“Arguments raised for the first time on appeal are not properly before this Court.”
How later courts described this case
- “Arguments raised for the first time on appeal are not properly before this Court.”
Written by the judges who cited it.
The opinion
USCA11 Case: 23-10825 Document: 37-1 Date Filed: 01/09/2024 Page: 1 of 26
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10825
Non-Argument Calendar
____________________
LAWRENCE DEMPSEY,
as personal representative of the estate of
Nicole Dempsey deceased for the benefit
of her survivors and estate,
Plaintiff-Appellee,
versus
SHERIFF, BAY COUNTY FLORIDA,
et al.,
Defendants,
SHELLY WINTERS,
in her individual capacity
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2 Opinion of the Court 23-10825
f.k.a. Shelly Ziegler,
TABITHA BURKES,
KATHRYN AYERS,
JILLIAN LESKO,
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:21-cv-00134-TKW-MJF
____________________
Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
This interlocutory appeal arises out of Nicole Dempsey’s
death due to endocarditis, a bacterial infection of the inner lining
of the heart’s chambers and valves, while being held as a pre-trial
detainee at the Bay County Jail (“BCJ”) in Panama City, Florida.
Shelly Winters, Tabitha Burks, Kathryn Ayers, and Jillian Lesko
(collectively the “Nurses”), seek review of the district court’s order
denying them qualified immunity at summary judgment for their
medical treatment of Dempsey. On appeal, the Nurses argue that
(1) they were not deliberately indifferent to Dempsey’s serious
medical needs because they did not know that Dempsey had acute
endocarditis; and (2) their medical treatment of Dempsey did not
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23-10825 Opinion of the Court 3
violate clearly established law. After careful review, we affirm in
part and reverse in part.
I. Background
On April 18, 2019, Dempsey was arrested on outstanding
warrants and brought to the BCJ. During the booking process,
Nurse Lesko, an advanced registered nurse practitioner (“ARNP”),
conducted a medical evaluation and determined that Dempsey was
likely suffering from sepsis. The previous night, Dempsey, who
had been hospitalized at the Gulf Coast Medical Center (“GCMC”),
left the hospital against medical advice. Because of Lesko’s
concerns, Dempsey was unable to be accepted into the BCJ and she
was released into the custody of Emergency Medical Services
(“EMS”) who transported her back to GCMC. The police declined
to book her pursuant to the arrest warrants or to maintain custody
over Dempsey while she was at GCMC.
After returning to GCMC, Dempsey was referred for a
cardiology consultation. The cardiologist noted that Dempsey
appeared frail, confused, and chronically ill. He determined that
Dempsey was making decreased breathing sounds and had an
abnormal skin color with lesions, but that her lower extremities did
not show any signs of edema. The cardiologist ultimately
diagnosed Dempsey with endocarditis and sepsis. 1 The
1 As the district court emphasized, endocarditis is a life-threatening
inflammation of the inner lining of the heart’s chambers and valves which is
caused by a bacterial infection. This infection can damage or destroy the
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4 Opinion of the Court 23-10825
cardiologist determined that Dempsey “[was] in a very tough spot”
because she “[had] severe tricuspid regurgitation probably due to
degeneration of the valve” resulting from her continual
intravenous drug use and that it was “uncertain that [GCMC] could
find a surgeon to operate on [Dempsey’s] valve any further because
it would likely be [a] replacement.” He stated that Dempsey
“[would] obviously need at least 6 weeks of antibiotics” but that
“[h]er prognosis [was] very poor overall.” Prior to Dempsey’s
cardiologist consultation, GCMC had already started her on three
antibiotics—Vancomycin, Azithromycin, and Ceftriaxone.
Following the cardiologist’s diagnosis of endocarditis, GCMC
continued to treat Dempsey with Vancomycin and Azithromycin.
On April 26, 2019, after being hospitalized at GCMC for
eight days, medical personnel became concerned that Dempsey
was using drugs in her bathroom. Hospital security discovered
drug paraphernalia in Dempsey’s purse and a doctor requested
permission from Dempsey to have security search the remainder
of her belongings. The doctor explained to Dempsey “that she
could refuse to be searched, against medical advice, or she could
consent to a search of her belongings to eliminate outside drugs
that could harm or interfere with her care [at GCMC].” She refused
the doctor’s request and left GCMC for a second time against
medical advice.
heart’s valves. See Endocarditis, https://www.mayoclinic.org/diseases-
conditions/endocarditis/symptomscauses/syc-20352576 (last visited Nov. 28,
2023).
