Brandon Peterson v. Cmdr. Roger Heinen

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 22-1603

___________________________

Brandon Robert Peterson

Plaintiff - Appellee

v.

Commander Roger Heinen, in his individual capacity; Sergeant Brandon Olson, in

his individual capacity; Sergeant Nicholas Klinkner, in his individual capacity;

Sergeant Troy Jorgenson, in his individual capacity; Washington County,

Minnesota

Defendants - Appellants

Sheriff Dan Starry

Defendant

John Warneke, Assistant Jail Administrator in his individual capacity; Officer

Kcee Cahill, in his individual capacity; Sergeant Frank Capra, in his individual

capacity

Defendants - Appellants

Officer Dan Rein, in his individual capacity

Defendant

Sgt. David Frantsi, in his individual capacity; Officer Jennifer Glassmaker, in her

individual capacity; Corporal Rebecca Dyck, in her individual capacity; Nurse

Melinda Leibel, “Mindy” in her individual capacity; Officer Chad Gaikowski, in

his individual capacity

Defendants - Appellants

Officer John Roberto, in his individual capacity

Defendant

Officer Vince Scheele, in his individual capacity

Defendant - Appellant

Officer Garrett Kleinendorst, in his individual capacity

Defendant

Officer De La Rosa, in his individual capacity; Stephanie Kaphing, in her

individual capacity

Defendants - Appellants

John Does, 1-10 in their individual capacities

Defendant

____________

Appeal from United States District Court

for the District of Minnesota

____________

Submitted: December 15, 2022

Filed: December 26, 2023

____________

Before LOKEN, ERICKSON, and KOBES, Circuit Judges.

____________

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KOBES, Circuit Judge.

Brandon Peterson sued Washington County Jail (WCJ) officials under 42

U.S.C. § 1983 alleging deprivations of his constitutional rights while incarcerated.

He also brought claims under Minnesota law and Monell v. Department of Social

Services, 436 U.S. 658 (1978). The district court denied qualified immunity to

multiple officials and deferred making a definitive summary judgment ruling on the

state law and Monell claims. After careful review of the district court’s order and

the record, including the relevant video footage, we reverse in part, dismiss in part,

and vacate in part. The case is remanded to the district court.

I.

Some orientation first. This interlocutory appeal involves 16 appellants and

a hodgepodge of constitutional and state law claims.

The district court denied Sergeants Nicholas Klinkner, Brandon Olson, and

David Frantsi as well as Officers De La Rosa, Rebecca Dyck, Kcee Cahill, Jennifer

Glassmaker, and Vince Scheele qualified immunity for their alleged use of and

failure to intervene in excessive force. It also denied Commander Roger Heinen and

Nurses Stephanie Kaphing and Melinda Leibel qualified immunity for their alleged

deliberate indifference to Peterson’s serious medical needs, and it denied unknown

defendants qualified immunity from Peterson’s conditions-of-confinement claims.

The court then deferred a definitive disposition of his state law and Monell claims

for another day.

II. Section 1983 Claims

We first address the denial of qualified immunity. We review de novo,

viewing the record in the light most favorable to Peterson and drawing all reasonable

inferences in his favor. See Thurmond v. Andrews, 972 F.3d 1007, 1011 (8th Cir.

2020); see also Jackson v. Gutzmer, 866 F.3d 969, 975 (8th Cir. 2017) (discussing

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our limited jurisdiction to review pretrial denial of qualified immunity). We accept

as true “the facts that the district court specifically found were adequately supported,

along with those facts that the district court likely assumed.” Roberts v. City of

Omaha, 723 F.3d 966, 972 (8th Cir. 2013) (citation omitted). But where those facts

are “blatantly contradicted by the record,” say, in video recordings, we do not “adopt

that version of the facts for purposes of ruling on a motion for summary judgment.”

Scott v. Harris, 550 U.S. 372, 378–81, 384 (2007).

To decide whether the district court should have granted qualified immunity,

we ask if the facts “demonstrate the deprivation of a constitutional or statutory right”

and if “the right was clearly established at the time of the deprivation.” Handt v.

Lynch, 681 F.3d 939, 943 (8th Cir. 2012). We review each defendant’s conduct

individually. Wilson v. Northcutt, 441 F.3d 586, 591 (8th Cir. 2006).1

A. Excessive Force

Before addressing excessive force, we must pin down “the precise

constitutional violation with which [the defendants are] charged.” Baker v.

