Petition for Writ of Certiorari — Angela Robinson, et al., Petitioners v. Midland County, Texas, et al.
Supreme Court briefJan 10, 2024
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No. 23-______
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------ANGELA ROBINSON, Individually; CLARA BUSBY, as
next friend, guardian, and parent of and for minors L.H.
and T.H.; GUY CHOATE, as independent Administrator of,
and on behalf of, Angela Robinson, minors L.H. and
T.H., THE ESTATE OF SAVION VASHON HALL, and
SAVION VASHON HALL’S HEIRS AT LAW,
Petitioners,
v.
MIDLAND COUNTY, TEXAS and DANIEL STICKEL,
Respondents.
---------------------------------♦--------------------------------On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI
---------------------------------♦--------------------------------BRUCE K. THOMAS
LAW OFFICE OF
BRUCE K. THOMAS
12900 Preston Road
Suite 590
Dallas, TX 75230
T. DEAN MALONE
Counsel of Record
JENNIFER KINGAARD
LAW OFFICES OF
DEAN MALONE, P.C.
900 Jackson Street
Suite 730
Dallas, TX 75202
(214) 670-9989
dean@deanmalone.com
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTIONS PRESENTED
To successfully assert a Section 1983 Monell claim
against a county based on a pattern of unconstitutional
conduct by the county’s contractor, must the plaintiff
allege that county policymakers have actual knowledge of the contractor’s misconduct, or is it sufficient
for the plaintiff to allege facts by which constructive
knowledge may be imputed to county policymakers as
a result of the pattern of misconduct?
Whether the objective reasonableness test of
Kingsley v. Hendrickson, 576 U.S. 389 (2015), applies to
pretrial detainee claims alleging mistreatment while
in custody, including the failure of jailers to provide
emergency medical care.
Whether the plaintiff should have an opportunity
to amend when the court of appeals determines an
original complaint is deficient but could be cured.
ii
RELATED PROCEEDINGS
Robinson v. Midland Cnty., Tex., No. 7:21-cv-00111-DC
(W.D. Tex.) (Apr. 2, 2022)
Robinson v. Midland Cnty., Tex., No. 22-50673 (5th
Cir.) (Sept. 14, 2023)
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................
i
RELATED PROCEEDINGS ................................
ii
PETITION FOR A WRIT OF CERTIORARI .......
1
OPINIONS BELOW.............................................
1
JURISDICTION ...................................................
1
RELEVANT CONSTITUTIONAL PROVISION ...
1
INTRODUCTION ................................................
2
STATEMENT .......................................................
7
A.
Legal Framework ......................................
7
B.
Facts And District Court Proceedings ....... 10
C.
Fifth Circuit Rulings ................................. 16
REASONS FOR GRANTING THE PETITION ... 17
A.
The Monell Claim ...................................... 17
B.
The Courts Of Appeals Are Intractably Divided On The Kingsley Question ............... 22
C.
The Questions Presented Are Exceptionally Important, Recurring, And Interrelated ........................................................... 25
D.
This Case Is A Useful Vehicle To Address
The Questions Presented........................... 28
E.
The Decision Below Is Wrong .................... 29
1. Monell liability is determined by an
objective standard and may be based
on constructive knowledge of wrongdoing imputed to county policymakers ........................................................ 29
iv
TABLE OF CONTENTS—Continued
Page
2. The individual claim should be judged
by an objective standard pursuant to
Kingsley.................................................. 30
3. Plaintiffs should have an opportunity to
amend .................................................. 33
CONCLUSION..................................................... 35
APPENDIX
APPENDIX A: Opinion of the United States
Court of Appeals for the Fifth Circuit in
Robinson v. Midland Cnty., Tex. (Sept. 14,
2023) ................................................................. App. 1
APPENDIX B: Order from the United States
District Court for the Western District of
Texas in Robinson v. Midland Cnty., Tex. (Apr.
2, 2022), Dkt. 47 ............................................. App. 14
APPENDIX C: Order of the United States
Court of Appeals for the Fifth Circuit in Robinson v. Midland Cnty., Tex. denying rehearing (Oct. 12, 2023) .......................................... App. 45
v
TABLE OF AUTHORITIES
Page
CASES
Alderson v. Concordia Parish Corr. Facility, 848
F.3d 415 (5th Cir. 2017) ...........................................24
Ancata v. Prison Health Servs., Inc., 769 F.2d 700
(11th Cir. 1985)........................................................21
Andrus v. Texas, 596 U.S. ___, 142 S. Ct. 1866
(2022) (Sotomayor, J., dissenting from denial
of certiorari).............................................................22
Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v.
Brown, 520 U.S. 397, 117 S. Ct. 1382 (1997) ..........18
Bell v. Wolfish, 441 U.S. 520 (1979) ........................ 8, 32
Bordanaro v. McLeod, 871 F.2d 1151 (1st
Cir.1989) ............................................................ 18, 29
Brawner v. Scott County, 14 F.4th 585 (6th Cir.
2021) ........................................................................24
Canton v. Harris, 489 U.S. 378 (1989) ...... 10, 18, 19, 30
Carswell v. Camp, 54 F.4th 307 (5th Cir. 2022),
petition for cert. filed, Apr. 3, 2023 .................... 20, 34
Castro v. County of Los Angeles, 833 F.3d 1060
(9th Cir. 2016) (en banc) .........................................24
Dang ex rel. Dang v. Sheriff, Seminole Cnty., 871
F.3d 1272 (11th Cir. 2017) .......................................24
Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017) ............24
Farmer v. Brennan, 511 U.S. 825 (1994) .... 8, 10, 18, 30
Great Plains Trust Co. v. Morgan Stanley Dean
Witter & Co., 313 F.3d 305 (5th Cir. 2002)..............34
vi
TABLE OF AUTHORITIES—Continued
Page
Helphenstine v. Lewis County, 60 F.4th 305 (6th
Cir. 2023) .................................................................23
Helphenstine v. Lewis County, 65 F.4th 794 (6th
Cir. 2023) ..................................................... 23, 25, 27
Hernandez v. Borough of Palisades Park Police
Dep’t, 58 F. App’x 909 (3d Cir. 2003) .......................18
Johnson v. City of Shelby, 574 U.S. 10 (2014) ........ 5, 34
Jojola v. Chavez, 55 F.3d 488 (10th Cir. 1995) ...........18
Kent v. Collin Cnty., Tex., Civ. No. 4:21-CV-412SDJ, 2022 WL 949963 (E.D. Tex. 2022) ............ 20, 21
King v. Kramer, 680 F.3d 1013 (7th Cir. 2012) .... 20, 21
Kingsley v. Hendrickson, 576 U.S. 389 (2015) ......5, 7-9,
...........................................................15, 22-25, 27-33
Martinez v. Nueces Cnty., 71 F.4th 385 (5th Cir.
2023) ........................................................................16
McCoy v. Alamu, ___ U.S. ___, 141 S. Ct. 1364
(2021) (Mem.), granting, vacating, and remanding, 950 F.3d 226 (5th Cir. 2020) ...................22
Miranda v. County of Lake, 900 F.3d 335 (7th
Cir. 2018) ........................................................... 24, 31
Monell v. Dep’t of Soc. Servs., 436 U.S. 658
(1978) ....................4, 6, 9, 10, 17-19, 25, 26, 28-30, 34
Peterson v. City of Fort Worth, 588 F.3d 838 (5th
Cir. 2009) .................................................................16
Sanchez v. Young Cnty., 956 F.3d 785 (5th Cir.
