Opposition Brief — Johnson v. Estate of Gee ex rel. Beeman

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4 P (4) OCT 18 2010

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OFFICS OF THE CLERK

Fo nen S|

No. 10-86 -

Jn the

Supreme Court of the Gnited States

JUDY JOHNSON and JAMES EDWARDS,

Petitioners,

V.

ESTATE OF TERRY GEE, JR., DECEASED, BY

SPECIAL ADMINISTRATOR, THOMAS BEEMAN,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

BRIEF IN OPPOSITION

SEAN W. DREW VICTORS. VALENTI

DREW LAW OFFICE Counsel of Record

DONAHUE BUILDING GEOFFREY N. FIEGER

302 SYCAMORE ST. FIEGER, FIEGER, KENNEY,

P. O. Box 880 JOHNSON & GIROUX, P.C.

Nites, MICHIGAN 49120 19390 West TEN MILE Roap

(269) 683-5121 SOUTHFIELD, MICHIGAN 48075

drewlaw@qtm.net (248) 355-5555

v.valenti@fiegerlaw com

Counsel for Respondent

October 18, 2010

Becker Gallagher - Cincinnati, OH - Washington, DC - 800 §90 5001

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QUESTIONS PRESENTED

Did the Seventh Circuit correctly conclude that a

jury should decide whether the jail officers were

leliberately indifferent to the serious medical

needs of a pretrial detainee who required

immediate hospitalization where the factfinder

could conclude they turned a blind eye to his

obvious condition?

Did the Seventh Cireuit sufficiently and correctly

address the “ciearly established law” prong of the

qualified immunity analysis?

ll

PARTIES TO THE PROCEEDING

Petitioners are Monroe County, Indiana Jail

Officers, Captain Judy Johnson and Sergeant James

Edwards. Respondent is the Estate of Terry Gee,

deceased, by its special administrator, Thomas

Beeman.

Defendants-Appellants at the Seventh Circuit

Court of Appeals, Bloomington Hospital and Health

Care System, Inc., Nurse Practitioner Wygonda

Rogers, and Licensed Practical Nurses Jennifer

Anderson, Gwen Sunkel and Trina Estes, are not

parties to this petition.

111

TABLE OF CONTENTS

QUESTIONS PRESENTED ..

PARTIES TO THE PROCEEDING i

INDEX OF AUTHORITIES Vv

MuPeeerPePRCC AON ......... |

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED l

STATEMENT OF THE CASE

A. Factual Background

Ll. Introduction ....

2. March 19-28 Defendants’ prior

knowledge of Gee’s medical condition

March 29. 2005 - Gee's condition

worsens ...... Sore ey = }

aed

4. March 30, 2005 — Johnson places Gee in

medical segregation as he continues to

i ert aoa yg yk ex sae e oe 5

5. March 31, 2005 — Too late to save him,

Gee is transported to the hospital ..... 6

B. Course of Proceedings Below . . | Aye 7

REASONS FOR DENYING PETITION ...... 10

IT.

lV

The Seventh Circuit Correctly Concluded That

A Jury Should Decide Whether The Jail Officers

Were Deliberately Indifferent To The Serious

Medical Needs Of A Pretrial Detainee Who

Required Immediate Hospitalization Because

The Factfinder Could Conclude That The Jail

Officers Turned A Blind Eye To His Obvious

a, , anne SOND td AS, pic ar 30

A. The Nonprecedential Order Creates No

}

CAPOUREAHIIG. bn ke GA eee Pe

A Pre-Trial Detainee’s Constitutional Right To

Medical Care For His Obvious Serious Medical

Needs Was Clearly Established In March 2005

And The Lower Courts Correctly Held That A

Jury Should Determine Whether Johnson And

Edwards Were Deliberately Indifferent To Gee’s

Medical Condition By Not Exercising Their

Authority To Have Gee Transported To The

ERNE oo ey ee ee ee eee

CAPIWGEAEGEN sa os ee oe es Se bares oi!