McCollan, 443 U.S. 137, 140 (1979). The parties spar over whether the Eighth

Amendment or the Fourteenth Amendment applies to Peterson’s excessive force

claims. And understandably so: if the Fourteenth Amendment applies, Peterson has

“a lighter burden to show a constitutional violation.” Smith v. Copeland, 87 F.3d

265, 268 n.4 (8th Cir. 1996) (citing Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979)).

1

At least three defendants have no basis for remaining in the case. Sergeant

Troy Jorgenson and Officer Chad Gaikowski are only listed in the caption of the

district court’s order, and the district court dismissed the only claim against Sergeant

Frank Capra. Peterson hasn’t alleged any facts that tie these appellants to his live

claims, so we reverse the district court’s denial of summary judgment to these

appellants. As for Assistant Jail Administrator John Warneke, we vacate the district

court’s denial of summary judgment and remand with instructions to decide whether

he is entitled to qualified immunity from Peterson’s remaining claims.

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The issue boils down to whether someone detained awaiting adjudication of a

probation violation is more like a pretrial detainee or a convicted prisoner. Pretrial

detainees seeking to vindicate their rights to be free from excessive force find shelter

in the Fourteenth Amendment’s Due Process Clause. See Kingsley v. Hendrickson,

576 U.S. 389, 396–99 (2015) (holding that a pretrial detainee alleging excessive

force “must show only that the force purposely or knowingly used against him was

objectively unreasonable”). Convicted prisoners seeking the same must turn to the

Eighth Amendment’s Cruel and Unusual Punishments Clause. See Hudson v.

McMillian, 503 U.S. 1, 6–7 (1992) (holding that a convicted prisoner must show that

the force was applied “maliciously and sadistically to cause harm”).

When Peterson first arrived at WCJ, he was being held on unadjudicated

probation violation charges tied to a state conviction for disorderly conduct. He

received 90 days in prison, with 60 days suspended, for that conviction, as well as

one year of probation, revocable if Peterson “fail[ed] to abide by the rules.” See

Morrissey v. Brewer, 408 U.S. 471, 479 (1972). If Peterson violated any conditions

of his probation, the sentencing order states that the court could order him to serve

“the balance of the [original] sentence.”

So while on probation and before being held at WCJ, Peterson was unlike

“pretrial detainees or persons enjoying unrestricted liberty.” See Whitley v. Albers,

475 U.S. 312, 327 (1986); see also United States v. Haymond, 139 S. Ct. 2369, 2380

n.5 (2019) (plurality opinion) (quoting id. at 2395 (Alito, J., dissenting)).

Nevertheless, Peterson latches onto how, like criminal charges against pretrial

detainees, his probation violation charge was “unadjudicated,” so he says the

Fourteenth Amendment applies. See Bell, 441 U.S. at 535–36.

We are unconvinced. While alleged probation violators are afforded certain

protections under the Due Process Clause, see Gagnon v. Scarpelli, 411 U.S. 778,

782, 790 (1973) (probationer “entitled to a preliminary and a final revocation

hearing” and, in some situations, counsel); see also Douglas v. Buder, 412 U.S. 430,

432 (1973) (per curiam), neither we nor the Supreme Court have afforded alleged

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probation violators “a substantive ‘liberty’ interest” to be free from excessive force

under the Fourteenth Amendment while detained, see Kingsley, 576 U.S. at 407

(Scalia, J., dissenting). 2 We decline “to expand the concept of substantive due

process” unnecessarily, Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992),

as the Eighth Amendment provides the “explicit textual source of constitutional

protection” against excessive force applied to an individual incarcerated on an

unadjudicated probation violation, cf. Albright v. Oliver, 510 U.S. 266, 273 (1994)

(plurality opinion) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).

Unlike a pretrial detainee, Peterson finds himself outside any “stage of a

criminal prosecution.” Gagnon, 411 U.S. at 782. In other words, Peterson is “in

wholly different circumstances” than those of a pretrial detainee, “separated by the

harsh facts of criminal conviction,” and held instead incident to the state’s ongoing

punishment following adjudication of his criminal culpability. Cf. Ingraham v.

