Petition for Writ of Certiorari — Anas Elhady, Petitioner v. Blake Bradley

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RECOMMENDED FOR PUBLICATION

pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0268p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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ANAS ELHADY,

Plaintiff-Appellee,

No. 20-1339

v.

UNIDENTIFIED CBP AGENTS, et al.,

Defendants,

BLAKE BRADLEY,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:17-cv-12969—Mark A. Goldsmith, District Judge.

Argued: October 21, 2021

Decided and Filed: November 19, 2021

Before: ROGERS, GRIFFIN, and THAPAR, Circuit Judges.

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COUNSEL

ARGUED: Casen B. Ross, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Justin Sadowsky, CAIR LEGAL DEFENSE

FUND, Washington, D.C., for Appellee. ON BRIEF:

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Casen B. Ross, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Appellant. Justin Sadowsky, Lena Masri, Gadeir I. Abbas, CAIR LEGAL

DEFENSE FUND, Washington, D.C., for Appellee.

THAPAR, J., delivered the opinion of the court in

which GRIFFIN, J., joined. ROGERS, J. (pp. 11-14), delivered a separate dissenting opinion.

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OPINION

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THAPAR, Circuit Judge. In a lawsuit against federal officers, the first question a court should ask is

whether a cause of action exists. The district court

thought it did. We disagree and reverse.

I.

Anas Elhady, a United States citizen living in

Michigan, drove to Canada to visit friends for the

night. But on his return, border-patrol agents stopped

him at the border and detained him for questioning.1

1

Elhady says that he was detained because he was on the

“federal terrorist watchlist.” R. 122, Pg. ID 4665. The defendants

neither confirmed nor denied this allegation, and the district

court noted that Elhady’s status on the watchlist was irrelevant

for summary judgment. That is so because “searches of people and

their property at the borders are per se reasonable, meaning that

they typically do not require a warrant, probable cause, or even

reasonable suspicion.” United States v. Stewart, 729 F.3d 517, 524

(6th Cir. 2013) (citing United States v. Flores-Montano, 541 U.S.

149, 152-53 (2004)).

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During his detention, the officers took Elhady’s jacket

and shoes, leaving him wearing only his shirt, pants,

undergarments, and socks. Elhady complained to the

officers that the cell was cold, asking them to either

return his jacket and shoes or provide a blanket. But

he claims his requests went unanswered.

According to Elhady, the cell “got colder and

colder,” and he began shivering uncontrollably. R. 96-1,

Pg. ID 1715-16. He says he yelled to the officers that

he was freezing and needed to go to the hospital, but

they told him not to worry, “you’ll be out soon.” Id. at

1716. Elhady thought the officers were intentionally

ignoring his requests. After about four hours, the officers told him he could leave. But he told them he felt too

ill to drive and needed to go to the hospital. So the officers called him an ambulance.

In the ambulance, the EMT noted that Elhady was

alert, aware of his surroundings, and received the

highest score on a test that measured his level of consciousness. The EMT also noted that Elhady had delayed capillary refill, which is consistent with exposure

to the cold. But by the time he reached the hospital, his

temperature was 96.08 degrees—which is barely below

the normal range. So the treating physician gave him

a blanket and let him rest. When Elhady woke up, the

doctor told him he was “good to go.” Id. at 1725.

Elhady later sued several border-patrol officers,

including Blake Bradley, the lead officer assigned to

his case. Elhady argues that the officers detained him

under conditions that violated his Fifth Amendment

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due-process rights. And he seeks monetary damages

under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

The defendants filed a motion to dismiss. Among

other arguments, they suggested that applying Bivens

to these circumstances would constitute an unwarranted extension of the doctrine. The district court disagreed. It found that though the case presented a new

Bivens context, extending Bivens to provide an implied

cause of action here was nevertheless appropriate.

The district court later granted summary judgment for all defendants except Officer Bradley. In

Bradley’s case, the district court found enough evidence to show he had violated Elhady’s right to be “free

from exposure to severe weather and temperatures.” R.

122, Pg. ID 4691-92. And because the court also found

that this right was clearly established, it held that

qualified immunity did not protect Bradley.

Bradley appeals the denial of qualified immunity.

Because the parties’ briefs did not address the district

court’s decision to extend Bivens, we asked for supplemental briefing on this question.

II.

The Supreme Court has recognized an implied

cause of action to recover damages from federal officers who violate constitutional rights in only three narrow circumstances. See Bivens, 403 U.S. 388 (Fourth

Amendment search-and-seizure violation by federal

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narcotics agents); Davis v. Passman, 442 U.S. 228

(1979) (Fifth Amendment employment-discrimination

violation by a United States congressman); Carlson v.

Green, 446 U.S. 14 (1980) (Eighth Amendment inadequate-medical-care violation by prison officials). But as

the Court recently reminded us, these cases rest on an

outdated conception of our judicial role. Hernandez v.

Mesa (Hernandez II), 140 S. Ct. 735, 741 (2020); Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017). They were

handed down at a time when the Court routinely assumed that it was the judge’s job to infer a cause of

action whenever a substantive provision may have

been violated, even if the text didn’t offer one. Hernandez II, 140 S. Ct. at 741. Since 1980, however, the

Supreme Court has “consistently refused to extend

Bivens liability to any new context or new category

of defendants.” Corr. Servs. Corp. v. Malesko, 534 U.S.

61, 68 (2001); see also Callahan v. Fed. Bureau of Prisons, 965 F.3d 520, 523 (6th Cir. 2020). And that’s not

for want of opportunity. Indeed, the Court has reviewed the question on ten separate occasions. Hernandez II, 140 S. Ct. at 743 (collecting cases). Now the

Court urges caution before we expand Bivens’s reach.

Malesko, 534 U.S. at 74.

Why? Because judges interpret laws. We do not

make them. See Wayman v. Southard, 23 U.S. (10

Wheat.) 1, 46 (1825) (Marshall, C.J.) (“The difference

between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law.”). It is Congress’s job to decide

when to provide a cause of action against federal

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employees. After all, that’s a quintessentially legislative choice. The decision to bless a cause of action invariably involves “a host of considerations that must

be weighed and appraised,” including an “assessment

of its impact on governmental operations systemwide.”

Abbasi, 137 S. Ct. at 1857-58 (citation omitted). That is

not the sort of problem the judiciary is equipped to

solve. Article III gives judges life tenure and salary

protections. But one thing our commission does not

award us is the license—or the competence—to tackle

such a thorny task. That enterprise is better left “to

those who write the laws rather than those who interpret them.” Id. at 1857 (cleaned up).

To ensure respect for these foundational principles, the Supreme Court devised a two-part inquiry to

determine when we should engage in the “disfavored

judicial activity” of recognizing a new Bivens action.

See id. And under this exacting test, the answer will

almost always be never.

First, we ask whether the claim arises in a new

Bivens context. And our “understanding of a ‘new context’ is broad.” Hernandez II, 140 S. Ct. at 743. The context is new if it differs in virtually any way from the

Bivens trilogy. Abbasi, 137 S. Ct. at 1859.

If the context does differ, we move to the second

question: whether any special factors counsel against

extending a cause of action. Id. at 1860. The Supreme

Court has “not attempted to create an exhaustive list

of factors,” but it has explained that the separation of

powers should be a guiding light. Hernandez II, 140

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S. Ct. at 743 (cleaned up) (quoting Abbasi, 137 S. Ct. at

1857). For that reason, the Court has told us that we

must not create a cause of action if there’s “a single

sound reason” to leave that choice to Congress. Nestlé

USA, Inc. v. Doe, 141 S. Ct. 1931, 1937 (2021). That’s

because we’re not well-suited to decide when the costs

and benefits weigh in favor of (or against) allowing

damages claims. Cf. Abbasi, 137 S. Ct. at 1857-58. And

trying to make those decisions would disrespect our

limited role under the Constitution’s separation of

powers, even if we think it would be good policy to do

so. Hernandez II, 140 S. Ct. at 731.

The district court found that Bivens extends to Elhady’s claims. And Elhady suggests that we shouldn’t

review that decision. So before analyzing the Bivens

question itself, we consider whether it is proper for us

to do so.

A.

Elhady gives two reasons why we shouldn’t review

the Bivens question at this time.

First, he contends that we lack jurisdiction to consider the availability of a Bivens cause of action on an

interlocutory appeal of qualified immunity. But as the

Court has explained, appellate courts have jurisdiction

over the Bivens issue on interlocutory appeal because

the question is “directly implicated by the defense of

qualified immunity.” Wilkie v. Robbins, 551 U.S. 537,

549 n.4 (2007) (citation omitted); cf. Koubriti v. Convertino, 593 F.3d 459, 466 (6th Cir. 2010).

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Second, Elhady argues that Bradley forfeited the

issue because he did not challenge the district court’s

finding on appeal.2 Not so. A cause of action’s availability under Bivens is an “antecedent” question that we

can address even if it was not raised below. Hernandez

v. Mesa (Hernandez I), 137 S. Ct. 2003, 2006-07 (2017)

(per curiam). Indeed, the Supreme Court has already

paved this particular path. See, e.g., Carlson, 446 U.S.

at 17 n.2; see also Adrian Vermeule, Saving Constructions, 15 Geo. L.J. 1945, 1948-49 & n.20 (1997) (citing

several cases where the Supreme Court decided the

matter on “an antecedent statutory issue, even one

waived by the parties, if its resolution could preclude a

constitutional claim”). So we may address the question.

But should we?

In short, yes. In Hernandez v. Mesa (Hernandez I),

the Court advised lower courts in our position—that is,

reviewing an interlocutory appeal of qualified immunity—to first consider the Bivens question. See 137

S. Ct. at 2007-08. There, the Fifth Circuit resolved the

case based on qualified immunity’s clearly established

prong. See Hernandez v. United States, 785 F.3d 117,

120-21 (5th Cir. 2015) (en banc). The Supreme Court

disagreed with that approach. The Court explained

that, while it had assumed a cause of action in prior

cases, it is often imprudent to do so. Hernandez I, 137

2

Elhady describes Bradley’s failure to raise the issue as

waiver. But we have previously clarified that waiver is “affirmative and intentional,” whereas forfeiture is “a more passive ‘failure to make the timely assertion of a right.’” Berkshire v. Dahl,

928 F.3d 520, 530 (6th Cir. 2019) (quoting United States v. Olano,

507 U.S. 725, 733 (1993)). So forfeiture is the proper term here.

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S. Ct. at 2007. So the Court vacated the Fifth Circuit’s

judgment and remanded for it to address whether

Bivens provided a cause of action. Id. at 2008.

Prudence demands we follow suit here. To bypass

the Bivens question would “allow new causes of action

to spring into existence merely through the dereliction

of a party.” Bistrian v. Levi, 912 F.3d 79, 88 (3d Cir.

2018). It would also risk “needless expenditure” of time

and money in cases like this one, where Supreme Court

precedent can easily resolve Bivens’s applicability. See

id. at 89 (citing Carlson, 446 U.S. at 17 n.2). Why analyze qualified immunity when it is an utterly unnecessary exercise?

Constitutional structure points the same way.

Plaintiffs like Elhady often have no cause of action unless we extend Bivens. And if there is no cause of action, courts should stop there. After all, Article III bars

federal courts from giving “opinions advising what the

law would be upon a hypothetical state of facts.” Chafin

v. Chafin, 568 U.S. 165, 172 (2013); see Angulo v. Brown,

978 F.3d 942, 953-54 (5th Cir. 2020) (Oldham, J., concurring in part). Any qualified-immunity conclusion

here is hypothetical if Elhady can’t sue.

The risk of issuing an advisory opinion is compounded in this context because addressing qualified

immunity involves answering a constitutional question. And the constitutional-avoidance doctrine directs

federal courts to sidestep constitutional questions

whenever “there is some other ground upon which to

dispose of the case.” Escambia County v. McMillan, 466

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U.S. 48, 51 (1984) (per curiam); Angulo, 978 F.3d at 954

(Oldham, J., concurring in part); see also Torres v. Precision Indus., Inc., 938 F.3d 752, 754-55 (6th Cir. 2019).

