Petition for Writ of Certiorari — Hudson v. Scarbro

e Court, U.S.

sa a

\\Qy No. D

497 HH HL 262010

In The

. ERK

Supreme Court of the UPR SRS

B.R. HUDSON, in his individual capacity,

Petitioner,

HILARIE G. SCARBRO, Administratrix of the

Estate of Gary Eugene Rummer,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

For THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

James R. Morgan, Jr.

Counsel of Record

Robert T. Numbers, I]

WOMBLE CARLYLE SANDRIDGE & RICE, PLLC

One West Fourth Street

Winston-Salem, North Carolina 27101

(336) 721-3600

jmorgan@wesr.com

rnumbers©wesr.com

Dated: July 26, 2010

THE LEX GROUPDPES ¢ 1750 K Street NW. @ Suite 475 @ Washington, DC 20006

(202) 955-0001 ¢ (800) 815-379) @ Fas: (202) 955-0002 @ www thelexgroup.com

QUESTIONS PRESENTED

In this case, a federal District Court Judge

with training and expertise in United States

constitutional law looked at the entire summary

judgment record and all relevant case authority, and

concluded that, in the light most favorable to

plaintiff and as a matter of law, Officer Hudson's

actions did not violate the Constitution. The Fourth

Circuit) panel judges disagreed with the District

Court Judge, and concluded that, in the light most

favorable to plaintiff, Officer Hudson's actions and/or

inactions did violate the Constitution. The Fourth

Circuit panel then went a step further, and held that

Officer Hudson was not entitled to qualified

immunity, even though a reasonable federal judge

had held that Officer Hudson’s actions did not

violate the Constitution.

The question presented here LS

Whether, absent a finding that the district

court's opinion was unreasonable, a government

official is entitled to qualified immunity under the

“clearly established” prong of the test set out in

Saucier v. Katz, 533 U.S. 194 (2001), if the district

court and the court of appeals disagree over whether

the government official’s conduct violated the

constitution.

2. Whether district court opinions should be

considered by courts of appeal in determining

whether a right is clearly established for purposes of

qualified immunity analysis

PARTIES TO THE PROCEEDING

The petitioner in this case is Officer B. R

Hudson in his individual capacity. Officer Hudson,

at the time of the incident in question, was a

detention officer at the New Hanover County Jail in

New Hanover County, North Carolina

The plaintiff in this case is Hilarie G. Scarbro

as Administratrix of the Estate of Gary Eugene

Rummer.

The only two remaining parties to this action

are those listed above.

However, the following were parties in the

District Court and the United States Court of

Appeals for the Fourth Circuit, but are no longer

parties to this action: New Hanover County; New

Hanover County Sheriffs Department; New Hanover

County Jail; Sidney A. Causey, individually and in

his capacity as Shenff of New Hanover County; J.T

Leonard, individually and in his official capacity as

detective of the New Hanover County Sheriffs

Department; E. Morton, individually and in his

official capacity as deputy of the New Hanover

County Sheriff's Department; 'T.L. Fuss, individually

and in his official capacity as corporal of the New

Hanover County Sheriffs Department; D.E. Keyes,

individually and in his official capacity as deputy of

the New Hanover County Sheriffs Department; Mr.

Hansen, individually and in his official capacity as

deputy of the New Hanover County Sheriffs

Department; J.P. Hatch, individually and in his

official capacity as sergeant of the New Hanover

1

County Sheriff's Department; M. Grimes,

individually and in his official capacity as deputy of

the New Hanover County Sherufs Department; Mr.

Ward, individually and in his official capacity as

deputy of the New Hanover County Sheriffs

Department; S. Jones, individually and in his official

capacity as sergeant of the New Hanover County

Sheriffs Department; W. Thomas Parker,

individually and in his official capacity as chief

deputy of the New Hanover County Sheriffs

Department; Clarence A. Hayes, individuaily and in

his official capacity as captain of the New Hanover

County Sheriffs Department; Angela Goebel,

Deputy, individually and/or in her official capacity;

Dennis Kutrow, Deputy, individually and/or in his

official capacity; Deputy Drakow, Deputy Sheriff,

individually and in his official capacity; Deputy

Frink, Deputy Sheriff, individually and in his official

capacity; Susan Barfield, R.N., individually and in

her official capacity; Gaysheron Bell, Deputy,

individually and in her official capacity as an

employee of the New Hanover County Health

Department; New Hanover County Health

Department; Janet McCumbie, individually and in

her official capacity as Personal Health Director of

the New Hanover County Health Department:

Penny Rayner, FNP, individually and in her official

capacity; and David Rice, individually and in his

official capacity as Health Director of the New

Hanover County Health Department

TABLE OF CONTENTS

»

PINIONS BELOW

JURISDICTIONAL STATEMENT

SVANT CONSTITUTIONAL

TUTORY PROVISIONS .

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION

THE FOURTH CIRCUIT PANE]

OPINION IS IN CONFLICT WITH

SUPREME COURT AUTHORITY

ave

THE FOURTH CIRCUIT PANEL

OPINION CONFLICTS WITH

DECISIONS OF A NUMBER OF

UNITED STATES COURTS OF

APPEAL AND THERE [S MUCH

CONFLICT AND CONFUSION

AMONG THE COURTS OF

APPEAL REGARDING THIS

ISSUE

\ THIS CASE PRESENTS AN

APPROPRIATE VEHICLE

TO ADDRESS AN ISSUE

THE SUPREME COURT

HAS DECLINED TO

ADDRESS AT LEAST

TWICE BEFORE

THE ABSENCE OF}

GUIDANCE ON THE ROLE

OF DISTRICT COURT

OPINIONS IN TH

PROCESS OF

DETERMINING

WHETHER A POINT OF

LAW IS CLEARLY

ESTABLISHED FOR

PURPOSES OF

QUALIFIED IMMUNITY

HAS LEAD TO

FRACTURED OPINIONS

AMONG THE COURTS OF

APPEAL .

Che Honorable Louise W. Flan

Re: Granting Defendants

Motion for Summary Judgment

utered May 8, 2008 ¥

TABLE OF AUTHORITIES

CASES

Anaya v. Crossroads Managed Care Sys

195 F.3d 584 (10th Cir. 1999)

Anderson v. Creighton

483 U.S. 635, 107 S. Ct. 3034

97 L. Ed. 2d 523 (1987)

Anderson v. Romero,

72 F.3d 518 (7th Cir. 1995)

Belcher v. Oliver.

898 F.2d 32 (4th Cir. 1990)

Bumegarner v. Hart,

316 Fed. Appx. 201

2009 WL 567227 (3d Cir. 2009

Davis v. Scherer,

468 U.S. 183, 104S. Ct. 30]

82 L. Ed. 2d 139 (1984)

Doe v. Dehe,

257 F.3d 309 (3d Cir. 2001

Doe v. Johnson,

597 F.3d 163 (4th Cir. 2010)

Edwards v. City of Goldsboro,

178 F.3d 231 (4th Cir. 1999)

Page

V11l

Gable v. Lewis,

201 F.3d 769 (6th Cir. 2000) 18

Gordon v. Kidd,

971 F.2d 1087 (4th Cir. 1992)...

Grayson v. Peed,

195 F.3d 692 (4th Cir. 1999), cert. deried,

529 U.S. 1067, 120 S. Ct. 1673

146 L. Ed. 2d 482 (2000) |

Harlow v. Fitzgerald,

457 U.S. 800, 102 S. Ct. 2727,

73 L. Ed. 2d 396 (1982) .. 7,15

Hayes v. Long,

72 F.3d 70 (8th Cir. 1995) 1”

Hope v. Pelzer,

536 U.S. 730, 122 5. Ct. 2508,

153 L. Ed. 2d 666 (2002) 10, 1)

Hunter v. Bryant,

502 U.S. 224, 112 S. Ct. 534

116 L. Ed. 2d 589 (1991) ....... 10, 11, 12

Jenkins by Hall v. Talladega City Bd. of Educ

115 F.3d 821 (llth Cir.), cert. demied,

Jenkins ex rel. Hall v. Herring,

522 U.S. 966, 118S. Ct. 412,

139 L. Ed. 2d 315 (1997) .... 16

Jermosen v. Smith,

945 F.2d 547 (2d Cir. 1991) 17

Lassiter v. Alabama A & M Univ

28 F.3d 1146 (11th Cir

Malley v. Briggs,

475 U.S. 335, 106 S. Ct

89 L. Ed. 2d 271 (1986)

Mitchell v. Forsyth,

472 U.S. 511, 105S. Ct

86 L. Ed. 2d 411 (1985)

Ohio Civil Serv. employees Ass

858 F.2d 1171 (6th Cu

Pearson v. Callahan.

1994)

LOY9Z2

LOS6

nm \

1ORR)

129 S. Ct. 808, 172 L. Ed. 2d

172 L. Ed. 2d 565 (2009)

Procunter v. Navarette,

434 U.S. 555, 98 S. Ct. &

00 L. Ed. 2d 24 (1978)

Ryder v. United States,

615 U.S. 177, 115 S. Ct

Saucier v. Katz,

533 U.S. 194, 121 S. Ct

»)

;

150 L. Ed. 2d 272 (2001)

Shotland v. City of Torrance,

189 Fed. Appx. 615 (9th

Cl}

Swanson v. Power

937 F.2d 965 (4th Cir. 1991), cert. denied

502 U.S. 1031, 112 S. Ct. 87]

116 L. Ed. 2d 777 (1992)

Tenenbaum v. William

193 F.3d 581 (2d Cir. 1999

C[ribble v. Gardner

860 F.2d 321 (9th Cir.1988), cert

190 U.S. 1075, 109 8. Ct. 208%

104 L. Ed. 2d 650 (1989

[Jnited States v. Lame)

520 U.S. 259. 117 S. Ct. ]

137 L. Ed. 2d 432 (199%

Wilson v. Layne

526 U.S. 603. 119S. Ct. 169

143 L. Ed. 2d 818 (1999

Young v. City of Mt. Rainier

4 y

238 F.3d 567 (4th Cir. 20

CONSTITUTIONAL PROVISION

PETITION FOR A WRIT OF CERTIORARI!

OPINIONS BELOW

opinion of th LJnited

\ppeal rthe Fourth Circuit that gave rn

decision 1s unpublished, and is reproduct

Appendix filed herewith (“App

unr ported opinion of the Distn

reproduced at App. 22

JURISDICTIONAL STATEMENT

‘he jud ment | the Cour

ntered on April 1, 201 The Fourth C

a petition jor rehearing on April 27

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RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

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STATEMENT OF THE CASE

The plaintiff, Hilarie G. Scarbro’ as

Administratix of the Estate of Gary Eugene

Rummer, filed this action against various officers of

the New Hanover County Sheriffs Department and

New Hanover County Health Department

concerning the death of an inmate, Gary Eugene

Rummer, following his incarceration at the New

Hanover County Jail. The plaintiff asserted claims

under 42 U.S.C. § 1983 for excessive force; deliberate

indifference to serious medical needs; conspiracy;

and supervisory liability. The plaintiffs complaint

also included supplemental state law claims.

The District Court Judge dismissed plaintiffs

claims against most of the defendants, and later

eranted summary judgment in favor of the

remaining defendants, including defendant B.R.

Hudson.

[In granting summary judgment for defendant

Hudson in his individual capacity as to plaintiffs

Section 1983 claim for deliberate indifference to a

serious medical need, the District Court Judge

examined the entire summary judgment record and

Fourth Circuit authority, and held that under the

facts of this case, in the light most favorable to

plaintiff, Hudson’s actions or inactions did not

violate the United States Constitution. (App. 44-52).