1]

1]

Vv

INDEX OF AUTHORITIES

CASES

Anderson v. Creighton,

483 U.S. 635 (1987)

Berry v. Peterman,

604 F.3d 435 (7th Cir 2010)...

Board v. Farnham,

394 I .3d 469 (7th Cir. 2005)

Durmer v. O'Connell,

991 F.2d 64 (3d Cir. 1993) ...

Estelle v. Gamble,

429 U.S. 97 (1976)

Farmer v. Brennan,

511 U.S. 825 (1994)

Foelker v. Outagamie Cnty.,

394 F.3d 510 (7th Cir. 2005)

Greeno v. Daley,

414 ¥ 3a 645 (7th Cir. 2005)

Guttetrrez v. Peters,

111 F.3d 1364 (7th Cir. 1997)

Harlow v. Fitzgerald,

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

16

13

14

Hope v. Pelzer,

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

lko v. Shreve,

535 F.3d 225 (4th Cir. 2008)

Johnson v. Doughty,

433 F.2d 1001 (7th Cir. 2006)

Meloy v. Bachmater,

302 F.3d 845 (8th Cir. 2002) .

Miltier v. Beorn,

896 F.2d 848 (4th Cir. 1990) .

Pearson v. Callahan,

US. ___, 129 S. Ct. 808, 1

SE coe, ae vasa alae,

Ralston v. McGovern,

167 F.3d 1160 (7th Cir. 1999)

Saucier v. Katz,

bao U.S. 194 (2001) ........

Shakka v. Smith,

71 F.3d 162 (4th Cir. 1995) ..

Spruill v. Gillis,

372 F.3d 218 (3d Cir. 2004) ..

Townsend v. Jefferson Cnty.,

601 F.3d 1152 (11th Cir. 2010)

Vinning-kl v. Long,

482 F.3d 923 (7th Cir. 2007) .

eS eee ae:

Passe grarene ears L3

72 L. Ed.2d 565

ae ee 14,15

Walker v. Benjamin,

293 F.3d 1030 (7th Cir. 2002) L6

CONSTITUTION

U.S. Const. amend. XIV, § 1

STATUTES

28 U.S.C § 1254(1)

4Z U.S.C. § 1983

RULES

sup. Ct. R. 10

sup. Ct. R. 12(7) G

1

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1). In a nonprecedential disposition, the Court

of Appeals for the Seventh Circuit unanimously

affirmed the March 31, 1009 Order of the United

States District Court for the Southern District of

Indiana that denied Petitioners’ motion for summary

judgment. By Order dated April 15, 2010, the Seventh

Jircuit panel unanimously denied Petitioners’ petition

for rehearing. Petitioners filed their writ of certiorari

on July 13, 2010.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment provides, in relevant

I ,

part: “No State shall make or enforce any law which

shall abridge the privileges and immunities of the

United States; nor shall any State deprive any person

; p yp

of life, liberty, or property, without due process of law

.... U.S. Const. amend. XIV, § 1.

Title 42 of the United States Code § 1983 provides,

in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress... .

2

STATEMENT OF THE CASE

A. Factual Background

1. Introduction

This is a 42 U.S.C. § 1983 lawsuit that arose from

the March 2005 denial! of medical care and deliberate

indifference to serious medical needs that resulted in

the April 5, 2005 death of Terry Gee, Jr., a pretrial

detainee in the Monroe County, Indiana jail. Gee, age

34, was booked into the jail on March 18, 2005 for

theft. App. 19. After several days, Gee, a known

schizophrenic and severe diabetic, became ill with a

sore throat, cough and, as his condition worsened, with

a high fever. Gee remained at the jail until March 31,

2005, when he was belatedly transported, in critical

condition, to Bloomington Hospital, where he died.

App 25-26.

2. March 19-28 - Defendants’ prior

knowledge of Gee’s medical condition

Gee was well known to both the jail custodial staff

and to its contract medical staff for his history of

severe diabetes and schizophrenia. App. 19. At Gee’s

March 18 booking, the officer placed him in a detox cell

for observation because he knew Gee was a severe

diabetic. App. 19. Gee told the booking officer that he

was taking a number of prescription medications,

including Xanax for anxiety, Seroquel for

schizophrenia, and insulin for diabetes. App. 19.

In January 2000, Petitioner Edwards learned of

Gee’s medical history when he was summoned to Gee’s

cell for an anxiety attack and breathing issues.

3

Edwards knew Gee was diabetic and, over the years,

he had “a lot of contact with him.” In July 2002,

Petitioner Johnson transported Gee to the Hospital for

insulin at Gee’s insistence after he experienced an

uncontrolled blood sugar of 602.