Perhaps for this reason, other circuits to review forfeiture in this context have come to the same result. See,

e.g., Oliva v. Nivar, 973 F.3d 438, 444 (5th Cir. 2020);

Bistrian, 912 F.3d at 88-89. Thus, we begin by focusing

on the Bivens question.

B.

The district court determined that Bivens should

extend here. To be fair, it made that determination before Hernandez II, 140 S. Ct. 735. That case involved a

border-patrol agent who shot across the border and

killed a fifteen-year-old boy. His parents sued, claiming

that the agent violated the Fourth and Fifth Amendments. Id. at 740, 743. The case first reached the Supreme Court on a qualified-immunity appeal. As

explained above, the Court remanded for the Fifth Circuit to decide whether Bivens extended to these facts.

The lower court held it didn’t. Hernandez v. Mesa, 885

F.3d 811, 823 (5th Cir. 2018) (en banc). And the Supreme Court granted certiorari once more to review

that decision. Hernandez v. Mesa, 139 S. Ct. 2636

(2019) (mem.).

The Court started with the first part of the Bivens

framework. It explained that a case may present a new

context even if the claim involves one of the constitutional provisions from the original trilogy. Hernandez

II, 140 S. Ct. at 743. So even though Hernandez II

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involved the same provisions as in Bivens and Davis—

the Fourth and Fifth Amendments respectively—the

plaintiffs were not guaranteed a cause of action.

Instead, the Court dug deeper, comparing the facts

of Hernandez to those cases: Bivens, which involved an

arrest carried out in New York City, and Davis, which

involved sex-discrimination allegations on Capitol

Hill. Id. at 743-44. The Court concluded, “There is a

world of difference between those claims and petitioners’ cross-border shooting, where ‘the risk of disruptive

intrusion by the Judiciary into the functioning of other

branches’ is significant.” Id. at 744 (quoting Abbasi,

137 S. Ct. at 1860). In this way, the Court made clear

that border-related disputes always present a new

Bivens context.

The Court next considered special factors warning

against Bivens’s extension. Of paramount concern was

national security. Id. at 746-47. Describing the “daunting task” of preventing the illegal entry of dangerous

people and goods, the Court recognized that what federal agents do at the border “has a clear and strong

connection to national security.” Id. at 746. For borderpatrol officers respond to “terrorists, drug smugglers

and traffickers, human smugglers and traffickers, and

other persons who may undermine the security of the

United States.” Id. (quoting 6 U.S.C. § 211(c)(5)). In

contemplating questions of national security, the Court

noted that such decisions are typically the province of

Congress and the President. Id. And for good reason.

Foreign-policy and national-security decisions are “delicate, complex, and involve large elements of prophecy

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for which the Judiciary has neither aptitude, facilities,

nor responsibility.” Id. at 749 (cleaned up).

With these considerations in mind, the Court declined to find an implied cause of action. When considering whether to extend Bivens, the Court explained

that “the most important question” is whether courts

should make that call. Id. at 750. The correct answer

will almost always be no. Id. That was “undoubtedly

the answer” in Hernandez II. Id.

And that is undoubtedly the answer here. First,

Elhady’s claims occurred in what Hernandez II recognized as a “markedly new” Bivens context: the border.

Id. at 739. That context is new regardless of what constitutional claim is at issue. See id. at 743-44. Indeed,

the district court recognized—even before Hernandez

II came down—that claims against border-patrol agents

constitute a new Bivens context.3

And second, Hernandez II made clear that national security will always be a special factor counseling against extending Bivens to the border context. Id.

at 747 (“Since regulating conduct of agents at the border unquestionably has national security implications,

the risk of undermining border security provides reason to hesitate before extending Bivens into this

field.”). That is true regardless of whether the plaintiff

is a United States citizen.

3

The district court determined that the context was also new

because “the Supreme Court has never acknowledged a Bivens

claim for the Fifth Amendment right to be free from non-punitive

claims of abuse.” R. 46, Pg. ID 684.

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The district court, however, believed that the defendants had “offered no plausible explanation why

intentionally placing a detainee in a freezing-cold

holding cell protects national security.” R. 46, Pg. ID

688. But as the Supreme Court instructed in Hernandez II, “[t]he question is not whether national security

requires such conduct—of course, it does not—but

whether the Judiciary should alter the framework established by the political branches for addressing cases

. . . at the border.” 140 S. Ct. at 746. The Court made

its answer to that question clear: It should not.

Nor does it matter that this case is not a carbon

copy of Hernandez II. Hernandez II involved a crossborder shooting whereas this case concerns conditions

of confinement in a stateside facility; Hernandez II involved a Mexican citizen whereas this case involves a

United States citizen. Such differences are of no moment. What matters is that both cases involve claims

against border-patrol officers serving in their capacity

as agents protecting the border. In this context, the Supreme Court has spoken: Bivens is unavailable. See id.

at 747.

Moreover, we are in good company here. Every

other circuit (except the Ninth) faced with an invitation to expand Bivens to the border/immigration context has held firm. In a suit brought by a United States

citizen against immigration officials for alleged Fourth

Amendment violations, the Fourth Circuit refused to

extend Bivens. Tun-Cos v. Perrotte, 922 F.3d 514, 528

(4th Cir. 2019), cert. denied, 140 S. Ct. 2565 (2020). The

Fourth Circuit reiterated that the Supreme Court has

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“expressed open hostility to expanding Bivens liability,” especially in the immigration context. Id. at 521

(citing Abbasi, 137 S. Ct. at 1856). The Fifth Circuit

also refused to extend Bivens’s reach to cover borderpatrol agents after noting that Congress had already

provided plaintiffs with an alternative scheme of administrative and remedial procedures under the Immigration and Nationality Act. Maria S. v. Garza, 912

F.3d 778, 784 (5th Cir.), cert. denied, 140 S. Ct. 81

(2019). And the Eleventh Circuit refused to infer a

cause of action against immigration agents in the

Fourth Amendment context for similar reasons. Alvarez v. U.S. Immigr. & Customs Enf ’t, 818 F.3d 1194,

1206 (11th Cir. 2016).

Recently, the Ninth Circuit parted company with

these circuits over three thoughtful dissentals (signed

by twelve judges). Boule v. Egbert, 998 F.3d 370 (9th

Cir. 2021). But that opinion is no longer on the books

because the Supreme Court has since granted certiorari. Egbert v. Boule, No. 21-147, --- S. Ct. ---, 2021 WL

5148065 (Nov. 5, 2021) (mem.).

In short, when it comes to the border, the Bivens

issue is not difficult—it does not apply. And district

courts would be wise to start and end there.

*

*

*

We reverse and remand for the district court to enter final judgment for Bradley.

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DISSENT

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ROGERS, Circuit Judge, dissenting. By choosing

not to raise the issue on appeal, defendant Bradley,

represented by the Department of Justice, forfeited his

argument that Elhady does not have a cause of action

under Bivens. As a general rule, we do not reach forfeited arguments. That rule should apply especially in

cases such as this one, which involves a difficult question about the reach of Bivens that the Government repeatedly declined to ask us to address.

Bradley’s Government-provided counsel explicitly

decided not to raise on this appeal the argument that

there is no Bivens cause of action. “It is well settled

that an argument not raised on direct appeal is forfeited.” United States v. Fleischer, 971 F.3d 559, 569

(6th Cir. 2020) (quoting Jones v. United States, 178 F.3d

790, 796 (6th Cir. 1999)); see also Stewart v. IHT Ins.

Agency Grp., LLC, 990 F.3d 455, 457 (6th Cir. 2021).

The defendants raised the Bivens issue in their motion

to dismiss in the district court. In Bradley’s brief on

appeal, however, Government-provided counsel mentioned the district court’s rejection of its Bivens argument and then declined to reassert that argument.

Bradley’s counsel instead assumed that there was a

cause of action and proceeded to argue on the merits

that Bradley was entitled to qualified immunity.

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We have addressed forfeited arguments in some

“exceptional cases . . . or when the rule [of not reaching

them] would produce a plain miscarriage of justice,”

but that is not the case here. See Johnson v. Ford Motor

Co., 13 F.4th 493, 504 (6th Cir. 2021) (quotation omitted). At oral argument, Bradley’s Government counsel

explicitly confirmed that it did not appeal the Bivens

issue and repeatedly declined to answer whether we

should decide it. Counsel stated that “Bradley has not

appealed that question, and I am authorized by the Solicitor General to appeal the question of qualified immunity. So it is within the court’s discretion to take up

this antecedent issue, but we have not urged the court

to do so.” There is no “plain miscarriage of justice” or

other extenuating circumstance when the party is

given several opportunities to ask the court to consider

the argument and continues to decline.

The Supreme Court has emphasized that it is often appropriate to decline to reach the Bivens issue

when the case can be decided on other grounds. The

Court noted in Hernandez v. Mesa that “[t]his approach—disposing of a Bivens claim by resolving the

constitutional question, while assuming the existence

of a Bivens remedy—is appropriate in many cases. This

Court has taken that approach on occasion.” 137 S. Ct.

2003, 2007 (2017) (citing Wood v. Moss, 572 U.S. 744,

756-57 (2014)). More pointedly, the Supreme Court has

cautioned us against reaching an issue that the Government actively and “intelligently” decides not to argue. See Wood v. Milyard, 566 U.S. 463, 465-46 (2012).

In Wood v. Milyard, the Court concluded that the State

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waived a statute of limitations defense in a habeas corpus case by “twice inform[ing] the District Court that

it ‘will not challenge, but [is] not conceding’” the issue.

Id. at 474. Despite the State’s clear decision not to raise

the argument, the Tenth Circuit “directed the parties

to brief the question” and resolved the case on the statute of limitations issue. Id. at 465. The Court held that

the Tenth Circuit abused its discretion and should

have reached the merits, because “[a] court is not at

liberty . . . to bypass, override, or excuse a State’s deliberate waiver of a limitations defense.” Id. at 466. The

Court emphasized that the State’s “decision not to contest the timeliness . . . did not stem from an ‘inadvertent error,’” but rather that the State “express[ed] its

clear and accurate understanding of the timeliness issue” and still “deliberately steered the District Court

away from the question and towards the merits.” Id. at

474.

Whether Elhady has a cause of action under

Bivens is a close question, and in light of the Supreme

Court’s guidance in Wood v. Milyard, it is imprudent to

decide such a difficult issue when the Government explicitly declined to ask us to consider it. Hernandez v.

Mesa and this case both involve border patrol officials

and incidents that occurred close to the border. See 140

S. Ct. 735, 740 (2020). But there are also critical factual differences. The cross-border shooting in Hernandez caused the death of a Mexican citizen on Mexican

soil, an “international incident” that caused a real diplomatic dispute between the United States and Mexico

that should be, and was being, “addressed through

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diplomatic channels.” See id. at 744-45. The Supreme

Court focused on “the potential effect on foreign relations,” and emphasized that “[t]he political branches,

not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns.” Id. at

744 (quotation omitted). The Court also found relevant

several statutory provisions that specifically distinguish claims that have international elements from

claims that do not. See id. at 747-49. This case involves

the alleged treatment of a U.S. citizen within the

United States. The facts here are also very different

from those in Ziglar v. Abbasi, in which the plaintiffs

were foreign nationals residing illegally in the United

States and were detained in the immediate aftermath

of 9/11 based on suspected ties to terrorism. See 137

S. Ct. 1843, 1852-53 (2019). Bradley has not argued

that any national security or foreign relations circumstances impacted this case in particular. The facts indicate that Elhady was an American college student

who was detained within the United States without

any explanation or apparent justification. That arguably makes this case more analogous to Bivens itself, in

which federal agents abused a U.S. citizen in his home

and in a court building in New York. See Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388, 389 (1971); see also Jacobs v. Alam, 915

F.3d 1028, 1038-39 (6th Cir. 2019). Although the Court

has recently limited the reach of Bivens, it does not

necessarily follow that U.S. citizens have no remedy if

they are abused within the United States by their own

border patrol officials. It is thus imprudent to reach

the difficult Bivens question on this appeal when

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Government counsel for Bradley repeatedly indicated

that he was not raising the issue.