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23-10825 Opinion of the Court 5
A few hours after leaving GCMC, Dempsey overdosed on
heroin and was found unresponsive in a parked van. Police
conducted a warrant check on Dempsey, discovered her
outstanding warrants, and followed EMS to the Bay Medical Beach
Emergency Room (“Bay Medical”). Dempsey’s doctor at Bay
Medical gave her a physical examination and determined that her
lungs did not show any signs of distress and that she had a regular
heart rhythm. Her discharge paperwork from Bay Medical stated
that she was treated for a heroin overdose with Narcan and
“discharged to the remand of the police.” The discharge
paperwork noted that Dempsey’s physician “[had] given
[Dempsey] specifics regarding signs and symptoms of when to
immediately return to the emergency department.” These
symptoms included “any recurrence of difficulty breathing, chest
pain, shortness of breath, rashes or fevers, nausea or vomiting,
abdominal pain, neck stiffness, mental status change or any other
concerns.”
After being discharged from Bay Medical, the police took
Dempsey to BCJ where she was booked on the outstanding arrest
warrants. Dempsey filled out an Intake Health Screening Form,
where she noted that she had endocarditis and was being treated
with Azithromycin and Coreg.2 A Certified Medical Technician
2 According to the Mayo Clinic, intravenous Azithromycin is an antibiotic that
is used to treat bacterial infections in different parts of the body. See
Azithromycin (Intravenous Route) https://www.mayoclinic.org/drugs-
supplements/azithromycin-intravenous-route/description/drg-20062196.
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6 Opinion of the Court 23-10825
(CMT), who is not a party to this case, also completed a
Preliminary Medical Assessment Form which indicated that
Dempsey had a history of cardiac issues and was suffering from
endocarditis. This Preliminary Medical Assessment Form also
stated that Dempsey was taking Azithromycin and Coreg.
Dempsey signed a Request for Medical Records which authorized
BCJ to obtain Dempsey’s medical records from any healthcare
facility. Nurse Burks, a licensed practical nurse (“LPN”) assigned
to Dempsey’s dorm, reviewed Dempsey’s intake health screening
form on April 27, 2019.
On the evening of April 28, 2019, Dempsey complained to
Nurses Burks and Dugosh of chest pains. Burks and Dugosh
advised Dempsey that they would let Lesko know of her
complaint.3
On the morning of April 29, 2019, Nurse Ayers, another
LPN, examined Dempsey and took her vitals, noting that Dempsey
had a blood pressure reading of 138/88, which was high.4 All
Coreg is a beta-blocker that is used to treat high blood pressure and reduce the
risk of heart attacks. See Carvedilol (Brand Name Coreg)
https://www.mayoclinic.org/drugs-supplements/carvedilol-oral-
route/description/drg-20067565.
3 Lesko, as the ARNP, worked under the supervision of a medical doctor at
BCJ and was above the other nurses at the BCJ, but she did not directly
supervise the other nurses. The medical doctor is not a party to this lawsuit.
4 According to the American College of Cardiology, a normal blood pressure
reading should show a top number below 120 and a bottom number below
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23-10825 Opinion of the Court 7
parties agree that Lesko subsequently examined Dempsey’s
medical records including her discharge paperwork from Bay
Medical and at 12:48 P.M. ordered that (1) Dempsey be given
Coreg to treat Dempsey’s high blood pressure and (2) her vitals
continue to be monitored. Less than two hours later, around 2:35
P.M., Dempsey complained again about having chest pains. At that
time, while Ayers did not physically examine Dempsey, Ayers
contacted Lesko and received the order for Coreg, noting that
Dempsey was to be started on medication.
In the early morning hours of April 30, 2019, Dempsey
submitted a sick call request which indicated her reason for asking
to be seen was “Endocarditis [G]ulf Coast Hospital.” Nurse
Paramore, an LPN and a non-party to this case, responded to the
request, examined Dempsey, and filled out a Chest Pain Form.
Paramore noted on the Chest Pain Form that Dempsey had
suffered pain on the left side of her chest all day; Dempsey’s blood
pressure was 162/114; Dempsey had been treated at GCMC
beginning on April 18, 2019, but had left against medical advice;
both of Dempsey’s lungs were making a wheezing sound;
Dempsey’s hands were swollen; and Dempsey had pitting edema
in both of her lower extremities. Paramore contacted Lesko who
80. A top number between 120 to 129 equates to elevated blood pressure.
High blood pressure, also called hypertension, is indicated by a top number of
130 or above or a bottom number above 80. See Blood Pressure,
https://www.cardiosmart.org/docs/default-
source/assets/infographic/blood-pressure.pdf?sfvrsn=dfcd6c1_1 (last visited
Nov. 28, 2023).
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8 Opinion of the Court 23-10825
prescribed Dempsey with Albuterol, Lasix, Clonidine and ordered
an electrocardiogram. Lesko also scheduled a follow-up with
Dempsey for later that day.
