Petition for Writ of Certiorari — Fredesvindo Rodriguez-Garcia, Petitioner v. Fior Pichardo de Veloz, et al.

NO. 18-____

IN THE

Supreme Court of the United States

__________________

FREDESVINDO RODRIGUEZ-GARCIA,

Petitioner,

v.

FIOR PICHARDO DE VELOZ, et al.,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

Eleventh Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

ABIGAIL PRICE-WILLIAMS

Miami-Dade County Attorney

ZACH VOSSELER

BERNARD PASTOR, Counsel of Record

ANITA VICIANA

Assistant County Attorneys

111 N.W. First Street, Suite 2810

Miami, Florida 33128

(305) 375-5151

pastor@miamidade.gov

Counsel for Petitioner

May 31, 2019

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

During a five-minute medical examination in a

detention facility, Dr. Fredesvindo Rodriguez-Garcia

mistakenly concluded that Fior Pichardo de Veloz, a

female pretrial detainee in menopause, was a male in

the midst of a gender transition. He based his

conclusion on a note in Pichardo’s file indicating that

she was taking hormone replacement therapy, which

he knew to be prescribed to both transgender

individuals and women in menopause.

The court of appeals denied qualified immunity to

Dr. Rodriguez-Garcia, without identifying precedent

that clearly established a constitutional right and

without addressing Pichardo’s decision not to raise an

argument that Dr. Rodriguez-Garcia’s conduct violated

clearly established law until her reply brief on appeal.

The questions presented are:

1. Did the court of appeals err in denying qualified

immunity in the absence of precedent clearly

establishing the violative nature of Dr. RodriguezGarcia’s particular conduct?

2. Did the court of appeals err in refusing to find

that Pichardo forfeited the argument that Dr.

Rodriguez-Garcia is not entitled to qualified immunity?

ii

PARTIES TO THE PROCEEDING

The Petitioner is Fredesvindo Rodriguez-Garcia, a

physician employed by the Public Health Trust of

Miami-Dade County, Florida, who was an appellee

below.

The Respondent is Fior Pichardo de Veloz, who was

an appellant below.

Fatu Kamara-Harris, who was an appellee below,

has indicated to this Court her intention to file a

separate petition for writ of certiorari (see No. 18-A1043), but as it has not yet been filed, she is considered

a respondent in this proceeding under Sup. Ct. R. 12.6.

Cesar Cristobal Veloz Tiburcio, an appellant below,

is not a party to this petition.

Miami-Dade County, the Miami-Dade Corrections

and Rehabilitation Department, the Public Health

Trust of Miami-Dade County, and Travarri Johnson,

appellees below, are not parties to this petition.

Tavarez Carter, Kimberly Jones, Bobby Marshall,

Carlos A. Migoya, Audrey Morman, and Regina Price,

defendants in the district court, are not parties to this

petition.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING. . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi

PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 4

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

CONSTITUTIONAL AND STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 5

I. Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II. Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

REASONS FOR GRANTING THE PETITION . . . 13

I. The Eleventh Circuit Manifestly Failed to

Follow This Court’s Qualified Immunity

Precedent, and Summary Reversal Is

Warranted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. The Eleventh Circuit cited no law clearly

establishing a constitutional right. . . . . . . . 15

iv

B. The Eleventh Circuit’s view that an “obvious”

case is one in which a court may withhold

qualified immunity without identifying any

clearly established law because it strongly

objects to the official’s conduct contravenes

United States v. Lanier and Hope v. Pelzer,

which permit the deprivation of qualified

immunity only where the court first

identifies pre-existing law and then decides

that the official’s conduct “obviously” violated

that law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

II. The Eleventh Circuit’s Refusal to Find that

Pichardo Had Forfeited the Issue of Clearly

Established Law by Failing to Raise It Until Her

Appellate Reply Brief Is an Aberration Among

Its Own Law and the Law of Every Other Court

of Appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Eleventh Circuit

(November 21, 2018) . . . . . . . . . . App. 1a

Appendix B Order in the United States District

Court, Southern District of Florida

(June 8, 2017) . . . . . . . . . . . . . . App. 26a

Appendix C Order Denying Petitions for Rehearing

En Banc in the United States Court of

Appeals for the Eleventh Circuit

(January 16, 2019) . . . . . . . . . . App. 61a

v

Appendix D Memorandum from Sergeant Victoria

Aguilera, Security & Internal Affairs

Bureau, Miami-Dade Corr. & Rehab.

Dep’t, to Acting Captain Bridgette

Cone, Security & Internal Affairs

Bureau, Miami-Dade Corr. & Rehab.

Dep’t, Case No. IA-13-435

(April 1, 2014) . . . . . . . . . . . . . . App. 63a

vi

TABLE OF AUTHORITIES

CASES

Alcocer v. Mills,

906 F.3d 944 (11th Cir. 2018). . . . . . . . . . . . . . . 30

Anderson v. Creighton,

483 U.S. 635 (1987). . . . . . . . . . . . . . . . . . . . . 1, 20

Ashcroft v. al-Kidd,

563 U.S. 731 (2011). . . . . . . . . . . . . . . . . . . passim

Brewington v. Keener,

902 F.3d 796 (8th Cir. 2018). . . . . . . . . . . . . . . . 34

Brosseau v. Haugen,

543 U.S. 194 (2004). . . . . . . . . . . . . . . . . . 2, 14, 23

Carducci v. Regan,

714 F.2d 171 (D.C. Cir. 1983). . . . . . . . . . . . . . . 30

Carroll v. Carman,

574 U.S. 13 (2014). . . . . . . . . . . . . . . . . . . . . . . . . 2

Cass v. City of Abiline,

814 F.3d 721 (5th Cir. 2016). . . . . . . . . . . . . . . . 30

City & County of San Francisco v. Sheehan,

135 S. Ct. 1765 (2015). . . . . . . . . . . . . . 1, 2, 12, 28

City of Escondido v. Emmons,

139 S. Ct. 500 (2019). . . . . . . . . . . . . . . . . . . . 1, 16

Coffin v. Brandau,

642 F.3d 999 (11th Cir. 2011). . . . . . . . . . . . . . . 11

Cone v. Bell,

556 U.S. 449 (2009). . . . . . . . . . . . . . . . . . . . 30, 31

Conn v. Gabbert,

526 U.S. 286 (1999). . . . . . . . . . . . . . . . . . . . . . . 29

vii

County of Sacramento v. Lewis,

523 U.S. 833 (1998). . . . . . . . . . . . . . . . . . . . . . . 18

Dang ex rel. Dang v. Sheriff of Seminole Cty.,

871 F.3d 1272 (11th Cir. 2017). . . . . . . . . . . . . . 15

District of Columbia v. Wesby,

138 S. Ct. 577 (2018). . . . . . . . . . . . . . . . . . passim

Duncan v. Wis. Dep’t of Health & Family Servs.,

166 F.3d 930 (7th Cir. 1999). . . . . . . . . . . . . . . . 34

Estelle v. Gamble,

429 U.S. 97 (1976). . . . . . . . . . . . . . . . . . . . . . . . 18

Farmer v. Carlson,

685 F. Supp. 1335 (M.D. Penn. 1988) . . . . . . . . 11

Fox v. District of Columbia,

794 F.3d 25 (D.C. Cir. 2015). . . . . . . . . . . . . . . . 33

Foy v. Holston,

94 F.3d 1528 (11th Cir. 1996). . . . . . . . . . . . . . . 27

Gates v. Collier,

501 F.2d 1291 (5th Cir. 1974). . . . . . . . . . . . 21, 22

George v. Morris,

736 F.3d 829 (9th Cir. 2013). . . . . . . . . . . . . . . . 35

Graham v. Connor,

490 U.S. 386 (1989). . . . . . . . . . . . . . . . . . . . 23, 25

Gray v. Cummings,

917 F.3d 1 (1st Cir. 2019) . . . . . . . . . . . . . . . . . . 34

Guertin v. Michigan,

— F.3d —, 2019 WL 2133573 (6th Cir. May 16,

2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Harlow v. Fitzgerald,

457 U.S. 800 (1982). . . . . . . . . . . . . . . . . . . . . . . 13

viii

Harvey v. Plains Twp. Police Dep’t,

421 F.3d 185 (3d Cir. 2005) . . . . . . . . . . . . . . . . 34

Hensley ex rel. North Carolina v. Price,

876 F.3d 573 (4th Cir. 2017), cert. denied,

138 S. Ct. 1595 (2018). . . . . . . . . . . . . . . . . . 34, 35

Hobby Lobby Stores, Inc. v. Sebelius,

723 F.3d 1114 (10th Cir. 2013), aff’d sub nom.

Burwell v. Hobby Lobby Stores, Inc., 573 U.S.