2020) ........................................................................16
vii
TABLE OF AUTHORITIES—Continued
Page
Short v. Hartman, 87 F.4th 593 (4th Cir.
2023) ....................................................... 5, 6, 23, 24
Spell v. McDaniel, 824 F.2d 1380 (4th Cir.
1987) .................................................................. 18, 29
Strain v. Regalado, 977 F.3d 984 (10th Cir. 2020)..... 23, 24
Taylor v. Riojas, ___ U.S. ___, 141 S. Ct. 52 (2020)
(per curiam) ....................................................... 21, 22
U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of
Am., Inc., 508 U.S. 439 (1993) .................................26
West v. Atkins, 487 U.S. 42, 108 S. Ct. 2250
(1988) ......................................................................... 20
Whitney v. City of St. Louis, 887 F.3d 857 (8th
Cir. 2018) .................................................................24
Wilson v. Seiter, 501 U.S. 294 (1991) .................. 7, 8, 32
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. XIV, § 1 ................ 1, 7, 8, 28, 31, 32
STATUTES
42 U.S.C. § 1983 ............................. 10, 14, 18-21, 30, 34
OTHER AUTHORITIES
Henry J. Steadman, et al., Prevalence of Serious
Mental Illness Among Jail Inmates, 60 Psychiatry Servs. 761 (2009) .............................................27
viii
TABLE OF AUTHORITIES—Continued
Page
Kate Lambroza, Pretrial Detainees and the Objective Standard After Kingsley v. Hendrickson, 58 Am. Crim. L. Rev. 429 (2021) ......................32
IDB Appeals 2008-Present, Fed. Jud. Ctr.,
http://www.fjc.gov/research/idb/interactive/21/
IDB-appeals-since-2008 .................................... 25, 26
PEW Charitable Trusts, Jails: Inadvertent
Health Care Providers (Jan. 2018) .........................27
The Sentencing Project, U.S. Criminal Justice
Data, http://www.sentencingproject.org/the-facts/
#detail ......................................................................27
Zhen Zeng & Todd D. Minton, Jail Inmates in
2019, U.S. Department of Justice, Bureau of
Justice Statistics, http://www.bjs.gov/content/
pub/pdf/ji19.pdf .......................................................27
Zhen Zeng, Bureau of Justice Statistics, NCJ
251774, Jail Inmates in 2017 (2019) ......................26
1
PETITION FOR A WRIT OF CERTIORARI
Petitioners respectfully petition for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Fifth Circuit in this case.
---------------------------------♦---------------------------------
OPINIONS BELOW
The Fifth Circuit’s opinion in Robinson v. Midland
Cnty., Tex. is reported at 80 F.4th 704 and reprinted in
the Appendix to the Petition (“Pet. App.”) at 1a-13a.
The district court’s unpublished decision in Robinson
v. Midland Cnty., Tex. is reprinted at Pet. App. 14a44a.
---------------------------------♦---------------------------------
JURISDICTION
The court of appeals entered its judgment on September 14, 2023, and denied rehearing on October 12,
2023. Pet. App. 1a, 45a-46a. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).
---------------------------------♦---------------------------------
RELEVANT CONSTITUTIONAL PROVISION
The Fourteenth Amendment provides in relevant
part: “No state shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1.
---------------------------------♦---------------------------------
2
INTRODUCTION
This petition presents both new and entrenched
conflicts over the due process standards governing
claims brought by pretrial detainees, and the responsibility of local governments for the unconstitutional
acts of private parties with whom counties contract to
perform detention services. The nation’s detention facilities face these vexing problems regularly, all too often with tragic results. Moreover, because circuit law
is muddled with contradictory decisions varying from
panel to panel, it is burdensome and time-consuming
to both parties and courts to determine whether
pleaded allegations set forth a plausible claim. This
Court’s intervention is needed to restore uniform and
clear constitutional standards in this vital area of
detention-facility conduct so that state officials are
aware of their constitutional obligations, and detainees
may properly seek redress when those obligations are
breached.
This case illustrates the broken legal landscape.
Detainee Savion Hall died because he could not
breathe. Multiple employee-nurses of Soluta, Inc., the
private contractor Midland County contracted with to
provide health services at its jail, failed to provide required medical treatment for Hall’s chronic breathing
condition, and falsified his medical records to coverup
their misconduct. Dan Stickel, a new, untrained, jailer
the County put in charge of a night shift, refused Hall’s
multiple requests for help as his condition worsened to
a crisis, including Hall’s plea that he was “not gonna
3
make it” without help. Instead of reporting Hall’s condition or obtaining help, “Stickel observed Hall experiencing a critical medical crisis over the course of six
and a half hours and in response made the conscious
decision not to request emergency assistance for Hall
unless Hall lost consciousness or stopped breathing.”
Pet. App. 8a.
All reasonable jail personnel would have provided emergency medical aid to a detainee laboring to
breathe and complaining that he was “not gonna make
it.” All reasonable employers would have implemented
policies that would have provided timely medical treatment for their detainees and would not have allowed
to develop a practice of falsifying medical records and
ignoring needed medical treatment to continue unchecked. No reasonable defendant would have left Hall
struggling to breathe until his oxygen level fell beyond
the point of recovery. But when Hall’s family sued
Jailer Stickel and Midland County for having allowed
the emergency to develop as a result of falsifying medical records purporting to show that the detainee had
received medical treatment when he had not, and then
failing to provide timely emergency aid to Hall when
his condition became critical, the Fifth Circuit rejected
these claims on the pleadings, with no opportunity to
amend.
According to the Fifth Circuit, Stickel’s actions in
failing to obtain emergency assistance, “though regrettable,” “were not so deliberately indifferent to Hall’s
need for emergency assistance that it amounts to a
4
constitutional violation” pursuant to the circuit’s subjective deliberate indifference test. Pet. App. 10a-13a.
Similarly, for the County to be held liable for its
contractor’s ongoing failure to provide treatment,
Plaintiffs were required to allege that policymakers actually knew that the contractor’s employees had falsified dozens of medical entries and had failed to provide
timely medical assistance to Hall. Pet. App. 8a-9a. The
Fifth Circuit believed that Plaintiffs had failed in their
Original Complaint to sufficiently allege these facts, so
the Monell claim failed as pleaded. The panel nonetheless concluded that it would be possible for Plaintiffs
to allege a Monell claim by pleading that the County’s
contractor “had a policy of failing to know what their
nurses were doing—but this is not what was pleaded.”
Pet. App. 9a. On rehearing, Plaintiffs reminded the
Court that they had requested the opportunity to
amend in their response to Defendants’ motion to dismiss in the event the court determined there was any
curable deficiency in Plaintiffs’ pleading, and requested
the opportunity to replead to allege that Soluta had a
policy of failing to know what its nurses were doing.
ROA 339; see also Appellants’ Petition For Rehearing
En Banc at 23-24. Nonetheless, Plaintiffs were denied
relief without explanation. Pet. App. 45a-46a.