At Dempsey’s follow-up appointment with Lesko, Lesko
noted that Dempsey had pitting edema in both of her lower
extremities. She also identified that Dempsey had a history of
endocarditis and left GCMC against medical advice only four days
prior. Dempsey informed Lesko that she was being treated with
antibiotics for her endocarditis while at GCMC, and Lesko made a
note to check Dempsey’s medical records. Despite this, Lesko did
not prescribe antibiotics although she did order an x-ray for
Dempsey which showed that Dempsey had left-lung airspace
disease. Lesko left for a trip the following day and did not have any
further personal interaction with Dempsey.
According to the sworn-declaration of Megan Scelfo, a
detainee at BCJ and dormmate of Dempsey, on May 1 and 2, 2019,
Dempsey complained to correctional officers that she was
experiencing chest pain, had a difficult time breathing, and needed
to be sent to the hospital to be treated for endocarditis. Scelfo
stated that Dempsey’s condition was visibly deteriorating and that
Dempsey had lost control over her bowels and bladder, resulting
in Dempsey defecating and urinating in her bed. Scelfo also
declared that Dempsey felt hot to the touch, appeared disoriented,
and began walking through the dormitory without any pants or
shoes on. Scelfo asserted that the correctional officers relayed these
concerns to medical personnel via radio, but that Dempsey was not
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23-10825 Opinion of the Court 9
seen by medical personnel or sent to the hospital. Accordingly,
Dempsey filled out a second sick call request on May 2, 2019, again
indicating her endocarditis diagnosis and difficulty breathing.
Nurse Winters, an LPN, responded to that request by stating that
Dempsey “[had] been seen by ARNP [Lesko] for this already” and
that Dempsey just needed to wait for the medication she had been
prescribed to work. Earlier that morning, Winters had physically
examined Dempsey and given her the drugs prescribed by Lesko.
By 8:40 A.M. on May 3, 2019, Dempsey’s condition had
deteriorated to such a state that the correctional officer reported to
medical staff that Dempsey had been laying in her urine and feces
all night. Ayers responded and noted that Dempsey’s breathing
was “rapid and labored” and that she appeared “very weak.”
Dempsey’s blood pressure was 100/69 and she had a pulse of 120
beats per minute. Ayers called Lesko who instructed Ayers to take
Dempsey to the medical unit in BCJ, hydrate her, treat her with
Imodium, give her an electrocardiogram, and monitor her status.
By 10:00 A.M., Nurse Smith, a registered nurse and non-party to
this case, sent Dempsey to GCMC via ambulance.
Dempsey was admitted to GCMC and was diagnosed with
endocarditis and septic shock. She was intubated and was treated
with Vancomycin and Cefepime. Over the next two days,
Dempsey’s condition did not improve and her father “request[ed]
comfort care only” because he “underst[ood] the poor prognosis
and [did] not wish to prolong the inevitable.” Dempsey was
pronounced dead at 5:21 P.M. on May 5, 2019. Dempsey’s official
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10 Opinion of the Court 23-10825
cause of death was listed as endocarditis due to chronic drug use
with HIV as a contributing factor.
On April 27, 2021, Dempsey’s estate (hereinafter “the
Estate”) filed a wrongful death lawsuit in Florida state court
predicated on 42 U.S.C. § 1983 and Florida’s Wrongful Death Act,
Fla. Stat. § 768.16, et. seq., against Tommy Ford in his official
capacity as the Sheriff of Bay County, Florida, alleging among other
things that Ford’s deliberate indifference to Dempsey’s serious
medical needs caused Dempsey’s death. The Sheriff timely
removed the complaint to the U.S. District Court for the Northern
District of Florida based on federal question jurisdiction. The
Estate amended the complaint to add deliberate indifference claims
against Nurses Ayers, Burks, Dugosh, Lesko, and Winters. The
operative Second Amended Complaint (“SAC”) asserts six
deliberate indifference claims under Section 1983, one claim each
against the Sheriff and the five Nurses.