When LPN Anderson saw Gee on March 19, at 3:45

a.m., his blood sugar was 325. App. 20. She called

Nurse Practitioner Rogers to request insulin. By 8:40

a.m., Gee was complaining of “sweating and hunger,”

and his blood sugar had crashed to 37. App. 20.

On March 26, Mark Estanislau became Gee’s

cellmate App. 20. Gee told Estanislau that he was not

feeling well and that he did not want Estanislau to

catch what he had. App. 20. Gee was refusing food

and was in pain and his condition began rapidly

declining after the first couple of days. App. 20. Gee

was falling out of bed, pacing in circles and

complaining of severe back pain. App. 20. Gee told

him that he had asked his mother and girlfriend to

contact the jail to convince the staff to send him to th

hospital. App. 20. Estanislau stated that he and the

other inmates repeatedly told jail officers including

Johnson and the medical staff that Gee needed to go to

the hospital for treatment. App. 21

Gee’s friend Leon Turpin visited him at the jail on

March 27, 29, and 30, and noticed the decline in Gee’s

health. Gee appeared ill on the 27" and by the 30",

“he was barely awake” and was “shaking.” As a

layperson, Leon Turpin could tell just by looking at

him and hearing his weak voice that he needed to go to

the hospital. Lloyd Turpin, Leon’s brother, saw Gee at

court on the 24" and Gee was complaining about his

back, holding his side, and looked sick. Lloyd Turpin

also expressed his concerns that Gee needed to go to

the hospital to Gee’s mother. App. 35-36.

On March 28, Gee and Estanislau called Gee’s

mother to ask for help for Terry. She called Rogers

that day to tell her Terry needed to see a doctor.

Rogers told her “We don’t have a doctor on call.” Dr.

ant ‘ies . ;

lim Alward, the jail doctor, was unavailable during

Gee’s last week at the jail because he was out of the

country, and he had failed to designate a substitute.

App. 18.

3. March 29, 2005 - Gee’s condition

worsens

At about 4:30 a.m. on March 29, LPN Anderson

with Edwards saw Gee in his cell with Estanislau for

breakfast tray and medication pass. App. 21. Gee

appeared dizzy, he was bouncing from foot to foot, kind

of moving in little circles. As Anderson was checking

Gee’s blood sugar, his knees began to. buckle.

Anderson and Edwards had to catch him, move him

back to the lower bunk, and lay him down. Even then,

his legs were constantly moving. His axillary (under

armpit) temperature was 103.7, his pulse was racing

at 100, his respirations were 30, and his blood glucose

was 241. App. 21

Anderson was concerned about Gee's temperature

and his blood sugar instability. Anderson had to help

him hold the cup of Kool-Aid she gave him and she

gave Gee some Tylenol. She also gave him insulin,

but when she checked his blood again at 6:55 a.m., it

had spiked up another 86 points to 327. App. 22. Gee

was not eating even though Estanislau was

encouraging him to eat. App. 20.

4. March 30, 2005 —- Johnson places Gee in

medical segregation as he continues to

decline

When LPN Estes saw Gee at 6 p.m. during the

evening medication pass, Gee's blood sugar was 588, a

sign of diabetic ketoacidosis. His temperature wa

101.8, his skin color was slightly pale, warm to th

touch, and he had diminished breathing sounds. App

23

When Estes assessed Gee again at around 9:30 p.m

with Johnson present, a further marked decline wa:

noted. Even though she had given him insulin 35

minutes earlier, his blood sugar was 432, and his skin

color pale and dusky. App. 23-24. Estanislau told he:

that Gee had not eaten for two to three days and that

he had passed out twice that morning from being so

weak. App. 23 Instead of ordering that Gee he

evacuated to the hospital, Johnson had him placed in

a medical segregation. Gee was so sick that he could

not sign the administrative segregation order. App.24

He was taken to the segregation cell by wheelchat

because he was too weak to walk App. 24 hist

wrote on the Pass Through Log that Gee “almost lool

green!!” Gee's cellmate Estanislau insisted that he and

other inmates were telling Johnson that “he’s gotta go

you gotta take him out, he’s gotta go to the hospital

iestanisiau added

The guy needed medical help lHlev let bye

blunt Anvbody could tell at need ad medical

help It didn't take a rocket scientist i'm no

doctor. I knew he needed medical help

[ told Captain Judy that he needed to go to the

hospital

5. March 31, 2005 — Too late to save him,

Gee is transported to the hospital

At shift change, Johnson verbally advised kdwards

that Gee was in administrative segregation for medical

reasons. Jedwards looked through the seyregation cell

window when he came on duty at 12:05 a.m. and

observed that Gee was breathing, but he never entered

the cell. No medical staff was on duty, and it was not

until 4:24 a.m. when LPN Sunkel arrived that anyone

actually entered the cell. App. 25 Sunkel had no

note about why Gee was in seprepation, but she

observed he was “very confused” and could not

concentrate well cnough to pick-up his cup of water

and swallow his pills. Even though his color wa:

“ashy” and he was shaking slightly, Sunkel wrote,

“Will continue to monitor” and did a_— status

reassessment at 6 a.m. App. 25

Wdwards and Rogers went to Gee's seyrepation cell

at 7:15 a.m. App. 25. At this point, Rovers ordered

Cree sent tothe ER for evaluation. App. 25. Edwards

Lreated the hospitalization order as routine, locked the

cell, and left Gee alone for another 45 minutes until

day shift officer Hutchins arrived to transport Gee to

the hospital shortly after 8 a.m. App. 26. By the time

Hutchins reached the hospital, Gee was unconsciou:

and hospital CMmMervency personne! had LO help him veel

Gee into the Hospital App 2

7

Gee was admitted in critical condition, for

pneumonia with “high fever and confusion...consistent

with diabetic ketoacidosis.” App. 26. He died on

April 5, 2005. App. 26.

B. Course of Proceedings Below

The complaint, as amended, alleged federal and

Indiana law claims against the Monroe County Sheriff,

Sheriff Steven Sharp, individually, Jail Commander

Bill Wilson, Petitioner Captain Judy Johnson,

Petitioner Sergeant James Edwards, and Correctional

Officers Jason Hochman and Chery! Gafken. Plaintiff

subsequently voluntarily dismissed the claims against

Sharp, individually, Hochman and Gafken. The

amended complaint also alleged claims against the

Medical Defendants Bloomington Hospital and Health

Care System, Inc., and its employees, Nurse

Practitioner Rogers, and Licensed Practical Nurses

Anderson, Sunkel and Estes.

On March 31, 2009, District

Judge William T. Lawrence dismissed the

municipal hability claims against the Monroe County

Sheriff, all of the Indiana state law claims, and the

claims against Jail Commander Wilson. App. 44. The

medical defendants’ motion for summary judgment

was denied in its entirety. App. 44. Judge Lawrence

denied summary judgment on the § 1983 claims

against Petitioners Johnson and Edwards. App. 44.

As to Johnson and Edwards, he said that they:

cannot get over the hurdle that the facts, when

taker. in the light most favorable to the Estate,

suggest that Gee’s constitutional right to receive

adeouate medical treatment was violated. As

8

explained more fully below, the Estate has

alleged a viable claim of deliberate indifference

to medical needs and there are factual disputes

that must be resolved by a jury, which precludes

6

the granting of summary judgment. App. 32.

More specifically, the court agreed that:

[T]here is evidence that, if believed by a jury,

suggests that Captain Johnson and Sergeant

Edwards were confronted with a case of an

inmate who was obviously suffering from an

ailment that required immediate treatment.

Specifically, various laypersons that included

Estanislau, Turpin, and Ms. Gee allegedly

recognized that Gee needed immediate medical

care beyond what was being administered at the

jail and expressed their concern to jail and

medical staff. If these persons reached their

conclusions based on their observations of Gee,

it is at least conceivable that the jail staff

should have recognized the potential need for

immediate care by the hospital. There is no

question that they had the authority to override

the nursing staffs recommendations and

request that Gee be transferred to the hospital

if Gee was facing a serious medical issue. Thus,

if the Estate’s witnesses are believed, a jury

could find that Captain Johnson and Sergeant

Edwards turned a blind eye to Gee’s condition

and improperly deferred to the medical staff.

Therefore, the Court concludes that summary

judgment cannot be granted in favor of Captain

Johnson and Sergeant Edwards. (footnote

omitted). App. 35-36.

Q

Johnson and Edwards filed a qualified immunity

interlocutory appeal No. 09-1895, as did the medical

defendants, No 09-2084. The Seventh Circuit

consolidated the appeals. R.5'. The Seventh Circuit

directed the medical defendants to file a memorandum

stating why their appeal should not be dismissed. K.6.