(See panel opinion at footnote 4). (“The district

court...found no constitutional violation....”) (App. 9).

More specifically, in granting summary

judgment in favor of defendant Hudson as to

plaintiffs Section 1983 claim for deliberate

indifference to a serious medical need, the United

States District Court Judge noted that the plaintiffs

argument was that “by failing to give complete

answers or volunteer information in response to

nurse Barfield’s questions, defendant Hudson

deliberately interfered with Rummer’s care.” (App.

45). The United States District Court Judge noted

that Hudson told the nurse that Rummer “did not

fall.” (App. 46). The United States District Court

Judge analyzed Fourth Circuit authority, including

Young v. City of Mt. Rainier, 238 F.3d 567 (4th Cir.

2001); Grayson v. Peed, 195 F.3d 692 (4th Cir. 1999),

cert. denied, 529 U.S. 1067 (2000); and Belcher v.

Oliver, 898 F.2d 32 (4th Cir. 1990) (App. 47-51), and

reasonably concluded that “defendant Hudson, as a

non-medical staff member with no apparent medical

training, acted reasonably when he _ submitted

Rummer to trained medical professionals” (App. 47-

48) and that “[{iJn accordance with relevant Jaw, upon

the undisputed facts... Defendant Hudson's

affirmative actions in delivering Rummer to receive

medical care relieved him of responsibility” (App.

50), and that under the “relevant case law,” Officer

Hudson had no “affirmative duty to volunteer

unrequested information under the circumstances

presented.” (App. 50-51). Accordingly, as to

plaintiffs Section 1983 claim for deliberate

indifference to medical needs against Hudson in his

individual capacity, the United States District Court

Judge (after examining the entire record and

relevant case authority) held that under the facts of

this case, Hudson’s actions and/or inactions did not

violate the Constitution. (App. 9, 44-52).

Jt

The plaintiff filed a notice of appeal, and oral

argument was held.

On April 1, 2010, the Fourth Circuit panel

opinion was issued in this case. The panel affirmed

judgment in favor of most defendants as to most

claims. However, the panel reversed as to one

defendant on one claim: The panel reversed as to

plaintiffs Section 1983 claim for deliberate

indifference to a serious medical need against

defendant Hudson in his individual capacity. In

reversing the United States District Court’s grant of

summary judgment in favor of Officer Hudson as to

plaintiffs Section 1983 claim for deliberate

indifference to a serious medical need, the panel

opinion did not analyze or discuss the Fourth Circuit

cases relied upon by the United States Court Judge,

but instead analogized Officer Hudson’s action of

taking the inmate to a medical care provider in the

instant case to the officer’s action in Gordon v. Kidd,

971 F.2d 1087 (4th Cir. 1992) of transferring custody

of an inmate to another officer who was not a

medical care provider. (App. 12-13). The panel

opinion, citing Gordon, held that in the light most

favorable to plaintiff, Officer Hudson’s actions and/or

inactions violated the Constitution. (App. 11-12).

The panel opinion then went a step further. Even

though the District Court Judge believed and held

that Officer Hudson’s actions an/or inactions were

lawful and did not violate the Constitution, the panel

opinion held that Officer Hudson was not entitled to

qualified immunity because, according to the panel

opinion, no reasonable officer could have believed

that Hudson’s actions were lawful. (App. 12-13).

REASONS FOR GRANTING THE PETITION

:. THE FOURTH CIRCUIT PANEL OPINION

IS IN CONFLICT WITH SUPREME COURT

AUTHORITY

In this case, a reasonable federal District

Court Judge — with training and expertise in

constitutional law — looked at the entire summary

judgment record and relevant case authority, and

concluded that Officer Hudson's actions did not

violate the Constitution. As shown by the discussion

below, given that a federal District Court Judge held

that Officer Hudson’s actions were lawful, it cannot

be said that Officer Hudson violated clearly

established law; it cannot be said that Officer

Hudson had “fair warning” that his conduct was

unconstitutional; it cannot be said that Officer

Hudson was “plainly incompetent or... knowingly

violate[d] the law”; and it 1s manifest that since a

reasonable federal judge believed that Officer

Hudson's actions were constitutional, a reasonable

officer could have believed that Officer Hudson’s

actions were constitutional. In short, as shown

below, the Fourth Circuit panel misapplied basic

tenets of qualified immunity as set forth by this

Court; thus, the Fourth Circuit panel opinion is in

direct conflict with Supreme Court authority

relating to the doctrine of qualified immunity.

The doctrine of quahfied immunity exists to

protect law enforcement officers and_ other

governmental officials “from liability for civil

damages insofar as their conduct does not violate

clearly established statutory or constitutional nghts

of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 73 L. Ed. 2d 396 (1982). It “balances two

important interests — the need to hold public official

accountable when they exercise power irresponsibly

and the need to shield officials from harassment,

distraction, and hability when they perform their

duties reasonably.” Pearson v. Callahan, 129 S. Ct.

808, 815, 172 L. Ed. 2d 565 (2009). ‘Therefore

“[qjuahfied immunity is applicable unless the

official’s conduct violated a clearly established

constitutional right.” Id. at 816. In order to be

clearly established, “|t]he contours of the right must

be sufficiently clear that a reasonable official would

understand that what he is doing violates that

right.” Anderson v. Creighton, 483 U.S. 635, 640,

107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987). In

other words, “in the light of pre-existing law the

unlawfulness must be apparent.” Id.

The United States Supreme Court has

emphasized that if reasonable federal judges

disagree on a constitutional question, an officer will

be entitled to qualified immunity because, if

reasonable judges disagree on a_ constitutional

question, the constitutional question cannot be said

to be “clearly established.” Thus, in Wilson v. Layne,

526 U.S. 603, 119 S. Ct. 1692 (1999), this Court, in

recognizing that an officer was entitled to qualified

immunity, stated that “[i]f judges...disagree on a

constitutional question, it is unfair to subject police

to money damages for picking the losing side of a

controversy. 526 U.S. at 618, 119 S. Ct. at 1701.

Similarly, in Pearson v. Callahan, 129 U.S. 808

(2009), this Court, quoting Wilson v. Layne, held

that officers were entitled to qualified immunity

where there was a “divergence of views” among

federal judges on a constitutional question because

“lijf judges...disagree on a constitutional question, it

is unfair to subject police to money damages for

picking the losing side of a controversy.” 129 S. Ct.

at 828. Thus, under the clear language and

reasoning of this Court, an officer is entitled to

qualified immunity if reasonable judges disagree on

whether the officer's conduct violates’ the

Constitution. Wilson, supra.; Pearson, supra.

The Court’s reasoning on this issue 1s logical,

sound, and clear: If a reasonable judge, trained and

experienced in the nuances of constitutional law,

believes and holds that an officer's actions did not

violate the Constitution, then it necessarily follows

that a reasonable officer — untrained in the nuances

of constitutional law — could have believed that his

actions did not violate the Constitution. Put another

way, if a federal judge — with training and expertise

in constitutional law — holds that an officer’s actions

did not violate the Constitution, then, as a matter of

law, it cannot be said that it was clearly established

that the officer’s action did violate the Constitution.

In order words, if a reasonable federa) district court

judge holds that an_ officers actions are

constitutional, then it is not possible to say that the

officer violated clearly established law.

In this case, despite a disagreement between

reasonable jurists over whether Officer Hudson’s

actions were constitutional, the Court of Appeals

denied Officer Hudson the protections of qualified

immunity. The District Court’s judgment in Officer

Hudson's favor was based upon a review of a variety

of cases from the Fourth Circuit and its independent

assessment that the plaintiff failed to produce a

forecast of evidence sufficient to show that Hudson

violated Rummer’s constitutional rights. On appeal,

the Fourth Circuit panel found not only that a

constitutional violation occurred, but also denied

Officer Hudson the _ protections of qualified

immunity.

The disagreement between the District Court

Judge and the Fourth Circuit panel judges was not

over the facts of the case or what law applied, but

instead over whether Fourth Circuit precedent

established that Officer Hudson’s conduct violated

the constitution. The District Court Judge held that

Fourth Circuit precedent on this issue demonstrated

that Officer Hudson’s conduct was constitutional.

The Fourth Circuit panel held that Officer Hudson’s

conduct was unconstitutional and that the law on

this issue was clearly established.

However, if federal judges who are

presumably more knowledgeable about the contours

of constitutional rights than a detention officer at

the New Hanover County Jail disagree -over

whether an_ officers actions violated the

Constitution, then, as a matter of law, it cannot be

said that it was clearly established that the officer’s

actions did violate the Constitution.

The reasons for this rule follow logically and

directly from numerous holdings of this Court. As

this Court has repeatedly emphasized, “if officers of

reasonable competence could disagree [on whether

10

an officer’s action is constitutional], immunity

should be recognized.” Malley v. Briggs, 475 U.S.

335, 341, 106 S. Ct. 1092, 1096 (1986). Thus, this

Court has stated that an officer is entitled to

qualified immunity if the officer “could have

believed...that his conduct was lawful.” Saucier v.

Katz, 533 U.S. 194, 199, 121 S. Ct. 215 (2001); See

Wilson v. Layne, 526 U.S. 603, 615, 119 S. Ct. 1692

(1999); Hunter v. Bryant, 502 U.S. 224, 227, 112 S.

Ct. 5384 (1991). Similarly, if reasonable federal

judges disagree on whether an officer’s action is

constitutional, then the law cannot be said to be

clearly established, and the officer is necessarily

entitled to qualified immunity. If a reasonable

federal judge ~— trained in constitutional law —

believes and holds that an officer's actions did not

violate the Constitution, then it is manifest that the

officer, who has no legal training, “could have

believed...that his conduct was lawful.” Saucier,

supra.

As this Court stated in Ryder v. United

States, 515 U.S. 177, 115 S. Ct. 2031 (1995),

qualified immunity “specially protects public officials

from damages liability for judgment calls made in a

legally uncertain environment....” 515 U.S. at 178,

115 S. Ct. at 2033. Moreover, as this Court has

made clear, qualified immunity protects an officer

for damages unless existing case law gave the officer

“fair warning” that his conduct violated the

Constitution. See Hope v. Pelzer, 536 U.S. 730, 741,

122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002); United

States v. Lanier, 520 U.S. 259, 270-71, 117 S. Ct.

1219, 137 L. Ed. 2d 432 (1997). “Hindsight-based

reasoning “is forbidden in analyzing the issue of

1]

qualified immunity. Mitchell v. Forsyth, 472 U.S

511, 535, 105 S. Ct. 1086 (1985). In the case where,

as here, reasonable judges disagree over whether the

officer’s conduct violated the Constitution, then the

legal environment is by definition “legally

uncertain.” Thus, Officer Hudson is entitled to

qualified immunity, because qualified immunity

“specially protects public officials from damages

liability for judgment calls made in a legally

uncertain environment....” Ryder, supra. Moreover,

if a federal judge — trained and experienced in

constitutional law — reviews the entire summary

judgment record and concludes that the officer’s

actions did not violate the Constitution, then it

cannot be said that the officer had “fair warning”

that his actions did violate the Constitution. To

argue otherwise turns logic on its head. Thus,

where, as here, a federal judge holds that the

officer’s conduct did not violate the Constitution, it

cannot be maintained that the officer had “fair

warning that his conduct did violate’ the

Constitution. Thus, Office Hudson is entitled to

qualified immunity because existing case law did not

give him “fair warning” that his actions violated the

Moreover, the United States Supreme Court

has clearly held that qualified immunity gives public

officers “ample room for mustaken judgments”

because qualified immunity protects “all but the

plainly incompetent or those who knowingly violate

the law.” Hunter v. Bryant, 502 U.S. 224, 229, 112

S. Ct. 534 (1991), quoting Malley v. Briggs, 475 U.S.

335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986).