After extensive discovery, the Nurses and Sheriff filed
motions for summary judgment, arguing that they were not
deliberately indifferent to Dempsey’s serious medical needs and
that they were entitled to qualified immunity. The district court
granted summary judgment in favor of Dugosh and the Sheriff, but
held that Ayers, Burks, Lesko, and Winters were not entitled to
summary judgment. In doing so, the district court determined that
“a reasonable jury could find that the medical care provided by
each of the Nurse Defendants except Dugosh was grossly
inadequate, cursory, and/or unduly delayed.” It concluded that
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23-10825 Opinion of the Court 11
this inadequate care would constitute a deliberate indifference to
Dempsey’s serious medical needs and that the law was clearly
established at the time of Dempsey’s incarceration that the Nurses’
treatment of Dempsey was unconstitutional. Accordingly, the
district court determined that the Nurses were not entitled to the
defense of qualified immunity at summary judgment. Ayers,
Burks, Lesko, and Winters appeal the district court’s denial of
qualified immunity at summary judgment.5
II. Appellate Jurisdiction
“[A]s a court of limited jurisdiction, we are generally barred
from entertaining appeals of non-final orders because we have no
congressional grant to do so.” Hall v. Flournoy, 975 F.3d 1269, 1274
(11th Cir. 2020). Under the collateral order doctrine, however, we
may review “some determinations, including certain denials of
qualified immunity. . . .” Id. “In particular, we may review the
denial of a claim of qualified immunity to the extent that it turns
on an issue of law.” Spencer v. Benison, 5 F.4th 1222, 1229 (11th Cir.
2021) (quotation omitted). But “[w]e lack interlocutory
jurisdiction where the only issues appealed are evidentiary
sufficiency issues.” English v. City of Gainesville, 75 F.4th 1151, 1155
(11th Cir. 2023) (quotation omitted).
A district judge’s determination on qualified immunity
“involves a two-part analysis: (1) defining the official’s conduct,
5 The district court’s granting of summary judgment in favor of the Sheriff and
Dugosh is not before us.
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12 Opinion of the Court 23-10825
based on the record and viewed most favorably to the non-moving
party, and (2) determining whether a reasonable public official
could have believed that the questioned conduct was lawful under
clearly established law.” Koch v. Rugg, 221 F.3d 1283, 1295 (11th
Cir. 2000). “Our precedents establish [] only that a plaintiff may
not base an interlocutory appeal on the district court’s first
determination by itself.” English, 75 F.4th at 1155–56 (brackets and
italics in original) (quotation omitted). When, as here, “both core
qualified immunity issues are involved, we have jurisdiction for de
novo review[.]” Id. at 1156 (brackets and italics in original)
(quotation omitted).
III. Discussion
The Nurses argue that the district court erred in denying
them qualified immunity for a variety of reasons, each of which
will be addressed below. To overcome each Nurse’s invocation of
the defense of qualified immunity, the Estate must show that (1)
the Nurse individually violated one of Dempsey’s constitutional
rights and (2) that the right was “clearly established” at the time of
Nurse’s purported misconduct. Pearson v. Callahan, 555 U.S. 223,
232 (2009). We proceed by first assessing whether the facts viewed
in the light most favorable to the Estate could lead a reasonable
juror to determine that Ayers, Burks, Lesko, and Winters each
violated Dempsey’s constitutional right to receive adequate care
for her serious medical needs. After concluding that a reasonable
juror could make such a determination with respect to Burks,
Lesko, and Winters, we move to the second prong of qualified
immunity and conclude that Dempsey’s constitutional right was
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23-10825 Opinion of the Court 13
clearly established at the time of their actions. Accordingly, we
affirm the district court’s denial of qualified immunity to Burks,
Lesko, and Winters at summary judgment. With respect to Ayers,
however, there is no evidence from which a reasonable juror could
conclude that she was subjectively aware that Dempsey had
endocarditis. Thus, a reasonable juror could not conclude that
Ayers violated Dempsey’s constitutional rights and therefore Ayers
is entitled to qualified immunity. Accordingly, we reverse the
district court’s denial of summary judgment as to Ayers.
A. Deliberate Indifference of Dempsey’s Serious Medical Needs
“The Fourteenth Amendment requires government officials
to provide basic necessities, including medical care, to pretrial
detainees.” Ireland v. Prummell, 53 F.4th 1274, 1287 (11th Cir. 2022).
The minimum standard of medical care allowed by the due process
clause of the Fourteenth Amendment “is the same as that allowed
by the [E]ighth [A]mendment for convicted persons.” Hamm v.
DeKalb Cnty., 774 F.2d 1576, 1574 (11th Cir. 1985). The Supreme
Court has held that because the Eighth Amendment to the U.S.
Constitution prohibits “the unnecessary and wanton infliction of
pain,” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v.
Georgia, 428 U.S. 153, 173 (1976)), it also prohibits “deliberate
indifference to serious medical needs of prisoners.” Id. Thus,
“deliberate indifference to a prisoner’s serious illness or injury
states a cause of action under § 1983.” Id. at 105.