The medical defendants filed a jurisdictional

memorandum and the Gee Estate filed a response R.

9, R. 11. The Seventh Circuit ordered that the

jurisdictional memorandum, response and reply would

be distributed along with the briefs in the appeal to

the panel assigned to decide the merits of the appeal.

| ae ep

Following briefing and oral argument, the Seventh

Circuit filed its per curiam, nonprecedential

disposition affirming the district court. R. 36, App. 1.

The panel recognized that “jail officers were required

to complete two 40-hour training sessions, which

included a class on medical considerations for

inmates.” App. 3. The panel also noted that cellmate

Estanislau and other inmates “repeatedly told the

medical staff and jail officers about Gee’s condition and

said he needed to go to the hospital.” App. 4.

The Seventh Circuit recognized that Johnson and

Edwards “fully concede that Gee had a serious medical

need” and that “a jury could determine that they [ |

were deliberately indifferent to Gee’s’ medical

' Record references are to the record of the U S Court of Appeals

for the Seventh Circuit, No. 09-1895, per Sup Ct. R_ 12(7).

LO

condition.” App. 10-12. The Seventh Circuit held that

while prison officials can generally defer to medical

professionals’ opinions:

there is an exception when a risk to the

prisoner’s health is so obvious that a jury may

reasonably infer actual knowledge on the part of

the defendants. Vinning-El v. Long, 482 F.3d

923, 925 (7th Cir. 2007) (citing Hall v Bennett,

379 F.3d 462, 464 (7th Cir. 2004)). This may be

one of the rare cases where a layperson would

recognize that Gee received treatment so

inadequate that Johnson’s and Edwards’

deference to the nurses was unreasonable.

Johnson, 433 F.3d at 1011. Gee was clearly in

terrible shape, and he was deteriorating right

before everyone’s eyes. We agree with the

district court that it is conceivable Johnson and

idwards should have realized that. Gee needed

immediate medical care, probably in a hospital.

App. 12.

Johnson and Edwards petitioned for a_ panel

rehearing. R. 38. The panel denied rehearing. R. 40,

App 46.

REASONS FOR DENYING PETITION

The petition strains to create a nonexistent circuit

split from the Seventh Circuit’s nonprecedential order

that affirmed the district court. In fact, there is no

conflict, and the caselaw is easily harmonized. The

petition also wrongly asserts that the lower courts did

not address the clearly established law prong of the

qualified immunity test and that a pretrial detainee’s

constitutional right to medical care for his obvious

1}

serious medical needs was not clearly established in

March 2005. Petitioners have not carried their burden

of demonstrating any “compelling reasons” for the

petition to be granted. Sup. Ct. R. 10.

I. The Seventh Circuit Correctly Concluded

That A Jury Should Decide Whether The Jail

Officers Were Deliberately Indifferent To The

Serious Medical Needs Of A Pretrial Detainee

Who Required Immediate Hospitalization

Because The Factfinder Could Conclude That

The Jail Officers Turned A Blind Eye To His

Obvious Condition

The lower courts correctly recognized that while a

jail officer is entitled to defer to the judgment of a

medical professional with regard to the appropriate

way to treat an inmate, a plaintiff can still establish

deliberate indifference “by inference’ from

circumstantial evidence, including evidence that the

risk was so obvious that a jury might reasonably infer

actual knowledge on the part of the defendants.”

Vinning-El v. Long, 482 F.3d 923, 924-25 (7th Cir.

2007). App. 12, App. 35. The lower courts recognized

that Johnson and Edwards could not insulate

themselves from their constitutional violations by

hiding behind the nurses. Their entitlement to rely on

medical staff evaporates if the risk is obvious. The

constitutional factfinder must decide their § 1983

liability.

A. The Nonprecedential Order Creates No

Circuit Split

Petitioners ask this Court to grant certiorari to

resolve an illusory split in the circuits that they

12

manufacture from the Seventh Circuit’s

nonprecedential order in this case. There is no circuit

split and the cited cases are easily harmonized.

The harmonizing rule for the cases discussed by

Petitioners was explained in the recent case, Lko uv.