682 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Hope v. Pelzer,

536 U.S. 730 (2002). . . . . . . . . . . . . . . . . . . passim

Kingsley v. Hendrickson,

135 S. Ct. 2466 (2015). . . . . . . . . . . . . . . . . . . . . 15

Kisela v. Hughes,

138 S. Ct. 1148 (2018). . . . . . . . . . . . . . . . . . . 1, 23

Lincoln v. Turner,

874 F.3d 833 (5th Cir. 2017). . . . . . . . . . . . . 32, 33

Lore v. City of Syracuse,

670 F.3d 127 (2d Cir. 2012) . . . . . . . . . . . . . . . . 34

Luna v. Mullenix,

777 F.3d 221 (5th Cir. 2014). . . . . . . . . . . . . . . . . 3

Messerschmidt v. Millender,

565 U.S. 535 (2012). . . . . . . . . . . . . . . . . . . . . . . . 2

Mikko v. City of Atlanta,

857 F.3d 1136 (11th Cir. 2017). . . . . . . . . . . . . . 27

Mitchell v. Forsyth,

472 U.S. 511 (1985). . . . . . . . . . . . . . . . . . . . . . . 24

Mullenix v. Luna,

136 S. Ct. 305 (2015). . . . . . . . . . . . . . . 1, 3, 13, 14

ix

Norelus v. Denny’s, Inc.,

628 F.3d 1270 (11th Cir. 2010). . . . . . . . . . . . . . 31

Ort v. White,

813 F.2d 318 (11th Cir. 1987). . . . . . . . . . . . . . . 22

Pearson v. Callahan,

555 U.S. 223 (2009). . . . . . . . . . . . . . . . . . . . . . . . 9

Plumhoff v. Rickard,

572 U.S. 765 (2014). . . . . . . . . . . . . . . . . . . . . . . . 2

Priester v. City of Rivera Beach,

208 F.3d 919 (11th Cir. 2000). . . . . . . . . . . . . . . 27

Puckett v. Lexington-Fayette Urban County

Government,

833 F.3d 590 (6th Cir. 2016). . . . . . . . . . . . . . . . 34

Purcell ex rel. Estate of Morgan v. Toombs County,

400 F.3d 1313 (11th Cir. 2005). . . . . . . . . . . 10, 16

Reichle v. Howards,

566 U.S. 658 (2012). . . . . . . . . . . . . . . . . . . . . . . . 2

Ryburn v. Huff,

565 U.S. 469 (2012). . . . . . . . . . . . . . . . . . 2, 16, 17

Safford Unified Sch. Dist. No. 1 v. Redding,

557 U.S. 364 (2009). . . . . . . . . . . . . . . . . . . . 19, 26

Smith v. Mattox,

127 F.3d 1416 (11th Cir. 1997). . . . . . . . . . . . . . 25

Stanton v. Sims,

571 U.S. 3 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . 2

Taylor v. Barkes,

135 S. Ct. 2042 (2015). . . . . . . . . . . . . . . . . . . . 1, 2

Tennessee v. Garner,

471 U.S. 1 (1985). . . . . . . . . . . . . . . . . . . . . . . . . 23

x

United States v. Lanier,

520 U.S. 259 (1995). . . . . . . . . . . . . . . . . . . passim

Wearry v. Cain,

136 S. Ct. 1002 (2016). . . . . . . . . . . . . . . . . . . . . 17

Wesby v. District of Columbia,

816 F.3d 96 (D.C. Cir. 2016). . . . . . . . . . . . . . . . 24

White v. Pauly,

137 S. Ct. 548 (2017). . . . . . . . . . . . . . 1, 16, 17, 23

Wood v. Moss,

572 U.S. 744 (2014). . . . . . . . . . . . . . . . . . . . . . . . 2

Youmans v. Gagnon,

626 F.3d 557 (11th Cir. 2010). . . . . . . . . . . . . . . 27

Young v. Borders,

850 F.3d 1274 (11th Cir. 2017), cert. denied,

138 S. Ct. 640 (2018). . . . . . . . . . . . . . . . . . . . . . 28

Zia Shadows, L.L.C. v. City of Las Cruces,

829 F.3d 1232 (10th Cir. 2016). . . . . . . . . . . . . . 34

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017). . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTION

U.S. Const. amend. IV . . . . . . . . . . . . . . 17, 25, 26, 33

U.S. Const. amend. VIII. . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. XIV . . . . . . . . . . . . . . . 4, 8, 10, 15

STATUTES

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 4

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . passim

1

PETITION FOR WRIT OF CERTIORARI

This Petition concerns the Eleventh Circuit’s

decision to turn what would otherwise be medical

malpractice at worst into an “obvious” violation of an

unidentified constitutional right because the plaintiff

was a pretrial detainee, and to do so even after the

plaintiff had waived any such challenge to qualified

immunity.

Eight years ago today—May 31, 2011—this Court

heralded a new era in the law of qualified immunity,

announcing in Ashcroft v. al-Kidd that a plaintiff

seeking to abrogate the defense must identify “existing

precedent” that placed the constitutional question of an

officer’s conduct “beyond debate,” such that “every

‘reasonable official would have understood that what

he is doing violates’” a constitutional right. 563 U.S.

731, 741 (2011) (quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987)). Since then, recognizing “the

importance of qualified immunity to society as a

whole,” the Court has held fast to that standard, “often

correct[ing] lower courts when they wrongly subject

individual officers to liability.” City & County of San

Francisco v. Sheehan, 135 S. Ct. 1765, 1774 n.3 (2015)

(cleaned up). In fact, “often” may be an

understatement; the Court has corrected lower courts’

erroneous qualified immunity decisions sixteen times

in half as many years.1

1

City of Escondido v. Emmons, 139 S. Ct. 500 (2019) (per curiam);

Kisela v. Hughes, 138 S. Ct. 1148 (2018) (per curiam); District of

Columbia v. Wesby, 138 S. Ct. 577 (2018); Ziglar v. Abbasi, 137 S.

Ct. 1843 (2017); White v. Pauly, 137 S. Ct. 548 (2017); Mullenix v.

Luna, 136 S. Ct. 305 (2015) (per curiam); Taylor v. Barkes, 135 S.

2

The Court should now correct the Eleventh Circuit

for committing two manifest errors in depriving

Petitioner Fredesvindo Rodriguez-Garcia of qualified

immunity.

First, the court’s unadorned conclusion that Dr.

Rodriguez-Garcia was unworthy of qualified immunity

was not based in precedent, controlling or otherwise. It

contravenes al-Kidd and every decision thereafter,

each of which requires a court to identify existing

precedent as a prerequisite to denying qualified

immunity. Downplaying its failure to find any

precedent that “squarely governs the case here,”

Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per

curiam), the Eleventh Circuit asserted that it is

“obvious” that placing a woman in the male population

of a jail facility is “unlawful,” and then erroneously,

and without further elaboration, deprived Dr.

R o d r i g u e z - G a r c i a of q ual i fi ed immuni t y

notwithstanding his actual alleged conduct—that he

performed a medical evaluation, albeit a flawed one.

Beyond violating this Court’s precedent, the

decision puts medical providers in Florida, Georgia,

and Alabama jails in the impossible position of having

to diagnose and treat pretrial detainees without any

fair warning whether their particular conduct will—

Ct. 2042 (2015) (per curiam); Sheehan, supra, 135 S. Ct. 1765;

Carroll v. Carman, 574 U.S. 13 (2014) (per curiam); Plumhoff v.

Rickard, 572 U.S. 765 (2014); Wood v. Moss, 572 U.S. 744 (2014);

Stanton v. Sims, 571 U.S. 3 (2013) (per curiam); Reichle v.

Howards, 566 U.S. 658 (2012); Messerschmidt v. Millender, 565

U.S. 535 (2012); Ryburn v. Huff, 565 U.S. 469 (2012) (per curiam);

al-Kidd, supra, 563 U.S. 731.