Wright, 430 U.S. 651, 669 (1977); Meachum v. Fano, 427 U.S. 215, 225 (1976)

(“Confinement in any of the State’s institutions is within the normal limits or range

of custody which the conviction has authorized the State to impose.”); see also

United States v. Makeeff, 820 F.3d 995, 1000 (8th Cir. 2016) (“Probation, like

incarceration, is a form of criminal sanction imposed by a court upon an offender

after verdict, finding, or plea of guilty.” (citation omitted)). His detention is part

and parcel of the state’s successful criminal conviction and ensuing punishment, see

Bell, 441 U.S. at 537 n.16, where any alleged excessive force claim incurred during

consequent incarceration is analyzed under the Eighth Amendment, Hudson, 503

U.S. at 6–7.

2

We have previously treated detainees like Peterson as pretrial detainees

where the Eighth Amendment and Fourteenth Amendment analyses were identical.

See A.H. v. St. Louis Cnty., 891 F.3d 721, 724, 726 (8th Cir. 2018) (deliberate

indifference claim); see also Crow v. Montgomery, 403 F.3d 598, 600–01 (8th Cir.

2005) (conditions-of-confinement claim). Because we did not squarely address the

issue, these decisions are not controlling here. Passmore v. Astrue, 533 F.3d 658,

660 (8th Cir. 2008).

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We turn now to Peterson’s allegations of excessive force in the context of the

Eighth Amendment. Here, “only the unnecessary and wanton infliction of pain

constitutes cruel and unusual punishment.” Whitley, 475 U.S. at 319 (cleaned up)

(citation omitted). “The infliction of pain in the course of a prison security measure,

therefore, does not amount to cruel and unusual punishment simply because it may

appear in retrospect that the degree of force authorized or applied for security

purposes was unreasonable, and hence unnecessary in the strict sense.” Id.

Our “core judicial inquiry” is whether the accused officers applied force “in a

good-faith effort to maintain or restore discipline, or maliciously and sadistically to

cause harm.” Hudson, 503 U.S. at 7. We are guided by “the need for application of

force, the relationship between that need and the amount of force used, the threat

‘reasonably perceived by the responsible officials,’ and ‘any efforts made to temper

the severity of a forceful response.’” Id. (citation omitted).

Peterson’s excessive force claims are confined to six incidents occurring

between February and May 2018. We address each in turn.

1. February 19

Peterson alleges that on February 19, Sergeant Klinkner and Officers Dyck,

Cahill, Glassmaker, and De La Rosa used excessive force while removing him from

his cell. The district court held that a reasonable juror could find that they acted

maliciously and not in a good-faith effort to maintain or restore discipline. We

disagree.

Problems started when Peterson covered his cell’s security camera, hurled a

plastic cup to dislodge the covering, and missing his mark, hit a sprinkler head. The

sprinkler burst, flooding Peterson’s cell and requiring WCJ officials to relocate

inmates and clean up.

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Time came to relocate Peterson. As captured on video, Sergeant Klinkner and

company ordered Peterson to crawl out of his cell. Peterson complied, and Officer

Cahill held him down with a body shield for around 20 seconds while Officers

Glassmaker, Dyck, and De La Rosa handcuffed him. When asked if he had anything

on him that could hurt the officers or himself, Peterson responded that he could kill

them all and that the officers should worry about him. Peterson continued to argue

with and threaten the officers, taunting them and saying that he could get out of the

cuffs if he wanted. Peterson then resisted as the officers tried to fasten him into a

restraint chair. When he yelled profanities and spit at Sergeant Klinkner, the

sergeant immediately shot chemical spray in Peterson’s face.

Peterson analogizes Officers Cahill, Glassmaker, Dyck, and De La Rosa’s

restraint to the prison guards’ force in Edwards v. Byrd, 750 F.3d 728 (8th Cir. 2014).

There, we found a plausible Eighth Amendment excessive force claim where the

guards tossed “a flash-bang grenade in close quarters, kicked the compliant

detainees, and shot them with bean-bag guns.” Id. at 732. Because the detainees

“did not resist or otherwise act aggressively,” the facts could “show that the guards

did not apply this force in order to restore order or discipline but rather for the sole—

and impermissible—purpose of inflicting unjustified harm on the detainees.” Id.