Shreve, 535 F.3d 225, 242-43 (4th Cir. 2008). In Jko,

corrections officers offered the decedent no medical

treatment after they pepper sprayed him and he

collapsed. They claimed they deferred to a nurse’s

apparent decision not to treat him and that his silence

in the face of the nurse’s questioning amounted to a

refusal of treatment. The Fourth Circuit said that

while a distant prison officer can generally rely on

medical staffs examinations and diagnoses, the on

scene officers, face liability for their own decisions

made while they were in charge. 7d. at 242. Putting

Iko into a wheelchair upon his collapse without

seeking any medical examination or even

decontamination was an insufficient response to his

serious medical needs.

Most of Petitioners’ “conflict” cases involve a

“distant” prison official. In Durmer v. O’Conneil, 991

F.2d 64, 69 (3d Cir. 1993), the two defendants were a

warden and a commissioner for corrections who failed

to respond to a prisoner’s complaints when they knew

he was already being treated by the prison doctor. In

Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004), the non-

medical prison official was its housing unit manager.

In Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990),

the complaint alleged supervisory liability against two

wardens for the acts of medical staff. See also Shakka

v. Smith, 71 F.3d 162, 167 (4th Cir. 1995) [warden or

chief of security with no knowledge of the kind line

13

officers would have had}. In Greeno v. Daley, 414 (F.3d

645, 655-56 (7th Cir. 2005), the “corrections complaint

appeals examiner,” who was well-removed from

actually observing the inmate and his medical

condition, was dismissed. Berry v. Peterman, 604 F.3d

435 (7th Cir 2010) involved dismissal of a jail

administrator who would not intervene in a complaint

about a toothache. Meloy v. Bachmaier, 302 F.3d 845,

849 (8th Cir. 2002) involved a claim for failure to

provide a CPAP machine for sleep apnea against a

director of prisoner medical services who was not

personally involved in the medical decision. In

Townsend v. Jefferson Cnty., 601 F.3d 1152 (11th Cir.

2010), the jailers were in direct contact with the

pregnant inmate who had a miscarriage, but they were

dismissed because it was beyond the scope of

knowledge of the two lay deputies to assess the

situation as being so obviously dire to know that the

jail nurse had grossly misjudged her symptoms.

Even in the case of Johnson v. Doughty, 433 F.2d

1001, 1010-11 (7th Cir. 2006), where the Seventh

Circuit specifically articulated the “unusual case

where it would be evident to a layperson” exception

that the Seventh Circuit applied in this case, the court

affirmed summary judgment to corrections staff where

the prisoner was seen by “qualified medical

professionals” about his hernia, because his claim

bottomed on the fact that he simply disagreed with

their decision to treat him without surgery. Here,

Johnson and Edwards actually saw Gee’s desperate

condition, yet they allowed him to languish dying in

the jail for more than 72 Hours. When they shuffled

Gee off to the segregation cell, they essentially forgot

him for eight hours. The lower courts properly denied

the qualified immunity-based summary judgment

14

because a jury could conclude that Johnson and

Edwards were deliberately indifferent to Gee’s known,

serious medical needs.

The Court should deny certiorari.

Il. A Pre-Trial Detainee’s Constitutional Right

To Medical Care For His Obvious Serious

Medical Needs Was Clearly Established In

March 2005 And The Lower Courts Correctly

Held That A Jury Should Determine Whether

Johnson And Edwards Were Deliberately

Indifferent To Gee’s Medical Condition By

Not Exercising Their Authority To Have Gee

Transported To The Hospital

Both the district court and the Seventh Circuit

recognized the applicable test for qualified immunity.

App. 7-8; App. 29-30. The fact that they did not

specifically address the satisfaction of the clearly

established prong is of no legal import.

Qualified immunity shields government officials

from liability for civil damages where their conduct

does not violate clearly established statutory or

constitutional rights of which a reasonable person

would have known. Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). In Saucier v. Katz, 533 U.S. 194,

201(2001), this Court established a two-step inquiry

for courts ruling upon the qualified immunity issue. To

determine whether an official is entitled to qualified

immunity, courts decide: (1) whether the facts alleged

or shown by plaintiff make out a violation of a

constitutional right, and (2) if so, whether that right

was “clearly established” at the time of the defendants’

alleged misconduct. Jd at 201. In Pearson v. Callahan,

15

___ U.S. ___, 129 S. Ct. 808, 818, 172 L. Ed.2d 565

(2009), the Supreme Court clarified that the Saucier

sequence is not an inflexible requirement. Courts are,

however, free to follow the Saucier procedure where it

facilitates the expeditious disposition of the case:

“Although we now hold that the Saucier

protocol should not be regarded as mandatory in

all cases, we continue to recognize that it is

often beneficial.” Jd.