3

years down the road—be declared unconstitutional

retroactively. The impression the court’s threadbare

analysis gives—an impression that is only bolstered by

the court’s apparent refusal to consider any of this

Court’s qualified immunity decisions from the last

decade—is that the court “either does not understand

the concept of qualified immunity or, in defiance

thereof, impulsively determine[d] the ‘right outcome’

and construct[ed] an opinion to support its subjective

judgments, which necessarily must ignore the concept

and precedents of qualified immunity.” Luna v.

Mullenix, 777 F.3d 221, 222 (5th Cir. 2014) (Jolly, J.,

dissenting from denial of rehearing en banc).2

Second, as a procedural matter, the court failed to

recognize that Respondent Fior Pichardo de Veloz had

waived, and therefore forfeited, the issue of clearly

established law. The court allowed her to overcome

qualified immunity despite her unequivocal election not

to raise the issue at any stage until the final pages of

her reply brief on appeal. By relieving a plaintiff of her

burden to define the clearly established constitutional

right at issue and to furthermore demonstrate how an

official’s conduct violated that right, the Eleventh

Circuit has inverted the plaintiff’s burden to abrogate

qualified immunity. Now, officials may risk losing the

protection of qualified immunity unless they can prove

the negative that a constitutional right was not clearly

established, regardless of whether the plaintiff has

timely addressed the issue. The court’s decision is an

aberration among the courts of appeals (and the

2

Judge Jolly’s position ultimately prevailed. Mullenix, supra, 136

S. Ct. 305.

4

Eleventh Circuit’s own case law). Rightly, no other

court allows an appellant in a § 1983 action—plaintiff

or officer—to prevail on a dispositive issue that she did

not raise in her initial brief.

The Court should grant the Petition or,

alternatively, summarily reverse the Eleventh Circuit’s

radical departure from this Court’s law governing

qualified immunity.

OPINIONS BELOW

The opinion of the Eleventh Circuit (App. 1a-25a)

was not reported but is available at 756 F. App’x 869.

The Eleventh Circuit’s order denying rehearing en banc

(App. 61a-62a) was not reported. The memorandum

opinion of the district court granting Dr. RodriguezGarcia’s (and other defendants’) motion to dismiss

(App. 26a-60a) is reported at 255 F. Supp. 3d 1222.

JURISDICTION

The judgment of the Eleventh Circuit was entered

on November 21, 2018. The Eleventh Circuit denied Dr.

Rodriguez-Garcia’s timely petition for rehearing en

banc on January 16, 2019. On March 22, 2019, Justice

Thomas extended the time for filing this petition for

writ of certiorari to and including May 31, 2019. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

Respondent brought this action under 42 U.S.C.

§ 1983, alleging, inter alia, that petitioner acted with

deliberate indifference to her rights under the

Fourteenth Amendment. The Due Process Clause of the

Fourteenth Amendment provides:

5

[N]or shall any state deprive any person of life,

liberty, or property, without due process of law

....

The Eleventh Circuit’s opinion relied on the Eighth

Amendment, which provides:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.

Finally, Section 1983 provides, in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State . . . , subjects, or causes to be subjected,

any citizen of the United States or other person

within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in

equity, or other proper proceeding for redress

....

STATEMENT OF THE CASE

I. Facts

On November 4, 2013, Fior Pichardo de Veloz, a

fifty-year-old Dominican national, traveled from the

Dominican Republic to Miami. App. 27a, 64a. At the

time, she suffered from high blood pressure and was

undergoing medically prescribed hormone replacement

therapy (HRT) for menopause. App. 27a. Upon her

arrival, she was detained on an outstanding federal

warrant for trafficking and booked into the Turner

Guilford Knight Correctional Center, a Miami-Dade

County-operated detention facility. App. 27a, 66a-67a.

6

Due to her history of high blood pressure, she was

escorted to a medical unit examination room to be

evaluated by Dr. Fredesvindo Rodriguez-Garcia, the

attending physician. App. 28a, 125a. No one but Dr.

Rodriguez-Garcia and Pichardo were in the room

during the five-minute examination. App. 6a.3

From the moment Pichardo entered the

examination room, based solely on an entry in her file

indicating that she was taking HRT, Dr. RodriguezGarcia concluded that Pichardo was a man undergoing

a gender transition.4 App. 126a. He was aware that

HRT is prescribed to both women in menopause and

transgender individuals, but he assumed, albeit

mistakenly, that the detainee before him—Pichardo—

was transgender. App. 126a. This assumption colored

the remainder of the examination.

Dr. Rodriguez-Garcia inartfully asked Pichardo “in

a general sense” if she had all her genitals and if she

had any surgery to that area. App. 126a. Pichardo

answered that she had all her genitals and had not had

surgery to the area. App. 126a. Dr. Rodriguez-Garcia

interpreted that response to mean that Pichardo had

her original, male, genitalia. He did not ask if she was

transgender or whether her current genitalia was male

3

Nothing in the record shows that Dr. Rodriguez-Garcia had any

knowledge of anything that transpired either before Pichardo

entered the examination room or after she left.

4

Some portion of Pichardo’s file apparently displayed the words

“Menopause Medical,” App. 84a, but nothing in the record shows

that Dr. Rodriguez-Garcia saw those words and disregarded

them—only that he saw the entry that she was taking HRT, App.

126a.

7

or female, and he did not ask why she was taking HRT

because it was “a difficult question to ask.” App. 126a.

Thus, while clumsy and unsuccessful, Dr. RodriguezGarcia indubitably attempted to confirm his impression

that Pichardo was male-to-female transgender.

In cases where a visual check of a detainee’s

genitals is needed to verify his or her sex, Miami-Dade

Corrections and Rehabilitation Department policy

dictates that the detainee be taken to the clinic where

a doctor, nurse, and corrections officer are present.

App. 127a. Dr. Rodriguez-Garcia had conducted such

visual checks in the past, but he did not conduct one to

verify Pichardo’s sex; in his mind, he had already

correctly determined that she was transgender. App.

127a. He noted as much on Pichardo’s medical form:

“male on hormonal treatment transgender.” App. 128a.

In the section of the form marked “Genital-Urinary

System,” Dr. Rodriguez-Garcia wrote “deferred,”

signifying that an assessment would be conducted

later. App. 127a. He made a note that Pichardo could

go to general population, and he prescribed her

ibuprofen, an antacid, and a low-sodium diet, after

which she left the examination room. App. 127a.

Pichardo was transported to an all-male facility and

placed in a general population unit, where she spent

six hours and four minutes. App. 67a-70a, 105a-110a.

Officers afforded Pichardo the protections afforded to

any female-presenting prisoner, placing her in a bunk

nearest the front door where the officers are stationed.

App. 91a. Surveillance video recorded her every

movement during her time in the unit: It shows her

walking around, making her bed, speaking with other

detainees (almost always one-on-one, though once with

8

two other detainees), sitting and lying down on her bed,

entering and exiting the restroom, and taking a dinner

tray back to her bunk. App. 105a-110a. She was neither

physically nor sexually assaulted while in the unit,

although she alleges that she felt “psychologically

assaulted.” App. 66a, 70a.

Corrections officers later confirmed Pichardo’s sex

as female in response to her family’s inquiring why she

had been placed in an all-male unit. App. 11a-12a.

Pichardo was then housed in an all-female unit until

her release into the custody of the U.S. Marshals

Service the following day. App. 12a.

II. Proceedings

Pichardo sued Miami-Dade County, the Public

Health Trust, a number of corrections officers, a nurse,

and Dr. Rodriguez-Garcia.5 App. 32a-33a. She raised

several federal and state-law claims, including one

against Dr. Rodriguez-Garcia under 42 U.S.C. § 1983

alleging that he acted with deliberate indifference to

her rights under the Fourteenth Amendment. App.

45a-46a.

Dr. Rodriguez-Garcia moved to dismiss,6 arguing

that he was entitled to qualified immunity because

(1) Pichardo failed to allege a violation of a

constitutional right, and (2) his conduct did not violate

5

Pichardo’s husband asserted a state-law loss-of-consortium claim.

That claim is not addressed in this Petition.

6

The other defendants joined in the motion, but their arguments

are not addressed in this Petition; neither is the nurse’s

participation in this litigation.