“To show that a prison official acted with deliberate
indifference to serious medical needs, a plaintiff must satisfy both
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14 Opinion of the Court 23-10825
an objective and a subjective inquiry.” Hoffer v. Sec’y, Fla. Dep’t of
Corr., 973 F.3d 1263, 1270 (11th Cir. 2020) (quoting Farrow v. West,
320 F.3d 1235, 1243 (11th Cir. 2003)). “A plaintiff must show that
(1) he suffered from an ‘objectively serious medical need’ and (2) a
prison official acted with subjective deliberate indifference to that
medical need.” Johnson v. Lewis, 83 F.4th 1319, 1327 (11th Cir. 2023)
(quoting Hoffer, 973 F.3d at 1270). Additionally, “as with any tort
claim, [a plaintiff] must show that the injury was caused by the
defendant’s wrongful conduct.” Goebert v. Lee Cnty., 510 F.3d 1312,
1326 (11th Cir. 2007). “As to step one (the objective component), a
medical need that is objectively serious ‘is one that has been
diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize the necessity
for a doctor’s attention.’” Johnson, 83 F.4th at 1327 (quoting
Goebert, 510 F.3d at 1326). “As to step two (the subjective
component), a plaintiff must establish that the defendant (1) had
subjective knowledge of a risk of serious harm, (2) disregarded that
risk, and (3) acted with more than gross negligence.” Id.
The deliberate indifference standard “is far more onerous
than normal tort-based standards of conduct sounding in
negligence” and “medical treatment violates the Eighth
Amendment only when it is so grossly incompetent, inadequate,
or excessive as to shock the conscience or to be intolerable to
fundamental fairness.” Hoffer, 973 F.3d at 1271 (internal quotations
omitted). This standard requires a plaintiff to show that a
defendant “had a sufficiently culpable state of mind which is the
equivalent of recklessly disregarding a substantial risk of serious
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23-10825 Opinion of the Court 15
harm to the inmate.” Ireland, 53 F.4th at 1288 n.5 (quotation
omitted). Furthermore, “[e]ven where medical care is ultimately
provided, a prison official may nonetheless act with deliberate
indifference by delaying the treatment of serious medical needs,
even for a period of hours[.]” McElligott v. Foley, 182 F.3d 1248, 1255
(11th Cir. 1999). While this bar is certainly high, it is not
insurmountable. Johnson, 83 F.4th at 1330. We begin our
deliberate indifference analysis by first addressing the objective
component before moving onto the subjective component for each
Nurse. 6
The Nurses concede for purposes of the objective
component that endocarditis is a serious medical condition.
However, they argue that the Estate failed to and cannot establish
that Dempsey “was suffering from acute endocarditis from April
26, 2019, through May 3, 2019.” This argument is without merit.
The Estate has provided ample evidence that could lead a
reasonable juror to conclude that Dempsey was suffering from
endocarditis while she was held as a pre-trial detainee at BCJ on the
6 In the proceedings below, the Nurses did not challenge causation and instead
argued only that the Estate could not satisfy the objective or subjective
components of a deliberate indifference claim. On appeal, the Nurses argue
that their actions did not cause Dempsey’s death and that they are entitled to
summary judgment. Because the Nurses did not argue a lack of causation
below, we do not address it here. See Hurley v. Moore, 233 F.3d 1295, 1297 (11th
Cir. 2000) (“Arguments raised for the first time on appeal are not properly
before this Court.”). As the district court noted, the Estate will need to prove
all elements of a deliberate indifference claim, including causation, to prevail
at trial.
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16 Opinion of the Court 23-10825
dates in question. This evidence includes hospital records showing
(1) Dempsey was being treated for endocarditis at GCMC from
April 18, 2019, until April 26, 2019, when she left the hospital
against medical advice; and (2) she died of endocarditis on May 5,
2019, two days after being transported by ambulance from BCJ
back to GCMC. Additionally, evidence shows that Dempsey was
displaying symptoms of endocarditis—including chest pains,
pitting edema, and high blood pressure—and informed medical
staff at BCJ at least three times that she had endocarditis. This is
enough evidence that a reasonable juror could determine that
Dempsey had an active endocarditis infection while being held as a
pre-trial detainee at BCJ. Accordingly, the district court did not err
in determining the Estate had met its burden of providing evidence
“to establish the objective element of [its] deliberate indifferen[ce]
claims.” 7 We now address the subjective component for each
individual nurse.