This Court should grant certiorari to review these
holdings.
With respect the Monell claim, the Fifth Circuit
creates yet a new hurdle for claimants when a county
delegates to a private contractor its nondelegable duty
5
to provide for the serious medical needs of its detainees. It is not sufficient to demonstrate the existence of
an ongoing pattern of misconduct that may be imputed
to County policymakers. Rather, plaintiffs must allege
(and prove) that policymakers had actual knowledge of
the pattern. This defeats the very reason for using pattern evidence in the first place, and it is out of step with
longstanding law in other circuits.
Furthermore, even if Plaintiffs imperfectly stated
a theory of liability against the County, the Fifth Circuit panel acknowledged that Plaintiffs could state a
proper theory, namely that that Soluta had a policy of
failing to know what its nurses were doing. In other
words, policymakers had a policy of sticking their head
in the sand in an attempt to avoid accountability for
their employees’ misdeeds. Claims should not be dismissed due to an imperfect statement of a legal theory.
Johnson v. City of Shelby, 574 U.S. 10, 11 (2014). Fundamental fairness demands that Plaintiffs have the
opportunity to amend.
With respect to Plaintiffs’ individual claim against
the jailer, a widely acknowledged split exists over
whether the objective standard enunciated in Kingsley
v. Hendrickson, 576 U.S. 389 (2015), applies to pretrial
detainee claims other than excessive force. The majority of circuits that have considered the issue reject the
notion that the rationale in Kingsley is limited to excessive force claims. See Short v. Hartman, 87 F.4th
593, 604-11 (4th Cir. 2023) (joining the Second, Sixth,
Seventh, and Ninth Circuits, in applying Kingsley’s objective standard to pretrial detainee claims other than
6
excessive force). By contrast, the Fifth Circuit, “with
little analysis or none at all,” adheres to the minority
view retaining a subjective standard for all but excessive force claims. Short, 87 F.4th at 610 n. 9. Applying
the subjective standard, the Fifth Circuit determined
that Plaintiffs’ claims against Jailer Stickel failed to
state a plausible claim.
These issues are profoundly important, recurring,
and interrelated. The volume of cases on federal dockets each year concerning detainee treatment in custody—nearly 17% of all civil appeals—confirms the
frequency with which courts confront the questions
presented. And the answer to these questions has realworld effects: American jails house more than a million
people with mental illness—people who are often unable to explain their health conditions. Countless more
detainees suffer chronic illnesses and injuries which
often go untreated and worsen while detained, at times
with life threatening results. Defining the constitutional standards that govern official conduct in this
setting is vital for custodians, detainees, and their families nationwide.
Review is also warranted because the decisions on
both the Monell claim and individual claim are wrong.
An objective standard based on constructive notice is
sufficient to state a plausible Monell claim. Moreover,
Plaintiffs should have an opportunity to amend to
state a plausible claim.
Likewise, an objective standard should apply to pretrial detainee claims against individual state actors.
7
Kingsley’s objective-reasonableness standard is not
limited to excessive-force claims. Kingsley based its
standard on settled due process principles applicable
to pretrial detainees, and it rejected importing a subjective standard from Eighth Amendment precedents
applicable to convicted prisoners. There is one due process clause in the Fourteenth Amendment, and its objective test should not vary depending on the nature of
the claim. The relevant factor is the status of the person in custody: pretrial detainee or sentenced prisoner.
The factors that make conduct reasonable or unreasonable will vary depending on the context, but the legal
standard should not. Applying a consistent objective
standard to all pretrial detainee claims will resolve the
confusion in the lower courts and provide a clear and
stable framework for courts, jail officials, and detainees.
For all those reasons, the Court should grant certiorari and reverse the judgment below.
---------------------------------♦---------------------------------
STATEMENT
A. Legal Framework
When convicted prisoners challenge their treatment in custody under the Eighth Amendment, establishing a claim “mandate[s] inquiry into a prison
official’s state of mind.” Wilson v. Seiter, 501 U.S. 294,
299 (1991). That is because the Eighth Amendment
bans “cruel and unusual punishment”—punishment
imposed maliciously, sadistically or with deliberate
8
indifference. See id. at 300 (“if a guard accidentally
stepped on a prisoner’s toe and broke it, this would not
be punishment”) (internal quotation marks and alterations omitted). When convicted prisoners claim to
have received medical care so deficient as to violate the
Eighth Amendment, for example, they must establish
that prison officials “knew of ” and “disregard[ed]” a
substantial risk of harm “by failing to take reasonable
measures to abate it.” Farmer v. Brennan, 511 U.S. 825,
847 (1994).
When pretrial detainees challenge their treatment
in custody, however, the Eighth Amendment and its
textually driven legal requirements do not apply. Pretrial detainees have not been convicted and therefore
cannot be punished at all, much less maliciously and
sadistically. See Bell v. Wolfish, 441 U.S. 520, 535-37
(1979) (“a detainee may not be punished prior to an
adjudication of guilt”). Accordingly, the Fourteenth
Amendment protects pretrial detainees from all punishment, not just the cruel and unusual kind.
Following this logic, the Supreme Court addressed
what state of mind a pretrial detainee must establish
to prove a claim of excessive force in Kingsley. The
Court first held that such a case implicates “two separate state-of-mind questions.” 576 U.S. at 395. The first
pertains to the official’s mental state “with respect to
his physical acts”—the conduct that harms the plaintiff. Id. On that issue, the Court held that “the defendant must possess a purposeful, a knowing, or possibly
a reckless state of mind.” Id. at 396. That is because
due process does not protect against negligent conduct.
9
Id. But on the second state of mind—that is, on the issue of whether the force applied was “constitutionally
speaking, ‘excessive’ ”—Kingsley held that “the appropriate standard for a pretrial detainee’s excessive-force
claim is solely an objective one.” Id. at 396-97. As the
Court explained, “proof of intent (or motive) to punish”
is not “required for a pretrial detainee to prevail on a
claim that his due process rights were violated”; rather,
pretrial detainees “can prevail by providing only objective evidence that tallenged government action is not
rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.”
Id. at 398. “Thus, there is no need here, as there might
be in an Eighth Amendment case, to determine when
punishment is unconstitutional.” Id. at 401.
Following Kingsley, the circuits have fallen into a
deep and intractable conflict over whether pretrial detainees’ claims about their treatment in custody—including failure to protect from the failure to provide for
a detainee’s serious medical needs—should be evaluated under the Eighth Amendment’s subjective deliberate indifference standard or Kingsley’s objective
reasonableness standard. See infra at 22-25.
When a local government employee or agent commits a constitutional violation, the question then
arises when the governmental entity itself may be liable. Unlike private employers, local governments enjoy
freedom from respondeat superior liability. Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Consequently, local governments are not automatically held
accountable for constitutional torts committed by their
10
employees and agents. Nonetheless, local governments
may be held liable “when execution of [the] government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said
to represent official policy, inflicts the injury.” Monell,
436 U.S. at 694. This Court has applied an objective
test for Monell liability. See Farmer v. Brennan, 511
U.S. 825, 841 (1994) (stating that it “would be hard to
describe” the test for Monell liability as addressed in
Canton v. Harris, 489 U.S. 378 (1989), which “permit[s]
liability to be premised on obviousness or constructive
notice, as anything but objective” [emphasis added]).