See also Saucier v. Katz, 533 U.S. 194, 202, 121 S

crs

12

Ct. 2151 (2001). In the instant case, a federal

District Court Judge analyzed the entire summary

judgment record and relevant case law, and

concluded that Officer Hudson’s actions did not

violate the Constitution. Where, as in this case, a

reasonable federal judge concludes that Officer

Hudson’s actions were constitutional, it cannot be

said that Officer Hudson’s belief that his actions

were constitutional] were either “plainly

incompetent” or in knowing violation of the law. To

hold otherwise would place law enforcement officers

in an untenable position: It would require officers to

be more knowledgeable in the contours and nuances

of constitutional law than federal judges. Logically,

where, as here, a federal judge holds that an officer’s

actions did not violate. the Constitution, the officer

must necessarily be protected by qualified immunity

unless the federal District Court Judge is held to be

“plainly incompetent” or unless it is held that the

federal District Court Judge knowingly misstated

the law. There has been no such holding in this

case, nor could there be such a holding. In this case,

the federal District Court Judge reviewed the entire

summary judgment record and applicable case law,

and reasonably concluded that Officer Hudson did

not violate the Constitution. Since a reasonable

federal judge belbeved and held that Officer Hudson’s

actions were lawful, it cannot be said that Officer

Hudson’s belief.in the lawfulness of his conduct was

“plainly incompetent” or that he “knowingly

violate[d] the law.” Hunter, supra. Thus, the

Fourth Circuit panel opinion is in direct conflict with

finding Supreme Court authority.

The Fourth Circuit panel should have either

affirmed the District Court’s decision granting

qualified immunity to Officer Hudson on the ground

that the law was not clearly established, or

explained why the District Court's interpretation of

pre-existing case authority was unreasonable. The

Fourth Circuit panel's failure to address — or even

acknowledge — the disagreement between reasonable

judges, and to deny qualified immunity to Officer

Hudson, is in direct conflict with United States

Supreme Court jurisprudence on qualified

immunity

In sum, the Fourth Circuit panel opinion is in

conflict with applicable Supreme Court authority

regarding the hasic tenets of the doctrine of qualified

immunity. This Court has clearly stated that an

officer will be entitled to qualified immunity “if

judges...disagree on a constitutional question....”

Wilson, supra; Pearson, supra. The Fourth Circuit

panel opinion ignored this directive. This Court has

also held that an officer will be entitled to qualified

immunity if the officer “could have believed...that

his conduct was lawful.” Saucier, supra. The Fourth

Circuit panel failed to follow this Supreme Court

directive. The Fourth Circuit panel also failed to

follow the Supreme Court’s mandate that an office:

will be entitled to qualified immunity unless he had

“clear warning” that his conduct was unlawful, and

the directive that qualified immunity protects “all

but the plainly incompetent or those who knowingly

violate the law.” Malley, supra. Thus, the petition

for writ of certiorari should be granted

14

[| THE FOURTH CIRCUIT PANEL OPINION

CONFLICTS WITH DECISIONS OF A

NUMBER OF UNITED STATES COURTS OF

APPEAL AND THERE IS MUCH CONFLIC’

AND CONFUSION AMONG TIE COURTS

OF APPEAL REGARDING THIS ISSUE

lhe Supreme Court should grant certiorari in

this case to address the uncertainty that exists in

the lower courts about the role of district court

Opinions in determining whether a point of law is

clearly established. The uncertainty appears to be

even greater where, as here, a District Court Judge

finds no constitutional violation on the specific facts

of the case, and a circuit panel disagrees with the

District Court Judge’s conclusion that there was no

constitutional violation. The federal circuits have

dealt with the issue (of how to deal with District

Court opinions in the qualified immunity analysis)

in a variety of ways, leaving the law in this area

uncertain and _ unsettled Government official:

across the country should be provided with a

uniform understanding of when law is clearly

established and this case provides the appropriate

vehicle to do so.

A THIS CASE PRESENTS AN

APPROPRIATE VEHICLE TO

ADDRESS AN ISSUE THE’/SUPREME

COURT HAS DECLINED TO

ADDRESS AT LEAST TWICE

BEFORE

The Supreme Court has explicitly declined to

address this issue in the past In Procunier vy

Navarette, 434 U.S. 555. 565. 98 S. Ct. 855. 861

L.. Kd. 2d 24 (1978), the Court declined to inform thi

lower courts whether the clearly established prong

should be “evaluated by reference to the opinions of

this Court, of the Courts of Appeal, or of the local

Distmct Court],| several years later the Court

reiterated this position in Harlowe v. Fitzgerald, 45%

[| So BOO. B1R nh B82. 102% S. Ct. 29797. Y738R n BY) 73

lund. 2d 396 (1981)

his case present in appropriate vehicle to

iddress this matter because it presents a pure legal

issue: the impact. of District Court Judge decision

that an officer actions did not violate” th

constitution on a Court of Appeal panel later

determination of whether the officer conduct

violated a clearly established right

6 THE ABSENCE OF GUIDANCE ON

THE ROLE OF DISTRICT COUR’

OPINIONS IN THE PROCESS Ol

DETERMINING WHETHER A POINT

OF LAW IS CLEARLY ESTABLISHED

FOR PURPOSES OF QUALIFIED

[IMMUNITY HAS LEAD TO

FRACTURED OPINIONS AMONG

THE COURTS OF APPEAL

In the absence ol speailic guidance from thi

United States Supreme Court on the role of district

court opinions in determining whether a point of law

is clearly established, the circuits have attempted to

fashion their own rules based upon what they

hbeheve the Supreme Court would do. The result

have been anything but uniform

‘The fourth Tenth ind Eleventh Cuireuit

appear to accord the least weight to district court

opinion In these circuits, district court opinion

are not considered at all in determining whether an

issue is Clearly decided. See, e.g Anaya \

Crossroads Managed Care Sy Ine., 195 F.3d 584

94 (10th Cir. 1999) (considering only Supreme

Court, forum circuit, highest state court, or clearly

established weight of authority from other circuit

courts): EKdwards v. City of Goldsboro, 178 8d 231

251 (4th Car. 1999) (considering only Supreme Court

forum circuit and highest state court); Jenkins by

Hall v. ‘Talladeya City Bd. of Educ., 115 F.3d &21

826 n. 4 (l1th Cir.) cert. denied, Jenkins ex rel Hall

v. Herring, 522 U.S. 966, 118 S. Ct. 412, 139 L. Ed

dd 315 (1997)(same)

The Second, Third, and Seventh Circuits use

district court opimions in determining whether a

particular point of law is clearly established, but thi

district court opinions are not dispositive on the

issue. Doe v. Dehe, 257 F.4d 309, 321 n.10 Csd Cir

2001) (“We have held that district court decisions do

not establish the law of the circuit, and are not even

binding on other district courts within the district

Yet, as our prior decisions have illustrated, district

court opimions do play a role in the qualified

lmmunity analysis.”), Anderson v. Romero, 72 F.3d

18, 525 (7th Cir. 1995) [District court: opinions]

ire evidence of the state of the law. Taken togethe:

with other evidence, they might how that the law

had been clearly established. But by themselves they

cannot clearly establish the law because, while they

bind the parti hy Virtue 7) th goctrine oO] re

judicata they are not authoritative a preced nt and

17

therefore do not establish the duties of nonparties.”);

Jermosen v. Smith, 945 F.2d 547, 551 (2d Cir. 1991)

(“We note, however, that because this decision was

rendered in the Southern District of New York, it

could not, by itself, clearly establish a principle of

law in the Western District of New York where

Attica is situated.... Thus, it seems that the state of

the law...was unclear at the time Lippold and the

other defendants acted.”).

The Sixth, Eighth, and Ninth Circuits fall at

the opposite end of the spectrum from the Fourth,

Tenth and Eleventh circuits. These circuits allow a

district court to determine that a right is clearly

established based upon the district court's own

precedent. Ohio Civil Serv. Employees Ass'n _v.

Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988) (Our

review of the Supreme Court's decisions and of our

own precedent leads us to conclude that, in the

ordinary instance, to find a clearly established

constitutional right, a district court must find

binding precedent by the Supreme Court, its court of

appeals or itself.”): Hayes v. Long, 72 F.3d 70, 73-74

(8th Cir.1995) (“{I]Jn the absence of binding

precedent, a court should look at all available

decisional law including decisions of state courts,

other circuits and district courts....”) (quoting Tribble

v. Gardner, 860 F.2d 321, 324 (9th Cir. 1988), cert.

denied, 490 U.S. 1075, 109 S. Ct. 2087, 104 L. Ed. 2d

650 (1989)).

Moreover, even panels and judges within the

various circuits use conflicting approaches in

analyzing how reasonable decisions of federal

district court judges affect the qualified immunity

18

analysis. Thus, while in the instant case, a Fourth

Circuit. panel ignored the fact that a federal District

Court Judge found no constitutional violation,

another Fourth Cirewt panel (in an opinion issued

less than a month before the panel opinion in the

instant case) held that a public officer was entitled to

qualified immunity because the District Court Judge

had found no constitutional violation, even though

the panel disagreed with the District Court Judge on

that point. See Doe v. Johnson, 597 F.3d 163, 176

(4th Cir. 2010) (“[w]hile we disagree with the district

court’s interpretation [of the law], we do not view the

interpretation to be unreasonable”). See also, e.g.,

Shotland v. City of Torrance, 189 Fed. Appx. 615

(9th Cir. 2006) (Bybee, J., dissenting) (“But the very

fact that this question could reasonably have been

resolved in either of these two ways means that,

almost by definition, “it would [not] be clear to a

reasonable officer that his conduct was unlawful,”

and the defendants are therefore entitled to qualified

immunity.); Gable v. Lewis, 201 F.3d 769, 773 (6th

Cir. 2000) (Nelson, J., dissenting) (“The underlying

issue in the case at bar ... is one on which there has

heretofore been no controlling Supreme Court or

Sixth Circuit authority and as to which federal

judges of reasonable competence could disagree and

in fact have disagreed. Because I do not think we

ought to require Highway Patrol officers to be more

prescient than Article II] judges when it comes to

divining future developments in the law, I would

recognize the defendants’ right to qualified

immunity here.”); Lassiter v. Alabama A & M Univ.,

28 F.3d 1146, 1149-52 (11th Cir. 1994) (“We cannot

realistically expect that reasonable police officers

know more than reasonable judges about the law.”);

19

Swanson v. Powers, 937 F.2d 965, 968 (4th Cir.1991)

(“Since qualified immunity 1s appropriate if

reasonable officers could disagree on the relevant

issue, 1t surely must be appropriate when reasonable

jurists can do so.”), cert. denied, 502 U.S. 1031, 112

S. Ct. 871, 116 L. Ed. 2d 777 (1992): Busnes V.

Hart, 316 Fed. Appx. 201, 2009 WL 567227 (3d Cir.

2009) (holding that officers were entitled to qualified

immunity where one federal District Court Judge

concluded the officers’ actions were constitutional,

reasoning that “when reasonable jurists arrive at

differing conclusions as to the lawfulness of an

officer’s conduct, it is difficult to say that the conduct

in question violated clearly established law”). See

also Davis v. Scherer, 468 U.S. 183, 196 n. 13, 104S

Ct. 3012 at 3020 n.13, 82 L. Ed. 2d 139 (198 4)

(“unfair and impracticable” to hold public officials to

the same level of knowledge as trained lawyers).