On a related but different point, even assuming

we should reach the Bivens issue, our decision should

not be read to say that the first question for a court to

ask in any lawsuit against federal officers must be

whether a cause of action exists. In civil litigation

generally there is no requirement, and certainly no

Article III requirement in a federal court, that any

non-jurisdictional threshold legal issue—for instance,

whether a statute of limitations has run, or whether a

defendant has some sort of immunity—must be decided before a merits issue, or vice versa. The first Hernandez case itself, and the Wood v. Moss case that it

distinguishes, make clear that the decision is one of

prudence rather than legal requirement. In a habeas

corpus case, to give another example, a court may decide the merits of a habeas corpus issue without first

deciding a threshold, non-jurisdictional procedural issue, especially if the threshold issue is complex. See,

e.g., Lambrix v. Singletary, 520 U.S. 518, 525 (1997);

Smith v. Nagy, 962 F.3d 192, 207 (6th Cir. 2020); LaMar

v. Houk, 798 F.3d 405, 415 (6th Cir. 2015). This is so,

moreover, even if the habeas merits issue is constitutional, and the procedural default issue is not. See, e.g.,

LaMar, 798 F.3d at 415; Hudson v. Jones, 351 F.3d 212,

215-16 (6th Cir. 2003).

Finally, this dissent for completeness requires an

indication of what the proper ruling on the merits of

the qualified immunity issue is, notwithstanding the

fact that the analysis in the lead opinion does not

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require that the issue be reached. On interlocutory appeal we are bound by the facts as to which the district

court found there was a genuine issue. See Johnson v.

Jones, 515 U.S. 304, 319-20 (1995); see also Kindl v. City

of Berkley, 798 F.3d 391, 398 (6th Cir. 2015). Those facts

include that “he was placed in a cell at freezing or nearfreezing temperatures for at least four hours” and was

denied his jacket, shoes, or a blanket. The district

court, in a thoughtful opinion based on the totality of

these facts, determined that defendant Bradley may

have violated Elhady’s Fifth Amendment due process

rights. I would affirm this interlocutory order on that

ground for the reasons given by the district court. See

Elhady v. Bradley, 438 F. Supp. 3d 797 (E.D. Mich.

2020). The Bivens issue may be resolved later in the

litigation, but only if necessary (which may not be the

case), and if preserved.

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANAS ELHADY,

Plaintiff,

Case No. 17-cv-12969

v.

HON. MARK A. GOLDSMITH

BLAKE BRADLEY, et al.,

Defendants.

/

OPINION & ORDER GRANTING MOTIONS FOR

SUMMARY JUDGMENT FOR DEFENDANTS

TONYA LAPSLEY (Dkt. 99), DANIEL BECKHAM

(Dkt. 100), JOSEPH PIRANEO (Dkt. 100),

AND JASON FERGUSON (Dkt. 101), AND

DENYING SUMMARY JUDGMENT FOR

DEFENDANT BLAKE BRADLEY (Dkt. 101)

(Filed Feb. 10, 2020)

Plaintiff Anas Elhady, an American citizen, claims

that officers of United States Customs and Border Protection (“CBP”) subjected him to unreasonably cold

temperatures when they detained him as he attempted

to re-enter the country after visiting Canada. Elhady

has presented evidence that his core temperature

dropped substantially while he was in custody for at

least four hours, supporting the inference that he was

detained under conditions violative of his due process

rights under the Fifth Amendment. While Elhady has

presented sufficient evidence that he suffered an unconstitutional deprivation, he has failed to show that

22a

the officers were deliberately indifferent to his health

and safety, except as to Defendant Blake Bradley.

Bradley indisputably spent significant time with Elhady during his detention and would have known

about the cell’s impermissible conditions if they in fact

existed, supporting the inference that he was indifferent to Elhady’s plight. Because of Bradley’s personal

involvement in the actionable conduct, the claim

against him may proceed to trial, but summary judgment is granted in favor of the other four remaining

Defendants—Supervisory CBP Officer Tonya Lapsley,

and CBP Officers Daniel Beckham, Joseph Piraneo,

and Jason Ferguson. Elhady has not presented sufficient evidence of their involvement to show that they

were deliberately indifferent to the conditions of his

cell.1

I.

BACKGROUND

Much of the timeline of Elhady’s detainment is undisputed and corroborated by ambulance, hospital, and

CBP records. The core factual dispute is whether the

temperature in Elhady’s cell was unreasonably cold. A

review of the summary judgment record on the timeline and temperature follows.

1

By stipulation, four other defendants—Matthew Pew, Scott

Rocky, Nyree Iverson, and Walter Kehr—have been dismissed

(Dkt. 120).

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A. The Timeline of Elhady’s Confinement,

Hospital Visit, and Release

1. Elhady’s Seizure at the Ambassador

Bridge

Anas Elhady is a United State citizen of Yemeni

origin. Pl. Statement of Facts ¶ 1 (“PSOF”) (Dkt. 112).

Elhady travelled from Detroit, Michigan, to Canada on

April 10, 2015, and attempted to return later that

night. Id. ¶¶ 1-6; CBP TECS Query, Ex. 1 to Resp. at 23 (“TECS Query”) (Dkt. 113-1).2 After arriving at the

Ambassador Bridge primary inspection booth around

1:43 a.m., CBP officers asked Elhady to exit the car,

performed a pat-down search, and handcuffed him.

PSOF ¶¶ 6-7; Elhady Dep., Ex. 11 to Resp., at 43-45

(Dkt. 114-1). Elhady claims that he was detained and

interrogated solely because of his placement on the

“federal terrorist watchlist.” PSOF ¶ 18. Defendants

have neither confirmed nor denied this allegation,

and they assert that his status on the Terrorist Screening Database is “irrelevant for the purposes of this

2

According to Defendants, “TECS, formerly known as the

Treasury Enforcement Communications System, is a database

used by the Department of Homeland Security to manage the flow

of people through border ports of entry and for immigration case

management. TECS is used by officers at the border to assist with

screening and determinations regarding admissibility of arriving

persons.” Pew Statement of Material Facts ¶ 28 (Dkt. 96). The

TECS Query contains the Secondary Inspection Report, CBP’s

primary narrative account of the encounter. TECS Query at 1011.

24a

motion,” Pew Statement of Material Facts ¶ 1 n.1 (Dkt.

96), a view with which the Court agrees.3

After Elhady exited his car, CBP officers escorted

him to the secondary inspection building at the Ambassador Bridge, where he was placed in one of the facility’s two detention cells at approximately 1:45 a.m.

PSOF ¶¶ 19-22; Sosnowski Dep., Ex. 21 to Resp., at 69,

135 (Dkt 114-11).4 The officers performed a search, and

according to Elhady, the officers took Elhady’s shoes,

belt, watch, and jacket before removing his handcuffs

and leaving him in the cell. Elhady Dep. at 48-58. Piraneo conducted the pat-down, which Beckham witnessed. TECS Query at 10. Elhady maintains that he

was left in the cell wearing a shirt, pants, and some

thin socks. PSOF ¶ 27. Elhady stated in his deposition

that he was also wearing undershorts and an undershirt. Elhady Dep. at 54.

3

Defendants have incorporated one another’s factual assertions in their motions and replies. See Notice of Joinder and Concurrence (Dkt. 102); Ferguson & Bradley Statement of Material

Facts at 1 (Dkt. 101); Piraneo and Beckham Reply at 1 (Dkt. 118).

Each Statement of Material Facts and Reply to Counterstatement

of Material Facts will be referred to using the respective Defendant or Defendants’ name or names and the abbreviation “SMF” or

“RCSMF.”

4

Nicholas Sosnowski was designated by CBP as its representative for a Rule 30(b)(6) deposition. He is a Supervisory CBP

Officer. Rule 30(b)(6) Deposition by Written Questions, Ex. I to

Ferguson & Bradley Mot. ¶ 2 (Dkt. 101-10).

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2. Elhady’s Secondary Inspection and

Detention

Elhady’s secondary inspection lasted from approximately 2:00 a.m. to approximately 6:00 a.m. Sosnowski Dep. at 129. CBP records provide only a limited

account of Elhady’s whereabouts and activity during

that timeframe. See Sosnowski Dep. at 79-86, 129-131.

CBP cannot locate the Personal Detention Log

Sheets and the Master Detention Log Sheet. Id. at 26,

105. Therefore, CBP was unable to answer, or substantiate answers to, certain questions Elhady asked. For

example, Sosnowski testified that he had information

that Elhady was removed from his cell to be interviewed at some point during his detention. Id. at 7677. However, that “information” was the fact that CBP

has a practice of not conducting secondary inspections

in detention cells. CBP lacks a record of adherence to

that practice with respect to Elhady’s secondary inspection, because the logs are missing. Id. Sosnowski

testified that Bradley’s interview of Elhady, which

formed the basis of most of the information in the

TECS Query, took place between approximately 2:00

a.m. and 6:00 a.m., but he could not provide a specific

time. Id. at 129. The logs would also have contained

records of whether officers followed the policy requiring an officer to check on a detainee every 15 minutes,

and which officers performed those 15-minute checks.

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Id. at 61-62. Any officer on duty could have performed

the 15-minute checks. Id. at 61.5

CBP produced some information about the detention, and some of the Defendants had partial recollections of the events. Lapsley was the supervisory CBP

officer on duty the night of the detainment. See Lapsley Dep., Ex. 20 to Resp., at 16-21 (Dkt. 114-10). Lapsley initially assigned Ferguson and Bradley as case

officers to interview Elhady and prepare a report.

PSOF ¶ 32; TECS Query at 6. Ferguson said that he

told Lapsley that he could not “do [the] case” because

he was acting as the “lead-in” officer that night. Ferguson Dep., Ex. 13 to Resp., at 35-36 (Dkt. 114-3).6 According to Ferguson, Lapsley told Ferguson to continue

doing lead-in and assigned the case to Bradley. Id.

Bradley testified that he does not remember anything from the day Elhady was in CBP custody. Bradley Dep., Ex. 16 to Resp., at 11 (Dkt. 114-6). However,

based on his review of the records, he said that he did

not doubt that he was the case officer assigned to Elhady’s case, meaning that he interviewed Elhady and

wrote a report. Id. at 11-12. According to the CBP

records, Bradley interviewed Elhady and wrote the

5

While the missing logs would undoubtedly have shed some

light on the factual background of the case, Elhady has not filed

any motion or made any explicit argument in his briefing asking

the Court to draw any inference from the logs’ unavailability, nor

has he supplied pertinent authorities regarding that issue.

6

Per Ferguson’s description, a lead-in officer’s primary responsibility is scheduling his fellow officer’s assignments over the

course of a shift. Ferguson Dep. at 12.

27a

Secondary Inspection Report, which he submitted at

9:52 EDT on April 11, 2015. TECS Query at 10-11.

Other officers would have interacted with Elhady, either to perform the 15-minute checks or to escort him

to an interview room, but only Bradley would have interviewed Elhady. Sosnowski Dep. at 75. Although

Bradley denied interviewing Elhady in his cell, he does

not appear to deny having interviewed Elhady. Compare PSOF ¶ 37, with Lapsley RCSMF ¶ 37.

Elhady purports to remember the period of detention in more detail than the officers. He testified that

the cell was “really cold” from the moment he arrived.

Elhady Dep. at 57. “It was colder than outside, colder

than the waiting room, colder than the hallway. It

just—the more you walk into the cell, the colder it

gets.” Id. He could not determine whether the cell felt

air conditioned, but he said that the cold in the room

was “very noticeable.” Id. at 58. Elhady testified that

he did not complain about the temperature when he

was first placed in the cell. Id.

He described the cell as “really small.” Elhady

Dep. at 54. He said, “There’s a door, a seat, metal seat

connected to the floor and just big light throughout the

whole—most of the ceiling. . . . [I]f I would probably

think of the measurement, I would say it was my

height, length and—it was basically squared around

my height.” Id. at 55-55; see also Detention Area Photos, Ex. 4 to Resp. (Dkt. 113-4) (photographs of the Ambassador Bridge facility, including the detention cells).