February 19 was different. Peterson jeopardized prison security and order

when he covered the security camera and flooded his cell. Once he crawled out, he

resisted and threatened to kill the officers. Based on this, the officers were justified

in holding Peterson down for a short time and using force to secure and restrain him

in the chair. Cf. Hickey v. Reeder, 12 F.3d 754, 759 (8th Cir. 1993) (“[S]ummary

applications of force are constitutionally permissible when prison security and order,

or the safety of other inmates or officers, has been placed in jeopardy.”).

Sergeant Klinkner’s use of chemical spray on Peterson wasn’t excessive force

either. See Jones v. Shields, 207 F.3d 491, 496 (8th Cir. 2000) (holding that “a

limited application of [chemical spray] to control a recalcitrant inmate constitutes a

tempered response by prison officials when compared to other forms of force”

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(cleaned up) (citation omitted)). Peterson points to Treats v. Morgan, where we

recognized a basis for an Eighth Amendment excessive force claim after a

correctional “officer use[d] pepper spray without warning on an inmate who may

have questioned his actions but who otherwise pose[d] no threat.” 308 F.3d 868,

873 (8th Cir. 2002). Importantly, the inmate “did not intentionally disobey [the

correctional officer], use profanity or abusive language, or threaten any correctional

officer.” Id. at 872. We can’t say the same about Peterson. Video footage clearly

shows a recalcitrant Peterson cursing, threatening, and spitting at officers.

Sergeant Klinkner and Officers Dyck, Cahill, Glassmaker, and De La Rosa

are entitled to qualified immunity for February 19.

2. February 23

Peterson alleges that on February 23, Officer Scheele used excessive force by

spraying him twice with chemical spray. The district court held that a reasonable

juror could find that Officer Scheele used force maliciously and not in a good-faith

effort to maintain or restore discipline. Again, we disagree.

Although we don’t have video, Peterson was yet again causing trouble in his

cell by starting to pull a brick from his cell wall. Officer Scheele ordered him to

stop. When Peterson refused, Officer Scheele delivered a short burst of chemical

spray. Though Peterson surrendered the brick, he would not part with a metal bar

he obtained from the floor grate of his cell, telling Officer Scheele that he would

have to come and get it. Then, he slugged the glass window of his cell. After Officer

Scheele ran to get a stronger chemical spray, he again asked Peterson to surrender

his weapon. Peterson refused, and Officer Scheele delivered another short burst of

chemical spray. Peterson finally gave up the metal bar and allowed WCJ officers to

handcuff and remove him from his cell.

Peterson claims that Officer Scheele could not reasonably believe that he

posed an immediate safety threat because he was locked in his cell. Instead, he says,

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he was just “slowly complying” before Officer Scheele used force. We don’t think

so. In Burns v. Eaton, we rejected the argument that the inmate “posed no threat

because he was alone in a locked cell” because it “ignore[d] the reality of what was

required ‘to maintain or restore discipline’” at the prison. 752 F.3d 1136, 1139 (8th

Cir. 2014). Here, as in Burns, “[a]fter each aggressive act of defiance, [Officer

Scheele] deployed a small amount of [chemical] spray.” Id. at 1140.

In other words, this incident does not involve “a complete absence of a

penological purpose,” which could raise “the reasonable inference that [Officer

Scheele] acted maliciously in an effort to cause harm.” Williams v. Jackson, 600

F.3d 1007, 1014 (8th Cir. 2010); see also Irving v. Dormire, 519 F.3d 441, 446 (8th

Cir. 2008) (noting that “guards are liable only if they are completely unjustified in

using force” (emphasis added)). Instead, Peterson was a demonstrably violent

inmate who twice refused to surrender weapons he got by damaging WCJ property.

Officer Scheele is thus entitled to qualified immunity for February 23.

3. February 25

Peterson alleges that on February 25, Officer Cahill and Sergeant Olson used

excessive force—again by spraying him with chemicals. The district court held that

a reasonable juror could find that the officers used force maliciously and not in a

good-faith effort to maintain or restore discipline. We again disagree.

This unfolded on video. Officers initially saw several small, pill-sized white

objects on Peterson’s bed. Peterson then looked out his cell window and grabbed

something from under his mattress. He again peered through the window before

putting his hands to his mouth. A few minutes later, he collected a few of the white

objects and, after glancing at the security camera, grabbed something from or put

something under the mattress, and laid down.