Obviously, these varied approaches to

determining when a district court opinion can be

used to determine that a right is clearly established

lead to disparate treatment by Courts of Appeal, and

conflicting results. For example, in Tenenbaum vy.

Willams, 193 F.3d 581, 600 (2d Cir. 1999), the

Second Circuit held that

it is particularly difficult to conclude

that the individual defendants’

behavior was wrongful under “clearly

established” Fourth amendment

principles in light of the district court’s

carefully considered decision that it did

not violate the Fourth amendment at

20

all, even though we ultimately disagree

with that conclusion.

Id. at 605. The Second Circuit’s opinion is in stark

contrast to the Fourth Circuit panel opinion in this

case where the district court issued a carefully

considered decision that Officer Hudson’s conduct

did not violate the Constitution, but the Fourth

Circuit panel not only disagreed with that

conclusion, but found (without addressing or

discussing the District Court Judge's analysis) that

the law was “clearly established.” ‘The Court should

erant certiorari to resolve this split among the

circuits and provide a uniform rule for the role of

district court opinions in the qualified immunity

analysis.

The practical result of the Fourth Circuit

panel opinion’s decision in the instant case is that

law enforcement officers in the Fourth Circuit will

no longer be judged on whether a reasonable officer

would have viewed his actions as violating clearly

established law, but instead they will be judged on

whether a court of appeals panel will view their

actions as violating the Constitution. Given the

unpredictable, rapidly-changing, and often

dangerous circumstances that confront law

enforcement officers, expecting these officers “to

predict the future course of constitutional law,”

Procunier v. Navarette, 434 U.S. 555, 562, 98 S. Ct.

855, 55 L. Ed. 2d 24 (1978), before they act could

have disastrous results.

The issue of whether a disagreement among

reasonable judges indicates that an issue is not

2]

clearly established has confounded a number of

Court of Appeals, Court of Appeals panels, and

judges. The lack of clarity on this issue among the

lower courts means that the strength of a

defendant’s qualified immunity defense will depend

on where a case was filed. Given the importance of

the defense of qualified immunity to government

officials, the federal courts should speak with one

voice on this issue. A grant of certiorari would

provide the court with a vehicle to address the

Fourth Circuit panel’s improper denial of qualified

immunity and to resolve the uncertainty between

the circuits on this issue.

CONCLUSION

For the foregoing reasons, the petition for a

rb b

writ of certiorari should be granted.

Respectfully submitted,

Ln Pon —

AMES R. MORGAN, IR

Counsel of Record

ROBERT T. NUMBERS, II

WOMBLE CARLYLE SANDRIDGE & RICE, PLLC

One West Fourth Strect

Winston-Salem, NC 27101

(336) 721-3600

APPENDIX

App. 1

APPENDIX TABLE OF CONTENTS

Page

Unpublished Opinion of

The United States Court of Appeals

For the Fourth Circuit

OEGOPOR BOPkl 1 FOTO vais ccicctesvascsnserceseen App. 1

Judgment of

The United States Court of Appeals

For the Fourth Circuit

entered April 1, 2010......... . _App. 14

Judgment of

The United State District Court

For the Eastern District of North Carolina

CREP DING GB DIG a vaccisecscsescscesssstecesus App. 17

Order of

The United States Court of Appeals

For the Fourth Circuit

Re: Denying Petition for Rehearing

lol

entered April 27, 2010.............. isscuseveer SE

Order of

The Honorable Louise W. Flanagan

Re: Granting Defendants’

Motion for Summary Judgment

entered May 8, 2008.............................. ADP. 22

App. 1

(ENTERED: APRIL 1, 2010]

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-1644

HILARIE G. SCARBRO, Admiunistratrix of the

Estate of Gary Eugene Rummer,

Plaintiff — Appellant,

Vs

NEW HANOVER COUNTY; NEW HANOVER

COUNTY SHERIFF'S DEPARTMENT; NEW

HANOVER COUNTY JAIL; SIDNEY A. CAUSEY,

Individually and in his capacity as Sheriff of New

Hanover County; J.T. LEONARD, Individually and

in his official capacity as detective of the New

Hanover County Sheriffs Department; E. MORTON,

Individually and in his official capacity as deputy of

the New Hanover County Sheriffs Department; B.R.

HUDSON, Individually and in his officia] capacity as

deputy of the New Hanover Sheriffs Department;

T.L. FUSS, Individually and in his official capacity

as corporal of the New Hanover County Sheriffs

Department; D.E. KEYES, Individually and in his

official capacity as deputy of the New Hanover

County Sheriffs Department; MR. HANSEN,

App. 2

Individually and in his official capacity as deputy of

the New Hanover County Sheriffs Department; J.P.

HATCH, Individually and in his official capacity as

sergeant of the New Hanover County Sheriffs

Department; M. GRIMES, Individually and in his

official capacity as deputy of the New Hanover

County Sheriffs Department; MR. WARD,

Individually and in his official capacity as deputy of

the New Hanover County Sheriffs Department; S.

JONES, Individually and in his official ‘capacity as

deputy of the New Hanover County Sheriff's

Department; W. THOMAS PARKER, Individually

and in his official capacity as chief deputy of the New

Hanover County Sheriffs Department; CLARENCE

A. HAYES, Individually and in his official capacity

as captain of the New Hanover Sheriffs Department;

ANGELA GOEBEL, Deputy, Individually and/or in

her official capacity; DENNIS KUTROW, Deputy,

Individually and/or in his official capacity; DEPUTY

DRAKOW, Deputy Sheriff, individually and in his

official capacity; DEPUTY FRINK, Deputy Sheriff,

individually and in his official capacity,

Defendants — Appellees,

and

SUSAN BARFIELD, R. N., Individually and in her

official capacity; GAYSHERON BELL, Deputy,

Individually and in her official capacity as an

employee of the New Hanover County Health

Department; NEW HANOVER COUNTY HEALTH

DEPARTMENT; JANET MCCUMBIE, Individually

and in her official capacity as Personal Health

Director of the New Hanover County Health

App. 3

Department; PENNY RAYNER, FNP, Individually

and in her official capacity; DAVID RICK,

Individually and in his official capacity as Health

Director of the New Hanover County Health

Department,

Defendants

Appeal from the United States District Court for the

Eastern District of North Carolina, at New Bern.

Louise W. Flanagan, Chief District Judge. (7:03-cev

00244-F'L)

Argued: December 1, 2009

Decided: April 1, 2010

Before KING and SHEDD, Circuit Judges, and John

Preston BAILEY, Chief United States District Judge

for the Northern District of West Virginia, sitting by

designation.

Affirmed in part, reversed in part, and remanded by

unpublished opinion. Judge Shedd wrote the opinion,

in which Judge King and Judge Bailey joined.

John Dwight Hudson, HUDSON & GENTRY, LLC,

Myrtle Beach, South Carolina, for Appellant. James

R. Morgan, Jr., WOMBLE, CARLYLE, SANDRIDGE

& RICE, PLLU, Winston-Salem, North Carolin

Appellees

Unpublished opinions are not binding |

this circuit

SHEDD, Circuit Judgi

Hilarie G. Scarbro, Admunistratrix of th

Estate of Gary Eugene Rummer, appeal! the

judgment entered in favor of the defendants on her

claims under 42 U.S.C. § 1983 for excessive force

inadequate medical care, and conspiracy to deprive

Rummer of his constitutional mnght: For the

following reasons, we affirm in part, but we revers

the district court’s order vranting summary

judgment in flavor of Defendant Deputy Billy Ray

Hudson on the inadequate medical care claim, and

we remand for further proceeding consistent with

this opinion

[In reviewing the district court's order granting

summary judgment to the defendants, we view thi

facts in the light most favorable to the plaintiff. Scott

v. Harris, 550 U.S. 372, 378 (2007). Gary Eugene

Rummer was arrested and incarcerated for failure to

serve the community service portion of his sentence

for driving under the influence of alcohol. A few days

after he was incarcerated, Rummer began having

delusions and summoned a guard. After learning of

App. o

Rummer’s alcohol addiction, the guard determined

that Rummer was suffering from delirium tremens

(“DTs”) caused by alcohol withdrawal and moved

him to a safekeeping cell for inmates who have

medical or mental health issues or who are

disruptive. Later that morning, Rummer was taken

to the medical unit where Nurse Barfield examined

him and treated him for DT’s. Rummer was alert,

onented, and walking on his own

Upon his return to the crowded safekeeping

cell, Rummer was stumbling over the other inmates’

mats and bothering them. When the other inmates

complained, Deputy Billy Ray Hudson was ordered

to move Rummer to a padded cell, Officer Melody

Grimes accompanied Hudson and guarded the door

to the safekeeping cell

Hudson entered the room in a “bum rush.” He

approached Rummer and grabbed Rummer’s arm to

handcuff him, but Rummer did not cooperate. At

that point, Hudson took him to the concrete floor

head-first from a standing position. Other inmates

recalled Rummer’s head hitting the floor with a thud

and then hearing Rummer give a “horrific” scream

After the takedown, Rummer was bleeding

from a scratch above his eye. Because Rummer could

not walk on his own, the guards carried him to a

padded cell where he laid moaning on the cell floor.

A supervising officer then decided to call the medical

unit, and after the medical staff refused to come to

the cell, Hudson and two other officers lifted

Rummer into a wheelchair and transported him to

the medical unit.

| LITid I (

art} r He Wa no

Rummer

not fall and failed t

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humme! physician

treating

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Barheld prescribed medi

recommended that Rumn

Central Prison, a la: faci

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insported to Central Prison

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First, Scarbro argues that the district court

erred in granting Hudson summary judgment on the

excessive force claim. A pretrial detainee’s claim of

excessive force is governed by the Due Process

Clause of the Fourteenth Amendment. Orem vy.

Rephann, 523 F.3d 442, 446 (4th Cir. 2008). To

succeed on such a claim, the plaintiff must

demonstrate that the defendant “inflicted

unnecessary and wanton pain and suffering” upon

the detainee. Whitley v. Albers, 475 U.S. 312, 320

(1986); Iko v. Shreve, 535 F.3d 225, 239 (4th Cir.

2008). This determination turns on whether the

force was applied “in a good faith cffort to maintain

or restore discipline or maliciously and sadistically

for the very purpose of causing harm.” Whitley, 475

U.S. at 320-21 (internal quotation marks omitted);

Wilkins v. Gaddy, U.S. , 180 S.Ct. 1175

(2010) (describing this as the “core judicial inquiry”)

Moreover, we must accord due deference to an

officer's efforts to restrain a detainee when faced

with a dynamic and potentially violent situation:

otherwise, “we would give encouragement to

insubordination in an environment which is already

volatile enough.” Grayson v. Peed, 195 F.3d 692, 697

(4th Cir. 1999).

To the extent that there are differences in thi

witnesses testimony regarding how the takedown

occurred, there is no evidence suggesting that

Hudson apphed force in a malicious, wanton, or

sadistic manner. When Hudson grabbed Rummer’s

arm to handcuff him, Rummer did not cooperate:

Hudson then took Rummer to the floor, which was

covered by mats, a1

takedown, the mats

1d handcuffed

covering the

him. During the

floor apparently

shifted, allowing Rummer’s head to hit the concrete

is not. evidence that Hudson's

floor. However. this

purpose was mal

icloUs., Sadistic or wanton

Therefore. we find that the evidence fails to establish

that Hudson used

Rummer. According!

excessive force in subduing

y, we affirm

rder granting summary judgm«

Scarbro’'s claim of ex

Cali

I also

‘PSS1IVEC t( ree

argues that

red in granting Hudson summa

her inadequate med

the district court's

to Hudson

ry juagment as ti

ical cure claim. She challenge

the district court's finding that there is no genuine

sue of material

ipjectiveiy Knew

;

. |

, hea

Hudson's conduct

violation. Henry v

fact aS TO

constituted

|

}

Purnell, 50]

ith Cir. 2007). The mghts of a

‘complaining of inad

equate medi

Fourteenth Amendment “are at le

Kighth Amendment protections

‘convicted prisoner.”