28a

Elhady described a series of interviews taking

place in his cell following the pat-down. When asked to

confirm a statement from a previous deposition that

four different people came to question him in his cell

over a period of time, Elhady stated, “[I]t was [a]

bunch. At this point, I can’t really recall if I said four.

Could be less or more. I’m not sure, but it was more—I

saw a lot of faces.” Elhady Dep. at 61.

He said he first complained about the cold when

the first officer to interview him came to his cell:

I told the officer that it’s really cold in here.

How—I told them that I feel, you know, really

shivering. Can I get my shoes and jacket back

at least if they, you know, finished searching

those? I mean I didn’t think anything there to

search about a light jacket or shoe, but I asked

him to do that because the floor was the most,

you know, freezing part.

Id. at 58.

Although Elhady could not remember the sequence of his interviewers, he described an AfricanAmerican man as one of the first two officers to interview him. Elhady Dep. at 60-62, 71-72. He has since

identified this individual as Bradley. PSOF ¶ 37. Other

than Bradley, Elhady has not identified any of the officers he claims interviewed him or interacted with

him between the time Piraneo and Beckham patted

him down and the time he was released. Other than

stating that the other officers who questioned him

were white, the only identifying feature Elhady offered

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was that one of the white officers had “kind of . . .

chubby cheeks” and “was a little bit heavy weight.” Id.

at 64-65.

Elhady stated that the first questioning session

lasted between 30 minutes and an hour, and that he

complained about the cold and requested his shoes and

jacket. Id. at 68-70. He then waited 45 minutes to an

hour before the second interview. Id. at 72. He could

not recall specifics of the second interview, but he said,

“Every time they were there . . . my three questions

were, when I’m going to leave? Why am I here? And,

can I get my [shoes and jacket]? And, of course, I mentioned it’s really cold at all time[s].” Id. at 73.

He said that he remembered the third officer to

come in and question him was a white male. Id. at 75.

He did not remember how much time elapsed between

the third and fourth interviews, or if four interview

sessions even occurred. Id. But he said that the questions “seemed repetitive” and “there was a gap of 30 to

40 minutes, sometimes an hour between each questioning.” Id. at 75. Concerning the cold, he said:

[I]t was cold and it got colder and colder, and

I felt like every part of the cell is colder than

the other. And, I kept mentioning that, but

they, they seemed to ignore the whole situation. Like they knew it was happening, they

knew it was, you know, very cold and very

bright light, but they did not even like try to

feel the seat I was sitting on, to see how cold

it is, nothing. There was just the distance

30a

between me and them, they’re standing by the

door and just questioning.

Id. at 77.

Elhady said that he requested a blanket. Id. at 78.

Their refusal to provide one, along with the fact that

the officers took his watch, jacket, belt, and shoes, contributed to his belief that the officers were intentionally subjecting him to harsh conditions. Id. at 78.

Elhady said that toward the end of the final interview, he was told he would be out shortly—something

he said he had been told several times over the night.

Id. at 79-80. He said he waited another 10 or 15

minutes, and then saw someone walking by the hall.

“He was just walking by the hall, and I, I yelled to

get his attention, that I’m freezing,” Elhady said. Id. at

80.

He continued:

I tried to get close to the bars without touching them because the door was cold, cold as

well, to say, hello, I’m freezing, stuff like that.

It’s really cold. Can I please get help? I asked

for help.

And then I also—I don’t know if it was the last

interview or after I shouted out for help, a person came and I asked to go to the hospital because my body was shivering out of my

control. I tried to even hold my hands to stay,

you know, at least stay up until I leave, but

he—I told him I needed an ambulance, and he

31a

told me, you’ll be out soon. Don’t worry about

it . . .

Id. at 80-81. He continued:

And then I just kept—all I remember is me

feeling really cold. I was feeling like that ice is

taking over my feet and the buzz in my head

from the light is getting, you know, louder and

louder. And, it was weird because I can feel

that my whole body is cold but the light is

making the top of my head very hot which did

not make sense to me.

But I was, I was just thinking. I felt like I really was dying at that point because I was

never put in a situation like this before. And,

I was just thinking, okay, they ignored me.

Now they’re ignoring me more, and I’ve been

here the longest period I ever, ever in my experience. So after taking all that report, all

the details, asking me everything in my head

and put me in that situation, I felt like I was

being—they were waiting for me to die. And

all I can think of is—was my mom, if she’s really going to know how I died or they—it’s just

going to be a mystery to her.

Id. at 81-82.

He described being woken up by one or two officers, who started taking him seriously. Id. at 82. Elhady

said that he did not know whether the person who ultimately helped him was the last interviewer or the

person in the hallway. Id. 81. He requested an ambulance, because the buzzing in his head and the shaking

32a

from the cold prevented him from driving to the hospital himself. Id. at 82-83. The officers handcuffed him

and moved him to a waiting room. Id. at 83. Elhady

says that he was told he could leave at some point during the 15 to 30 minutes he spent in the waiting room,

but that he insisted on being taken to the hospital. Id.

at 98-99.

The Secondary Inspection Report states that Elhady “complained of back pain, coldness and requested

Emergency Medical Service to be called.” TECS Query

at 11. It does not state when or to whom Elhady complained. Id.

The parties disagree about whether CBP agents

interviewed Elhady in a detention cell or in another

room. Elhady claims CBP officers interrogated him in

the “freezing cell rather than the video-recorded ‘interview room’ where such interrogations are supposed to

occur,” because “Defendants decided to use the extreme

cold of the detention cells that night to their advantage

to ensure that their interrogation of Elhady was fruitful.” Resp. at 27. Elhady notes that no video of any aspect of Elhady’s detention has ever been identified or

produced, PSOF ¶¶ 71-72, and that there are cameras

in the interview rooms but not the detention cells, id.;

Rocky Dep., Ex. 18 to Resp., at 33, 38 (Dkt. 114-8); Iverson Dep., Ex. 19 to Resp., at 52, 56 (Dkt. 114-9).

Bradley denies interviewing Elhady in a detention

cell. Lapsley RCSMF ¶ 37. The denial appears to be

based on Bradley’s practice rather than a specific

memory of the evening. In his deposition, Bradley

33a

stated that he has asked a detainee questions inside a

holding cell, but that he has never conducted an “interview” inside a holding cell. Bradley Dep. at 204. CBP

has also denied that its agents interviewed Elhady in

the detention cell, based on its policies and regular

practice. Sosnowski Dep. at 76-77.

3. Elhady’s Ambulance Ride, Hospital

Visit, and Departure

Some 15 to 30 minutes after Elhady was removed

from the cell, an ambulance arrived, and Elhady says

he was transported from the Ambassador Bridge waiting area to the ambulance. Elhady Dep. at 98-99. He

said he could not remember what exactly he told the

ambulance personnel, but he remembers how he felt:

I was freezing. I was not feeling my body. My

head was hurting. My back was hurting. My

whole body was hurting. . . . [I]t was pretty

painful. I don’t see different between complain

back pain and cold different than freezing,

complaining from pain all over [sic].

Id.

He said that a CBP officer handcuffed him to the

bed in the ambulance and that the “nurse” got really

upset with the CBP officer. Id. at 100-101.7 The ambulance record indicates that Elhady’s chief complaint

7

The unit personnel were Jessica Hellner and Nicholas

Jenuwine. EMS Run Sheet, Ex. C to Pew Mot., at 2 (Dkt. 96-3).

Both were Emergency Medical Technicians. Id.; Hellner Dep., Ex.

D to Pew Mot., at 14 (Dkt. 96-4).

34a

was of back pain, that he had a history of back pain,

that he stated that he had been put in a “freezer” for

four hours, that he had delayed capillary refill, and

that he complained of being cold. EMS Run Sheet at 2.

He was warmed and given oxygen. Id. Hellner, who testified to remembering the incident, said that delayed

capillary refill was consistent with complaining of being cold. Hellner Dep. at 44. The ambulance arrived at

the Detroit Receiving Hospital at 6:40 a.m. EMS Run

Sheet at 1.

Elhady presented for triage at 6:56 a.m. Hospital

Record, Ex. E to Pew Mot., at 9 (Dkt. 96-5). A nurse took

vital signs at 6:49 a.m. Id. at 21. Of note, Elhady’s temperature was measured at 35.6 degrees Celsius, which

the computer system flagged as below the 35.7-37.5degree reference range. Id. (Converted to Fahrenheit,

Elhady’s temperature was measured at 96.08 degrees,

and the reference range was 96.26-99.5 degrees.).8

Elhady estimated that approximately an hour

elapsed from the time he got out of the ambulance until

a doctor saw him. Elhady Dep. at 112. The records indicate that he was evaluated at 7:48 a.m. by Dr. Scott

Freeman and a resident, Dr. Michael Antoniolli. Hosp.

Record at 13. The History of Present Illness states the

following:

This is a 21-year-old male who presents to the

emergency department brought in by [border]

8

The medical records and the medical professionals in this

case generally use Celsius temperatures. The Court has converted these to Fahrenheit for convenience.

35a

control with complaints of lumbar back pain.

The patient states that he was picked up at

customs but he does not know why. He was

placed in a ‘freezer’ on a hard wooden chair.

He states that his back began hurting from

sitting on the uncomfortable chair. He denies

any trauma to the area. He denies any recent

falls or injuries. He states he had similar back

pain several years ago that he treated with

over-the-counter pain medications. He denies

any medical problems. . . . He denies any

numbness, tingling, or weakness. He has been

ambulating without any deficit. He denies any

saddle anesthesia, urinary retention, or loss of

control his bladder or bowels.

Id. The record also notes:

He began having severe lower back pain. He

denies any trauma. His examination is unremarkable. He was given Toradol 60 mg intramuscular. The patient will not give any

information as far as to why he was picked up

by police. He states that he does not know. He

denies any injury to the area. Given his hesitance to give any information, I feel obtaining

x-rays for any evidence of fracture at this time

is appropriate. . . .

The patient’s x-rays revealed no acute abnormality. Standard anticipatory guidance was

given . . . The patient demonstrated understanding of these instructions and was discharged in satisfactory condition.

Id. at 14-15.

36a

Elhady said that he initially spoke with the doctor

while a CBP officer was still in the room, but that the

doctor told the officer that he needed to leave the room.

Elhady Dep. at 113. Afterward, he told the doctor his

full story. Id. at 113-114. Elhady said that after he told

his story to the doctor, the doctor gave him a blanket

and Elhady fell asleep. Id. at 115.

After Elhady woke up and said that he was feeling

“way better,” the doctor told him he was “good to go.”

Id. At that point, Elhady said, the officers placed him

in a wheelchair, handcuffed him, and brought him to a

CBP van. Id. at 116.

Hospital records indicate that Elhady’s vital signs

were measured at 8:55 a.m. Hosp. Records at 28. An

oral temperature reading indicated a temperature of

36.1 degrees Celsius (96.98 degrees Fahrenheit). Hosp.

Record at 28. Id. He was released from the hospital and

en route to the Ambassador Bridge at 9:10 a.m. TECS

Query at 11.

Elhady said that when the van returned to the

Ambassador Bridge, the handcuffs were removed, and

Bradley returned Elhady’s shoes, belt, jacket, and

other belongings. Elhady Dep. at 122-123; PSOF ¶ 91.

Elhady was then released from CBP custody, Elhady

Dep. at 123, and he drove away from the CBP building

at 9:25 a.m., TECS Query at 11.

37a

B. The Dispute as to the Cell Temperature

and Elhady’s Temperature

The parties offer a variety of evidence—some subjective, some circumstantial, some opinion-based—supporting their competing theories about whether CBP

officers subjected Elhady to extreme temperatures

during his detention. Elhady supports his version of

events with his memory; evidence of longstanding

problems with the Ambassador Bridge’s HVAC (heating, ventilation, and air conditioning) system; and an

expert opinion purporting to deduce the temperature

of Elhady’s cell from the internal body temperature

measured at the hospital and Elhady’s self-described

symptoms. In addition to casting doubt on Elhady’s evidence, Defendants offer their own memories; expert,

agency, and personal opinions purporting to show that

the conditions Elhady described could not have occurred; and medical records and testimony tending to

show that Elhady did not experience exposure to severely cold temperatures.

