medical care,

then . . . [his] refusal to provide Mr. Brown with medical care would be

objectively unreasonable in light of established law.” Brown v. Strain, No. 2:09-

CV-2813, slip op. at 15 (E.D. La. Dec. 13, 2010). Steinert does not appeal this

determination.

“Second, the court decides that a genuine issue of fact exists regarding

whether the defendant(s) did, in fact, engage in such conduct.” Kinney, 367 F.3d

at 346. “[W]e lack jurisdiction to review conclusions of the second type on

interlocutory appeal.”1 Id. The district court determined that “[t]he evidence

Plaintiffs provide establishes at least a genuine issue of material fact as to

whether Steinert was aware that Mr. Brown had swallowed a large amount of

cocaine and needed urgent medical care.” Brown, slip op. at 13. Steinert

appealed this determination, which is precisely the type of factual conclusion we

are without jurisdiction to review on interlocutory appeal. See Kinney, 367 F.3d

at 347 (“[W]e have jurisdiction only to decide whether the district court erred in

1

Because of this limitation on our appellate jurisdiction, “officials may sometimes be

required to proceed to trial even though the ultimate resolution of th[e] factual disputes may

show that they are entitled to qualified immunity from liability.” Kinney, 367 F.3d at 346 n.8.

While this “‘threatens to undercut’ the policy of affording immunity from

trial, . . . ‘countervailing considerations’ nonetheless support this limitation on interlocutory

jurisdiction.” Id. (citing Johnson v. Johnson, 515 U.S. 304, 317–18 (1995)).

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concluding as a matter of law that officials are not entitled to qualified immunity

on a given set of facts.” (emphasis added)).

Steinert disagrees with the district court about what inferences a jury

could appropriately draw from the district court’s factual findings.2 He points

to Brown’s, Lane’s, and Smith’s various lies and deceptions during the course of

their interactions with Steinert prior to the drive to the jail, and to Steinert’s

assertions of what he was aware of and when, as reasons why the district court

erred in finding the alleged facts could support a finding of deliberate

indifference. Steinert’s arguments, however, are directed at the credibility of the

witnesses and the truth of the facts alleged; they are not directed at whether the

facts, taken as true, could legally support an inference of deliberate indifference

by Steinert during the drive to the jail. Steinert gives no persuasive reason why

Plaintiffs’ allegations that he was aware that Brown had overdosed on cocaine

and needed immediate medical treatment are legally insufficient to either

support their claim or defeat his qualified immunity defense, which are analyzed

using the same deliberate indifference standard. See Tamez, 589 F.3d at 771

2

In its order denying summary judgment on this issue, the district court made the

following findings:

First, Steinert had initiated Mr. Brown’s arrest based on the discovery of an

empty bag of cocaine. Second, Steinert was aware that Mr. Brown had moved

his hands to his front for some reason. Third, the recording Steinert listened

to at the Slidell Complex suggested that one of the three arrestees had

swallowed something. Fourth, Plaintiffs submit that they actually told Steinert

that Mr. Brown had swallowed a quarter-ounce of cocaine and needed

immediate medical attention. Fifth, Plaintiffs have produced numerous

depositions that indicate that Sheriff Strain’s deputies knew that the Covington

jail would refuse medical treatment of arrestees that had pre-existing illnesses

or injuries. Finally, the video of the Covington jail shows quite clearly that Mr.

Brown was already in a medical emergency upon arrival at the sally port, so it

is unlikely that he was not exhibiting some symptoms of overdose during the

ride to the jail. Based on this evidence a rational jury could conclude that

Steinert had drawn the inference that Mr. Brown needed to be taken to the

hospital and that he intended on denying Mr. Brown the care he required by

continuing to the jail, where Mr. Brown would not receive treatment.

Brown, slip op. at 13–14.

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(stating that had the defendant officials been told to take the plaintiff to the

hospital and failed to do so, “the case would be different”). Accordingly,

Steinert’s appeal is dismissed for lack of jurisdiction.

B. Plaintiffs’ Claim Against Strain

For different reasons, we lack jurisdiction to review the district court’s

order with respect to Plaintiffs’ claim against Strain. Because Strain is being

sued in his official capacity as St. Tammany Parish Sheriff, the suit against him

is “in essence” a suit against a municipality. See Woodard v. Andrus, 419 F.3d

348, 352 (5th Cir. 2005) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690

n.55 (1978)). “Municipal governments may not raise immunity defenses on

interlocutory appeal.” Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d 388, 392

(5th Cir. 2000).

Acknowledging this jurisdictional hurdle, Strain urges us to exercise

“pendent appellate jurisdiction” over the district court’s order with respect to

Plaintiffs’ claim against him. “[I]n rare and unique circumstances where a final

appealable order is ‘inextricably intertwined’ with an unappealable order or

where review of the unappealable order is necessary to ensure meaningful

review of the appealable order,” we may exercise pendent appellate jurisdiction.

Byrum v. Landreth, 566 F.3d 442, 449–50 (5th Cir. 2009) (quoting Thornton v.

GM, 136 F.3d 450, 453 (5th Cir. 1998)). Because we lack jurisdiction over

Steinert’s appeal, however, there is no appealable order to which Strain’s appeal

can be pendent. Accordingly, it too is dismissed for lack of jurisdiction

CONCLUSION

Appellants’ appeal is DISMISSED for lack of jurisdiction.

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