Consequently, “[w]here a § 1983 plaintiff can establish
that the facts available to city policymakers put them
on actual or constructive notice that the particular
omission is substantially certain to result in the violation of the constitutional rights of their citizens, the
dictates of Monell are satisfied.” City of Canton, 489
U.S. at 396 (O’Connor, J., concurring in part and dissenting in part) (emphasis added).
B. Facts And District Court Proceedings
As recounted by the Fifth Circuit opinion, Hall
was arrested on June 21, 2019, for a drug related offense and detained at the Midland County jail. Pet.
App. 2a. Hall indicated that he had a “breathing problem,” had been recently hospitalized for it, and had
been prescribed Prednisone. Pet. App. 2a-3a. His medical intake form stated that he had asthma and shortness of breath, but, at the time, his oxygen saturation
level was 99%. Pet. App. 3a. On July 1, Hall was sent
11
to the hospital for asthma-related issues, and his discharge instructions stated that he should be returned
to the emergency department if his symptoms worsened. Id.
At the time of Hall’s incarceration, Midland County
had contracted with Soluta to provide medical services,
so Soluta’s nurses were responsible for administering
medical treatment to detainees. Id. According to medical records prepared by Soluta nurses, which were
later determined to include false entries, Hall while in
jail allegedly received regular breathing treatments
for his medical condition whereby medication should
have been provided to him through a small-volume
nebulizer. Id.; see also ROA 29-30 [¶ 231], ROA 60
[¶ 79]. Each time Hall received a breathing treatment,
the nurse administering the treatment was supposed
to listen to his bronchial breath sounds with a stethoscope and measure Hall’s oxygen-saturation level with
a pulser oximeter before and after the treatment. Pet.
App. 3a. Those measures were to be recorded in a “flosheet,” which was intended to track the trends, observe
potentially deteriorating conditions, and provide alternative treatment if necessary. Id.
A criminal investigation found serious issues with
the medical care that Hall had allegedly received. Pet.
App. 5a. The Texas Rangers reviewed video evidence
showing Hall receiving 60 treatments. Id. But despite
the standard protocol, Hall was left to administer his
1
Paragraph references are to Plaintiffs’ Original Complaint
at ROA 15-85.
12
own medication, without any nurse present, eleven
times. Id. Forty-three of the treatments were not logged
at all. Video evidence showed that nurses consistently
recorded oxygen-saturation levels of over 95% but that
the nurses rarely used the pulse oximeter or a stethoscope. Id. It is impossible to determine a patient’s oxygen-saturation level or lung sounds with those tools, so
the Texas Rangers concluded that each nurse had “fabricated vital signs and medical checks with regards to
Hall[’]s oxygen levels[ ] and breathing levels.” Id.
On the night of July 10, Jailer Stickel was on duty.
Pet. App. 4a. He had a temporary jailer’s license, no
training, and six weeks’ experience. Id. According to a
report prepared by Stickel after the fact, Hall approached Stickel around 12:30 a.m. and asked to go to
medical for a breathing treatment. Id.; see also ROA
55-58 [¶ 76]. According to Stickel, Hall was “having
trouble breathing” and was “wheezing for air.” Pet.
App. 4a. Stickel states that he called another officer to
confirm that Hall could not have a breathing treatment within four hours of his last treatment, but did
not inform the other officer (or anyone else) of Hall’s
condition as Stickel observed it at that time. Pet. App.
4a; ROA 55-58 [¶ 76]. That officer allegedly confirmed
with an on-duty nurse, who verified the protocol. Pet.
App. 3a. Stickel told Hall to return to his cell. Pet. App.
4a.
Stickel alleges that throughout the night, he
checked on Hall and “saw he was breathing, although
with difficulty.” Id. Stickel apologized for not allowing
Hall to go to medical, and Hall stated that he was going
13
to pass out. Id. Entries on the flo-sheet purport to
show—and Stickel’s statements imply—that Hall
went to medical to receive regularly scheduled breathing treatments at midnight and 4:10 a.m. Id.; see also
ROA 29-30 [¶ 23], ROA 60 [¶ 79]. Regardless, “Stickel
observed Hall experiencing a critical medical crisis
over the course of six and a half hours and in response
made the conscious decision not to request emergency
assistance for Hall unless Hall lost consciousness or
stopped breathing.” Pet. App. 11a.
According to Stickel, at 6:15 a.m., Hall again asked
to see medical personnel and told Stickel that he “was
not gonna make it.” Pet. App. 4a. Stickel observed that
Hall was struggling to stand and was “close to passing
out,” but Stickel claims he was “unsure if this would be
considered a medical emergency” because Hall allegedly was responsive. Id. Stickel claims he called “the
special housing unit” to confirm that Hall could not
have another breathing treatment, but no one picked
up the phone, and Stickel did not try again. Id. Instead,
he confirmed that Hall had his inhaler and that the
inhaler was sufficiently full, and then sent Hall back
to his cell. Id. Stickel never spoke with any medical
professional (or anyone else) regarding Hall’s actual
condition that night. Pet. App. 4a-5a, ROA 55-58 [¶ 76].
Stickel further states that he considered calling an
emergency, but instead made the decision to wait until
Hall became unconscious or nonresponsive before doing so. ROA 58.
Around 7:00 a.m., another officer relieved Stickel
and told him to send Hall to medical for breathing
14
treatment. Pet. App. 5a. The medical staff then sent
Hall to the hospital and discharged him from the jail.
Id. EMS records showed that Hall’s oxygen-saturation
level was 77% and that he was “confused and not oriented to time, place, and person.” Id. He later died in
the hospital. Id.
Omitted from the Fifth Circuit’s opinion, but not
in dispute, is Stickel’s admission that the situation
(i.e., Stickel’s refusal to call an emergency or obtain
help for an obviously ill detainee laboring to breathe),
“gave me nerves.” ROA 57-58. Plaintiffs maintained
that this comment betrayed Stickel’s subjective awareness of the danger Hall faced from his worsening condition.
Also omitted and undisputed is that Stickel’s reports should have been made contemporaneously with
his observations, but were instead made after-the-fact,
when Stickel was attempting to justify his failure to
make known to any medical personnel the distress he
witnessed Hall experiencing, as well as Stickel’s failure to declare a medical emergency. ROA 55-58 [¶ 76].
The opinion further omits that Stickel reported
that he considered calling an emergency, but instead
made the decision to wait until Hall became unconscious or nonresponsive. ROA 58.
On June 16, 2021, Plaintiffs filed their Original
Complaint under 42 U.S.C. § 1983, alleging constitutional
violations related to the alleged denial of medical care
and the death of Hall against the Midland County Defendants as well as Soluta and six of its nurses. ROA
15
15-85. Plaintiffs allege that Hall consistently worsened
throughout his time at the jail because the medical
staff failed to provide adequate breathing treatments
and fabricated statistics to make him appear healthy.
Pet. App. 5a-6a. That failure, along with Stickel’s failure to summon EMS earlier, led to his death. Pet. App.
6a.