1. Elhady’s Theory of the Temperature

Elhady’s memory of the night is discussed at

length above, and it should suffice to repeat that he felt

the cell was “colder than outside, colder than the waiting room, colder than the hallway.” Elhady Dep. at 57.

According to a weather report Elhady submitted, the

lowest temperature on April 11, 2015, was 36 degrees

Fahrenheit. April 2015 Weather Report, Ex. 7 to Resp.

(Dkt. 113-7). Defendants observe that the temperature

38a

did not drop to 36 degrees until sometime between 4:53

a.m. and 5:53 a.m., and that when Elhady was taken

from his vehicle to the detention cell, the temperature

was closer to 43 degrees. Detroit Weather History of

April 11, 2015, Ex. 1 to Lapsley Reply (Dkt. 117-1).

In addition to his own assessment of the temperature, Elhady presents evidence of “known and systemic

temperature regulation problems at the Ambassador

Bridge facility.” Resp. at 13; PSOF ¶¶ 43-52. A history of HVAC problems at the Ambassador Bridge Facility is reflected in internal CBP emails, electronic

correspondence between CBP officers and the Detroit

International Bridge Company (which owns the Ambassador Bridge), and Sosnowski’s testimony. See 2018

CBP Emails re: Maintenance Requests, Ex. 5 to Resp.

(Dkt. 113-5) (“2018 HVAC Emails”); 2016 CBP Emails

re: Thermostat, Ex. 6 to Resp. (Dkt. 113-6) (“2016

HVAC Emails”); Sosnowski Dep. at 153-205.

A 2018 email from Sosnowski addressed to the

“Command Center” states the following:

Something is just not right with our HVAC

system

•

The thermostat in the lobby is set at

68 but it is 75 and the heat is still on.

•

The side office, room 103, is not getting any heat

•

The outside wall in one of the cells is

49

39a

•

The hallway, side office, and cells are

very cold

•

The thermostat in the hallway is set

at 73 but the temperature reads as

60

•

There is no hot air coming out of

some of the vents in the hallway.

I apologize for continuing to report these problems, but the same issues are continuing to occur.

2018 HVAC Emails at 2.

Another February 2018 email indicates that a

temperature was read at 58 degrees when the thermostat was set at 70 degrees. Id. at 3. Supervisory CBP

Officer Jesse Winkel, the email’s author, wrote that it

“needs to be fixed so that we are within policy if someone gets placed in the detention cell.” Id. Another email

listed a measurement of 61 degrees in the cell and

lower hallway, despite a thermostat being set to 70 degrees. Id. at 4. A March 2018 email states that the detention cells “are too hot to put someone in them.” Id.

at 5.

In an email exchange from December 2016, Supervisory CBP Officer Andrew Schultz expressed concern

that the thermostat controlling the first floor for the

hall and detention cells would “shut off on its own prior

to the temperature reaching the stated [temperature]

on the thermostat,” presenting “an issue that needs to

be address [sic] as the temperature in our detention

cells needs to be within a particular temperature range

40a

(66-80) for people to be detained in them.” 2016 Emails

at 3. Sosnowski testified to his belief that CBP complained about the temperature to the Detroit International Bridge Company in 2015. Sosnowski Dep. at

153-154.

According to Sosnowski, CBP adopted a policy in

October 2015 that the detention cells be kept “at a

reasonable and comfortable temperature.” Sosnowski

Dep. at 171-172. No such policy existed in April 2015.

Id. Sosnowski Dep. at 171-172. No policy required officers to check the temperature of a cell prior to placing

a detainee in a cell. Id.

Finally, Elhady has obtained and submitted the

expert report of Dr. Gordon Giesbrecht. Expert Report

of Dr. Gordon Giesbrecht, Ex. 10 to Resp. (Dkt. 113-10)

(“Giesbrecht Report”). Giesbrecht has a Ph.D. in respiratory physiology and is a Professor of Thermophysiology at the University of Manitoba. Id. at 2.

Based on his review of the record, Dr. Giesbrecht concluded that the “cell would have been very cold to be

consistent with subjective and objective evidence.” Id.

at 7. Giesbrecht worked backward from Elhady’s symptoms and his temperature, measured at 35.6 degrees

Celsius (96.08 degrees Fahrenheit) at the hospital. Id.

Giesbrecht wrote that a 35.6-degree temperature indicates a core temperature drop of at least one degree

Celsius from normal. Id. Giesbrecht input the patient

and environmental information to the “Cold Exposure

Survival Model,” which he says has been validated

and published in peer-reviewed literature. Id. at 5

41a

(including citations). Based on the estimates produced

by the model, Giesbrecht offered the following analysis:

[I]t would not be possible to cause a decrease

in core temperature of 1°C if the cell temperature matched outside conditions 2.2°C.[9] It is

likely that the cell temperature would have

had to been even colder (as reported by Mr. Elhady) and possibly below freezing for this decrease in core temperature to occur within 4.5

hours.

Id. at 7.10 According to Dr. Giesbrecht, 35.6 degrees

falls within the range (35-37°C, or 95.0°-98.6°F) at

which a person is “[c]old stressed but not clinically hypothermic.” Id. at 4. At these temperatures, he writes

that a “[v]ictim is fully conscious, can sense cold and

discomfort (except in frostbitten areas it [sic] they exist), and increases shivering intensity to vigorous levels as core temperature decreases within this range;

this is very uncomfortable.” Id.

9

This translates to approximately 36 degrees Fahrenheit,

the overnight low.

10

Giesbrecht assumed that Elhady was in his cell without

his jacket and shoes from 1:47 a.m. until 6:20 a.m. Giesbrecht

Rep. at 5-7. Giesbrecht’s timeline is roughly consistent with

CBP’s estimates, except that CBP denies that Elhady was continuously in his cell. See Sosnowski Dep. at 69-84.

42a

2. Defendants’ Theory of the Temperature

Defendants contend that it is impossible to use

the HVAC system to achieve the temperature Elhady

described. According to Sosnowski, the thermostat controlling the first floor of the Ambassador Bridge cannot

cool the zone including the cell area to a temperature

lower than 50 degrees. Rule 30(b)(6) Deposition by

Written Questions, Ex. I to Ferguson & Bradley Mot.,

¶¶ 61-73 (Dkt. 101-10). Defendants also hired an

HVAC expert, Dennis Mando of Denny’s Heating, Cooling & Refrigeration. See Expert Report of Dennis

Mando, Ex. 1 to Ferguson & Bradley Reply (Dkt. 1191) (“Mando Report”). Based on his general knowledge

of HVAC systems and his familiarity with the units at

the Ambassador Bridge facility, Mando stated the following:

[I]t is physically impossible to use the thermostat unit that regulates the ground-floor detention cells to decrease the temperature of

only the detention cells without also decreasing the temperature of other areas regulated

by the same thermostat unit, including the

first and second floor hallways and the offices

on the first and second floor.

Technically speaking, the thermostat unit

that regulates the ground-floor detention cells

can be set as low as between 45 and 50 degrees Fahrenheit. The thermostat unit cannot

be set below 45 degrees and cannot be used to

cool that area below 45 degrees.

43a

Practically speaking, if the thermostat unit

that regulates the ground-floor detention cells

were set to 45 degrees, the unit would more

likely than not freeze up when the temperature of the building reached somewhere

around 60 degrees, give or take a few degrees

depending upon the humidity level inside the

building at the same time.

...

In sum, although the thermostat unit can be

set as low as 45 to 50 degrees, it is highly unlikely that the Bryant unit could accomplish

this without causing the unit to malfunction

long before the temperature of the building

reached that level.

Id. at 1-2.

Based on Sosnowski and Mando’s testimony, Defendants conclude that neither they nor anyone else

could intentionally use the HVAC system to reduce the

temperature to the temperature Elhady describes. Ferguson & Bradley Reply at 3-4. They further note that

“there is no evidence of any malfunctions ever that resulted in dangerously cold cell temperatures (and zero

evidence of a malfunction on April 11, 2015).” Id. at 4

(emphasis in original).

Concerning the Giesbrecht Report, Defendants argue that it is insufficiently explained and should be ignored. Id. at 5. Concerning Elhady’s delayed capillary

refill, Defendants cite a statement by Elhady’s ER physician, Dr. Antoniolli, who agreed that the delayed capillary refill was consistent with cold but inconsistent

44a

with life-threatening hypothermia. Antoniolli Dep., Ex.

K to Ferguson & Bradley Mot., at 88-90 (Dkt. 101-12).

Defendants also note that Elhady was treated for

back pain at the hospital, not any condition related to

exposure. See, e.g., Pew SMF ¶ 22. They also cite testimony from Ariana Zani, a registered nurse who treated

Elhady at the hospital, who stated that Elhady’s temperature was taken orally, that oral temperatures are

less accurate than rectal temperatures, and that rectal

temperatures tend to show temperatures about a degree higher than oral temperature readings. Zani Dep.,

Ex. G to Pew Mot., at 38, 91-92 (Dkt. 96-7). Dr. Antoniolli agreed. Antoniolli Dep. at 38-39.

Defendants do not dispute that “Elhady may have

felt cold,” but they rely significantly on “[t]he fact . . .

that none of the medical professionals with whom Elhady interacted that day suspected or treated Elhady

for hypothermia even though he informed them that

he was put in a ‘freezer.’” Ferguson & Bradley Mot. at

20 n.6 (emphasis in original).

Defendants also offer a report from Robert A. Mulliken, M.D. See Expert Report of Robert A. Mulliken,

M.D., Ex. 1 to Piraneo & Beckham Reply (Dkt. 118-1)

(“Mulliken Report”). He writes that neither of Elhady’s

temperature readings, 35.6 and 36.1 degrees, is hypothermic. Id. at 3-4.

45a

II.

STANDARD OF REVIEW

A motion for summary judgment under Federal

Rule of Civil Procedure 56 shall be granted “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists when there are “disputes

over facts that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). “[F]acts must be viewed in the

light most favorable to the nonmoving party only if

there is a ‘genuine’ dispute as to those facts.” Scott v.

Harris, 550 U.S. 372, 380 (2007). “Where the record

taken as a whole could not lead a rational trier of fact

to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Once the movant satisfies its initial burden of

demonstrating the absence of any genuine issue of material fact, the burden shifts to the nonmoving party to

set forth specific facts showing a triable issue of material fact. Scott, 550 U.S. at 380; Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). The nonmoving party “must

do more than simply show that there is some metaphysical doubt as to the material facts,” Scott, 550 U.S.

at 380 (quoting Matsushita, 475 U.S. at 586), as the

“mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly

supported motion for summary judgment,” id. (quoting

Anderson, 477 U.S. at 247-248) (emphasis in original);

see also Babcock & Wilcox Co. v. Cormetech, Inc., 848

46a

F.3d 754, 758 (6th Cir. 2017) (“A mere scintilla of evidence or some metaphysical doubt as to a material fact

is insufficient to forestall summary judgment.”).

III.

ANALYSIS

As discussed in the opinion denying Defendants’

motion to dismiss, “Elhady brings a Fifth Amendment

claim, as that amendment’s Due Process Clause prohibits the government from imposing torture or cruel

and unusual confinement conditions on non-convicted

detainees.” Elhady v. Pew, 370 F. Supp. 3d 757, 764

(E.D. Mich. 2019). In that opinion, the Court also

stated that such a claim has two elements—a sufficiently serious deprivation, and the defendant-official

acting with deliberate indifference to the inmate’s

health and safety. Id. These standards, borrowed from

the Eighth Amendment case law, are sometimes called

the “objective” and “subjective” elements, respectively.

The Sixth Circuit describes these two elements as follows:

An Eighth Amendment conditions-of-confinement

claim has two elements. First, the deprivation

alleged must be, objectively, sufficiently serious;

a prison official’s act or omission must result

in the denial of the minimal civilized measure

of life’s necessities. Second, the prison official’s state of mind [must be] one of deliberate

indifference to inmate health or safety.

Spencer v. Bouchard, 449 F.3d 721, 728 (6th Cir. 2006)

(internal citations and quotation marks omitted),

47a

abrogated on other grounds by Jones v. Bock, 549 U.S.

199 (2007).