Gen. Hosp., 463 U.S. 2

laim of inadequate.

City of Revere v

whether Hudson

tablishing tha

a CONStILULIONA!

a

KE 3d af4. Sfi Zz

pretrial detainee

‘al care under the

ast as great as thi

available’ to

Massachusetts

J, 244 ( 1983). To prevail on a

are Searhro must

App. 10

produce evidence of acts or omissions sufficiently

harmful to constitute deliberate indifference to the

inmate’s serious medical needs. Estelle v. Gamble,

429 U.S. 97, 106 (1976).

First, Scarbro must show that the injury was

objectively serious. Farmer _y. Brennan, 511 U.S.

825, 834 (1994). Then, she must show that Hudson

subjectively knew of Rummer’s serious medical need.

Id. at 834-35. A factfinder may infer that a prison

official knew of a substantial risk of harm from the

fact that the risk was obvious, id. at 842, or from the

fact that the inmate’s need for medical attention was

“so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.” Iko,

535 F.3d at 241 (citation omitted). Finally, Scarbro

must show that Hudson acted with deliberate

indifference to Rummer’s serious medical need.

Farmer, 511 U.S. at 835. An officer can be held liable

for deliberate indifference only where “the official

knows of and disregards an excessive risk to inmate

health or safety.” Id. at 837; see Parrish ex_rel. Lee v.

Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (citation

omitted) (“[T]he evidence must show that the official

in question subjectively recognized that his actions

were ‘inappropriate in light of that risk.’”).

Turning to the facts at hand, we must first

decide whether Rummer suffered from an objectively

serious medical condition. Viewed in the light most

favorable to Scarbro, Rummer hit the concrete floor

head-first, screamed out in excruciating pain, and

was bleeding above his eye. Rummer’s glasses were

broken, he had urinated on himself, he was unable to

speak coherently, and he was unable to walk. In

App. 1]

view of this evidence, it is clear that Rummer had an

objectively serious medical need after the takedown.

We now consider whether Hudson subjectively

recognized Rummer’s serious medical need. After

taking Rummer to the floor, Hudson observed that

Rummer'’s condition had seriously deteriorated.

Because the substantial risk of harm to Rummer

was so obvious, a jury could infer that Hudson knew

that Rummer had a serious medical need. See

Farmer, 511 U.S. at 842. Therefore, the district court

erred in finding that Scarbro failed to provide

sufficient evidence to show that Hudson knew that

Rummer was at serious risk of head injury.

Finally, we turn to whether Hudson acted

with deliberate indifference toward Rummer’s

serious medical need. Nurse Barfield specifically

asked Hudson if Rummer had fallen, and Hudson

told her that he had not. Further, Hudson did not

inform her how Rummer sustained his injuries or

that he had used force against Rummer. Nurse

Barfield’s question should have alerted Hudson to

the importance of her knowing whether Rummer

sustained any physical impact, whether or not his

fall was caused by use of force. Nurse Barfield

explained that if she had known about the takedown,

she would have treated Rummer for a head injury

(rather than for D's) and immediately sent him to

the Emergency Room. Evidence of Hudson's

misrepresentation of critical medical information

requested by medical personnel is sufficient to raise

a reasonable inference that he recognized that his

response was inappropriate in light of Rummer’s

serious medical need. See Parrish ex rel. Lee, 372

App. 12

F.3d at 303. Therefore, we conclude that Scarbro

provided sufficient evidence to raise a genuine issue

of material fact as to whether Hudson was

deliberately indifferent to Rummer’s serious medical

need.

Having determined that there is sufficient

evidence of a constitutional violation as to the

inadequate medical care claim, we must now

consider whether Hudson is entitled to qualified

immunity. See Pearson v. Callahan, 555 U.S. ;

129 S.Ct. 808, 815-16 (2009). Qualified immunity is

resolved using a two-prong analysis: whether the

plaintiff provided sufficient facts to make out a

constitutional violation and whether the right at

issue was clearly established at the time of the

alleged violation. Id. Having found that Scarbro has

met her burden as to the first prong, we must now

determine whether Hudson’s alleged misconduct

“violate[d] clearly established = statutory = or

constitutional rights of which a reasonable person

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

800, 818 (1982). Hudson bears the burden proving

that the right at issue here was not clearly

established. Henry, 501 F.3d at 378.

A right is clearly established where it has

been specifically identified so “as to leave no doubt

that the challenged action was unconstitutional.”

Swanson v. Powers, 937 F.2d 965, 969 (4th Cir.

1991). “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 the light of pre.

existing law the unlawfulness must be apparent.”

App. 13

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

quotation marks omitted). Thus, in determining

whether a right was clearly established, the key

issue 1s “whether it would be clear to a reasonable

officer that the conduct was unlawful in the

situation he confronted.” Saucier, 533 U.S. at 194-95.

We have denied qualified immunity to an

officer who transferred custody of a detainee to

another officer without informing the officer that the

detainee was suicidal. See Gordon, 971 F.2d at 1096-

97. The misconduct in the instant case is even more

egregious than that in Gordon because Hudson

misrepresented critical medical information that was

specifically asked for by medical personnel, and a

‘easonable inference from this inquiry is that the

requested information was necessary to properly

treat Rummer’s injuries. Unlike Gordon, where the

officer failed to offer information, Hudson

affirmatively misrepresented relevant medical

information. No reasonable officer could have

believed, in light of clearly established law, that such

a misrepresentation was lawful under’ these

circumstances. Therefore, Hudson is not entitled to

qualified immunity.

For the foregoing reasons, we affirm in part,

reverse in part, and remand for further proceedings

consistent with this opinion.

AFFIRMED IN PART,

REVERSED IN PART,

AND REMANDED

App. 14

[ENTERED: APRIL 1, 2010]

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-1644

(7:03-cv-00244-FL)

HILARIE G. SCARBRO, Admuiunistratrix of the

Estate of Gary Eugene Rummer,

Plaintiff — Appellant

V.

NEW HANOVER COUNTY; NEW HANOVER

COUNTY SHERIFFS DEPARTMENT; NEW

HANOVER COUNTY JAIL; SIDNEY A. CAUSEY,

Individually and in his capacity as Sheriff of New

Hanover County; J.T. LEONARD, Individually and

in his official capacity as detective of the New

Hanover County Sheriffs Department; E. MORTON,

Individually and in his official capacity as deputy of

the New Hanover County Sheriffs Department; B.R.

HUDSON, Individually and in his official capacity as

deputy of the New Hanover Sheriffs Department;

T.L. FUSS, Individually and in his official capacity

as corporal of the New Hanover County Sheriff's

Department; D.E. KEYES, Individually and in his

official capacity as deputy of the New Hanover

County Shenffs Department; MR. HANSEN,

Individually and in his official capacity as deputy of

the New Hanover County Sheriffs Department; J.P.

App. 15

HATCH, Individually and in his official capacity as

sergeant of the New Hanover County Sheriffs

Department; M. GRIMES, Individually and in his

official capacity as deputy of the New Hanover

County Sheriff's Department; MR. WARD,

[Individually and in his official capacity as deputy of

the New Hanover County Sheriffs Department; S

JONES, Individually and in his official capacity as

deputy of the New Hanover County Sheriffs

Department; W. THOMAS PARKER, Individually

and in his official capacity as chief deputy of the New

Hanover County Sheriffs Department; CLARENCE

A. HAYES, Individually and in his official capacity

as captain of the New Hanover Sheriffs Department;

ANGELA GOEBEL, Deputy, Individually and/or in

her official capacity; DENNIS KUTROW, Deputy,

Individually and/or in his official capacity; DEPUTY

DRAKOW, Deputy Sheriff, individually an in his

official capacity; DEPUTY FRINK, Deputy Sheriff

individually and in his official capacity

Defendants ~— Appellees

and

SUSAN BARFIELD, R. N., Individually and in her

official capacity; GAYSHERON BELL, Deputy,

Individually and in her official capacity as an

employee of the New Hanover County Health

Department; NEW HANOVER COUNTY HEALTH

DEPARTMENT; JANET MCCUMBIFE, Individually

and in her official capacity as Personal Health

Director of the New Hanover County Health

Department; PENNY RAYNER, FNP, Individually

an in her official capacity; DAVID RICE

A

F >| Aw ¢ vate

IW i dutVrud visi I d pl

UINITED STATES DISTRICT COURT

Kastern District of North Carolina

SOUTHERN DIVISION

ludgment in a Civil Case

VoRT Nismber er i tT he 24 4.]

»

yp WR { (Ji |

' f . dar

Decision by Court. ‘T'his action

aring before the Court. The 1 ues have been t1

ieard and a decision has been re

IS ORDERED, ADJUDGED AND DECREED

hat defendants’ motion for summary judgment 1

rRANTED as to plaintiffs remaining claims. Thi

remaining motions of or relating to trial issues, art

DENIED as MOOT. where the Clerk of Court

lirected to discontinue the case from the trial docket

1 now to CLOSE the

, RDERI } I

7 ) ty | [ }

NITED STATES COURT OF APPEAI

FOR THE FOURTH CIRCUIT

HILARIE G CARBRO Adm

NEW HANOVER COUNTY; NEW HANOVER

COUNTY SHERIFF'S DEPARTMEN’ NEW

HANOVER COUNTY JAIL; SIDNEY A. CAUSEY

Individually and in his capacity as Sheriff of New

Hanover County; J.T. LEONARD, Individually and

in his official capacity as detective of the New

Hanover County Sheriffs Department; E. MORTON

Individually and in his official capacity as deputy of

the New Hanover County Sheriffs Department; B.R

HUDSON, Individually and in his official capacity a

deputy of the New Hanover Sheriffs Department

T.L. FUSS, Individually and in his official capacity

as corporal of the New Hanover County Sheriff

Department; D.E. KEYES, Individually and in hi

official capacity as deputy of the New Hanover

County Sheriifs Department MR. HANSEN

Individually and in his official capacity as deputy of

the New Hanover County Shenffs Department; J.P

{ UNITED STATES DISTRICT COl

FOR THE EASTERN DISTRICT O]

NORTH CAROLINA

SOUTHERN DIVISION

motion

A4TY 17

LALLIS ila Ld

plaintiff responded February

lave replied In this pos

ee May 19. 2008,

; " .

¢ 1eC1Si0n

>

I

or

tan

Y)

4

act

relating

©

|

ind inadequate

New

il the

16, 2003. (Compl. 4/4] 2, 20, 26-27, 32). Plaintiff

ymplains of federal civil rights violations pursuant

42 U.S.( § 1983 (“§ 1983"), and medical

malpractice ind wrongful death ler Nort]

irolina state law. (1d. at 4/4} 33-70

he procedural history of the casi i length

In order entered May 5 004, the cow

iddressed several motions to dismiss, and dismiss‘

ill claims against defendants New Hanover County

New Hanover County Sheriffs Department, an

New Hanover County Jail, in addition to plaintif

nspiracy claims, redundant official capacity claim

ind plaintiff's ums for punitive damages again

lefendant New Hanover County Health Departm:

nd certain individual defendant n their offic

pa ] [ related i 1d

1@} I 14

I i A

ns { ummary judgn

New H County Health Departm

Yew Hanoy ( ity Sheriff Yepartm:

lism} imerou lividual defendar

ition of disn al Ww

M ,{) ) Be

4 [

n Wecemb

» Rumme

medical treatment whil

Hanover

(

§y gar AP

.s

sounty

rs alleged physical

a detainee

Jail on or

about

anuary 14.2003. and his subsequent death January

Remaining defendants, |

ity as Shenff of New

3.R. Hudson, a Deputy

lividually and in his capa

Hanover County (‘Causey’), |

f the New Hanover County

Hudson”), W. Thomas Parke

New Hanover County

‘Parker’), and Clarence A

New Hanover County

Hayes’), filed the instant

judgment January 2, 2008,

plaintiffs remaining claims.