Concerned that Peterson may have swallowed and was hoarding pills, Officer

Cahill and Sergeant Olson repeatedly ordered him to “cuff up.” Peterson refused,

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groaning a few times, and said he was sleeping. Lying face down with a blanket

over his head, Peterson’s hand drifted underneath his mattress and then darted to his

mouth. Officer Cahill told him “no” and warned Peterson that if he did not comply,

he would be sprayed. Peterson, yelling and arguing with the officers, appeared to

fidget with something underneath the blanket. With Peterson still noncompliant,

Officer Cahill delivered a short burst of chemical spray inside the cell.

Viewing the facts in the light most favorable to Peterson, a reasonable juror

could not find that Officer Cahill and Sergeant Olson used excessive force when

they escalated the discipline from “cuff up” to chemical spray. Peterson’s

recalcitrance, even after being warned that he would be sprayed, combined with his

highly furtive and potentially dangerous behavior, warranted discipline. Cf.

Jackson, 866 F.3d at 977. And while the short burst of chemical spray inside

Peterson’s cell was no doubt “uncomfortable and unpleasant,” we cannot say it was,

under these circumstances, “repugnant to the conscience of mankind.” Id. at 977–

78 (quoting Hudson, 503 U.S. at 10); see also Jones, 207 F.3d at 497. Officer Cahill

and Sergeant Olson are entitled to qualified immunity for February 25.

4. March 24

Peterson alleges that Officer Cahill and Sergeant Olson used excessive force

on March 24 when they chemically sprayed him and shot him with an FN-303.3 The

district court concluded that a reasonable juror could find that they used force “out

of malice or frustration.” But the record—namely, videos—clearly shows

otherwise.

This time Peterson was “kicking, angry, yelling, attempting to rip his mattress,

and generally causing a disturbance.” Carrying video cameras, Officer Cahill and

Sergeant Olson approached Peterson’s cell as he was screaming racial slurs at the

3

An FN-303 looks like a rifle and uses compressed air to fire plastic

projectiles.

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inmate next door. Sergeant Olson held a can of chemical spray and said, “Peterson,

we don’t want to do this. You can’t be disruptive.” Peterson replied, “Well then

don’t. Get [the inmate next door] out of here.” Sergeant Olson reached to open the

tray pass in the cell door when Peterson said, “Go ahead, motherfucker, open it.”

Sergeant Olson opened the tray, and Peterson yelled, “Bitch, I’mma kill ya,” as

Sergeant Olson sprayed. Peterson continued to shout at his neighbor, threatening to

stab him and Sergeant Olson.

With Peterson undeterred, the officers returned to his cell with an FN-303 and

again carried video cameras. The officers noticed what appeared to be a sharpened

toothbrush on Peterson’s wet cell floor. Sergeant Olson ordered Peterson to pass his

belongings through the tray pass. Officer Cahill, meanwhile, aimed the FN-303

through the opening. As another officer ordered Peterson to comply and Peterson

continued to argue, Sergeant Olson can be heard saying, “Shoot him, shoot him.”

But Officer Cahill refused to shoot. Peterson began to comply, passing one of his

belongings through the tray pass as he yelled and cursed. The officers told him,

“Keep going; hurry up.”

Peterson then grabbed his mattress and pinned it against his cell door, yelling,

“Go fuck yourself. . . . I ain’t playing your games.” With a clear shot, Officer Cahill

fired the FN-303 twice. Peterson again pinned the mattress against his cell door and

shouted more expletives. The officers were able to open the cell door just enough

to remove the mattress before again asking Peterson to pass his things through the

tray pass. Instead, he went to his bed and said, “Fuck you, I’m just going to sit here.”

The officers then told him to “cuff up.” Peterson did not. Officer Cahill shot him

twice more in the legs, and Peterson finally relented.

The videos show that Peterson repeatedly refused to follow the officers’

instructions and continued to disrupt order at WCJ. At no point before being

chemically sprayed or shot with the FN-303 did Peterson “remov[e] any threat or

need for force.” Walker v. Bowersox, 526 F.3d 1186, 1188 (8th Cir. 2008). Nor did

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the officers apply “an excessive [or] disproportionate use of force” relative to

Peterson’s dangerous behavior. Cf. id. at 1188–89.