7 The Nurses also argue that (1) the district court improperly relied on
Dempsey’s discharge paperwork from BCJ, which instructed Dempsey to
return to the emergency room if she experienced difficulty breathing, chest
pain, or shortness of breath, because the discharge paperwork was given under
the assumption that Dempsey was returning home and not going to jail where
she would have medical care; and (2) there is no evidence that shows the
Nurses would be on notice that Dempsey had endocarditis or any serious
medical need until May 3, 2019, when she was taken to GCMC via ambulance
The former argument fails because the BCJ discharge paperwork explicitly
stated that Dempsey was to be “discharged to the remand of the police.” The
latter argument conflates the subjective prong of a deliberate indifference
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23-10825 Opinion of the Court 17
The district court determined that there was evidence “from
which a reasonable jury could find that, at different points between
April 27 and May 3, Burks, Lesko, Winters, and Ayers each
subjectively knew that Ms. Dempsey had a serious medical
condition that needed emergency care.” The district court also
concluded that there was sufficient evidence “from which a
reasonable jury could find that the medical care provided by each
of the Nurse Defendants . . . was grossly inadequate, cursory,
and/or unduly delayed.” More specifically, the district court
determined that there was evidence that Burks, Lesko, Winters,
and Ayers each knew of Dempsey’s endocarditis diagnosis; knew
of her symptoms consistent with that diagnosis; in some instances,
failed to physically examine Dempsey despite her repeated
complaints; and instead of sending Dempsey to emergency care or
treating her with antibiotics, the Nurses merely treated Dempsey’s
symptoms without addressing the root cause.
On appeal, the Nurses argue that the district court failed to
apply the “more than mere negligence” standard and that their
conduct did not amount to “subjective recklessness as used in
criminal law” which is what they assert is required for a deliberate
claim with the objective prong and as discussed later in this opinion, fails in
any event.
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18 Opinion of the Court 23-10825
indifference claim. 8 They assert that the care they provided to
Dempsey—treating Dempsey’s symptoms with medication,
ordering an x-ray and an echocardiogram, and continually
monitoring her vitals—proves they were not deliberately
indifferent to Dempsey’s needs. 9 The Nurses also point to
Dempsey’s physical demeanor as proof that they had no reason to
believe that Dempsey was suffering from a serious medical
condition because she was not showing signs of distress. 10 Instead,
8 Panels of our Court have applied two different standards in evaluating
deliberate indifference claims. Some panels have applied a “more than mere
negligence” standard while others have applied a “more than gross negligence
standard” which equates to a reckless disregard. Wade v. McDade, 67 F.4th
1363, 1371–72 (11th Cir. 2023) (collecting cases), reh’g en banc granted, opinion
vacated sub nom. No. 21-14275, 2023 WL 6613842 (11th Cir. Oct. 11, 2023). We
need not determine the proper standard in the present case because a
reasonable juror could determine that the actions of Burks, Lesko, and
Winters satisfied the more demanding “more than gross negligence” standard.
9 The Nurses argue that they believed Dempsey’s symptoms were consistent
with heroin withdrawal and were therefore not related to acute endocarditis.
Thus, they assert they were treating Dempsey for withdrawal. However, at
summary judgment we must view the facts in the light most favorable to the
Dempsey as the nonmoving party. When viewed in this light, Dempsey’s
symptoms support an inference that Burks, Lesko, and Winters each
subjectively knew of Dempsey’s endocarditis infection.
10 In making this argument, the Nurses argue that in accordance with Scott v.
Harris, 550 U.S. 372 (2007), the district court improperly considered Scelfo’s
sworn statement regarding Dempsey’s physical condition because video
evidence supports the Nurses’ position that Dempsey was not in physical
distress. In Scott, the Supreme Court held that “[w]hen opposing parties tell
two different stories, one of which is blatantly contradicted by the record, so
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they assert that the district court improperly applied a 20/20
hindsight standard in determining whether the Nurses had the
subjective knowledge required for the Estate to prevail on its
deliberate indifference claims. The Estate, in turn, argues that the
district court properly determined that there was sufficient
evidence from which a reasonable juror could conclude that each
of the Nurses subjectively knew about Dempsey’s serious medical
needs and were deliberately indifferent to those needs by either
delaying treatment, providing grossly inadequate care, taking an
easier but less efficacious court of treatment, or providing utterly
cursory medical treatment.
Upon review, we agree with the Estate in part. As we
explain below, the district court was correct in holding that there
was sufficient evidence from which a reasonable juror could
conclude that Burks, Lesko, and Winters were subjectively aware
of Dempsey’s endocarditis infection and that each failed to provide
that no reasonable jury could believe it, a court should not adopt that version
of the facts for the purposes of ruling on a motion for summary judgment.”
550 U.S. at 380. As we recently noted, however, Scott “applies only when the
video actually proves that the plaintiff’s version of the facts cannot be true.”
Brooks v. Miller, 78 F.4th 1267, 1271. Nothing in the May 2, 2019, videos—
which in total is only a little more than seven minutes of video footage—
disproves Scelfo’s sworn statement that Dempsey felt hot to the touch,
defecated and urinated in her bed, complained to staff about chest pains, and
was behaving oddly on the nights of May 1 and 2, 2019. Accordingly, the
district court did not err in considering Scelfo’s sworn statement in ruling on
the motions for summary judgment.
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the adequate level of care. We disagree with the district court,
however, as to Ayers.