Plaintiffs further alleged that Midland County
delegated its nondelegable duties to provide healthcare
for detainees to a private contractor, Soluta, and that
the County remains responsible for Soluta’s policies
and practices in performing the duties delegated to it.
ROA 19-20, 80. This principle is sometimes referred to
as “the nondelegable duty doctrine” or “the theory of
nondelegable duty.” See Pet. App. 9a at n. 4.
Plaintiffs additionally preserved the Kingsley
question before the district court and court of appeals,
and urged the Fifth Circuit to revisit its holding that
Kingsley is limited to excessive force cases and to instead apply the same reasonableness standard used
for excessive force cases to all pretrial detainee claims.
ROA 69-72; see also Brief of Appellants at 44-47; Appellants’ Petition For Rehearing En Banc at 25.
Plaintiffs settled with the individual nurses and
Soluta. Pet. App. 6a. Midland County and Jailer Stickel
filed a Rule 12(c) motion to dismiss, which the district
court granted. Pet. App. 14a-44a.
16
C. Fifth Circuit Rulings
With respect to Midland County, the Fifth Circuit
held that “plaintiffs have not plausibly pleaded that
Soluta had a policy of deliberate indifference to Hall’s
medical needs.” Pet. App. 9a at n. 4. The panel noted
that Plaintiffs allege that six Soluta nurses, on at least
fifty occasions, failed to follow the proper medical protocol or deliberately fabricated Hall’s oxygen levels.
Pet. App. 7a. The panel further acknowledged:
A plaintiff can establish a policy “by
pointing to similar incidents that are ‘sufficiently numerous’ and have ‘occurred for so
long or so frequently that the course of conduct warrants the attribution to the governing body of knowledge that the objectionable
conduct is the expected, accepted practice of
city employees.’ ” Martinez v. Nueces Cnty., 71
F.4th 385, 389 (5th Cir. 2023) (quoting Peterson v. City of Fort Worth, 588 F.3d 838, 850–51
(5th Cir. 2009)). That knowledge, coupled with
a failure to act, can show the existence of a
municipal policy. See Sanchez v. Young Cnty.,
956 F.3d 785, 791 (5th Cir. 2020) (“[P]ervasive
practices can be evidence that the official policymaker knew of and acquiesced to the misconduct, making the municipality culpable.”)
Pet. App. 8a.
The panel nonetheless concluded that such pattern evidence is insufficient to establish a policy without facts demonstrating that the county had actual
knowledge of the pattern: “But a pattern is not
17
sufficient to establish a policy where the municipality
had no knowledge of the pattern. There are no allegations that anyone other than the Soluta employees
were aware, or should have been aware, of the nurses’
failure to provide adequate medical care.” Pet. App. 8a.
With respect to Jailer Stickel, the Fifth Circuit
panel correctly stated that “Stickel observed Hall experiencing a critical medical crisis over the course of
six and a half hours and in response made the conscious decision not to request emergency assistance
for Hall unless Hall lost consciousness or stopped
breathing.” Pet. App. 8a. By any objective measure it is
patently unreasonable to wait until a detainee falls
unconscious or, quite literally, falls dead from being
unable to breathe before responding to an obvious,
worsening health crisis. Yet, the panel determined that
Plaintiffs did not plausibly plead that Stickel acted
with deliberate indifference pursuant to the Fifth Circuit’s subjective test. Pet. App. 10a-13a. The panel
clearly viewed the Fifth Circuit’s subjective deliberate
indifference standard as dispositive. See id.
---------------------------------♦---------------------------------
REASONS FOR GRANTING THE PETITION
A. The Monell Claim
The Fifth Circuit departs from the well-reasoned
views of its sister circuits that a custom or practice sufficient to establish government policy may be demonstrated by a pattern of unconstitutional conduct by the
government’s employees or agents and knowledge of
18
such misconduct may be imputed to the relevant policymakers. As explained in an often cited Fourth Circuit opinion, “Constructive knowledge may be inferred
from the widespread extent of the practices, general
knowledge of their existence, manifest opportunities
and official duty of responsible policymakers to be informed, or combinations of these.” Spell v. McDaniel,
824 F.2d 1380, 1391 (4th Cir. 1987). See Bordanaro v.
McLeod, 871 F.2d 1151 (1st Cir.1989) (“constructive
knowledge may be evidenced by the fact that the practices have been so widespread or flagrant that in the
proper exercise of [their] official responsibilities the
[municipal policymakers] should have known of them”)
(quoting Spell, 824 F.2d at 1387); Hernandez v. Borough of Palisades Park Police Dep’t, 58 F. App’x 909,
913 (3d Cir. 2003) (same); Jojola v. Chavez, 55 F.3d 488,
491 (10th Cir. 1995) (same); see also City of Canton, 489
U.S. at 396 (O’Connor, J., concurring in part and dissenting in part) (“Where a § 1983 plaintiff can establish that the facts available to city policymakers put
them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens, the
dictates of Monell are satisfied.”); Farmer, 511 U.S. at
841 (1994) (stating that it “would be hard to describe”
the test for Monell liability as addressed in Canton v.
Harris, 489 U.S. 378 (1989), which “permit[s] liability
to be premised on obviousness or constructive notice, as
anything but objective” [emphasis added]); Bd. of Cnty.
Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397,
404, 117 S. Ct. 1382, 1388 (1997) (“an act performed
pursuant to a ‘custom’ that has not been formally
19
approved by an appropriate decisionmaker may fairly
subject a municipality to liability on the theory that
the relevant practice is so widespread as to have the
force of law”).
There was no dissent to Plaintiffs’ request for rehearing en banc complaining that an actual knowledge
requirement is out of step with well-settled authority permitting constructive knowledge. Presumably,
therefore, the Fifth Circuit intends to use an actual
knowledge standard going forward. This would largely
eviscerate the use of pattern evidence to prove the existence of a policy, practice, or custom for purposes of a
Monell claim in the Fifth Circuit. Imposing an actual
knowledge requirement raises an already high bar
even higher, and puts the Fifth Circuit at odds with
multiple other circuits and Supreme Court precedent.
The panel opinion provides no legal authority for
its assertion that “a pattern is not sufficient to establish a policy where the municipality had no knowledge
of the pattern.” Pet. App. 8a. No such authority exists,
because the existence of a pattern is the evidence that
the municipality had knowledge of the misconduct.
The panel only provides a general concluding cite stating that a municipality has no vicarious liability under
Section 1983. Pet. App. 8a (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989) (“Respondeat superior or
vicarious liability will not attach under § 1983.”).])
20
While true, this is beside the point. Plaintiffs do not
allege vicarious liability.2
Plaintiffs instead alleged that “Midland County
entrusted or delegated healthcare . . . for Midland
County inmates” to Soluta, and is therefore “liable for
[the] actions, inaction, policies, practices, and/or customs of Soluta.” (ROA 19-20 [¶ 4]; see also ROA 80
[¶ 121 (“Midland County had non-delegable duties to
provide care, protect, and not punish its inmates. Midland County could not insulate itself from liability by
contracting with Soluta and allowing Soluta to do
what Midland County was constitutionally obligated
to do.”)]). This inevitably follows from this Court’s
holding in West v. Atkins, 487 U.S. 42, 56, 108 S. Ct.