.

f 4

1) plaintiffs first cause of

it

LJ 1 T tor oO oO \ Tore 1y

rmuason ior excesslvé LULU ln

plaintiffs second cause of act

rausey, Parker, and MHayes

} ]

xecuting policies which caus

rce 1n violation of §& 1983

ction against def

nedical care under § 1983; (4)

ction iwainst defenday

( lor aaoptiny and ext

juat medical cars

plaintiff nth

LD] ¢] t I il Cate v\ i

inst NM ] I \ ral

nstant moti ported

. { } { Ye ;

II iry I [

m1

Sheriffs Department

r, Chief Deputy of the

Sheriffs Department

Hayes, Captain of the

Sheriffs Department

motion for summary

+

seeking dismissal of

These claims include

tion against defendant

violation of § 1983; (2)

ion against defendants

for adopting and

ed the US€ of CACeESSIV'

3) plaintiffs third caus

ndant Hudson for inadequat:

plaintiffs fourth cau:

Causey, Parker. and

n wroneviul 1

Ker nd Have th

itfidavit na

tiement tf

c

} itl

App. 20

pursuant to an order for arrest for failure to appear

for driving under the influence, Rummer was

transported to the New Hanover County Jail wher:

he arrived at or around 1:30 a.m., January 10,2003.

(Compl. 44} 18-19; Defs Mem. Supp. Mot. For Summ

J., Ex. A). On January 14, 2003, during a safety

check at or about 4:30 a.m., Deputy Mitchell Marlow

(“Marlow”) heard a knocking on the door of cell 2-0,

where Rummer was being held. (Marlow Aff. § 2)

When Marlow responded to the knock, Rummer told

him that he was addicted to alcohol, and that he had

been kidnaped by a federal housing agency and put

to work as a painter. (id. at 4] 3). Marlow informed

his sergeant that Rummer appeared to be suffering

from ‘the DTs” /delirium tremens], a symptom of

alcohol withdrawal, prompting the sergeant to direct

Marlow to arrange for Rummer’s transfer to a

safekeeping cell. (Id. at 44 2-4)

Shortly thereafter, Rummer was transferred

to cell 423 by Deputy Kelly Vernon (“Vernon”). (id. at

4 5). Cell 423 is a safekeeping cell which, instead of

having bunks. has one mat on the floor of the cell for

each inmate being held in the cell. (Hudson Dep. pp

At approximately 7:00 a.m., Rummer was

taken for purposes of medical examination to Susan

Barfield (“Barfield”), a nurse, who noticed shght

tremors about his person, and prescribed Vistaril te

treat what she perceived to be symptoms of alcohol

withdrawal. (Barfield Dep. pp. 21, 49-50). Rummer

was returned to cell 423, where he continued to

exhibit unusual behavior. (Chne Dep. pp. 18,64

App. 26

Mikol Dep. pp. 13-14, 26, 29)? Other inmates in cell

423 began yelling to guards, asking them to remove

Rummer, fearing that his behavior was going to

result either in injury to himself or injury to

somebody else. (Goebel Dep. p. 9; Cline Dep. pp. 64-

65; Mikol Dep. p. 31). Goebel reported the situation

to her supervisor, Sergeant Frederick Hatch

(“Hatch”). (Goebel Dep. p. ID).

Following an order from Hatch to assess the

situation, defendant Hudson approached cell 423

and observed Rummer pulling on another inmate’s

sheet, mumbling to himself, standing overtop of

another inmate, and taking items from other

inmates. (Hudson Dep. pp. 14,28). Defendant

Hudson reported these observations to Hatch, who

directed defendant Hudson to transfer Rummer from

cell 423 to cell 419 for safety purposes. Ud. pp. 40-

42). Hatch noted that “the information in the

computer was that [Rummer] drank alcohol and may

possibly be suffering from the DT’s.” (Hatch Dep. Ex.

1). Officer Melody Grimes (“Grimes”) testified that

“they said he was going through DT’s and that he

was possibly bumping his head on the wall.” (Grimes

Dep. p. 31). Cell 419 is a padded cell wherein

prisoners who are suicidal or violent are placed for

their own safety. (Hudson Dep. p. 41 ).

Defendant Hudson entered cell 423 by himself

while Grimes stood watch by the door. (id. pp. 42-

Timothy Cline (“Cline”) was an inmate at New Hanover

-

County Jail on January 14,2003, and was in cell 423 with

Rummer. (Cline Dep. p. 10). Sean Mikol (“Mikol’) was an

inmate at the New Hanover County Jail on January 14,2003,

and shared a cell with Rummer. (Mikol Dep. pp. 6-7

App. 27

43). Defendant Hudson testified that he ordered

Rummerto come out ofthe cell three times, and

received no response. (Id. p. 48). This account is

corroborated by Grimes, who testified that she heard

defendant Hudson tell Rummer that he was being

moved to a different cell (Grimes Dep. p. 10), and by

inmate Mikol, who testified that he heard defendant

Hudson ask Rummer to get up and come with him,

then advise Rummer that he was going to be moved

to a different cell. (Mikol Dep. pp. 36-37, 77). Inmate

Cline testified that he did not recall! hearing

defendant Hudson say anything to Rummer before

defendant Hudson took Rummer down. (Cline Dep.

p. 24).

Defendant Hudson testified that, after

Rummer failed to respond to his verbal commands,

he touched Rummer on the right arm and said “Mr.

Rummer, you need to come with me,” at which time

Rummer jerked away from him. (Hudson Dep. at 49).

Defendant Hudson then grasped Rummer’s right

arm with his right hand. and pushing Rummer

downward with his left hand, forced him towards the

floor. (Id.) Rummer, who had been seated on a bench,

came into contact either with the concrete floor ofthe

cell, mats which were covering the concrete, or both.

(id. at 48-50, 57, 62; Cline Dep. p. 24). Defendant

Hudson testified that Rummer caught himself with

his left arm and wound up prone on the mat with his

left arm under him. and that Hansen arrived and

helped secure the handcuff on the left arm. (Hudson

Dep. p. 58). Defendant Hudson testified that he

forced Rummer to the floor rather than asking him

to stand up because “if he stand up, that could be

App. 28

more of a threat to me than actually putting him on

the —across the mats on the floor.” (Id. at 52).

When Rummer resisted being handcuffed.

Grimes called for backup. (Hansen Aff. 94 3, 5;

Grimes Dep. pp. 10, 21-22). Hatch and Officer Hugo

Hansen (“Hansen”) responded to assist. (Hansen Aff.

{| 5; Hudson Dep. p. 80). Hansen remembers helping

defendant Hudson handcuff Rummer, but Hatch

believed that Rummer had already been cuffed upon

their arrival. (Ilansen Aff. { 5; Hatch Dep. Ex. 1).

Rummer was removed from cell 423 immediately,

and taken to cell419 by Hansen and Hatch. (Grimes

Dep. p. 11: Hansen Aff. 4] 6; Hudson Dep. p. 80).

Rummer was partially walking and partially

being carried during this period oftransportation

from cell 423 to cell 419. (Hansen Aff. § 7; Grimes

Dep. p. 31). Defendant Hudson had torn the rubber

gloves that he was wearing, and stayed behind in

cell 423. (Hudson Dep. p. 81). On the way to cell 419,

Rummer was mumbling and told Hansen that he

“wantfed] to go home.” (Ilansen Aff. {| 8). When

Rummer arrived at cell 419, Hatch was behind

Rummer, holding his armpits. dd. at §} 10). There

was at that time another inmate lying on the floor in

cell 419, and as Rummer stepped into cell 419, he

tripped over the second inmate and fell to the floor,

striking his chest and right shoulder. (Id.) Hatch

sought to catch Rummer but was unsuccessful. and

Rummer fell to the padded floor. (1d.)

When defendant Hudson caught up with the

others and arrived at cell 419, Rummer was on the

floor of the cell, curled in a fetal position, and being

App. 29

attended to by Deputy Keyes. (HudsonDep. p.835).

Defendant Hudson testified that there was some

blood on the mats that covered the floor of the cell,

and that Keyes then noticed that there was a scratch

or cut above Rummer’s right eye. (id.) Rummer was

conscious at that time. (Id.) There is no evidence

before the court suggesting that defendant Hudson

was aware of how Rummer came to be on the floor in

cell 419.

Hatch ordered Rummer evaluated by medical

staff. (Hatch Dep. 39; Hansen Aff. § 10). Defendant

Hudson, who was retrieving new rubber gloves from

the control room of the New Hanover County Jail.

was not present when the medical department was

contacted. (Hudson Dep. p. 143). Defendant Hudson,

Hansen, and Ward transported Rummer by

wheelchair from cell 419, to the jail’s medical

department. (Hansen Aff. {| 111; Hudson Dep. pp.

94-96; Ward Aff. 4 6).

By all accounts the injury above Rummer’s

eye was relatively minor. Hatch noticed “a little

scratch’ that “was not bleeding.” (Hatch Dep. p. 41).

Hansen stated that he “did not even notice the

scratch until Sergeant Hatch pointed it out.”

(Hansen Aff. {| 10). Defendant Hudson did not notice

it until he arrived at cell 419. (Hudson Dep. p. 86). In

her notes, Barfield described it as “three small

scratches” and noted that the wound was _ not

bleeding. (DE # 46-5 (Barfield Notes) p. 2)

Defendant Hudson testified that, after cleaning the

wound, Barfield said “it did not need any stitches,

that it would be fine.” (Hudson Dep. 105). Although

the origins of the injury are not certain, Barfield’s

App. 30

notes show that defendant Hudson advised her that

“he thought the scratches came from when

[Rummer’s] glasses became broken.” (Hudson Dep. p

80; DE # 46-5 (Barfield Notes) p. 2).

The record relied upon in support of and in

opposition to the instant motion reveals the presence

of five people in proximity to Rummer at time of his

second examination, including two nurses, Barfield

and Gaysheron Bell (“Bell”),3 and three officers

Hansen, Ward, and _ defendant Hudson. It

illuminates through the testimony of Barfield and

defendant Hudson, and the affidavits of Hansen and

Ward, a cursory examination of Rummer by medical

staff, resulting in the administration of medications

per protocol for symptoms of alcohol withdrawal

(Hudson Dep. p. 101, 105; Barfield Dep. p. 43

Hansen Aff. { 12). Notes made by Barfield

contemporaneous with the examination recite in

part

Reliance on Bell's testimony at deposition is limited to

single page ofthe transcript introduced by plaintiff relating t

examination on medical protocol. Facts pertaining to Rummer’

second presentation to the medical department are adduced by

the parties through introduction of Barfield and defendant

Hudson's testimony at deposition

App. 3]

There are three sm. scratches into and

little beside right eyebrow. Cleansed

[with water] but [no] blood noted on

cotton ball and none on jumpsuit.