The parties disagree as to whether the facts,

viewed in the light most favorable to Elhady, could support a finding for Elhady on the objective elements;

whether Elhady must prove the subjective element;

whether Defendants are protected by qualified immunity; and whether either party violated the local rules in

the briefing.11

11

This last issue requires little discussion. Elhady argues

that Defendants violated the local rules by incorporating portions

of each other’s briefs into their own briefs, effectively giving each

Defendant more than the twenty-five pages allowed by Local Rule

7.1, and making it very difficult to respond to all facts alleged.

Resp. at 47. In turn, Defendants observe that Elhady violated the

scheduling order by failing to include a counterstatement of material facts. Finally, although Elhady has not raised it, Defendants again cross-incorporated each other’s fact sections in their

reply briefs, arguably rendering their briefs longer than the ten

pages specially allowed.

When page limits are inadequate for a party’s needs, the party

should request a page-limit extension rather than omitting a section required by the scheduling order or writing briefs that arguably exceed the page limit. Ironically, each party has requested a

page-limit extension with regard to briefing a portion of these motions, and each opposing party has been gracious enough to stipulate to an order granting the other party’s request. The parties

should be more transparent about their briefing needs in future

filings, and they must comply with the scheduling order.

In the interest of promptly resolving the issues raised and in the

absence of any demonstrated prejudice, the Court declines to

strike any portion of the briefing.

48a

A. The Objective Element

On the objective element, the parties agree that

Elhady must show that the deprivation alleged is sufficiently serious that it resulted in the denial of the

minimal civilized measure of life’s necessities. Spencer,

449 F.3d at 728. This Court’s approach to this element

is the same as it was in its previous order denying Defendants’ motion to dismiss:

The court’s opinion in [Burley v. Miller, 241

F. Supp. 3d 828 (E.D. Mich. 2017)] provides a

good template for consideration of cold-condition cases. In that case, the court observed

that although the ‘Supreme Court has held

that prison conditions may be uncomfortable

without violating the Eighth Amendment’s

prohibition against cruel and unusual punishment,’ the Eighth Amendment does impose

‘duties on [prison] officials, who must provide

humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care,

and must take reasonable measures to guarantee the safety of the inmates.’ Burley, 241

F.Supp.3d at 836 (internal citations omitted)

(alteration in original). Courts are to consider

‘[t]he circumstances, nature, and duration of a

deprivation’ in evaluating these claims. Id.

(internal citations omitted) (alteration in original). ‘Some conditions of confinement may establish an Eighth Amendment violation in

combination when each would not do so alone,

but only when they have a mutually enforcing effect that produces the deprivation of a

49a

single, identifiable human need such as food,

warmth, or exercise—for example, a low cell

temperature at night combined with a failure

to issue blankets.’ Id. (internal quotation

marks omitted) (emphasis in original). The

court went on to analyze a number of cases,

ultimately drawing the conclusion that there

exists a ‘right to be free from exposure to severe weather and temperatures.’ Id. at 839.

Notably, the court cited a Seventh Circuit case

finding that frostbite, hypothermia, or a similar infliction is not an ‘absolute requirement

to the inmate’s challenge’ in a cold-conditions

case. See Del Raine v. Williford, 32 F.3d 1024,

1035 (7th Cir. 1994).

Elhady, 370 F. Supp. 3d at 764-765.

The paucity of Fifth Amendment cold conditions

cases has led Elhady to draw on the relatively abundant Eighth Amendment caselaw. See Resp. at 30-31.

Due process entitles pretrial detainees to rights “at

least as great as the Eighth Amendment protections

available to a convicted prisoner.” Scozzari v. Miedzianowski, 597 F. App’x 845, 848 (6th Cir. 2015). Therefore, conditions found to violate prisoners’ Eighth

Amendment rights would, presumptively, violate detainees’ Fifth Amendment rights.

Elhady cites cases in which courts have found that

exposure for several hours to freezing or near-freezing

temperatures violates a prisoner’s or detainee’s right

to be free from exposure to severe weather and temperatures. See Gillespie v. Civiletti, 629 F.2d 637, 642

(9th Cir. 1980) (alleging the plaintiff was placed in an

50a

isolation cell that reached near-freezing temperatures

at night); Smith v. Allbaugh, 16-cv-654, 2018 WL

4402968, at *8 (W.D. Okla. Apr. 30, 2018) (alleging that

the plaintiff was placed in an outdoor pen for five

hours in freezing or near-freezing temperatures without proper clothing); see also Burley, 241 F. Supp. 3d at

838-839 (alleging that prison officials forced the plaintiff to stand in freezing rain for 10 to 12 minutes and

then to remain in his saturated clothing for another

two hours).

As explained below, Elhady has presented enough

evidence that a reasonable jury could find that he was

placed in a cell at freezing or near-freezing temperatures for at least four hours, and that such treatment

constitutes a violation of his right to be free from exposure to severe weather and temperatures.

The parties’ testimony provides two versions of

the events in question, and the jury must decide which

to believe. Taken together, Elhady’s temperature reading at the hospital and the Giesbrecht Report could

provide a jury with a sufficient, objective basis to credit

Elhady’s description of his experience. Defendants

have already attacked the validity of an oral temperature reading and have attacked Giesbrecht’s methodology. See Ferguson & Bradley Reply at 5. They are free

to challenge the report’s conclusions and to argue that

the jury should not credit it, but it would be premature

to exclude it at this stage. Contrary to Ferguson and

Bradley’s assertions, Giesbrecht has done more than

provide a conclusory assertion about ultimate legal issues. See id. He has provided his qualifications and a

51a

basic, step-by-step account of how the temperature in

the cell could be deduced from Elhady’s temperature

reading at the hospital and his alleged symptoms. He

has also provided references to scholarly materials

that detail his methodology. Giesbrecht Report at 5.

Defendants’ expert, Dr. Mulliken, notes “significant factual disputes” between Elhady’s report and the

recollection of EMT Hellner. Mulliken Rep. at 2. Significant factual disputes are precisely what render issues

unsuitable for summary judgment. Furthermore, he

rebuts Professor Giesbrecht’s opinion on the cell’s temperature by writing that Giesbrecht “uses Mr. Elhady’s

testimony to extrapolate backward and model a cell

temperature. But this approach to modeling is only accurate if the testimony is accurate.” Id. at 3. However,

Dr. Mulliken appears to overlook that the most significant input in Giesbrecht’s model is Elhady’s temperature reading of 35.6 degrees Celsius, and he does not

dispute the method by which Giesbrecht converts inputs (Elhady’s temperature, Elhady’s self-described

symptoms) into outputs (the cell’s temperature). Id.

(“While the professor’s model may be accurate for

someone who suffered the symptoms Mr. Elhady described, there is not medical evidence that Mr. Elhady

should have suffered such symptoms outside of Mr. Elhady’s own statements”).

Defendants also argue that Elhady has failed to

put forward a plausible theory for how the cell became

so much colder than the rest of the building. Ferguson

& Bradley Reply at 3-4. Certainly, the Mando Report

and Sosnowkski’s testimony cast significant doubt on

52a

the ability of the HVAC system to chill the room to the

temperature Elhady has described. However, the mere

fact that the HVAC system, properly functioning, could

not be used to lower the cell’s temperature to the temperature Elhady described does not mean that the cell

could not have been that cold. Between the cold outdoor temperature and the history of a malfunctioning

HVAC system, Elhady has sufficient material to assert

a plausible theory. Furthermore, Elhady can succeed

on his claim that he was exposed to extreme temperatures without proving the precise mechanism by which

those temperatures were achieved. These are all questions of fact, and Elhady has produced enough evidence

to defeat summary judgment on this issue.

Defendants argue that even if Elhady can prove

his alleged facts, he has not made out a sufficient case

on the objective prong. They raise numerous cases to

make this point, none of which is persuasive.

Initially, Ferguson and Bradley raise numerous

cases in which plaintiffs lost their claims despite alleging deprivations arguably more serious than the most

severe deprivation Elhady can prove. However, these

cases are distinguishable. They do not contradict the

finding that Elhady’s claims are sufficiently serious to

meet the objective prong of the Fifth Amendment test.

As Defendants argue, the magistrate judge’s report and recommendation approved by Harris v. Hulkoff,

05-cv-198, 2007 WL 2479467, at *4 (W.D. Mich. Aug 28,

2007), holds that subjective feelings of cold are insufficient to state an Eighth Amendment claim. But the

53a

plaintiff in that case failed to provide any objective

evidence of the temperature. Id. Contrary to Ferguson

and Bradley’s claim that Elhady “subjectively felt cold

but offered no objective evidence as to the cell temperature,” see Ferguson & Bradley Mot. at 12, Elhady

offers neutral, objective evidence of his body temperature when he reached the hospital, from which his expert deduced the temperature in the cell. This evidence

is disputed, but it is objective, thereby distinguishing

Harris. Likewise, in Palmer v. Abdalla, 11-cv-503, 2012

WL 4473206, at *5 (S.D. Ohio Sept. 4, 2012), the plaintiff failed to offer objective proof of the temperature in

his cell. Again, Elhady has offered objective evidence.

In Trevino v. Jones, No. 06-cv-0257, 2007 WL

710213, at *6-7 (N.D. Okla. Mar. 6, 2007), the court denied the Eighth Amendment claim, leaning on the “exigencies of running a prison,” and the “restrictive and

even harsh” conditions officers may impose on prisoners without violating the Eighth Amendment. Nothing

comparable excuses the allegedly harsh conditions in

this case. The Due Process Clause forbids punishment

of non-convicted detainees, Bell v. Wolfish, 441 U.S.

520, 535 (1979), and Defendants have offered no legitimate, nonpunitive reasons for exposing Elhady to allegedly unreasonably cold conditions. Furthermore,

the court in Trevino found that the prisoners forced to

spend time outside were given coveralls, meaning the

plaintiff was “not subject to low temperatures without

any protection.” Id. at *7. Elhady raises a genuine

question as to whether the clothing Defendants allowed him to keep was sufficiently warm.

54a

The medical evidence in LaPine v. Caruso, No. 09cv-214, 2011 WL 1004603, at *6 (W.D. Mich. Mar. 18,

2011), provided “absolutely no indication” that the

plaintiff in that case was “subjected to freezing temperatures in his segregation cell.” Again, Elhady’s oral

temperature reading and expert report distinguish

this case.

Likewise, in Van Williams v. Cook Cty., Georgia,

03-cv-120, 2006 WL 2444065, at *6 (M.D. Ga. Aug. 22,

2006), the plaintiff failed to establish a sufficiently cold

temperature. Ferguson and Bradley argue that even

crediting Elhady’s testimony, the conditions were no

worse than those alleged by Van Williams. However,

the plaintiff ’s allegations were not the decisive factor

in Van Williams. The plaintiff alleged that open and

broken windows, and the absence of heat, left him exposed to overnight temperatures in the 30s. Id. at *56. But the court assumed that “some form of heating

system” was operating and reaching the plaintiff’s

cell. Id. at *6. The case does not provide guidance on

whether exposure to temperatures in the 30s would

constitute a constitutional violation.

In Washington v. Burks, No. 04-cv-10352, 2008 WL

8694601, at *10-11 (E.D. Mich. Dec. 17, 2008), the

plaintiff failed to allege any harm greater than discomfort. Furthermore, Washington appears to rely on the

Eighth Amendment’s permissiveness of a degree of discomfort that may exceed what the Fifth Amendment

allows. Id.

55a

Next, Defendants cite a range of cases supposedly

supporting the proposition that short periods of exposure are not objectively serious enough to violate the

Eighth Amendment. See Ferguson & Bradley Mot. at

15-17; see also Resp. at 34-38. In all of these cases (with

one exception), the plaintiffs failed to make sufficient

allegations or offer sufficient proof of being exposed to

freezing or near-freezing temperatures without sufficient clothing.

The one exception is the most extreme case Defendants cite. See Mena v. City of New York, 12-civ0028, 2014 WL 2968513, at *9 (S.D.N.Y. June 27, 2014).