2250 (1988), that a county has a duty to provide pretrial detainees adequate medical care, and that this is
true whether the county contracts out its healthcare
responsibilities or provides them itself. As a result, a
county cannot shield itself from § 1983 liability by contracting out its duty to provide medical services. See,
e.g., King v. Kramer, 680 F.3d 1013, 1020 (7th Cir.
2012); see also Kent v. Collin Cnty., Tex., Civ. No. 4:21CV-412-SDJ, 2022 WL 949963, at *6-11 (E.D. Tex.
2022).
2
Discovery might well reveal evidence of the policymakers’
actual knowledge in this case, but in the Fifth Circuit Plaintiffs
were not permitted discovery on claims against the County until
the issue of Stickel’s qualified immunity was resolved. See Carswell v. Camp, 54 F.4th 307, 312 (5th Cir. 2022), cert. denied, No.
22-959, 2023 WL 6377808 (U.S. Oct. 2, 2023); see also ROA 385
(Midland County’s motion to stay discovery).
21
Thus, “a robust consensus of persuasive authority”
among multiple circuits supports the conclusion that a
county is liable for its contractor’s unconstitutional
policies, practices, and customs when a county hires a
private contractor to perform the county’s nondelegable duty to provide healthcare services. See Kent, 2022
WL 949963, at *6-11 (citing cases from the Sixth, Seventh, and Eleventh Circuits, as well as district court
cases in the Fifth and Ninth Circuits); see also King,
680 F.3d at 1020. “The underlying rationale is not
based on respondeat superior, but rather on the fact
that the private company’s policy becomes that of the
County if the County delegates final decision-making
authority to it.” Kent, 2022 WL 949963, at *6 (citing
Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 70506 (11th Cir. 1985)). That is what Midland County did
here in delegating its healthcare responsibilities to Soluta.
The Fifth Circuit’s aberrant view that a plaintiff
may not impute constructive knowledge to a county
and its delegated policymakers by alleging a pattern of
misconduct, but must instead allege actual knowledge
of the pattern, reflects an unduly skeptical, indeed hostile, view toward Section 1983 claims generally, and in
particular by the authoring judge. Twice this Court has
seen fit to summarily reverse opinions by the same authoring judge rejecting other well-pleaded Section
1983 claims. See Taylor v. Riojas, ___ U.S. ___, 141
S. Ct. 52, 53-54 (2020) (per curiam) (reversing the
grant of qualified immunity where the violation was
“obvious” because “no reasonable [ ] officer could have
22
concluded that” the alleged conduct was “constitutionally permissible”); see also McCoy v. Alamu, ___ U.S.
___, 141 S. Ct. 1364 (2021) (Mem.), granting, vacating,
and remanding, 950 F.3d 226 (5th Cir. 2020) (directing
reconsideration “in light of Taylor”). This is yet another
outlier decision which causes an unnecessary circuit
split, confuses the law, and deprives aggrieved parties
of a remedy for serious constitutional violations. The
apparent hostility to Plaintiffs’ claim is further reflected in the Court’s refusal to allow Plaintiffs to replead.
Although this Court cannot and should not correct
every error that comes before it, “summary dispositions remain appropriate in truly extraordinary cases
involving categories of errors that strike at the heart
of our legal system.” Andrus v. Texas, 596 U.S. ___, ___,
142 S. Ct. 1866 (2022) (Sotomayor, J., dissenting from
denial of certiorari). This is such a case.
B. The Courts Of Appeals Are Intractably Divided On The Kingsley Question
As to Plaintiffs’ claim against Jailer Stickel, the
courts of appeals are deeply divided on the due process
standard that governs claims brought by pretrial detainees challenging their treatment in custody. In the
wake of Kingsley, the circuits have divided into two
camps—those applying Kingsley’s test of objective
reasonableness to these due process claims, and
those adhering to a subjective deliberate-indifference
test drawing on Eighth Amendment standards for
23
convicted prisoners. The issue has obvious significance
for officers across the nation dealing with pretrial detainees evidencing serious health issues, as well as for
the detainees themselves and their families. This case
also presents the issue squarely. Even if it is fairly debatable whether Jailer Stickel’s failure to obtain help
for a detainee struggling to breathe meets the subjective indifference test, no one could fairly defend his “regrettable” conduct as objectively reasonable. The Fifth
Circuit’s decision is wrong. This state of affairs benefits
no one. This Court should grant certiorari to settle the
issue, provide uniform national due process standards,
and correct the error below.
The courts of appeals have acknowledged that
“the circuits are split” on whether Kingsley’s objective
standard applies to pretrial detainees’ failure-toprotect claims. Strain v. Regalado, 977 F.3d 984, 990
(10th Cir. 2020); see Helphenstine v. Lewis County, 60
F.4th 305, 316 (6th Cir. 2023) (“our sister circuits are
all over the map on this issue”). As Judge Readler recently put it, “[w]ith signs pointing in all directions,
even the most careful reader would likely find herself
at a crossroads.” Helphenstine v. Lewis County, 65
F.4th 794, 801 (6th Cir. 2023) (Readler, J., respecting
denial of rehearing en banc). Until “Supreme Court
intervention comes to pass, we are left to muddle on,
following paths leading in any and all directions.” Id.
at 802.
Since Kingsley, a growing majority of five circuits
have held that Kingsley’s logic extends to pretrial detainee claims of inadequate care. See Short v.
24
Hartman, 87 F.4th 593, 604-11 (4th Cir. 2023) (joining
the Second, Sixth, Seventh, and Ninth Circuits, in
applying Kingsley’s objective standard to pretrial detainee claims other than excessive force).3 This includes five of the six circuits that have seriously
considered the issue. As noted in the Fourth Circuit’s
recent decision, three of the four circuits which have
retained the subjective test for all but excessive force
claims, including the Fifth Circuit, have done so “with
little analysis or none at all.” Short, 87 F.4th at 610
n. 9.4
Among the circuits adhering to the minority view,
the Tenth Circuit stands alone in both acknowledging
contrary authority and addressing the issue in text rather than a cursory footnote. See Strain v. Regalado,
977 F.3d 984 (10th Cir. 2020), Notably, both the Fourth
Circuit and Sixth Circuit examined the Tenth Circuit’s
Strain decision in considerable depth and found it unpersuasive. See Short, 87 F.4th at 605 n. 7, 610-11 (“In
short, we find Strain’s reasoning unpersuasive. . . .”);
Brawner, 14 F.4th at 593-96 (“We thus reject the Tenth
Circuit’s argument that the term ‘deliberate indifference’ itself demands a subjective standard.’ ”).
3
See also Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017);
Brawner v. Scott County, 14 F.4th 585 (6th Cir. 2021), Miranda
v. County of Lake, 900 F.3d 335 (7th Cir. 2018), Castro v. County
of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc).
4
See Whitney v. City of St. Louis, 887 F.3d 857, 860 n. 4 (8th
Cir. 2018); Dang ex rel. Dang v. Sheriff, Seminole Cnty., 871 F.3d
1272, 1279 n. 2 (11th Cir. 2017); Alderson v. Concordia Parish
Corr. Facility, 848 F.3d 415, 419 n. 4 (5th Cir. 2017).