9

clearly established law. App. 36a, 46a. Pichardo’s

response did not address the assertion of qualified

immunity, except to outline a generic legal standard

that it never revisited. Opp. to Mot. to Dismiss 9, S.D.

Fla. No. 16-23925, D.E. 83.

The district court granted the motion to dismiss. As

to the deliberate indifference claim, the court exercised

its discretion to decide which of the two prongs of the

qualified immunity analysis to address first, see

Pearson v. Callahan, 555 U.S. 223 (2009), and

concluded that Pichardo failed to plausibly allege that

Dr. Rodriguez-Garcia violated a constitutional right. As

a result, Dr. Rodriguez-Garcia was entitled to qualified

immunity. App. 45a-51a.

On appeal, Pichardo’s initial brief contained no

argument or analysis on qualified immunity. Her brief

used the words “qualified immunity” exactly twice, and

only in describing the procedural history:

Defendants contended that [the operative

complaint] failed to state a claim for violation of

the Eighth Amendment and asserted qualified

immunity for the actions of . . . Dr. Rodriguez

Garcia . . . .

Based upon these findings, the District Court

found that Defendants were entitled to qualified

immunity and granted Defendant’s [sic] motion.

10

Initial Br. of Appellant 10, 12.7 The brief used the

words “clearly established” once, in claiming that Dr.

Rodriguez-Garcia’s “awareness of [her] sex was clearly

established.” Id. at 26. But “awareness of sex” is not

the object of the “clearly established” prong of the

qualified immunity analysis.

After Dr. Rodriguez-Garcia argued that Pichardo

had “waived any challenges as to clearly established

law, presenting no argument about this issue in her

brief,” Rodriguez-Garcia Answer Br. 24-25, Pichardo, in

a terse discussion in the final pages of her reply brief,

elected to address—for the first time since she had filed

suit—the issue of clearly established law. She claimed

that “a prisoner has a right, secured by the eighth . . .

amendment[], to be reasonably protected from constant

threat of violence and sexual assault by his fellow

inmates,” Reply Br. of Appellant 13-14 (quoting Purcell

ex rel. Estate of Morgan v. Toombs County, 400 F.3d

1313, 1320 (11th Cir. 2005)). And without explaining

how that abstract right applies to Dr. RodriguezGarcia’s medical examination, she argued in conclusory

fashion that he violated the right:

7

The parties, the district court, and the Eleventh Circuit all

analyzed whether Pichardo had alleged a violation of a

constitutional right under the Eighth Amendment instead of the

Fourteenth. See App. 15a & n.4 (“As a pretrial detainee, Mrs.

Pichardo’s rights exist under the due process clause of the

Fourteenth Amendment rather than the Eighth Amendment.

Nonetheless, the standards under the Fourteenth Amendment are

identical to those under the Eighth. . . . Because all parties refer

to Mrs. Pichardo’s claims as Eighth Amendment claims, we do too

for purposes of this opinion.” (cleaned up)).

11

It cannot be disputed that placing a female

inmate in the male population, and the officials’

deliberate indifference to such a result, would be

a violation of her constitutional rights. See e.g.

Farmer v. Carlson, 685 F. Supp. 1335, 1342

(M.D. Penn. 1988) (“Clearly, placing plaintiff, a

twenty-one year old transsexual, into the

general population at . . . a [high-]security

institution, could pose a significant threat to

internal security in general and to plaintiff in

particular.”). “Exact factual identity with a

previously decided case is not required, but the

unlawfulness of the conduct must be apparent

from preexisting law.” Coffin v. Brandau, 642

F.3d 999, 1013 (11th Cir. 2011). The obviousness

of Defendants’ actions satisfies this second

element of “fair warning.” Moreover, the novelty

of such a scenario demonstrates not that the

constitutional right was not clearly established,

as argued by Dr. Rodriguez-Garcia, but rather

that placing a female detainee within the male

population is so clearly a violation as to not be in

dispute. It was error for the District Court to

grant [] qualified immunity based upon a failure

to demonstrate a constitutional violation.

Id. at 14-15 (citation omitted). Dr. Rodriguez-Garcia

had no opportunity to respond.

In spite of Pichardo’s deficient briefing on clearly

established law, the Eleventh Circuit found in her

favor and reversed on that very issue. App. 14a-25a.

The court concluded that she had plausibly stated a

deliberate indifference claim against Dr. Rodriguez-

12

Garcia,8 then rejected the district court’s grant of

qualified immunity. The relevant portion of its analysis

of clearly established law was similarly terse:

We conclude that at the time of this incident in

2013, every reasonable prison officer and

medical personnel would have known that

wrongfully misclassifying a biological female as

a male inmate and placing that female in the

male population of a detention facility was

unlawful. The conduct at issue here lies so

obviously at the very core of what the Eighth

Amendment prohibits, that the unlawfulness of

placing a female detainee within the male

population was readily apparent to any prison

officer or medical personnel in the shoes of [Dr.

Rodriguez-Garcia]. Accordingly, [Dr. RodriguezGarcia is not] entitled to qualified immunity.

App. 24a-25a. The court did not address Dr. RodriguezGarcia’s waiver argument and later denied his petition

for rehearing en banc. App. 61a-62a.

8

Dr. Rodriguez-Garcia does not seek review of this finding. This

Court need not—and oftentimes does not—review a lower court’s

decision whether a plaintiff stated a constitutional violation in

cases where the decision on qualified immunity is clearly incorrect.

E.g., Sheehan, 135 S. Ct. at 1778 (“Because the qualified immunity

analysis is straightforward, we not decide whether the

Constitution was violated . . . .”). This is one of those cases.

13

REASONS FOR GRANTING THE PETITION

I. The Eleventh Circuit Manifestly Failed to

Follow This Court’s Qualified Immunity

Precedent, and Summary Reversal Is

Warranted.

“Qualified immunity shields federal and state

officials from money damages unless a plaintiff pleads

facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.” alKidd, 563 U.S. at 735 (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). A clearly established right is

one whose contours are “sufficiently clear that every

reasonable official would have understood that what he

is doing violates that right.” Mullenix v. Luna, 136

S. Ct. 305, 308 (2015) (per curiam) (cleaned up). The

legal rule on which a plaintiff seeks to rely cannot be

one that has only been “suggested by then-existing

precedent”; to the contrary, it must have such a “clear

foundation” in precedent that it is considered “settled

law.” District of Columbia v. Wesby, 138 S. Ct. 577,

589-90 (2018) (cleaned up). The rule must also be

specific enough that the unlawfulness of the officer’s

conduct “follow[s] immediately from the conclusion that

the rule was firmly established.” Id. at 590 (cleaned

up).

In addition to identifying an applicable and

specifically defined legal rule, a court must determine

whether that rule “clearly prohibit[s] the officer’s

conduct in the particular circumstances before him.” Id.

Viewing the officer’s particularized conduct through the

lens of the circumstances he faced is essential: “The

14

dispositive question is ‘whether the violative nature of

particular conduct is clearly established,’” a question

that “‘must be undertaken in light of the specific

context of the case, not as a broad general proposition.’”

Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 563 U.S.

at 742, and Brosseau, 543 U.S. at 198). In short, unless

“controlling authority” or “a robust consensus of cases

of persuasive authority” “placed the . . . constitutional

question” of the officer’s conduct “beyond debate,”

qualified immunity is granted. al-Kidd, 563 U.S. at

741, 742 (cleaned up).

The Eleventh Circuit defied this Court’s

instructions. It failed to identify a clearly established

right, and it failed to explain how Dr. RodriguezGarcia’s conduct in the circumstances of his medical

examination violated it. Instead, the court proclaimed,

without precedent from any court, and without relating

any law to Dr. Rodriguez-Garcia’s particularized

conduct or circumstances, that “wrongfully

misclassifying a biological female as a male inmate and

placing that female in the male population of a

detention facility” is “unlawful” and “obvious[ly]”

unconstitutional. App. 24a.

In the Eleventh Circuit’s misguided view, neither

Dr. Rodriguez-Garcia’s particularized conduct, nor the

circumstances surrounding that conduct, nor even the

threshold identification of a constitutional right, are

relevant. All that is relevant is the result: Pichardo, a

female detainee, was placed with the male population

of a jail, so whatever Dr. Rodriguez-Garcia’s conduct,

qualified immunity must be withheld, because it

resulted in her being placed there. That reasoning is

15

strictly contrary to this Court’s precedent governing

the determination of clearly established law.