Entire head [and] scalp area felt [and]

checked for lumps, ‘sumps, or skin

breaks fand none] found. Asked

attending deputy [defendant Hudson]

if perhaps inmate had fallen recently

fand] he stated he thought scratch

came from when [patient’s] glasses

became broken

Hi # 46-5 (Barfield Notes) Dp

Barfield testified that Rummer was

“completely changed” from the first time that she

had seen him. (Barfield Dep. p. 28). Rummer, now

wearing a urine-saturated jumpsuit, kept trying to

slide out ofhis wheelchair. (Id. at 25). Barfield

checked Rummer’s head and scalp area for lumps,

bumps, or skin breaks, but found none. (Id. at 31).

Barfield cleaned the cut above his eye. (Id.; DE # 46-

5 (Barfield Notes) p. 2). Barfield testified aft

deposition that she did not ask whether Rummer

“had struck his head in any way.” (Barfield Dep. p

99

Specifically, Barfield ce tified

performed neurological tests which consisted of

checking Rummer’s eyes with a flashlight to make

sure they both reacted equally, and having Rummer

pull on her hands “to make sure that he had both

side strenyth instead of one side weakness,” but that

he neglected to document 1

her notes. (Barfield Dep oe

Barheld testified that » the exte)

yerformed any neurological Lf on Rummer uc!

ists were secondary because she’ was not lookin

for head injuries,” given the lack of outward sig)

head injury. (Id. at 29). She did not a

Hudson what caused Rummer'’s glasses to bre:

at 30). Barfield also testified that what cau

Rummers glasses to break was not something that

she needed to know. (ld.) ld gave Rummer

Librium and Dilantin pull

perceived aS symptom

did not summon a

Rummer. (Id. a

ud

ked him whet! Rumme)

sponded he did not {

147). His observations conc iv Kumme!

to avoid the wheelchair were consistent with

Barfield, (Id at Io Barfield

recollection oO] the admin

while not as technical wa

amplified upon that of Barfi

Dep. p. 43). Barfield did not

any question of the officer

fummer had ftallen. though he

INnquUuLry and delendant Hud

xchange with the nurse initiated

whether Rummer had fallen. (Bari

DE # 46-5 (Barfield Ni

Welendant § tiudsor Wd on

Barheld that Rummer was scratched by vla (id

Barfield testified that she did not ask him about thr

cause of the cratche he obser, 1 but her not

ind testimony evidence her understanding th

Rummers glasses caused the ratch n |

ld Dio # 46-5 (f riela t

ne widavit i Ward a 1 | f

resent at the physical examinatio1 hed

rht on any communication betwee! lefend

Hudson and Barheld regarding the possibl yurce

nummer Injuri but are otherw) ponerall

msistent vith th Uf Imonila nt Ward

lols i ratch ( I tummer! ( { if rye

XRummers attempts t et out of th neelchalr, al

recallfed|) Nurs Barfield ing pill f Vir

tummer! Ward Aff. “i$ Barl i ti

nstructed the deputi to tal Rummer back to cell

119 id. at | 9 Har tated that Bart

nspect i k immer leaned tl] ratctl I

head for bumy iV« 1! n

hich he ultimately swallowed nd “a Look h

ta 46 (ltianser “a. § | '

mination, Barbheld obser i the other pt

or nted | t{ummer a nNsist

nal barhe!l 12-4

: ‘ i } } j

ane mer Wa transport i by wheelcharr t K | f

119. (Ward Aff. “4% 9. 10). When returned to h

tumme! tood m and walked around the

king for a mat. (Id.) Ward obtained a mat for hi

App. 36

A party seeking summary judgment “bears

the initial responsibility of informing the district

court of the basis for its motion, and identifying

those portions of the [record] which it bclieves

demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett, 477 U-S.

317, 323 (1986). Once the moving party has met its

burden, the non-moving party must then “set forth

specific facts showing that there is a genuine issue

for trial.” Matsushita oye ec. Indus. Co. Ltd. v. Zenith

Radio Corp., 475 U-S. 574. 986-87 (1986) (quoting

Fed. R. Civ. P. a

In making a determination on a summary

judgment motion, the court construes evidence in the

light most favorable to the non-moving party and

draws all reasonable si rences in the non-movant’s

favor. Anderson, 477 U.S. at 255: see also Odom v.

S.C. Dep't of Corr., 3.49 : 3d 765, 774 (4th Cir. 2003)

(we are to view the evidence in a light most

favorable to the nonmoving party and to give him

the benefit of all reasonable inferences”)

Nevertheless, judges are not “required to submit a

question to a jury merely because some evidence has

been introduced by the party having the burden of

proof, unless the evidence be of such a character that

it would warrant the jury in finding a verdict in

favor of that party.” Id. at 251. Evidence considered

by the court must be admissible, and “airy

generalities, conclusory assertions and_ hearsay

statements [do} not suffice to stave off summary

judgment.” United States v. Roane. 378 F.3d 382

400-01 (4th Cir. 2004).

App. 37

A court required to rule upon the issue of

qualified immunity potentially engages in a two step

inquiry. The court initially must determine whether

“[t]aken in the light most favorable to the party

asserting the injury ... the facts alleged show the

officer’s conduct violated a constitutional right.”

Saucier v. Katz, 533 U.S. 194, 201 (2001). If no

constitutional violation can be established, the

.

inquiry ends there and summary judgment based on

immunity is valid. Id

If. however. a constitutional violation is

detected, the court must determine whether the

right was clearly established at the time of the

alleged violation. Jd. “The relevant, dispositive

inquiry in determining whether a right is clearly

established is whether it would be clear to a

reasonable officer that his conduct was unlawful in

the situation he confronted.” Id. at 202. The

Supreme Court also warned in Saucier that denying

summary judgment any time a material issuc of fact

remains upon consideration of the first step, if upon

consideration of the second, and the law did not put

the officer on notice that his conduct would be clearly

unlawful, “could undermine the goal of qualified

immunity to ‘avoid excessive disruption of

government and permit the resolution of many

insubstantial claims on summary judgment.” Id.

(quoting Harlow_v. Fitzgerald, 457 U.S. 800, 818

(1982)). The Court held that “[a]f the law did not put

the officer on notice that his conduct would be clearly

unlawful, summary judgment hased on qualified

mmunity 1s appropriate.” Id

ve.

Te

App

The Fourth Circuit has held that “in gray

areas. where the law is unsettled or murky. qualified

immunity affords protection to an officer who takes

an action that is not clearly forbidden--even if the

action is later deemed wrongful.” Rogers _v.

Pendleton, 249 F.3d 279,286 (4th Cir. 2001). Even

where an officer is mistaken with respect to the

relevant law, “{i]f the officer's mistake as to what the

law requires is reasonable ... the officer is entitled to

the immunity defense.” Saucier, 533 U.S. at 205. In

making its determination, the court must avoid

engaging in “impermissible 20/20 hindsight,” even

when faced with a tragic outcome. Grayson, 195 F.3d

at 695; see also Belcher v. Oliver, 898 F.2d 32, 35

(4th Cir. 1990) (‘Only an exercise in impermissible

judicial hindsight could justify holding these officers

responsible for [detainee’s unforeseeable death by]

suicide.”).

Excessive Force Claim Under § 1983 Against

Defendant Hudson

“(E]xcessive force claims of pretrial detainees

are governed by the Due Process Clause of the

Fourteenth Amendment.” Riley v. Dorton, 115 F.3d

1159, 1166 (4th Cir. 1999) (en banc). To succeed on

the claim of excessive force against defendant

Hudson under the Fourteenth Amendment, plaintiff

nust demonstrate that defendant Hudson “inflicted

unnecessary and wanton pain and suffering” against

Cir. 1998)(quoting Whitley v. Albers, 475 U.S. 312,

320 (1986)). The court must determine whether the

force was applied “in a good faith effort to maintain

App. 39

or restore discipline or maliciously and sadistically

for the very purpose of causing harm.” Id.

At a minimum, Rummer was agitating the

other inmates in the cell, which prompted the other

inmates to call to the guards and request that

Rummer be extracted from the cell. (Goebel Dep. p.

9; Cline Dep. pp. 64-65; Mikol Dep. p. 31). It is

undisputed that defendant Hudson was ordered to

remove Rummer from cell 423, and that defendant

Hudson entered the cell in order to undertake this

task. (Hudson Dep. pp. 40-42). There is no genuine

issue regarding the fact that defendant Hudson then

proceeded to grasp one of Rummer’s arm in an

attempt to apply handcuffs, and upon being met with

what was described by multiple parties as “jerking

away and other resistance, defendant Hudson took

Rummer down to the floor.4 (Mikol Dep. pp. 37-39:

Hudson Dep. pp. 140, 160; Grimes Dep. pp. 10, 22).

It is undisputed that mats covered much of

the floor of cell 423 at the time of the incident. (Cline

Dep. p. 24). Defendant Hudson’s’ undisputed

testimony is that he directed Rummer down onto

these mats. (Hudson Dep. p. 50). Grimes testified

that once Rummer and defendant Hudson tumbled

to the floor, Rummer was on one of the mats as

defendant Hudson handcuffed him. (Grimes Dep. p.

11). Even if Rummer’s head made contact with the

concrete rather than the mats on the floor, there is

4 ~ 7 ~ 5

Inmate Cline. who was also present. never testified to any

jerking away. When asked if Rummer resisted defendant

Hudson in any way, he replied: “[wJell, you know, its hard for

me to say. you know. Someone could be tight with their arms

7

_

and hold them tight and I wouldn't know.” (Cline Dep. p. 28)

App. 40

no evidence suggesting that this was defendant

Hudson’s intention, let alone that defendant Hudson

used this force in a malicious, wanton, or sadistic

manner.

Plaintiffs expert testified that defendant

Hudson did not intend to hurt Rummer when he

took him to the ground: “[hle didn’t purposefully

cause the injuries. He purposefully took him to the

ground but he didn’t purposefully cause the injuries:’

(Katsaris Dep. p. 261).

Prior to and during the incident defendant

Hudson was concerned about his physical safety and

about the possibility of the situation spiraling out of

control if Rummer were not brought into compliance

immediately. (Hudson Dep. pp. 141-42, 160-61).

Further, New Hanover County Jail policy 7.09

(“Policy 7.09”) authorizes the “[u]se of physical holds

and takedown techniques to gain control of an

inmate” in situations where non-forceful means are

ineffective. (Def.’s Mot. for Summ. J., Ex. I, p. 3).

The Supreme Court has held that great

deference is due the officer faced with a dynamic,

rapidly evolving, and potentially violent situation

See, e.g., Saucier, 533 U.S. ot 205 (acknowledging

that it had previously “set out a test that cautioned

against. the ‘20/20 vision of hindsight’ in favor of

deference to the judgment of reasonable officers on

the scene’) (interna! citation omitted); see also

+,

Grayson, 195 F.3d at 697 (“In dealing with such

agitated detainees prison officials must not be forced

to walk a tightrope and face the prospect of a lawsuit

no matter which way they turn.... If we failed to

App. 41

accord due deference to the officers’ efforts, we would

give encouragement to insubordination in an

environment which is already volatile enough.”).

Here, where cefendant Hudson’s actions in subduing

Rummer appear reasonable even in “hindsight,”

there is no genuine issue as to any material fact that

suggests that defendant Hudson acted “maliciously

and sadistically for the very purpose of causing

harm.”

Plaintiff alleges that there exists a genuine

issue of material fact with respect to the question of

whether defendant Hudson verbally addressed

Rummer prior to his use of force. Plaintiff points to

Cline’s testimony regarding what conversation, if

any, took place between defendant Hudson and

Rummer prior to defendant Hudson’s use of force.

Cline testified that he did not recall hearing any

words pass from defendant Hudson to Rummer, but

his testimony falls short of affirmatively asserting

that at no time did defendant Hudson warn Rummer

or verbally direct him to act in any way.