We turn first to the evidence supporting the inference that
each Nurse had the subjective knowledge that Dempsey was
suffering from a serious medical condition. With respect to Burks,
there is evidence that she knew as early as April 27, 2019—when
she reviewed Dempsey’s intake paperwork—that Dempsey had
endocarditis and was being treated with Azithromycin. Likewise,
Lesko’s notes from her examination of Dempsey on April 30,
2019—which stated Dempsey had a history of endocarditis and
intravenous heroin use, had pitting edemas in both lower
extremities, and had left GCMC against medical advice only four
days prior—support a reasonable inference that she was aware
Dempsey was being treated for an endocarditis infection as
recently as April 26, 2019. As to Winters, she responded to
Dempsey’s second sick call request, which stated Dempsey was
having trouble breathing and had endocarditis. Combined with
Winters’s response that Dempsey had already been seen and just
needed to let the medication work, it is reasonable to infer that
Winters knew on May 2, 2019, about Dempsey’s endocarditis.
Thus, the district court did not err in concluding that the material
facts of this case, construed in the light most favorable to the Estate,
could lead a reasonable juror to conclude “that [Burks, Lesko, and
Winters] knew at different points that [Dempsey] had
endocarditis[.]”
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With respect to Ayers, however, a reasonable juror could
not conclude that she was subjectively aware of Dempsey’s
endocarditis infection. Ayers only had two interactions with
Dempsey. On the morning of April 29, 2019, Ayers examined
Dempsey and took her vitals. After Dempsey complained about
chest pains for the second time in the afternoon of April 29, Ayers
contacted Lesko who confirmed she had ordered that Dempsey be
treated with Coreg. Nothing in these April 29 interactions
indicated to Ayers that Dempsey was suffering from a serious
medical condition, let alone endocarditis. And while Ayers may
have learned on the morning of May 3, 2019, that Dempsey was
suffering from a serious medical condition—evidenced by the fact
that Dempsey (1) had rapid and labored breathing; (2) a high pulse
rate (3) had been laying in her feces and urine all night; and (4)
required a correctional officer’s assistance to shower—there is no
evidence indicating she knew this condition was endocarditis.
Accordingly, the care Ayers provided on May 3—calling Lesko and
following orders to take Dempsey to the medical unit for further
evaluation and treatment—was not so grossly inadequate as to
constitute a reckless disregard of the substantial risk of serious
harm to Dempsey.
With it established that there is sufficient evidence for a
reasonable juror to conclude that each of the Nurses (except for
Ayers) subjectively knew that Dempsey had endocarditis, we next
assess whether a reasonable juror could conclude that their medical
care constituted a reckless disregard of a substantial risk to
Dempsey’s health. We hold that a reasonable juror could reach
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this conclusion with respect to Burks, Lesko, and Winters. For
starters, the evidence shows that none of these three sent Dempsey
to the hospital before May 3, 2019, despite the fact that endocarditis
requires treatment of intravenous antibiotics which the jail could
not administer. Lesko failed to prescribe any antibiotics, nor did
she contact the prison doctor at any point to discuss Dempsey’s
complaint of endocarditis. Instead of taking Dempsey’s complaints
of endocarditis seriously, Lesko merely prescribed medication that
addressed Dempsey’s symptoms of high blood pressure, difficulty
breathing, and pitting edema, not the root cause of these
symptoms. Similarly, on May 2, 2019—when Dempsey
complained about difficulty breathing and endocarditis—Winters
merely responded that Dempsey needed to wait for the non-
antibiotic drugs that Lesko had prescribed to work. Likewise, on
the night of April 28 when Burks responded to Dempsey’s
complaints of chest pains, Burks merely placed Dempsey back in
the dorm and informed her that she would contact Lesko, even
though Burks was already aware of the fact that Dempsey had
endocarditis and had recently been treated with Azithromycin.
Burks and Winters continued with the cursory treatment that
Lesko prescribed and ignored the root cause of Dempsey’s
complaints. Given the severity of endocarditis and Dempsey’s
continual complaints and deteriorating condition over the days she
was held as a pretrial detainee at BCJ, we conclude that a
reasonable juror could conclude that Burks, Lesko, and Winters
recklessly disregarded the risk to Dempsey’s healthy by not
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ensuring she received the intravenous antibiotics required to treat
endocarditis. 11
B. Dempsey’s Right Was Clearly Established
Our determination that a reasonable juror could determine
that Burks, Lesko, and Winters were deliberately indifferent to
Dempsey’s serious medical needs does not end our inquiry. We
must also determine whether binding precedent clearly
established, at the time of Dempsey’s detention, that Burks, Lesko,
and Winters were required to ensure that Dempsey’s endocarditis
was treated. We hold that the law was clearly established at the
time of Dempsey’s detainment at BCJ.