A. The Eleventh Circuit cited no law clearly

establishing a constitutional right.

The Eleventh Circuit’s analysis of the question

whether Dr. Rodriguez-Garcia’s conduct violated

clearly established law is a two-sentence discussion,

devoid of precedent, concluding that his conduct was

“obviously” “unlawful” under the Eighth Amendment.

The Eleventh Circuit has assumed that Kingsley v.

Hendrickson, 135 S. Ct. 2466 (2015)—which held that

excessive force claims brought by pretrial detainees

under the Fourteenth Amendment must be analyzed

differently than those claims brought by convicted

inmates under the Eighth Amendment—has left

undisturbed its cases applying the Eighth Amendment

to pretrial detainees’ deliberate-indifference claims. See

Dang ex rel. Dang v. Sheriff of Seminole Cty., 871 F.3d

1272, 1279 n.2 (11th Cir. 2017). But neither that

assumption nor the court’s statement here that the

Eighth and Fourteenth Amendment “standards” are

“identical,” App. 15a, should’ve relieved it of the

obligation to identify an applicable, sufficiently defined

constitutional right. Pichardo was not a convicted

inmate. So no matter what “Eighth Amendment right”

the Eleventh Circuit identified, App. 23a, it is

impossible for Dr. Rodriguez-Garcia to have violated a

right that Pichardo, a pretrial detainee, could not

possibly have been afforded.

As it is, the court never actually defined what it

considered “the Eighth Amendment right at issue” to

be. App. 23a. It did refer in passing (elsewhere in its

16

opinion) to a prior Circuit case, which it said

“explain[ed] that a prisoner has a right, secured by the

Eighth Amendment, to be ‘reasonably protected from

constant threat of violence and sexual assault’ by her

fellow inmates.” App. 17a (quoting Purcell, 400 F.3d at

1320). But if that’s the right the court considered to be

clearly established, then it has fallen victim to the

same trap as many a fellow lower court—“defin[ing]

clearly established law at a high level of generality,” an

act this Court continually forbids. City of Escondido v.

Emmons, 139 S. Ct. 500, 503 (2019) (per curiam). Even

if mistakenly concluding that a woman taking HRT is

a man transitioning into a woman (particularly in an

urban jail environment, where a transgender woman is

perhaps just as likely or more likely to be found than a

woman in menopause) is unlawful, that unlawfulness

does not “follow immediately” from Purcell, a case

about an inmate-on-inmate assault, not a medical

misdiagnosis. Wesby, 138 S. Ct. at 590. As Emmons

recently made clear, a court that “ma[kes] no effort to

explain how [cited] case law prohibited [an officer]’s

actions in” the case before it creates “a problem under

[this Court’s] precedents.” 139 S. Ct. at 503-04. That

problem requires correction.

The unsupported decision that Dr. RodriguezGarcia is not entitled to qualified immunity warrants

summary reversal. See White v. Pauly, 137 S. Ct. 548,

552 (2017) (per curiam) (summarily reversing denial of

qualified immunity where the court of appeals

“misunderstood the ‘clearly established’ analysis: It

failed to identify a case where an officer acting under

similar circumstances as [the defendant] was held to

have violated” the Constitution); Ryburn v. Huff, 565

17

U.S. 469, 474 (2012) (per curiam) (summarily reversing

denial of qualified immunity where “[n]o decision of

this Court has found a Fourth Amendment violation on

facts even roughly comparable to those present in this

case”); see also Wesby, 138 S. Ct. at 591 (reversing

denial of qualified immunity where, “[t]ellingly, neither

the [court of appeals] nor [the plaintiffs] have identified

a single precedent—much less a controlling case or

robust consensus of cases—finding a [constitutional]

violation under similar circumstances” (cleaned up));

al-Kidd, 563 U.S. at 741 (reversing denial of qualified

immunity where, at the time of the plaintiff’s arrest,

“not a single judicial opinion had held that pretext

could render an objectively reasonable arrest pursuant

to a material-witness warrant unconstitutional”). See

generally Wearry v. Cain, 136 S. Ct. 1002, 1007 (2016)

(per curiam) (“[T]he Court has not shied away from

summarily deciding fact-intensive cases where, as here,

lower courts have egregiously misapplied settled law.”).

The Eleventh Circuit’s inability to identify any

precedent that clearly prohibited Dr. RodriguezGarcia’s conduct in the particular circumstances before

him, combined with both Pichardo’s and the district

court’s acknowledgements of the novelty and

uniqueness of the case, see Initial Br. of Appellant 22;

App. 46a, should have signaled to the Eleventh Circuit

that the law was not clearly established. See Wesby,

138 S. Ct. at 592 (“[T]he fact that a case is unusual, we

have held, is ‘an important indication . . . that [the

officer’s] conduct did not violate a “clearly established”

right.’” (quoting White, 137 S. Ct. at 552)). What’s

more, its failure even to mention a single immunity

decision from this Court’s eight-year wave further

18

reveals its misunderstanding of the prerequisites to

abrogating qualified immunity.

For his part, Dr. Rodriguez-Garcia is unable to

locate a decision from any jurisdiction holding that a

medical provider who mistakenly determined that an

individual was transgender violated the Constitution.

His conduct, had it taken place outside of a jail, would

be considered (at worst) medical malpractice, which

this Court held nearly half a century ago “does not

become a constitutional violation merely because the

victim is a prisoner.” Estelle v. Gamble, 429 U.S. 97,

106 (1976); see also County of Sacramento v. Lewis, 523

U.S. 833, 849 (1998) (“[L]iability for negligently

inflicted harm is categorically beneath the threshold of

constitutional due process.”). Therefore, it cannot be

true that Pichardo had a clearly established

constitutional right not to be subjected to a flawed

medical examination.

There is no “settled law” here. It was not beyond

debate in November 2013 that every reasonable official

in Dr. Rodriguez-Garcia’s place would have known that

it was a clear violation of the Constitution—not simply

a question of medical malpractice—to misdiagnose a

female detainee on HRT as a male in the midst of a

gender transition based on inartful questions about

genitalia without further physical examination.

19

B. The Eleventh Circuit’s view that an

“obvious” case is one in which a court may

withhold qualified immunity without

identifying any clearly established law

because it strongly objects to the official’s

conduct contravenes United States v.

Lanier and Hope v. Pelzer, which permit

the deprivation of qualified immunity only

where the court first identifies pre-existing

law and then decides that the official’s

conduct “obviously” violated that law.

Balking at this Court’s continued insistence that a

court identify precedent as a precondition to denying

qualified immunity, the Eleventh Circuit found clearly

established law based on the conclusory assertion that

“prison officials can have fair warning that their

conduct is unconstitutional when the constitutional

violation is obvious, sometimes referred to as ‘obvious

clarity’ cases.” App. 24a. This Court has, of course,

acknowledged that “the unconstitutionality of

outrageous conduct obviously will be unconstitutional,”

and that “even as to action less than an outrage,

officials can still be on notice that their conduct violates

established law . . . in novel factual circumstances.”

Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S.

364, 377-78 (2009) (cleaned up). That said, the Court

has not authorized courts to withhold qualified

immunity based solely on disapproval of an official’s

conduct. Yet that’s what the Eleventh Circuit did here,

and its distortion of “obvious clarity” is unmoored from

any jurisprudential pier.

This Court explained in United States v. Lanier,

that, in some cases, “a general constitutional rule

20

already identified in the decisional law may apply with

obvious clarity to the specific conduct in question, even

though the very action in question has not previously

been held unlawful.” 520 U.S. 259, 271 (1995) (cleaned

up). In that small category of cases, § 1983 liability

“may be imposed for a deprivation of a constitutional

right if, but only if, ‘in the light of pre-existing law the

unlawfulness [under the Constitution is] apparent.’” Id.

at 271-72 (alteration in original) (emphasis added)

(quoting Anderson, 483 U.S. at 640). Lanier thus

contemplated a two-step process for denying qualified

immunity on obviousness grounds. First, a court must

point to pre-existing law—the “general constitutional

rule already identified in the decisional law”—that

could give the officer “fair warning” of what the

Constitution requires. Id. Then, and only then, may the

court proceed to the second step and determine

whether the officer failed to heed that reasonable

warning—that is, whether that pre-existing law made

the constitutional unlawfulness of the official’s conduct

apparent. The process is not without analogue: it

closely resembles the typical clearly-established

framework. See, e.g., Wesby, 138 S. Ct. at 589-90. At

bottom, all Lanier permits is the application of slightly

broader-than-usual decisional law to novel factual

circumstances in cases where an official’s egregious

conduct can be deemed an “obvious” violation of that

decisional law.