25
More than eight years after Kingsley, the split
as to whether Kingsley applies to claims other than excessive force is fully mature and in need of resolution.
One circuit judge has colorfully stated that this split
“is more than mature—it is having offspring.”
Helphenstine, 65 F.4th at 801 (Readler, J., respecting
denial of rehearing en banc). He further wrote, “With
confusion rampant coast-to-coast, the Supreme Court
would appear to be the proper forum” to intervene, and
it should grant certiorari “soon.” Id. Only this Court
can resolve the continuing divide between the circuits
on this frequently recurring issue.
C. The Questions Presented Are Exceptionally
Important, Recurring, And Interrelated
“This is no small matter”: pretrial detainee cases
“populate every docket across the federal courts.” Helphenstine, 65 F.4th at 801 (Readler, J., respecting denial of
rehearing en banc). Since 2008, more than 76,000
“prisoner civil rights” and “prison condition” claims
have reached federal appellate courts—approximately
16.8% of all civil appeals.5 IDB Appeals 2008-Present,
5
Many of these are interlocutory appeals addressing the judicially created defense of qualified immunity. Although much debate exists on whether the qualified immunity defense should be
curtailed or abrogated, the debate ignores that the large number
of interlocutory appeals is a byproduct of the Monell decision’s rejection of respondeat superior liability. This has caused plaintiffs
in Section 1983 litigation to name as individual defendants all
potentially liable individuals, who are often indemnified by their
employer and are invariably provided a free defense. However,
unlike their local government employer, the individual
26
Fed. Jud. Ctr., http://www.fjc.gov/research/idb/interactive/
21/IDB-appeals-since-2008; see also Zhen Zeng, Bureau of Justice Statistics, NCJ 251774, Jail Inmates
in 2017, at 1 (2019) (reporting that almost two-third
defendants may assert qualified immunity, and take an interlocutory appeal when immunity is denied. Litigation over qualified immunity typically results in months if not years of delay in
reaching the Monell claim. In many, if not most cases, it would be
unnecessary to sue individual government employees and litigate
qualified immunity issues if, like nearly all private employers,
government employers were liable in respondeat superior for the
torts of the employees they are responsible for hiring, supervising,
and training. In the event the Court was to reconsider its respondeat superior ruling in Monell, much of the qualified immunity litigation in the federal courts would evaporate.
Like qualified immunity, the abrogation of respondeat superior liability for local governments is a product of judicial interpretation, and is based primarily on a tenuous extrapolation of
legislative history. See Monell, 436 U.S. at 692 n. 57. Monell reasoned that because Congress rejected an amendment offered to a
different portion of the Civil Rights Act of 1871, which would have
imposed liability on local governments for certain acts of private
individuals (i.e., Ku Klux Klan violence), the inference then arose
that Congress also intended to exclude from Section 1 of the Act
respondeat superior liability for municipalities. Even Monell,
however, noted that governmental liability for private conduct is
not necessarily comparable to liability for the misconduct of the
government’s own employees and agents. See id. (“Strictly speaking, of course, the fact that Congress refused to impose vicarious
liability for the wrongs of a few private citizens does not conclusively establish that it would similarly have refused to impose vicarious liability for the torts of a municipality’s employees.”).
Although the present petition does not present a question
seeking to reverse the respondeat superior ruling in Monell, this
Court could consider this potentially dispositive antecedent issue
in the course of reaching its decision on the questions presented.
See U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508
U.S. 439, 447 (1993).
27
of jail inmates were “unconvicted”). “That so many
[courts] have said so much in so little time” since
Kingsley confirms “the frequency with which these
cases appear on [federal] docket[s].” Helphenstine, 65
F.4th at 797 (Readler, J., respecting denial of rehearing
en banc).
Not only are these claims recurring and frequent,
but for detainees and prison officials alike, the applicable standard is not just a “theoretical concept[ ] to debate;” it “govern[s] [jailers’] everyday conduct.” Id. at
801; see PEW Charitable Trusts, Jails: Inadvertent
Health Care Providers 9 (Jan. 2018) (more than 90% of
large jails have been sued for denial of medical care).
Jails, officials, institutional supervisors, and pretrial
detainees all need guidance on the applicable standard.
In recent years, studies have noted that at least
725,000 pretrial detainees are being held in jails across
the United States. The Sentencing Project, U.S. Criminal Justice Data, http://www.sentencingproject.org/
the-facts/#detail; Zhen Zeng & Todd D. Minton, Jail Inmates in 2019, U.S. Department of Justice, Bureau of
Justice Statistics, http://www.bjs.gov/content/pub/pdf/
ji19.pdf; Henry J. Steadman, et al., Prevalence of Serious Mental Illness Among Jail Inmates, 60 Psychiatry
Servs. 761, 761 (2009). Many suffer from health crises
and mental illness.
Jails confronting these issues have a pressing
need to understand the constitutional baseline of care
and the scope of their obligations to pay attention to
28
the risks to detainee health posed in confinement.
Clear national standards will guide training programs
and set standards for accountable behavior. Subjective
standards impose needless risks on detainees. It is
hardly surprising that detainee Hall was refused help
by an untrained jailer with a temporary license. In
cases like this, where the precarious health condition
of a detainee is apparent, and no objectively reasonable
steps are taken to provide necessary medical care, the
result is needless, preventable tragedy. This Court’s intervention to address whether the Fourteenth Amendment’s Due Process Clause tolerates such a result is
imperative.
D. This Case Is A Useful Vehicle To Address
The Questions Presented
This case is a particularly useful vehicle for the
Court’s review. The issues were preserved below; the
panel expressly adopted an actual knowledge requirement for the Monell claim; and the panel similarly applied a subjective actual knowledge requirement for
the individual claim. For both claims the actual
knowledge requirement was outcome-determinative.
Although this petition is not the first raising the Kingsley issue, it appears to be the first to offer the Court an
opportunity to resolve it in the broader context of both
Monell and individual liability, as cases are commonly
presented to the district courts.
This petition involves deeply disturbing facts and
presents the Kingsley question cleanly. This petition
29
therefore presents a useful vehicle for the Court to resolve this question once and for all.6
E. The Decision Below Is Wrong
1. Monell liability is determined by an objective standard and may be based on
constructive knowledge of wrongdoing
imputed to county policymakers.
The Fifth Circuit incorrectly ruled that Plaintiffs
must allege that the County’s delegated policymakers
had actual knowledge of the pattern of misconduct by
the contractor’s employees. This is contrary to long settled law in other circuits that a Monell claim may be
based on constructive knowledge, and that constructive knowledge may be imputed to policymakers as a
result of the pattern of misconduct. See, e.g., Bordanaro
v. McLeod, 871 F.2d 1151, 1156 (1st Cir.1989) (one
method of showing a custom or practice attributable to
policymakers is to demonstrate that the custom or
practice is so “wellsettled and wide-spread that the
policymaking officials of the municipality can be said
to have either actual or constructive knowledge of it
yet did nothing to end the practice”); Spell v.
McDaniel, 824 F.2d 1380, 1387, 1390-91 (4th Cir. 1987)
(municipal fault for allowing a developed “custom or
6
At least two other petitions raising the Kingsley issue are
currently pending before the Court. See Pet. Writ Cert., Jordan v.