For a law to be clearly established, “pre-existing law must
dictate, that is, truly compel (not just suggest or allow or raise a
question about), the conclusion for every like-situated, reasonable
government agent that what [the] defendant is doing violates
federal law in the circumstances.” King v. Pridmore, 961 F.3d 1135,
1145 (11th Cir. 2020) (quotation omitted). In undertaking this
analysis, we must be careful “not to define clearly established law
at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742
(2011). However, “there need not be a case ‘on all fours’ with
materially identical facts, before we allow suits against
11 As discussed above, there is no evidence that Ayers was subjectively aware
that Dempsey had endocarditis. While she may have been aware on May 3,
2019, that Dempsey had a serious medical condition, Ayers’s treatment of this
condition—taking Dempsey to BCJ’s medical unit for further care—does not
constitute a reckless disregard to Dempsey’s health.
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[government officials].” Holloman ex rel. Holloman v. Harland, 370
F.3d 1252, 1277 (11th Cir. 2004). Accordingly, a plaintiff can satisfy
the clearly established requirement in one of three ways. Powell v.
Snook, 25 F.4th 912, 920 (11th Cir. 2022). First, a plaintiff can
“point[] to a materially similar decision of the Supreme Court, of
this Court, or of the supreme court of the state in which the case
arose.” Id. Second, a plaintiff can “establish[] that a broader clearly
established principle should control the novel facts of the case.” Id.
(internal quotations omitted). Finally, a plaintiff can “convinc[e] us
that the case is one of those rare ones that fits within the exception
of conduct which so obviously violates th[e] constitution that prior
case law is unnecessary.” Id. (second brackets in original) (internal
quotations omitted).
Burks, Lesko, and Winters argue that the district court erred
in concluding that the law was clearly established that their actions
violated Dempsey’s constitutional right to adequate medical care.
They assert that the district court improperly relied on our decision
in McElligott v. Foley in coming to its decision because the factual
situation in the instant matter is not substantially similar to the facts
present in that case. We disagree. In McElligott, we considered
whether a doctor and nurse were deliberately indifferent to a
prisoner’s serious medical needs when, over the course of a period
of six months, they continually ignored his complaints of severe
abdominal pain and merely treated him with Tylenol and Pepto-
Bismol. 182 F.3d at 1252–53. After the prisoner was finally sent to
the hospital, the prisoner was diagnosed with terminal stomach
cancer. Id. at 1254. We held that a reasonable jury could determine
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that the nurse and doctor were deliberately indifferent to the
prisoner’s serious medical condition because (1) instead of
attempting to diagnose and treat his worsening condition, they
took an easier and less efficacious course of treatment; and (2) the
medication they prescribed did not address the prisoner’s severe
pain he was experiencing as evidenced by his continual complaints
and thus the care provided by the doctor and nurse was so cursory
as to amount to no care at all. 12 Id. at 1257–58.
There are certainly some factual differences between the
situation in McElligott and the instant case, the most obvious being
the fact that the prisoner in McElligott suffered for a period of
months and Dempsey was only in the care of BCJ for eight days.
However, unlike the medical staff in McElligott who did not know
that the prisoner had cancer, here the evidence could lead a jury to
conclude that Burks, Lesko, and Winters each individually knew
that Dempsey had endocarditis which is a serious condition
requiring treatment with intravenous antibiotics. Lesko failed to
prescribe such antibiotics to Dempsey and only prescribed drugs to
address some of her symptoms, even as her condition worsened.
12 We reached a similar conclusion in Carswell v. Bay County, 854 F.2d 454 (11th
Cir. 1988). In Carswell, the medical staff diagnosed and provided some
medication to a prisoner who made continual requests for additional medical
care. Nevertheless, we affirmed a jury verdict in favor of the prisoner because
as his condition continued to worsen, the medical staff failed to respond. Id.
at 457. See also Ancata v. Prison Health Servs., Inc., 769 F.2d 700 (11th Cir. 1985)
(holding that medical providers’ delay in in providing necessary medical
treatment to a prisoner who was later diagnosed and died from leukemia
constituted deliberate indifference).
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Burks and Winters knew that Dempsey was not being treated with
antibiotics and they failed to take any action to address Dempsey’s
endocarditis. This amounts to care that is so cursory as to amount
to no care at all. Thus, the law was clearly established at the time
of Dempsey’s detainment at BCJ that Burks’s, Lesko’s, and
Winters’s medical treatment of Dempsey was constitutionally
deficient.
Accordingly, for the above reasons, the district court did not
err in denying Burks, Lesko, and Winters qualified immunity at
summary judgment. The district did err in denying summary
judgment to Ayers.
AFFIRMED IN PART AND REVERSED IN PART.