Officer Cahill and Sergeant Olson delivered “a limited application of

[chemical spray] to control a recalcitrant inmate,” which “constitute[d] a ‘tempered

response by prison officials’ when compared to other forms of force.” Jones, 207

F.3d at 496 (citation omitted). And Officer Cahill fired the FN-303 only after the

chemical spray failed to temper Peterson’s disruption and after his noncompliance

was obvious. He faced a “fast-moving and volatile situation,” where Peterson had

what appeared to be a sharpened toothbrush, continued to threaten the officers, and

attempted to barricade himself in his cell. Cf. Leonard v. St. Charles Cnty. Police

Dep’t, 59 F.4th 355, 360 (8th Cir. 2023); see also Hudson, 503 U.S. at 7.

We have said that “[a]mong the most important” factors we consider when

weighing whether to afford jailers qualified immunity in an excessive force case is

whether the inmate “was actively resisting the extraction procedure.” Ryan v.

Armstrong, 850 F.3d 419, 428 (8th Cir. 2017). We have little difficulty concluding

that Officer Cahill and Sergeant Olson’s actions were not excessive, so both are

entitled to qualified immunity for March 24.

5. May 1

Peterson also alleges that Officer Cahill and Sergeant Olson used excessive

force when they sprayed him with chemical spray on May 1.4 The district court

concluded that a reasonable juror could find that they used force “out of malice or

frustration.” We continue to disagree.

Following what has now become a pattern, Peterson decided to cause trouble

in his cell. This time, he covered his cell’s security camera in the middle of the

4

We do not have the benefit of video for May 1, so we rely on the district

court’s facts.

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night. When the officers asked him to remove it, Peterson responded, “I’m

sleeping.” Officer Cahill told Peterson that “it would just take a second” and that

otherwise they’d need to conduct a cell extraction. When he still did not remove the

covering, one of the officers deployed chemical spray.

While in this case Peterson may not have been an immediate threat to himself

or others, he was an immediate threat to WCJ security and order. See Hickey, 12

F.3d at 759. Covering a security camera immediately threatens jail security. Cf.

Smith v. Conway Cnty., 759 F.3d 853, 860–61 (8th Cir. 2014) (finding submissible

case of excessive force where “[n]o ‘security concern’ or disciplinary necessity

[was] apparent”). Peterson had a history of procuring weapons and was suspected

of hoarding pills, and WCJ officials knew what he was capable of when unobserved.

We have never said that jailers cannot use summary force when a recalcitrant and

dangerous inmate’s behavior implicates prison security concerns. See Hickey, 12

F.3d at 759; Treats, 308 F.3d at 872–73.

What we have said is that “[i]f the evidence shows only ‘a mere dispute over

the reasonableness of a particular use of force or the existence of arguably superior

alternatives[,] . . . the case should not go to the jury.’” Jackson, 866 F.3d at 975

(quoting Whitley, 475 U.S. at 322). Because he was not given a genuine opportunity

to remove the covering from the security camera and the officers could see inside

his cell, Peterson says, they should not have used force. But even if Officer Cahill

and Sergeant Olson “arguably erred” when they decided to act, this “falls far short

of a showing that there was no plausible basis for [their] belief that this degree of

force was necessary.” Whitley, 475 U.S. at 323. Accordingly, both are entitled to

qualified immunity for May 1.

6. May 19

Finally, Peterson alleges that on May 19, Sergeant Olson used excessive force

by deploying chemical spray. To justify his use of chemical spray, Sergeant Olson

claims that Peterson “refused to comply with orders to turn over items from his cell.”

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Peterson says he was complying—albeit slowly. The district court found that

Peterson’s compliance was a genuine issue of material fact that precluded summary

judgment. Because the May 19 video footage does not clearly refute this finding,

we dismiss this part of the appeal for lack of jurisdiction. Taylor v. St. Louis Cmty.

Coll., 2 F.4th 1124, 1127 (8th Cir. 2021).

B. Failure to Intervene

Peterson alleges that Sergeants Klinkner and Frantsi and Officers Cahill,

Glassmaker, Dyck, and De La Rosa face liability for failure to intervene in the uses

of excessive force on February 19, February 23, February 25, March 24, and May 1.

See Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir. 1981). But we have reversed the

district court’s denial of summary judgment for these dates. Without an underlying

constitutional violation, there can be no liability for failure to intervene. See Smith,

759 F.3d at 861. And though we dismissed the appeal with respect to the May 19

incident, Peterson does not allege that any particular defendant failed to intervene in

Sergeant Olson’s use of force on that date. So we reverse the district court’s denial

of summary judgment on all of Peterson’s failure to intervene claims.

C. Deliberate Indifference

Next, Peterson argues that Commander Heinen and Nurses Leibel and

Kaphing unconstitutionally delayed responding to his mental health condition,

making it worse. The district court held that a reasonable juror could find that they

deliberately disregarded Peterson’s serious mental illness in violation of the Eighth

Amendment. Because the facts, even when viewed in the light most favorable to

Peterson, do not support the violation of a clearly established right, we reverse.

Whether these WCJ officials acted with “deliberate indifference” requires

both an objective and a subjective analysis. Saylor v. Nebraska, 812 F.3d 637, 644

(8th Cir. 2016). Objectively, Peterson must establish that he suffered from a serious

medical need. Id. Subjectively, Peterson must show that these defendants “actually

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knew of but deliberately disregarded his serious medical need.” Scott v. Benson,

742 F.3d 335, 340 (8th Cir. 2014). This demands a mental state of more than gross

negligence and “akin to criminal recklessness.” Saylor, 812 F.3d at 644 (citation

omitted).

The district court concluded that Peterson suffers from an objectively serious

medical need related to his bipolar disorder, a ruling we do not disturb on appeal.

Rather, we focus on the subjective analysis and ask whether the allegedly “violative

nature of [Commander Heinen and Nurses Kaphing and Leibel’s] particular conduct

is clearly established.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (citation omitted).

“For a right to be ‘clearly established,’ the law must have been sufficiently clear, at

the time of the official’s conduct, to put every reasonable official on notice that what

he was doing violated that right.” Hamner v. Burls, 937 F.3d 1171, 1177 (8th Cir.

2019) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). A plaintiff needs no

“case directly on point”; rather, he needs “controlling authority” or “a robust

‘consensus of cases of persuasive authority’” that puts “the statutory or

constitutional question beyond debate.” Ashcroft, 563 U.S. at 741–42.

The facts distinguish the alleged deprivation of Peterson’s rights from the

violations recognized in our previous decisions. To begin, Peterson says that

Gordon ex rel. Gordon v. Frank clearly established that officials violate the Eighth

Amendment when they “delay medical treatment for an inmate with obvious signs

of medical distress, especially one who communicates this distress directly to

officers.” 454 F.3d 858, 862–63 (8th Cir. 2006). But the facts in Gordon were very

different: the jailers disregarded an inmate’s “high risk of heart failure” and forced

him to climb stairs on his own despite knowing he was on medical observation. Id.

at 861–63. And they repeatedly ignored the inmate’s complaints of chest pain and

breathing troubles before he succumbed to heart disease. Id.; see also Ryan, 850

F.3d at 426 (evidence of prison officials’ complete failure to “talk with [an inmate]

or seek medical treatment” or to see a “pool of blood” after the inmate “bang[ed] his

head [and screamed] throughout the night” precluded summary judgment).

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Peterson did not suffer from the same medical apathy. The record shows that

Nurse Kaphing noted Peterson’s struggles with mental health during an intake

evaluation; that Nurse Leibel conducted a mental health assessment; that Peterson

was repeatedly prescribed medications for his mental health (though he often refused

to take them); and that the jail’s qualified mental health provider, or “QMHP,”

conducted a psychiatric diagnostic evaluation and scheduled a follow-up visit. Plus,

Commander Heinen inquired about civil commitment shortly after the sprinkler-

head incident and decided to send Peterson to Regions Hospital for a crisis

evaluation. In other words, “the prison officials at least attempted to fix the problems

that did arise.” Hamner, 937 F.3d at 1178. And to the extent Peterson alleges that

he should have seen a QMHP sooner, we have said that “inmates have no

constitutional right to receive a particular or requested course of treatment.” Dulany

v. Carnaham, 132 F.3d 1234, 1239 (8th Cir. 1997).