This Court has found only one case to be “obvious.”

In Hope v. Pelzer, 536 U.S. 730 (2002), Alabama

corrections officers punished a prisoner for disruptive

conduct by handcuffing him to a post, shirtless, with

his arms above his head for seven hours in the sun,

21

with little water and no bathroom breaks. While the

prisoner was restrained, one officer taunted him about

his thirst. He gave water to some nearby dogs and

kicked the open water cooler onto the ground in front

of the prisoner. Id. at 734-35. The constitutional

violation inherent in this “wanton” conduct was

blatant, and the Court found that the prisoner “was

treated in a way antithetical to human dignity.” Id. at

745.

Had this Eleventh Circuit panel presided over Hope,

the qualified immunity analysis would’ve ended there.

That the Hope Court did not terminate the analysis

following a summary of the officers’ actions reveals the

Eleventh Circuit’s error.

After reviewing the officers’ conduct, the Court

addressed the “salient question” of “whether the state

of the law” at the time “gave [the officers] fair warning

that their alleged treatment of Hope was

unconstitutional.” Id. at 740. The law did give the

required fair warning, but not simply because the

officers’ conduct was “obvious[ly] cruel[].” Id. at 745.

The Court acknowledged Lanier’s teaching that the law

can be clearly established “despite notable factual

distinctions between the precedents relied on and the

cases then before the Court,” but only “so long as the

prior decisions gave reasonable warning that the

conduct then at issue violated constitutional rights.” Id.

at 740 (emphasis added) (quoting Lanier, 520 U.S. at

269). And it was prior decisions that gave that

reasonable warning to the corrections officers:

longstanding circuit precedent had either prohibited

extremely similar conduct, see Gates v. Collier, 501

F.2d 1291, 1306 (5th Cir. 1974) (holding that

22

“handcuffing inmates to the fence and to cells for long

periods of time, . . . and forcing inmates to stand, sit or

lie on crates, stumps, or otherwise maintain awkward

positions for prolonged periods,” violated the Eighth

Amendment), cited in Hope, 536 U.S. at 743 (“In light

of Gates, the unlawfulness of the alleged conduct

should have been apparent to the respondents.”), or

suggested that similar conduct would give rise to an

Eighth Amendment violation, see Hope, 536 U.S. at 743

(explaining that the “premise” of Ort v. White, 813 F.2d

318, 326 (11th Cir. 1987), that “physical abuse directed

at a prisoner after he terminates his resistance to

authority would constitute an actionable Eighth

Amendment violation,” “ha[d] clear applicability” in the

case and “gave fair warning to respondents that their

conduct crossed the line of what is constitutionally

permissible” (cleaned up)). Moreover, a Department of

Justice report on Alabama’s use of the hitching post in

the year before the incident had concluded that it was

“used systematically as an improper punishment for

relatively trivial offenses.” Id. at 744 (cleaned up).

Viewing the officers’ conduct in the light of that preexisting law, the Court held that it violated a clearly

established right:

Gates and Ort, as well as the DOJ report

condemning the practice, put a reasonable

officer on notice that the use of the hitching post

under the circumstances alleged by Hope was

unlawful. The “fair and clear warning” that

these cases provided was sufficient to preclude

the defense of qualified immunity . . . .

Id. at 745-46 (cleaned up) (quoting Lanier, 520 U.S. at

271).

23

Lanier and Hope stand for the proposition that a

constitutional violation cannot be an “obvious” one

without pre-existing law that gives officials “fair and

clear warning” of the violative nature of their conduct.

And this Court has applied Lanier’s two-step process in

refusing to find cases to be “obvious.” In each instance,

the Court first identified pre-existing law—invariably

Tennessee v. Garner, 471 U.S. 1 (1985), and Graham v.

Connor, 490 U.S. 386 (1989)—and then concluded that

the officer’s conduct was not obviously unlawful in light

of that law. See Kisela v. Hughes, 138 S. Ct. 1148, 1153

(2018) (per curiam) (“[T]he general rules set forth in

Garner and Graham do not by themselves create

clearly established law outside an obvious case. . . .

This is far from an obvious case . . . .” (cleaned up));

White, 137 S. Ct. at 552 (“This is not a case where it is

obvious that there was a violation of clearly established

law under Garner and Graham.”); Brosseau, 543 U.S.

at 199 (“The present case is far from the obvious one

where Graham and Garner alone offer a basis for

decision.”).

This too is not an obvious case. In contrast to Kisela,

White, and Brosseau, where the Court found an officer’s

conduct not obvious at Lanier’s second step, the

Eleventh Circuit’s analysis did not clear the first step.

Nor could it. The state of the law in November 2013 did

not alert Dr. Rodriguez-Garcia to the potential

unconstitutionality of mistakenly misdiagnosing a

pretrial detainee’s gender. No law gave Dr. RodriguezGarcia any warning—let alone fair warning—that his

conduct “crossed the line of what is constitutionally

permissible,” Hope, 536 U.S. at 743, until five years

later when the Eleventh Circuit decided that it did.

24

That post hoc decision cannot be reconciled with Lanier

and Hope, and it runs afoul of the touchstone of

qualified immunity “that officials performing

discretionary functions [not be] subject to suit when

[open] questions are resolved against them only after

they have acted.” Mitchell v. Forsyth, 472 U.S. 511, 535

(1985). Such “hindsight-based reasoning” as the

Eleventh Circuit employed is precisely what qualified

immunity doctrine rejects. Id. As Judge Kethledge

recently put it, “No official—no matter how

blameworthy he might be on moral grounds—can be

expected to recognize in advance that a court will

recast a legal rule so that it applies to conduct to which

it has never applied before.” Guertin v. Michigan, —

F.3d —, —, 2019 WL 2133573, at *6 (6th Cir. May 16,

2019) (Kethledge, J., dissenting from denial of

rehearing en banc). Indeed, this Court has “repeatedly

told” lower courts not to do what the Eleventh Circuit

did here—“create[] a new rule and then appl[y] that

new rule retroactively against” an official. Wesby v.

District of Columbia, 816 F.3d 96, 111 (D.C. Cir. 2016)

(Kavanaugh, J., dissenting from denial of rehearing en

banc).9

The Eleventh Circuit has it exactly backwards. It

withheld qualified immunity because it decided that

Dr. Rodriguez-Garcia’s conduct “lies so obviously at the

core of what the Eighth Amendment prohibits” that no

pre-existing law is necessary. App. 24a. It essentially

created, out of whole cloth, a conscience-shocking

exception, grounded in the belief that a court can

9

Then-Judge Kavanaugh’s position ultimately prevailed. Wesby,

supra, 138 S. Ct. 577.

25

circumvent the clearly-established analysis by invoking

a moral condemnation of the official’s conduct and

denying qualified immunity based on that

condemnation. This misapprehends the overarching

concept of Lanier and Hope: a case can be “obvious”

only where the official’s conduct is first tied to the state

of the law at the time. “[I]f, but only if,” the reviewing

court takes that initial step, Lanier, 520 U.S. at 271,

can it then deem the conduct an “obvious” violation of

that law. The Eleventh Circuit’s belief, untethered from

law, that Dr. Rodriguez-Garcia is not entitled to

qualified immunity because it disapproves of his

conduct—or, more accurately, of the eventual result of

that conduct—is flawed for two reasons. First, the

Eighth Amendment afforded Pichardo no rights. See

supra at 15. And second, the court’s ipse dixit that

there is a jurisprudential “core of what the Eighth

Amendment prohibits” has never been borne out. Cf.

Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997)

(originating the “so obviously at the very core”

language in a Fourth Amendment case where an

officer’s conduct violated pre-existing law by falling

“obviously” outside the “hazy border between

permissible and forbidden force” staked out by

Graham).