As the district court recognized, under Saucier,

supra, once the court determines that a constitutional

violation could be established on a favorable view of

the facts, the inquiry turns to whether the

constitutional right was clearly established. App. 29.

For a constitutional right to be clearly established, its

contours “must be sufficiently clear that a reasonable

official would understand that what he is doing

violates that right. This is not to say that an official

action is protected by qualified immunity unless the

very action in question has previously been held

unlawful .. .; but, it is to say that in light of pre-

existing law the unlawfulrmess must be apparent.”

Hope v. Pelzer, 536 U.S. 730, 739 (2002) citing

Anderson v. Creighton, 483 U.S. 635, 640 (1987)

[internal citation omitted].

The denial of medical care to inmates and detainees

for a serious medical need is clearly unconstitutional.

The Seventh Circuit has long held that a prisoner’s

serious medical need includes “one that is so obvious

that even a lay person would easily recognize the need

for a doctor’s attention.” Gutieirrez v. Peters, 111 F.3d

1364, 1373 (7th Cir. 1997); see also Foelker uv.

Outagamie Cnty., 394 F.3d 510, 513 (7th Cir. 2005).

16

As the circuit court recognized, “the Jail Defendants

fully concede that Gee had a serious medical need.”

App. 10. They also conceded that Petitioners had the

ability to send prisoners to the hospital even when the

nurses did not order hospitalization. Under Hope and

Anderson, the contours of the constitutional right

were sufficiently clear in March 2005 and the lower

courts properly tacitly concluded that the clearly

established law prong was satisfied.

The district judge correctly found that a pretrial

detainee’s right to medical care, was clearly

established in March 2005. In Farmer v. Brennan, 511

U.S. 825, 831 (1994), the Court said that the

Fourteenth Amendment requires that a detainee be

housed under “humane conditions” and provided with

“adequate food, clothing, shelter, and medical care.”

(Emphasis added). The Seventh Circuit has also

made it absolutely clear that deliberate indifference to

a serious medical condition is a violation of a clearly

established constitutional right. In Walker uv.

Benjamin, 293 F.3d 1030, 1040 (7th Cir. 2002), the

court reversed a grant of qualified immunity to a nurse

and doctor who refused to give pain medication to a

prisoner, saying, “(t]he general standard for liability

under the Eighth Amendment for refusal to treat a

serious medical condition was well-established at the

time of these events [1995].” The Walker Court stated

that in Estelle v. Gamble, 429 U.S. 97, 104-05 (1976),

the Court clarified that the “unnecessary and wanton

infliction of pain” is proscribed by the Eighth

Amendment, and that deliberate indifference to the

serious medical needs of prisoners is “unnecessary and

wanton infliction of pain:”

17

“This is true whether the indifference is

manifested by prison doctors in their response

to the prisoner’s needs or by prison guards in

intentionally denying or delaying access to

medical care or intentionally interfering with

the treatment once prescribed.” (emphasis

added).

See also: Board v. Farnham, 394 F.3d 469, 485 (7th

Cir. 2005) [decided 1/5/05 and holding jailers were on

notice that refusing an asthma patient his inhaler

when he was complaining of severe’ breathing

problems could constitute deprivation of his

constitutional rights]; Ralston v. McGovern, 167 F.3d

1160, 1162 (7th Cir. 1999) [deliberate refusal by guard

to give pain medication to Hodgkin’s disease patient

who “couldn’t swallow and was spitting blood” was a

“sratuitous cruelty”}.

The lower court correctly ruled that a jury should

determine whether Johnson and Edwards ignored an

obviously serious medical condition. The petition

should be denied.

L$

CONCLUSION

For these reasons, Respondent asks that this Court

deny the petition for writ of certiorari

Respectfully submitted,

Victor S. Valenti

Counsel of Record

Geoffrey N. Fieger

FIEGER, FIEGER, KENNEY,

JOHNSON & GIROUX, P.C.

19390 West Ten Mile Road

Southfield, Michigan 48075

(248) 355-5555

v.valenti@fiegerlaw.com

Sean W. Drew

DREW LAW OFFICE

Donahue Building

302 Sycamore St.

P. O. Box 880

Niles, Michigan 49120

(269) 683-5121

drewlaw@gqtm.net

Counsel for Respondent