For the sake of the summary judgment motion, the

court assumed that a prisoner had been exposed to a

temperature of 37 degrees for an entire day. Id. Mena

held that such a deprivation would not be actionable

under the Eighth Amendment: “Courts require exposure to below freezing temperatures for at least weeks

at a time to prevail on an Eighth Amendment Claim.”

Id. This is a severe overstatement of the Second Circuit’s Eighth Amendment law, which does not draw

any such bright line. In any case, it is inconsistent with

the caselaw within our Circuit, which this Court

chooses to follow. Burley, 241 F. Supp. 3d at 848 (even

brief periods of exposure to cold can violate prisoner

rights, especially without any purported justification).

Elhady has alleged, and offered proof of, a sufficiently serious deprivation such that summary judgment cannot be granted for Defendants on the

objective prong.

56a

B. The Subjective Element

The parties dispute whether Elhady must prove a

“subjective element” to his claim—that is, a defendant’s deliberate indifference to the health and safety of

a plaintiff. This Court holds that he must. Furthermore, he must demonstrate each Defendant’s deliberate indifference by establishing that officer’s personal

involvement in the actionable conduct. Elhady has

raised a genuine question as to whether Bradley was

deliberately indifferent to Elhady’s unconstitutional

conditions of confinement; however, he has failed to do

so with respect to the other Defendants.

1. The Need to Prove the Subjective

Element

Defendants argue that Elhady has failed to prove

the subjective prong, while Elhady argues that the

Fifth Amendment contains only an objective prong.

Resp. at 26-27. Elhady points to Kingsley v. Hendrickson, — U.S. —, 135 S. Ct. 2466 (2015), which held that

in an excessive force case brought under the Fourteenth Amendment’s due process clause, a detainee

need only show that an officer’s use of force was objectively unreasonable—not that the officer was subjectively aware that his use of force was excessive.

However, Kingsley did not purport to go beyond

the excessive force context. And Elhady does not explain how a decision in the context of excessive force

should apply in a case based on unconstitutional conditions of confinement. Nor does he explain why a case

57a

rejecting the need to prove a government actor’s

knowledge that the force he employed violated a legal

norm would mandate rejecting the need to show that a

government actor was aware that a detainee’s health

or safety was seriously at risk. An unexplained argument cannot require a court to search for and establish

the argument’s validity. See, e.g., United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not

like pigs, hunting for truffles buried in briefs”).

The need to show the government actor’s deliberate indifference to the health or safety of someone under his charge or care has long been the staple of

constitutional torts. See Estelle v. Gamble, 429 U.S. 97,

104 (1976) (establishing the deliberate indifference

standard in the context of failure to provide adequate

medical care). Indeed, the very cases Elhady cites confirm this longstanding principle. See Resp. at 26-27

(citing Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir.

2000); Spencer v. Bouchard, 449 F.3d 721, 726-728 (6th

Cir. 2006)). The need to establish that subjective element remains the law of this Circuit. See, e.g., Cooper

v. Montgomery Cty., Ohio Sheriff ’s Dept., 768 F. App’x.

385, 392 (6th Cir. 2019) (applying subjective element

after issuance of Kingsley, with no discussion of Kingsley). So long as that remains true, this Court is not free

to jettison this element for a Bivens claim alleging unconstitutional conditions.12

12

The Court is not unaware of the current debate among the

circuits on how Kingsley might apply outside the excessive force

context. Numerous courts have held that in cases governed by the

deliberate indifference standard, plaintiffs can prove deliberate

58a

Nonetheless, Elhady’s claim as to one Defendant

is saved from summary judgment by the fact that under longstanding Sixth Circuit and Supreme Court

precedent, Elhady has created a factual issue for trial

as to the subjective element. As Defendants have conceded, “[t]he Court ‘may infer the existence of [a] subjective state of mind from the fact that the risk of harm

is obvious.’” Ferguson & Bradley Mot. at 21 (quoting

Hope v. Pelzer, 536 U.S. 730, 738 (2002)); see also

indifference by showing that the defendant-official “recklessly

failed to act with reasonable care to mitigate the risk that the

condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed

an excessive risk to health and safety.” Darnell v. Pineiro, 849

F.3d 17, 35 (2d Cir. 2017) (applying this principle in a conditionsof-confinement case); accord Miranda v. Cty. of Lake, 900 F.3d

335 (7th Cir. 2018) (failure to treat); Castro v. Cty. of Los Angeles,

833 F.3d 1060, 1070 (9th Cir. 2016) (en banc) (failure to protect).

But none of these cases adopts anything like the proposition Elhady claims is the law—that he need only prove that a prison official’s act or omission resulted in the denial of the minimal

civilized measures of life’s necessities. See Resp. at 27. These

cases allow plaintiffs to prove the subjective prong using objective

evidence; they do not do away with the subjective prong entirely.

See Darnell, 849 F.3d at 35; see also Castro, 833 F.3d at 1071

(holding that plaintiffs must prove “more than negligence but less

than subjective intent—something akin to reckless disregard.”)

For cases declining to apply Kingsley outside the excessive force

context, see Whitney v. City of St. Louis, Mo., 887 F.3d 857, 860

n.4 (8th Cir. 2018); Nam Dang by & through Vina Dang v. Sheriff,

Seminole Cty. Fla., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017); Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 420 n.4 (5th

Cir. 2017). The Sixth Circuit noted this circuit split in a case addressing claims of deliberate indifference to medical needs, but it

declined to adopt any view on the impact of Kingsley because the

issue had not been briefed. See Richmond v. Huq, 885 F.3d 928,

937-938, 938 n.3 (6th Cir. 2018).

59a

Spencer, 449 F.3d at 729 (describing a case involving

cold, wet conditions as the “perfect candidate for imputing knowledge based on the obviousness of the

risk”). Under that principle and evidence presented,

Spencer found that two jail officers were deliberately

indifferent to cold and wet conditions when those officers were seen wearing winter coats indoors and when

they personally received complaints from prisoners.

449 F.3d at 729.

Therefore, the Court similarly infers that any officer who (a) had contact with the cell or heard Elhady’s complaints, and (b) knew that Elhady would

spend a substantial period of time in the cell, knew

that the cell’s conditions imposed an excessive risk to

Elhady. As discussed below, Bradley is the only Defendant who meets that description.

Defendants do not cogently address any of the evidence supporting deliberate indifference, except to argue that Elhady did not sufficiently complain about the

cold temperature. Ferguson & Bradley Reply at 2.

However, Elhady’s evidence confirms that there is a

genuine issue of fact whether Bradley was deliberately

indifferent.

2. Individualized Analysis

The plaintiff in a Bivens action must prove that

each individual defendant “was personally involved

in the deprivation of the plaintiff ’s constitutional

rights.” See Mueller v. Gallina, 137 F. App’x 847, 850

(6th Cir. 2005). Vicarious liability is not a basis for

60a

liability, and each government official “is only liable

for his or her own misconduct.” Ashcroft v. Iqbal, 556

U.S. 662, 677 (2009). Questions of individual defendants’ involvement often present themselves in the context of analyzing the subjective element of a Bivens or

§ 1983 question. See Stoudemire v. Mich. Dept. of Corr.,

705 F.3d 560, 570 (6th Cir. 2013) (“[T]he question of

whether an official possessed the requisite knowledge

and culpable mental state to sustain a deliberate indifference claim must be addressed for each officer individually.”). Therefore, the Court turns its attention to

the question of whether each individual Defendant

“had the personal involvement necessary to permit a

finding of subjective knowledge.” See Bishop v. Hackel,

636 F.3d 757, 768 (6th Cir. 2011).

Burley and Spencer offer at least three examples

of officers whose actions with respect to a prisoner or

detainee support an inference of deliberate indifference:

•

A defendant who physically forces or verbally orders a detainee to remain in extreme

weather conditions, Burley, 241 F. Supp. 3d at

838-839;

•

A supervisor who authorizes, approves, or

knowingly acquiesces in a subordinate’s decision to expose a detainee to extreme weather

conditions, id.; see also Shehee v. Luttrell, 199

F.3d 295, 300 (6th Cir. 1999) (describing the

knowing acquiescence standard);

•

An officer who fails to act upon knowledge

that a detainee was being exposed to extreme

61a

weather conditions for an excessive period of

time, see Spencer, 449 F. 3d at 729-731.

Under these established theories of personal involvement, Elhady has provided evidence of Bradley’s

personal involvement reflecting deliberate indifference

sufficient to defeat summary judgment. However, he

has not provided sufficient evidence of any other Defendant’s personal involvement, so their motions for

summary judgment must be granted.

a. Blake Bradley

Bradley was the case officer assigned to Elhady’s

case, and he does not dispute having questioned Elhady. Bradley Dep. at 12, 239. Elhady says that at each

interview he complained of the cold. Elhady Dep. at 71,

73. He also maintains that each interview took place

in the cell. Id. Therefore, if the facts were as Elhady

says they were, a jury could reasonably draw the inference that Bradley knew that the cell was unbearably

cold and nonetheless disregarded Elhady’s complaints.

While Bradley could not identify the time when

his involvement began or ended, a jury could infer that

Bradley knew the approximate amount of time Elhady

would spend in his cell, because he was the case officer

assigned to Elhady. See Sosnowski Dep. at 74 (explaining that Bradley conducted the secondary inspection).

Bradley attempts to evade responsibility for any deprivation that occurred before he first interacted with

Elhady, trying to shorten the duration of Elhady’s

confinement for which he may be culpable from

62a

somewhere between four and four-and-a-half hours to

three hours and seventeen minutes. See Ferguson &

Bradly Mot. at 21-22; Ferguson & Bradley Reply at 78. Shaving the time period during which he was aware

of the cell conditions would not be material, as a threehour and seventeen-minute period of deprivation

would still be a serious one.

In any case, a jury could reasonably reject this effort to narrow the timeframe, based on Bradley’s role

as case officer and information available to him in the

detention logs. It could conclude that he knew how long

Elhady had been confined before he and Elhady first

interacted. See Sosnowski Dep. at 47-61 (describing

the availability of this information in the detention

logs). If Bradley learned when Elhady’s harsh conditions began and continued the deprivation for two or

three more hours, he may be held responsible for the

cumulative effect. Cf. Burley, 241 F. Supp. 3d at 839

(finding that an officer who endorsed his fellow officers’

order that a prisoner stand outside in the freezing rain

could be found liable).

Among all the Defendants, only Bradley has failed

to argue that Elhady cannot connect him personally to

the alleged deprivation. See Ferguson & Bradley Mot.

at 24 (arguing that Ferguson was not personally involved); Ferguson & Bradley Reply at 13 (same). He

was simply too involved in Elhady’s confinement to argue otherwise.

Summary judgment cannot be granted to Bradley.

63a

b. Piraneo and Beckham

Piraneo performed a pat-down of Elhady in the detention cell, which Beckham witnessed. TECS Query

at 10. Elhady testified that the cell was “really cold”

from the moment he arrived. Elhady Dep. 57. He also

testified that he did not immediately complain about

the temperature when Piraneo and Beckham placed

him in it. Elhady Dep. at 58.

Elhady’s theory of the case relies on both the cell’s

temperature and the amount of time he spent in the

cell. Even assuming Piraneo and Beckham were aware

that the cell’s temperature was at or near freezing, Elhady has not presented evidence that Beckham and Piraneo were aware of how long Elhady would remain in

the cell, that their co-workers would violate policy or

practice by conducting an interview inside the cell and

ignoring his requests for additional clothing or blankets, or that his interview would last as long as it did.

Beckham and Piraneo performed a role in Elhady’s detainment, but a constitutional violation was

not complete when their confirmed involvement in his

detainment ended. Furthermore, Elhady has not offered proof suggesting that they knew he would be left

there as long as he claims he was left there. Therefore,

finding them culpable would require speculation as to

matters for which no evidence has been presented. A

jury could not reasonably find them to have been deliberately indifferent to Elhady’s suffering.

64a

c. Ferguson and Lapsley

Elhady has not alleged that he had direct contact

with Ferguson or Lapsley, or that either of them was

ever present in his cell. See Resp. at 43-44; see generally PSOF. Therefore, they cannot be said to have “ignored or dismissed Elhady’s complaints about the

cold.” See Resp. at 42.