Howell, No. 23-210 (U.S. Aug. 31, 2023); Pet. Writ Cert., Crandel
v. Hall, No. 23-317. These petitions underscore why this Court
should take up the Kingsley question and the related issues asserted here.
30
usage” of misconduct to continue requires actual or
constructive knowledge of its existence by responsible
policymakers; constructive knowledge may be evidenced by practices so widespread or flagrant that in
the proper exercise of its official responsibilities the
governing body should have known of them).
Additionally, the subjective requirement imposed
by the Fifth Circuit in this case is inconsistent with
this Court’s consistent treatment of Monell liability as
requiring an objective test. See Farmer v. Brennan, 511
U.S. 825, 841 (1994) (stating that it “would be hard to
describe” the test for Monell liability as addressed in
Canton v. Harris, 489 U.S. 378 (1989)), which “permit[s] liability to be premised on obviousness or constructive notice, as anything but objective” [emphasis
added]); see also City of Canton, 489 U.S. at 396
(O’Connor, J., concurring in part and dissenting in
part) (“Where a § 1983 plaintiff can establish that the
facts available to city policymakers put them on actual
or constructive notice that the particular omission is
substantially certain to result in the violation of the
constitutional rights of their citizens, the dictates of
Monell are satisfied.”).
2. The individual claim should be judged
by an objective standard pursuant to
Kingsley.
No principled basis justifies cabining Kingsley
to pretrial detainees’ excessive force claims, rather
than applying its objective reasonableness test to all
31
detainee due process claims. Still less justified would
be wrenching a subjective standard from the distinguishable Eighth Amendment context that applies to
sentenced prisoners and applying it to detainees protected by due process.
While Kingsley specifically considered pretrial detainee excessive force claims, “nothing in the logic the
Supreme Court used in Kingsley . . . would support . . .
dissection of the different types of claims that arise under the Fourteenth Amendment’s Due Process Clause.”
Miranda, 900 F.3d at 352. To the contrary, Kingsley
made clear that the applicable standard turns not on
the nature of the claim, but the status of the claimant.
Kingsley analyzed cases involving a wide range of
pretrial-detention issues—not just excessive force—en
route to its conclusion that “a pretrial detainee can
prevail” on a claim about her treatment in custody by
relying on “objective evidence.” 576 U.S. at 398. This
Court’s precedents thus teach that the doctrinal distinction that matters is not what type of mistreatment
the detainee alleges, but at what stage she alleges it—
pretrial detention or postconviction confinement.
That distinction reflects basic constitutional principles. When convicted prisoners challenge their treatment in custody under the Eighth Amendment, courts
apply a subjective standard because evaluating whether
punishment is cruel and unusual requires knowing the
official’s state of mind: punishment is only cruel and
unusual if inflicted maliciously, sadistically or with
deliberate indifference. Kingsley, 576 U.S. at 400; see
32
Wilson, 501 U.S. at 299. But the same is not true for
pretrial detainees. “[P]retrial detainees . . . cannot be
punished at all, much less ‘maliciously and sadistically.’ ” Kingsley, 576 U.S. at 400; see Bell, 441 U.S. at
535 (“a detainee may not be punished prior to an adjudication of guilt in accordance with due process of
law”). It follows that “the Eighth and Fourteenth Amendments are fundamentally different to the degree that
cases involving one claim cannot be legitimately compared to cases involving another.” Kate Lambroza,
Pretrial Detainees and the Objective Standard After
Kingsley v. Hendrickson, 58 Am. Crim. L. Rev. 429, 453
(2021).
By importing the Eighth Amendment’s subjective
standard onto pretrial detainees’ due process claims,
the courts in the Fifth Circuit’s camp improperly narrowed the protection to which the detainees in this
case were entitled—protection from all punishment—
to protection from only cruel and unusual punishment.
Only this Court can correct that error.
What is more, lest there be any question about
whether Kinglsey’s “objective standard is workable,”
this Court has already determined that the answer is
“yes”: many facilities “train officers to interact with all
detainees as if the officers’ conduct is subject to an objective reasonableness standard.” Kingsley, 576 U.S. at
399. And an objective standard adequately protects officers who act “in good faith”: courts must “take account of the legitimate interests in managing a jail,
acknowledging as part of the objective reasonableness analysis that deference to policies and practices
33
needed to maintain order and institutional security is
appropriate.” Id. at 399-400.
As in Kingsley itself, a wide range of factors bears
on objective reasonableness, and the different contexts
in which the issue may arise may result in differing
factors having more or less prominence. Id. at 397.
Courts applying a due process standard are accustomed to paying close attention to the facts. And jail
officials are never held strictly liable for tragic deaths
of individuals in their custody. As Kingsley clarified,
the official must have acted purposely, knowingly, or at
least recklessly with respect to his action or inaction
towards the detainee. Id. at 395-96. Only then do
courts move on to the objective reasonableness of the
official’s conduct. And the objective standard applies to
“the perspective of a reasonable officer on the scene,
including what the officer knew at the time, not with
the 20/20 vision of hindsight.” Id. at 397. Those safeguards ensure that the objective reasonableness test of
Kingsley, as applied to this context, is both sound and
workable.
3. Plaintiffs should have an opportunity to
amend.
Plaintiffs have not previously been afforded the
opportunity to amend. In response to Defendants’ motion to dismiss, Plaintiffs specifically sought the opportunity to amend if the court determined Plaintiffs’
pleadings were deficient. ROA 339. The Fifth Circuit
panel concluded that “[i]t would be possible to allege
34
that Soluta had a policy of failing to know what their
nurses were doing—but this is not what was pleaded.”
Pet. App. 9a. In Johnson v. City of Shelby, 574 U.S. 10,
11 (2014), the Supreme Court reiterated that federal
pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” In the interest of justice
this case should be reversed and remanded to permit
Plaintiffs the opportunity to replead their Monell claim
to state that Soluta had a policy of failing to know what
its nurses were doing. See Great Plains Trust Co. v.
Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329
(5th Cir. 2002).
Fundamental fairness require that a plaintiff
have an opportunity to replead when an appellate
court rules that her first attempt falls short of the
court’s expectations, particularly when the appellate
court acknowledges that the plaintiff could have, but
did not, allege facts sufficient to support a plausible
claim. The “confusion rampant coast-to-coast” makes
the successful pleading of 1983 claims at best an arduous exercise for plaintiffs’ counsel, particularly in the
Fifth Circuit where no discovery is permitted prior to
a ruling on the qualified immunity defense of individual defendants. See Carswell, 54 F.4th at 312. It is inconsistent with the liberal pleading requirements of
the Federal Rules of Civil Procedure that plaintiffs’
counsel must successfully navigate the landmines of
1983 pleading on but a single attempt.
---------------------------------♦---------------------------------
35
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
BRUCE K. THOMAS
LAW OFFICE OF
BRUCE K. THOMAS
12900 Preston Road
Suite 590
Dallas, TX 75230
January 10, 2024
T. DEAN MALONE
Counsel of Record
JENNIFER KINGAARD
LAW OFFICES OF
DEAN MALONE, P.C.
900 Jackson Street
Suite 730
Dallas, TX 75202
(214) 670-9989
dean@deanmalone.com
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