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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 1061

## Text

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4 P (4) OCT 18 2010

'
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

S

>)

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2304%3A2. Public record. Not legal advice.