Likewise, Peterson’s reliance on Buckley v. Rogerson is misplaced, as the

constitutional violation alleged there involved “specific medical approval of

segregation and restraint for prison mental patients” housed at a prison psychiatric

hospital. 133 F.3d 1125, 1127, 1129 (8th Cir. 1998). While Peterson alleges that

Commander Heinen unconstitutionally imposed disciplinary plans without

consulting a QMHP, the unconstitutional “treatment plans” at issue in Buckley—

which correctional officers with no medical training implemented—were “designed

to address [the inmate’s] mental illness.” Id. at 1127. Here, the disciplinary plans

were designed to address, as the district court found, Peterson’s “challenging or

disruptive behavior” at WCJ.

Finally, citing McRaven v. Sanders, 577 F.3d 974, 981 (8th Cir. 2009),

Peterson claims that Commander Heinen and Nurses Kaphing and Leibel

unreasonably relied on an unfounded decision by Regions Hospital medical staff to

return Peterson to WCJ after his crisis evaluation. He says Nurse Leibel improperly

opposed his transfer to Regions Hospital and withheld information about his

condition, hindering the medical staff’s evaluation. But McRaven involved officials

who refused to correct an attending nurse’s assumption that the inmate’s symptoms

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of extreme intoxication were due to “the influence of alcohol, not drugs.” Id. at 981–

82. Medical staff at Regions Hospital had no such dearth of information. The

hospital record Peterson relies on in faulting Nurse Leibel said that Peterson

irregularly took and once snorted his medications, that Peterson’s medication was

discontinued after the snorting incident, and that he was “manic for two weeks” and

“ruined [two] jail cells by throwing items and breaking mirrors, and throwing feces.”

All told, neither Gordon nor Buckley nor McRaven shows that Commander

Heinen’s, Nurse Leibel’s, or Nurse Kaphing’s particular conduct violates the Eighth

Amendment, so we reverse the district court’s denial of qualified immunity.

D. Conditions of Confinement

Peterson also alleges that unknown officials violated the Eighth Amendment

by subjecting him to unconstitutional conditions of confinement. Qualified

immunity is “immunity from suit rather than a mere defense to liability,” and it “is

effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth,

472 U.S. 511, 526 (1985) (emphasis omitted). The district court did not conduct a

thorough qualified immunity analysis, so we remand for it to address the issue. See,

e.g., O’Neil v. City of Iowa, 496 F.3d 915, 917–18 (8th Cir. 2007); Handt, 681 F.3d

at 943–45.

II. State Law and Monell Claims

Appellants urge us to address official immunity from Peterson’s state law

claims. See Birkeland ex rel. Birkeland v. Jorgensen, 971 F.3d 787, 791 (8th Cir.

2020) (noting that “because official immunity under Minnesota law provides

immunity from suit, we have jurisdiction to review issues of law related to the denial

of official immunity”). Because the district court did not reach these issues, we

remand so it can do so first. See United States v. Flute, 929 F.3d 584, 590 (8th Cir.

2019); Sletten v. Ramsey Cnty., 675 N.W.2d 291, 299 (Minn. 2004) (en banc) (noting

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that official immunity “is effectively lost if the case is erroneously permitted to go

to trial”).

Washington County also urges us to address whether it faces Monell liability.

To exercise our pendent jurisdiction over this part of the appeal, the Monell issues

must be “‘inextricably intertwined’ with the qualified immunity analysis.” Roberts,

723 F.3d at 975 (citation omitted). “An issue is inextricably intertwined with

properly presented issues only when the appellate resolution of the collateral appeal

necessarily resolves the pendent claims as well.” Id. (citation omitted). Because we

remand and dismiss certain claims, we cannot resolve on appeal whether

Washington County may be liable under Monell.

III. Conclusion

We reverse the district court’s denial of summary judgment to Sergeants

Jorgenson and Capra and Officer Gaikowski. We also reverse on Peterson’s

excessive force claims arising out of the February 19, February 23, February 25,

March 24, and May 1 incidents. And we dismiss the appeal as to the May 19

incident. Finally, we reverse the denial of summary judgment on Peterson’s failure

to intervene and deliberate indifference claims and vacate the denial of summary

judgment on Peterson’s conditions of confinement, state law, and Monell claims.

The case is remanded for proceedings consistent with this opinion.

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