# Russell Durham v. Mahdee Nu'man Roy Hill James Burke Ricky Rhodes, Donnie Glover George Nichols Becky Ahlers Nasiruddin Siddiqui Farahieh Rabbani > Court of Appeals for the Sixth Circuit · November 22, 1996 · 97 F.3d 862 URL: https://www.frixlaw.com/law-library/cases/9489658 ## Case - **Full name:** Russell DURHAM, Plaintiff-Appellant, v. Mahdee NU’MAN; Roy Hill; James Burke; Ricky Rhodes, Defendants, Donnie Glover; George Nichols; Becky Ahlers; Nasiruddin Siddiqui; Farahieh Rabhani, Defendants-Appellees - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** November 22, 1996 - **Citations:** 97 F.3d 862 - **Precedential status:** Published - **Opinion:** Concurring in part by Duggan - **Judges:** Merritt, Cole, Duggan - **Cited by:** 120 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9489658 ## How later opinions describe it (automated extraction) - holding that where the fact that prisoner’s arm was broken was not readily apparent as it was not swollen and prisoner did receive medical attention in the form of sutures for a cut above his arm and an examination of his arm, prisoner’s complaints go only to the adequacy of m… - reversing district court grant of summary judgment in favor of nurse for failure to intervene, because her actions precipitated use of force by officers and “precedent holding police officers and correctional officers liable for failure to intervene was sufficient to place the… - holding that qualified immunity was improper for a security officer and a nurse who witnessed the beating of a shackled patient but did not try to stop it - holding that jury could find hospital security officer and nurse liable for failing to intervene while inmate was assaulted by hospital security - reversing award of summary judgment for the defendant where a beating “lasted approximately ten minutes” and the defendant nurse “watched the beating unfold on her monitor from the nurse’s station, and then from the doorway of ... the room where the beating took place” ## Opinion text DUGGAN, District Judge, concurring in part, and dissenting in part. I concur with the majority except with respect to Nurse Ahlers. While I agree that the evidence, viewed in a light most favorable to plaintiff, could lead a jury to conclude that Nurse Ahlers had the opportunity and ability to prevent the beating, I am not persuaded that she had a “clearly established” duty to do so. I am aware of no precedent from this or any other court that has imposed liability on an individual (other than a police, correctional or security officer) for his or her failure to intervene, simply because he or she was, arguably, in a position to have prevented the beating. 1 The doctrine of qualified immunity is intended to shield from suit those officials whose wrongful conduct 2 was not clearly established as a constitutional violation at the time the conduct occurred. “For a right to be clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what [s]he is doing violates that right. To be outside the scope of qualified immunity, the very action in question need not have previously been held unlawful, but the unlawfulness must be apparent in light of pre-existing law.” Thomas v. Whalen, 51 F.3d 1285, 1289-90 (6th Cir.), cert. denied, — U.S. -, 116 S.Ct. 518 , 133 L.Ed.2d 426 (1995). See Walton v. City of Southfield, 995 F.2d 1331, 1335-36 (6th Cir.1993). While Nurse Ahlers’ inaction was, at the very least, improper, I do not believe that it was “clearly established” that her failure to intervene would be deemed a constitutional violation. Because I do not believe that any decisions from this Court, or any other court for that matter, outline “the contours of the right” in a sufficiently clear manner so that a reasonable official in Nurse Ahlers’ position would understand that what she was doing (or not doing) violates a constitutional right, see Whalen and Walton , I believe that Nurse Ahlers is entitled to qualified immunity. I would therefore affirm the District Court’s decision with respect to her. . I agree with the majority that defendant Glover, a security officer, occupies a “law enforcement” position and thus is not entitled to qualified immunity. . In discussing the issue of “immunity”, we assume that the conduct was "wrongful”; otherwise, there would be no need to discuss the issue of immunity. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9489658. Public record. Not legal advice.