This Court has never sanctioned the approach the

Eleventh Circuit adopted here. The perceived

conscience-shocking nature of an official’s conduct has

never obviated a court’s obligation to identify and

analyze clearly established law, much less in a case

where the underlying conduct would in any other

context be medical malpractice at most. If Hope itself

were not proof enough of this, considering the self-

26

evident egregiousness of the Alabama corrections

officers’ conduct, the Court’s decision in Safford Unified

School District No. 1 v. Redding, supra, 557 U.S. 364,

is yet more proof. There, eight Justices agreed that a

school administrator violated the Fourth Amendment

by subjecting a thirteen-year-old honors student to an

“embarrassing, frightening, and humiliating” strip

search that included forcing her to pull out her bra and

the elastic on her underpants—exposing her breasts

and pelvic area—on the “groundless suspicion that she

might be hiding medicine in her underwear.” Id. at

374-77 (majority op.), 380 (Stevens, J., concurring in

part and dissenting in part). Although the intrusive

search could have been perceived as a conscienceshocking constitutional violation,10 the majority held

that the administrator was entitled to qualified

immunity because the governing law was not

“sufficiently clear.” Id. at 378-79. If “obvious clarity”

really was shorthand for permitting courts to ignore

pre-existing law or analysis of how an official’s conduct

violated that law, in favor of deciding years after the

fact that what he did was “unlawful,” the outcome of

Redding would’ve been much different.

To be sure, the Eleventh Circuit has rendered

decisions consistent with this Court’s obviousness

cases. The court has explained that under the

obviousness exception, pre-existing law must “dictate,

10

Justice Stevens essentially did perceive it as such, calling the

conduct “clearly outrageous.” Redding, 557 U.S. at 380 (“I have

long believed that it does not require a constitutional scholar to

conclude that a nude search of a 13-year-old child is an invasion of

constitutional rights of some magnitude.” (cleaned up)).

27

that is, truly compel (and not just suggest or allow or

raise a question about), the conclusion for every likesituated, reasonable government agent that what [the]

defendant is doing violates federal law in the

circumstances” before qualified immunity may rightly

be denied. Priester v. City of Rivera Beach, 208 F.3d

919, 927 (11th Cir. 2000) (cleaned up); see also

Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010)

(underscoring the “necessity of clear law being tied to

the specific factual context”: “The unlawfulness of a

given act must be made truly obvious, rather than

simply implied, by the preexisting law”). And recently,

the court, citing Hope, reversed a denial of qualified

immunity because “the unlawfulness of the defendant’s

actions must be apparent in light of pre-existing law,”

and, in that case, “[n]o pre-existing law compelled that

conclusion for the [officials] under the circumstances.”

Mikko v. City of Atlanta, 857 F.3d 1136, 1148 (11th Cir.

2017) (cleaned up). These decisions make the court’s

decision here all the more inexplicable. In both Mikko

and this case, for example, there was no applicable preexisting law. But where the court in Mikko relied on

the lack of law as grounds for reversing a denial of

qualified immunity, the court here failed even to

recognize a similar lack of law, yet it reversed a grant

of qualified immunity.

The Eleventh Circuit once encouraged judges to

“remember that the central idea” of qualified immunity

“is this pragmatic one: officials can act without fear of

harassing litigation only when they can reasonably

anticipate—before they act or do not act—if their

conduct will give rise to damage liability for them.” Foy

v. Holston, 94 F.3d 1528, 1534 (11th Cir. 1996). It has

28

lost sight of that central idea. And its demonstrated

willingness to disregard this Court’s law depending on

the case before it means that the fate of future

qualified immunity defenses will be left to the luck of

a panel draw or the whim of a panel’s members.

Compare App. 23a-25a, with Young v. Borders, 850

F.3d 1274, 1282 (11th Cir. 2017) (Hull, J., concurring in

denial of rehearing en banc) (“Here, the panel was

required to [affirm the grant of qualified immunity]

because there is no prior case with facts remotely

similar, much less particularized facts similar, to the

facts in this case. More importantly, even the contours

of the law in this type of unusual factual situation were

not sufficiently clear such that a reasonable officer, in

[the defendant]’s situation, would understand that

what he is doing violates clearly established federal

law.”), cert. denied, 138 S. Ct. 640 (2018). That cannot

be permitted.

This decision runs a substantial risk of dissuading

medical professionals from working in detention

centers by transforming every detainee they treat into

a ticking constitutional time bomb. Accordingly, the

Court should grant certiorari and restore Dr.

Rodriguez-Garcia’s qualified immunity, both because

pre-existing law gave him “no fair and clear warning of

what the Constitution requires” of his medical

diagnoses, Sheehan, 135 S. Ct. at 1778 (cleaned up),

and because, throughout this litigation, Pichardo has

never proven that it did.

29

II. The Eleventh Circuit’s Refusal to Find that

Pichardo Had Forfeited the Issue of Clearly

Established Law by Failing to Raise It Until

Her Appellate Reply Brief Is an Aberration

Among Its Own Law and the Law of Every

Other Court of Appeals.

Theoretically, this Court need not even reach the

substantive error outlined above, because it may choose

to correct the Eleventh Circuit’s equally outrageous

procedural error: its failure to conclude that Pichardo

forfeited her argument as to clearly-established law by

not raising it in her initial brief.

Once an official demonstrates that he was

performing a discretionary function, a plaintiff seeking

to overcome qualified immunity bears two burdens:

(1) to demonstrate a violation of a constitutional right;

and (2) to demonstrate that the right was clearly

established. Conn v. Gabbert, 526 U.S. 286, 290 (1999).

The district court found that Pichardo’s failure to

satisfy the first prong was sufficient to resolve the

qualified immunity question in Dr. Rodriguez-Garcia’s

favor, see App. 50a-51a, so it needn’t have addressed

whether the law was clearly established, see Wesby, 138

S. Ct. at 589 (“We continue to stress that lower courts

should think hard, and then think hard again, before

addressing both [clearly established law] and the

merits of an underlying constitutional claim.” (cleaned

up)), and Pichardo had not raised that argument before

the district court in any event. But regardless of where

the district court’s analysis ended, Pichardo, in seeking

to abrogate qualified immunity on appeal, retained the

burden to “establish both that the officer’s conduct

violated a constitutionally protected right and that the

30

right was clearly established at the time of the

misconduct.” Alcocer v. Mills, 906 F.3d 944, 951 (11th

Cir. 2018) (emphases added). She opted to brush that

instruction aside, devoting her entire initial brief to the

first prong and making no mention of the second until

the end of her reply brief.

The Eleventh Circuit disregarded Pichardo’s choice

not to meet her burden to satisfy the clearlyestablished prong. It should have found that she

forfeited that argument and, as a result, refused to cast

qualified immunity aside. Cf. Cass v. City of Abiline,

814 F.3d 721, 732-33 (5th Cir. 2016) (affirming grant of

qualified immunity, even though the district court did

not reach the clearly-established prong, because the

plaintiffs “entirely failed” to bear their burden to show

that the officer’s conduct violated a clearly established

right). Its failure to do so was manifest and prejudicial

error.

“Appellate courts generally do not reach out to

decide issues not raised by the appellant. Nor do they

generally consider issues first mentioned in a reply

brief.” Cone v. Bell, 556 U.S. 449, 482 (2009) (Alito, J.,

concurring in part and dissenting in part) (cleaned up).

“[W]here counsel has made no attempt to address [an]

issue, we will not remedy the defect . . . .” Carducci v.

Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.).

For the most part, the Eleventh Circuit has followed

this guidance, so correcting its unexplained departure

from it in this instance is that much more necessary.

The court has previously touted its “wall of precedent”

that “a legal claim or argument that has not been

briefed before the court is deemed abandoned and its

merits will not be addressed”:

31

If an argument is not fully briefed (let alone not

presented at all) to the Circuit Court, evaluating

its merits would be improper both because the

appellants may control the issues they raise on

appeal, and because the appellee would have no

opportunity to respond to it. Indeed, evaluating

an issue on the merits that has not been raised

in the initial brief would undermine the very

adversarial nature of our appellate system . . . .

In preparing briefs and arguments, an appellee

is entitled to rely on the content of an

appellant’s brief for the scope of the issues

appealed.

Norelus v. Denny’s, Inc., 628 F.3d 1270, 1296-97 (11th

Cir. 2010) (cleaned up).