Elhady makes no specific claim that Lapsley had

contact with Elhady or the cell, or that she otherwise

knew of the conditions in his cell. Resp. at 43-44. Elhady only offers the conclusory statement that she “either knew or should have known that the detention

cell was extremely cold.” Resp. at 43. This is insufficient to support an inference that Lapsley actually

knew of the cell’s temperature, which would be necessary to support liability under Burley or Spencer.13

Elhady offers a slightly more detailed theory for

how Ferguson might have learned of the temperature

in the cell, based on Ferguson’s role as “lead-in” officer.

Resp. at 44. But it is too speculative to say, “[a]s the

lead-in officer down the hall, Ferguson should have

heard and responded to Elhady’s pleas for help, but

instead Elhady was ignored.” Resp. at 44. Although

13

Elhady similarly attempts to establish every other Defendant’s liability based on the allegation that he “knew or should

have known” the cell’s temperature. See Resp. at 42-44. Conceivably, this theory of liability might be viable if the Court applied

the interpretation of Kingsley offered in cases like Castro, 833

F.3d 1060. See supra note 12. However, the Court will not consider the implications of an argument Elhady failed to make explicitly.

65a

Ferguson testified that he would have heard Elhady

from his position in the lobby if Elhady had been

pounding on the door or screaming, Ferguson Dep. at

180-181, Elhady’s testimony does not establish that he

yelled persistently enough to support the inference

that Ferguson actually heard and ignored him. Reviewing the portions of Elhady’s deposition cited in

PSOF ¶ 61, it appears that Elhady only began yelling

for help after the final interview, and that the next

thing he remembered was being revived and removed

from his cell. See Elhady Dep. at 80-82. Elhady did not

remember the circumstances from the time he yelled

for help until he was revived with sufficient clarity to

support an inference that anyone heard him and failed

to respond appropriately. Id. Furthermore, he has not

specifically identified any Defendant who heard and ignored him. Id. at 163.

In sum, Elhady has not presented evidence that

Ferguson or Lapsley had direct contact with Elhady or

the cell, or that they otherwise knew of the conditions

of his cell. Thus, he has failed to show they were deliberately indifferent to Elhady’s cell conditions.

3. Alternative Theories of Liability

In addition to attempting to demonstrate Defendants’ personal involvement by proving that they actually knew of the cell’s conditions, Elhady attempts to

establish individual liability from evidence indicating

“that all Defendants were responsible to maintain

Elhady’s conditions of confinement.” Resp. at 42. He

66a

argues that “all [he] needs to show is that ‘by nature of

their positions’ and the requirements of the Constitution, each Defendant had a duty to protect Elhady from

unconstitutional conditions.” Id. at 45 (quoting In re

Jackson Lockdown, 568 F. Supp. 869, 878 (E.D. Mich.

1983)).14

But proving a duty is not enough. If it were, anyone in some sense “responsible” for a detainee’s confinement would be liable for any harm that befell the

detainee while in their custody. Such a rule would impose liability against the officer whose mere negligence

resulted in harm to her charge and could easily evolve

into a strict liability form of jurisprudence. In his discussion of Defendants’ responsibilities, Elhady fails to

articulate, much less offer proof of, personal engagement in sufficiently culpable conduct demonstrating

14

Jackson Lockdown is not the silver bullet Elhady imagines

it to be. See Resp. at 42, 45-46. In that case, the plaintiffs sued

prison officials who allegedly had prior knowledge of a likely

prison riot and failed to take necessary precautions, resulting in

injuries and subsequent deprivations of basic needs. 568 F. Supp.

869, 873-875. In denying the motion to dismiss, the court found

as sufficient allegations of personal involvement that the officials

had awareness of the planned riots and, by the “nature of their

positions,” were undoubtedly involved in the decisions to impose

the post-riot conditions. Id. at 878. By contrast, in our summary

judgment context, Elhady has not offered proof that every officer

would have known the temperature of Elhady’s detention cell,

that Lapsley would have known every detail of a “case” she assigned to a subordinate officer, or that every Defendant would

have heard Elhady’s requests for help. The Court cannot fill in the

gaps in this case, or ask the jury to do so, through speculation.

67a

deliberate indifference by any Defendant other than

Bradley.

The claims against Beckham, Piraneo, Ferguson,

and Lapsley must be dismissed.

C. Qualified Immunity

Bradley raises the defense of qualified immunity,

which shields government officials from liability for

civil damages insofar as their conduct does not violate

clearly established statutory or constitutional law of

which a reasonable person would have known. Adams

v. Blount Cty., Tenn., 946 F.3d 940, 947 (6th Cir. 2020).15

In determining whether officers are shielded from civil

liability due to qualified immunity, the court must determine: (1) whether, when viewing the facts in the

light most favorable to Elhady, Defendants violated Elhady’s rights; and (2) whether those rights were clearly

established at the time of the alleged violation. Id. at

948.

So far, the discussion has focused on the first question. Viewed in the light most favorable to Elhady, the

facts support a finding that Bradley, but no other Defendant, violated Elhady’s rights. The Court now turns

to the question of whether those rights were clearly established.

15

Because Defendants other than Bradley are dismissed,

only Bradley’s claim of qualified immunity requires further discussion.

68a

The parties disagree on how to define the right in

question. As Burley stated, “When there is no case directly on point, the court must find that definitional

sweet spot, since ‘it defeats the qualified-immunity

analysis to define the right too broadly . . . [and] it

defeats the purpose of § 1983 to define the right too

narrowly.’” 241 F. Supp. 3d at 836 (quoting Kent v.

Oakland Cty., 810 F.3d 384 (6th Cir. 2016)).16 As the

Sixth Circuit put it:

Precedent demands instead that we go down

the stairs of abstraction to a concrete, particularized description of the right. Though not

too far down: just as a court can generalize too

much, it can generalize too little. If it defeats

the qualified-immunity analysis to define the

right too broadly (as the right to be free of excessive force), it defeats the purpose of § 1983

to define the right too narrowly (as the right

to be free of needless assaults by left-handed

police officers during Tuesday siestas).

16

Bradley would disagree that there is no case directly on

point. He cites Ray v. Schoo, No. cv-10-942, 2014 WL 59733, at *3

(C.D. Cal Jan. 2, 2014), in which a court found that “it was not

clearly established in 2009 (and is still not today) that subjecting

a prisoner to temperatures as low as 40-45 degrees one time for

more than five hours was cruel and unusual. However, he is incorrect that the deprivation alleged in Ray was more severe than

the deprivation at issue here. See Bradley Mot. at 24. Elhady’s

theory of the case involves exposure to a colder temperature, as

Elhady’s expert wrote that “it would not be possible to cause a

decrease in core temperature of 1°C if the cell temperature was in

the range of 14.4-9.4°C (49-58°F). It seems unlikely this could occur if the cell temperature matched outside conditions (2.2°C)

[35.96 degrees Fahrenheit].” Giesbrecht Report at 7.

69a

Hagans v. Franklin Cty. Sheriff ’s Office, 695 F.3d 505,

508-509 (6th Cir. 2012).17

Bradley attempts to define the right at stake extremely narrowly. Bradley claims that “the question

before the Court is whether it was clearly established

that officers violate the law when they allow a detainee

to remain in a climate-controlled cell, in a climate-controlled building, for approximately four hours, when

the detainee uses the colloquial expression that he is

freezing. . . . Elhady is unable to cite any Sixth Circuit

or Supreme Court case, or any consensus of cases outside the Sixth Circuit, that would have put Ferguson

or Bradley on notice in 2015 that their actions under

those conditions would violate the [C]onstitution.” Ferguson & Bradley Mot. at 34. Undoubtedly, Elhady has

failed to identify binding precedent or a consensus of

nonbinding cases with such a holding. But that definition is, in Hagans’s terms, too far down the stairs of

abstraction. It fails to respond to the essence of the

right Elhady claims was violated and to the most serious violation the facts could support. It is immaterial

that a right was not clearly established that provided

greater and more specific protections than the right

claimed by Elhady.

Elhady argues that he had a clearly established

right “to avoid being confined in any extreme temperatures, including temperatures that are at or near

17

The same reasoning that applies to a § 1983 claim applies

to a Bivens claim. See Hagans, 695 F.3d at 508-509 (citing Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (a Bivens case)).

70a

freezing, which are sufficiently cold to cause extreme

discomfort.” Resp. at 39 (internal quotation marks

omitted) (citing Burley, 241 F Supp. 3d at 837-838;

Middlebrook v. Tennessee, 07-cv-2373, 2008 WL

2002521, at *10 (W.D. Tenn. May 6, 2008); Hinojosa v.

Livingston, 807 F.3d 657, 670 (5th Cir. 2015); Warren v.

Litscher, No. 2-cv-93, 2002 WL 32362656, at *1 (W.D

Wis. Dec. 4, 2002)); see also Burley, 241 F. Supp. 3d at

837-838 (citing, inter alia, Dixon v. Godinez, 114 F.3d

640 (7th Cir. 1997); Del Raine v. Williford, 32 F.3d 1024

(7th Cir. 1994); Burchett v. Kiefer, 310 F.3d 937 (6th Cir.

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

Burley found the “right to be free from exposure to

severe weather and temperatures” to have been clearly

established as of 2013. Burley, 241 F. Supp. 3d at 839.

Burley’s definition of the right, while broadly worded,

reasonably summarizes a scattered body of caselaw

that eschews a bright line rule. It presents a workable

standard capturing what due process requires.

Therefore, the Court adopts Burley’s definition of

the right in question and agrees that the right to be

free from exposure to severe weather and temperatures was clearly established in 2015.18 Applying that

18

Because Bradley focuses on a right far-removed from the

right Elhady claims was violated, he does not squarely contest

that the right Elhady claims was violated was clearly established

by binding authority in 2015. Concerning the timing, Burley

found the right to be clearly established as of 2013; a fortiori, it

was clearly established in 2015. See Burley, 241 F. Supp. 3d at

836-838 (citing numerous pre-2013 cases). Concerning the existence of binding precedent, Burley cites numerous Sixth Circuit

and Supreme Court cases. See id. (citing, inter alia, Farmer v.

71a

rule and considering the facts in the light most favorable to the party opposing summary judgment, Elhady

has raised a genuine question as to whether Bradley

has violated the right. Elhady’s case against Bradley

may proceed to trial.

IV.

CONCLUSION

Elhady has produced enough evidence to support

the conclusion that he was exposed to impermissibly

cold conditions during his confinement on April 11,

2015. However, he has only shown one Defendant to

have been sufficiently involved such that a reasonable

jury could find that he was deliberately indifferent to

those conditions. Defendant Bradley’s motion for summary judgment is denied. All other Defendants’ motions for summary judgment are granted.

SO ORDERED.

Dated: February 10, 2020 s/Mark A. Goldsmith

Detroit, Michigan MARK A. GOLDSMITH

United States District Judge

Brennan, 511 U.S. 825, 833 (1994); Ivey v. Wilson, 832 F.2d 950,

954 (6th Cir. 1987); Spencer v. Bouchard, 449 F.3d 721, 728 (6th

Cir. 2006); Wilson v. Seiter, 501 U.S. 294, 304 (1991); Burchett v.

Kiefer, 310 F.3d 937 (6th Cir. 2002); Hope v. Pelzer, 536 U.S. 730

(2002)).

72a

No. 20-1339

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ANAS ELHADY,

)

)

Plaintiff-Appellee,

)

v.

)

)

UNIDENTIFIED CBP

AGENTS, ET AL.,

)

)

Defendants,

)

BLAKE BRADLEY,

)

Defendant-Appellant. )

ORDER

(Filed Jan. 25, 2022)

BEFORE: ROGERS, GRIFFIN, and THAPAR,

Circuit Judges.

The court received a petition for rehearing en

banc. The original panel has reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original submission and decision of the case. The petition then was

circulated to the full court. No judge has requested a

vote on the suggestion for rehearing en banc.

Therefore, the petition is denied. Judge Rogers would

grant rehearing for the reasons stated in his dissent.

ENTERED BY ORDER OF THE COURT

/s/ Deborah S. Hunt

Deborah S. Hunt, Clerk