But here, the court pierced its own wall of

precedent. Even though Pichardo made no attempt to

address clearly established law either before the

district court or in her initial brief, the Eleventh

Circuit considered the merits of her last-minute

argument. Thus, Dr. Rodriguez-Garcia, who should

have been “entitled to rely on the content of Pichardo’s

initial brief for the scope of the issues appealed,” id. at

1297, was instead “deprived of a fair opportunity to

respond,” Cone, 556 U.S. at 482 (Alito, J., concurring in

part and dissenting in part) (cleaned up). The court

should have rejected the argument as forfeited, but

instead it gave Pichardo a windfall in its willingness to

neglect precedent and reverse the district court’s

judgment via an argument that never appeared—at

any stage of the litigation—before the reply.

32

Decisions requiring a § 1983 plaintiff to satisfy both

prongs of the qualified immunity analysis mean

nothing if a plaintiff can decline to argue in the district

court that the law was clearly established, decline to

argue the same in her initial appellate brief, wait until

her reply brief to bring it up for the first time, yet still

prevail. The decision signals to public officers raising

qualified immunity defenses that they have two

choices: prophylactically anticipate every argument

plaintiffs might raise at the last minute on appeal; or

bear their burdens properly, expect plaintiffs to do the

same, and be blindsided by arguments to which they

are powerless to respond.

Such an approach has broader, more troubling

implications even outside the realm of qualified

immunity. In any manner of contexts, a panel of judges

may decide who it believes should prevail and will work

backwards to achieve that result, no matter the fatal

defects in the “winner’s” briefs. Our adversarial system

should not reward either such eleventh-hour

maneuvering or such results-oriented jurisprudence.

*

*

*

Just as disquieting is that the Eleventh Circuit’s

decision to ignore Pichardo’s forfeiture is a stark

deviation from the decisions of its sister courts, each of

which has refused to permit a § 1983 appellant to

prevail on the basis of an argument she did not raise in

her initial brief.

The Fifth Circuit got it right in Lincoln v. Turner,

874 F.3d 833 (5th Cir. 2017). There, as here, the

district court granted the officer’s motion to dismiss,

finding that the plaintiff had failed to plead a

33

constitutional violation, so the official was entitled to

qualified immunity. Id. at 838. The plaintiff cited no

authority in her initial brief pertaining to clearly

established law on her excessive force claim, and the

officer’s response pointed that out. Id. at 850-51. The

Fifth Circuit, like the Eleventh here, disagreed with

the district court and concluded that the plaintiff had

plausibly stated a constitutional violation. Id. at 840.

But when it came to deciding clearly established law,

the Fifth Circuit stayed the course, and the Eleventh

veered off. The Fifth Circuit concluded that the

plaintiff had “waived argument as to the clearly

established law prong and thus cannot overcome

qualified immunity.” Id. at 851 & n.92.

Lincoln is consistent with case law from the D.C.

Circuit, Fox v. District of Columbia, which upheld

qualified immunity where the plaintiff argued in her

reply brief that authority she’d cited in her opening

brief in support of finding a Fourth Amendment

violation could also demonstrate that a Fourth

Amendment right was clearly established. 794 F.3d 25

(D.C. Cir. 2015). The court rejected this after-the-fact

characterization: the plaintiff “never argued in her

opening brief that any of these cases (standing alone or

read together) clearly established a Fourth Amendment

violation under the circumstances of her seizure.” Id. at

29. Her initial brief, like Pichardo’s, “made no effort to

identify the contours of the right at issue, let alone in

a manner that would make it clear to a reasonable

official that his conduct was unlawful in the situation

he confronted.” Id. (cleaned up). “As a result, she

forfeited the argument” on clearly established law. Id.

34

The other Circuits agree with the Fifth Circuit and

the D.C. Circuit, as well as the Eleventh Circuit’s

previously impenetrable wall of precedent.11

To be clear, barring an appellant from riding to

victory on an argument that did not appear in her

opening brief is not a consequence unique to plaintiffappellants. The sword of appellate forfeiture cuts both

ways, as shown in circuit decisions holding that an

officer-appellant cannot expect to reverse a district

court’s judgment denying him qualified immunity

unless he raises the relevant arguments in his opening

brief.

There is no better example of this than the Fourth

Circuit’s decision in Hensley ex rel. North Carolina v.

Price, 876 F.3d 573 (4th Cir. 2017), cert. denied, 138 S.

Ct. 1595 (2018). There, two sheriff’s deputies appealing

a denial of qualified immunity failed to raise any

argument on the clearly-established prong of the

qualified immunity analysis in their opening brief. Id.

at 580. The Fourth Circuit’s description of their

deficient brief is a dead ringer for Pichardo’s:

[The] opening brief contains . . . no argument on

the “clearly established” prong of the qualified

immunity test. It contains no citation to cases

11

E.g., Gray v. Cummings, 917 F.3d 1, 13 n.7 (1st Cir. 2019); Lore

v. City of Syracuse, 670 F.3d 127, 149 (2d Cir. 2012); Harvey v.

Plains Twp. Police Dep’t, 421 F.3d 185, 192 (3d Cir. 2005); Puckett

v. Lexington-Fayette Urban County Government, 833 F.3d 590, 61011 (6th Cir. 2016); Duncan v. Wis. Dep’t of Health & Family Servs.,

166 F.3d 930, 934 (7th Cir. 1999); Brewington v. Keener, 902 F.3d

796, 802-03 & n.4 (8th Cir. 2018); Zia Shadows, L.L.C. v. City of

Las Cruces, 829 F.3d 1232, 1239 n.3 (10th Cir. 2016).

35

actually applying the “clearly established” prong

of the qualified immunity test. And it contains

no citations to the record to indicate that the

Deputies preserved the argument below.

Id. at 580 n.5. “As appellants, they were required to

state their contentions and the reasons for them. This,

the Deputies utterly failed to do.” Id. (cleaned up). So,

the court concluded, “by failing to preserve the issue [of

clearly established law] in their opening brief, the

Deputies waived it.” Id.

The Ninth Circuit similarly affirmed a denial of

qualified immunity to deputies who failed to argue in

their opening brief for reversing the district court’s

finding of clearly established law:

Usually we can start with the second prong of

qualified immunity if we think it advantageous.

Here, though, we are not satisfied that the

deputies have adequately pursued that

argument. . . . On appeal, the deputies have not

advanced an argument as to why the law is not

clearly established . . . . We will not do an

appellant’s work for it, either by manufacturing

its legal arguments, or by combing the record on

its behalf for factual support.

George v. Morris, 736 F.3d 829, 837 (9th Cir. 2013)

(cleaned up). In both Hensley and George, the officers

could have used their opening briefs to argue that the

law was not clearly established. They did not, so the

consequence of their decisions was forfeiture. Pichardo

had a corresponding opportunity in her opening brief to

argue that the law was clearly established. She did not.

But the Eleventh Circuit imposed no consequence.

36

Indeed, it rewarded her: it allowed her to, belatedly

and in cursory fashion, raise the argument when Dr.

Rodriguez-Garcia could no longer respond to it, and to

prevail because of it.

Without “meaningful adversarial engagement” on

an issue, courts “run a serious risk of reaching an

improvident or ill-advised opinion, not to mention

causing unfairness to” the party left unable to respond.

Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114,

1155 (10th Cir. 2013) (en banc) (Gorsuch, J.,

concurring) (cleaned up), aff’d sub nom. Burwell v.

Hobby Lobby Stores, Inc., 573 U.S. 682 (2014). Without

any adversarial engagement on clearly established law,

the Eleventh Circuit improvidently adopted Pichardo’s

out-of-time, one-sided argument. Doing so was contrary

to precedent, and for good reason, no court of appeals

has ever adopted its misguided approach. This Court

should grant certiorari on this question and deem the

issue forfeited.

CONCLUSION

This Court should grant the Petition.

37

Respectfully submitted,

ABIGAIL PRICE-WILLIAMS

Miami-Dade County Attorney

ZACH VOSSELER

BERNARD PASTOR, Counsel of Record

ANITA VICIANA

Assistant County Attorneys

111 N.W. First Street, Suite 2810

Miami, Florida 33128

(305) 375-5151

pastor@miamidade.gov

Counsel for Petitioner