Cline called his own recollection intu question

by indicating that his ability to hear any words pass

between defendant Hudson and Rummer could have

been affected by the other people in the cell, who

were verbally requesting Rummer’s removal from

the cell:

[YJou’'ve got to remember the scene

that you got there. You’ve got a row

full of people all on the floor. And then

all of a sudden the guard is rushing-

you know, the guard is rushing in.

App. 42

And so I don't-I don’t recall someone

saying, well, will you please put your

hands behind your back, I’m going to

take you out of here, in which they

probably could have done ... I didn’t

hear anything. You know, I-there’s

other people in this cell. And, you

know, there’s kind of people saying get

him out-you know, talking going on ...

it wasn’t like a-they came and said,

well, how are you doing, Mr. Hlummer

[sic]; we want to take you out of-I don’t

recall any conversation that went on

like that.

(Cline Dep. pp. 24-26, 81).

Plaintiff puts significant reliance upon Clem _y.

Corbeau, wherein the Fourth Circuit affirmed the

trial court’s denial of summary judgment on an

excessive force claim where a defendant-officer who

shot and killed a man testified that he fired on the

victim because he heard a threat, but another officer

and a witness who were both at the scene testified

that no threat was made. 284 F.3d 543, 551 (4th Cir.

2001). Clem is distinguishable from the instant

matter, however. In the case at bar, no less than

three people testified to defendant. Hudson’s verbal

warnings, and the sole contradictory evidence is

Cline’s equivocal testimony, the reliability of winich

7.

is called into question by Cline himself

App. 43

Even accepting as true the fact that defendant

Hudson did not verbally address Rummer prior to

grasping his arm, Rummer’s resistance once initial

contact was made would nonetheless entitle

defendant Hudson to apply force under Policy 7.09. A

“sood faith effort to maintain or restore discipline”

does not constitute excessive force. Whitley, 475 U.S.

at 320. The undisputed facts show that defendant

Hudson's actions represented such an effort. “Unless

it appears that the evidence, viewed in the light

most favorable to the plaintiff, will support a reliable

inference of wantonness in the infliction of pain

under the standard we have described, the case

should not go to the jury.” Id. at 322.

Denying summary judgment on the basis of

this single issue of fact would defy the direction

provided by the Supreme Court in Saucier. 533 U.S.

at 195. Accordingly, whatever conflict exists in the

record with respect to this fact fails to rise to the

level of a genuine issue of material fact capable of

preventing summary judgment under the

circumstances presented by this case.

Despite the severity of Rummer’s injuries, the

court cannot find that defendant Hudson’s use of

force was malicious or sadistic, aimed towards

purposeful causation of harm, or excessive under the

circumstances. As such, the use of force does not

violate the Constitution, and summary judgment is

appropriate.

App. 44

C Inadequate Medical Care Under § 1983

Against Defendant Hudson

Defendant Hudson also moves for summary

judgment on the basis of qualified immunity with

regard to plaintiffs claim of inadequate medical care.

Pretrial detainees such as Rummer who complain of

inadequate medical care proceed under. the

Fourteenth Amendment, rather than the Eighth

Amendment. Patten v. Nichols) 274 F.3d 829, 834

(4th Cir. 2001). The Fourteenth Amendment rights

of pretrial detainees are “at least as great as the

Eighth Amendment protections available to a

convicted prisoner.” Id.

As the courvt set forth in earlier order, to

prevail on an Eighth Amendment claim _ of

inadequate medical care, an inmate must allege acts

or omissions sufficiently harmful to constitute

deliberate indifference to serious medical needs.® To

be deliberately indifferent the prison official must

not only act recklessly, “the official must both be

aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists,

and he must also draw the inference.” Farmer v.

Prison officials are deliberately indifferent to

serious medical needs only where they completely

fail to consider an inmate’s complaints or act

° A claimant must also objectively show that the injury inflicted or the

deprivation of medical care suffered was sufficiently serious. Farmer y

Brennan, 511 U.S. 825, 834 (1994). By order dated July 6, 2006, this

court, citing Estelle v. Gamble, 429 U.S. 97, 106 (1976), held that “there

appears to be no issue regarding the seriousness of Mr. Kummer’s

injuries in that such injuries resulted in his death.”

App. 45

intentionally to delay or deny the prisoner access to

adequate medical care. Estelle, 429 U.S. at 104. The

Kighth Amendment has been violated where

treatment is “so grossly incompetent, inadequate or

excessive as to Shock the conscience or to be

intolerable to fundamental fairness.” Miltier v.

Beorn, 896 F.2d 848, 851 (4th Cir. 1990). Deliberate

indifference is a very demanding standard which is

not satishied by mere negligence or malpractice. Id.

at 854 (citing Estelle, 429 U.S. at 105-06). “In order

to establish a claim of deliberate indifference to

medical need, the need must be both apparent and

serious, and the denial of attention must be both

deliberate and without legitimate penological

objective.” Grayson v. Peed, 195 F.3d 692, 695 (4th

Cir. 1999), cert. denied, Grayson v. Royer, 529 U.S

1067 (2000). The Fourth Circuit has held that to

bring an inadequate medical care claim against a

non-medical official, a plaintiff must show that the

official was personally involved with a denial of

treatment, deliberately interfered with prison

doctors’ treatment, or tacitly authorized or was

indifferent to the prison medical staffs misconduct.

Miltier, 896 F.2d at 854 (citing Slakan v. Porter, 737

F.2d 368, 372-73 (4th Cir. 1984), cert denied Reed v.

Slakan, 470 U.S. 1035 (1985)).

Plaintiff claims that defendant Hudson

violated Rummer’s constitutional rights in that

defendant Hudson knew that Rummer was seriously

injured and, by failing to give complete answers or

volunteer information in response to nurse Barfield’s

questions, defendant Hudson deliberately interfered

with Rummer’s care. Pl.’s Mem. Resp. Mot. Summ. J

at 10. Plaintiff is unable to point to any facts in the

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App. 50

that officers be mind readers.” id. at 695. The Fourth

Circuit found that the officers’ decision to deliver a

confused detainee to a correctional facility that

included a 24 hour medical facility was reasonable.

Id. Because the officer could reasonably rety on

trained staff at the health care facility to care for

detainee, the officer was “in no sense deliberately

indifferent to [the detainee’s] medical need.” Id.

In Belcher v. Oliver, a pretrial detainee who

manifested no outward signs of depression or risk

factors for selfharm nonetheless committed suicide

by hanging himself while he was being held.

subsequent to his arrest for driving under the

influence of alcohol, in a jail holding cell. 898 F.2d

32, 34 (4th Cir. 1990). His estate claimed that the

arresting officers were guilty of dehberate

indifference to his medical need because they did not

screen him for risk or remove his belt or shoelaces.

Id. The court held that the officers had no duty to

screen every patient, and that the failure to remove

belt and shoelaces was, at most, negligent. Id. at 34-

35. The court took note of affirmative actions taken

by defendants, on behalf of decedent, to secure his

“speedy release” so that his daughter could retrieve

him from detention, and held that the officers’

conduct “could in no way be construed as deliberate

indifference.” Id. at 35.

In accordance with relevant law, upon the

undisputed facts, defendant Hudson was reasonable

in believing that he relinquished responsibility for

Rummer’s well being when he delivered Rummer to

qualified health care providers, Grayson, 195 F.3d at

694: Young, 238 F.3d at 578. The court is unable to

App. 52

The case law sanctions only “deprivations of

rights, not errors in judgment, even though such

errors may have unfortunate consequences.”

Grayson, 195 F.3d at 696. That a tragedy occurred in

the New Hanover County Jail, resulting in

Rummer’'s death, is without dispute. However, where

plaintiff raises no genuine issue of material fact that

defendant Hudson actually knew that Rummer was

at serious msk for head injury, defendant Hudson is

entitled to the protection of qualified immunity and

summary judgment 1s appropriate.

D. Supervisory Liability Claims Under § 1983

Against Defendants Causey, Parker, and

Haves

Where a deprivation of federal rights has

occurred, a supervisory employee may be held liable

where a_ plaintiff demonstrates that (1) the

supervisor had actual or constructive knowledge of a

risk of the constitutional injury, (2) the supervisor

Was deliberately indifferent to or tacitly authorized

the risk, and (3) that an “affirmative causal link”

exists between the supervisor's action or failure to

act and the particular constitutional injury suffered

by the plaintiff.” Shaw v. Stroud, 13 F.3d 791. 799

(4th Cir. 1994), cert. denied 513 U.S. 814 (1994), and

cert. demied Stroud v. Shaw, 513 U.S. 813 (1994).

“The plaintiff... assumes a heavy burden in

supervisory lability cases.” Slakan, 737 F.2d at 373.

“Ordinarily, he cannot satisfy his burden of proof by

pointing to a single incident or isolated incidents, for

a supervisor cannot be expected to promulgate rules

and procedures covering every conceivable

occurrence within the area of his responsibilities.”

App. 53

Id. Plaintiff argues that defendants Parker and

Hayes, 1n their individual capacities, and defendant

Causey, individually and in his official capacity as

Sheriff of New Hanover County, are lable as

supervisors because they were “at all times relevant

herein, responsible for the formulation and execution

of policies regarding the treatment of arrestees,

detainees, and inmates at the New Hanover County

Jail.” Compl. 4 38. Plaintiff makes reference to

policies governing the use of force and restraints and

policies governing medical attention after the use of

force, but plaintiff offers argument specific only t«

policies regarding the use of force

Plaintiff contends that supervisory defendants

“knew that those policies were not being followed at

the jail,” “knew that persons such as Mr. Rummer

were at risk for serious injury,” and that “[c]learly

this failure to adopt and implement uniform, proper

policies for the use of force and restraints was a

causative factor in the death of Mr. Rummer.” PI. ‘s

Mem. Resp. Mot. Summ. J. at 17-18. Plaintiffs

argument fails, however, for several reasons.

The court has found no constitutional

violation upon which to base such liability. See

sections Band C, above. “If a person has suffered no

constitutional injury at the hands of the individual ...

officer, the fact that the departmental regulations

might have authorized the use of constitutionally

excessive force is quite beside the point.” Los Angeles

v. Heller, 475 U.S. 796, 799 (1986).

In the absence of a constitutional violation,

the court need not consider the propriety of any

App. 54

regulation in question, and supervisory hability is

inappropriate. Belcher, 898 F.2d at 36; see also

Hinkle v. City of Clarksburg, 81 F.3d 416, 420 (4th

Cir. 1996) (“In the absence of any underlying use of

excessive force ... . liability cannot be placed on

either [other] officers, a supervisor, or the City’);

Giancola v. West. Virginia Dep't of Public Safety, 830

F.2d 547, 550 (4th Cir. 1987) Clfthe officers’ actions

were in compliance with constitutional standards,

there is no hability on the part ofthe officers or the

employing ertities.’).

Even assuming that Rummer’s constitutional

rights were violated as a result of defendant

Hudson's use of force and the subsequent medical

treatment, plaintiff has “ailed to provide any factual

support for the theory that supervisory defendants

were aware that jail policies created a risk, or for the

theory that there exists “an affirmative causal link”

between the policies and Rummer’s injury.

Plaintiff has failed to provide any evidence

that defendants Parker, Hayes, or Causey were

responsible for policies, practices, or customs which

were a direct and proximate cause of the alleged

inadequate treatment of Rummer’s medical needs, or

that any such policies resulted in harm to Rummer.

In addition, plaintiff cites to no other instances of

similar conduct or any general or widespread

problem related to medical attention. To establish

supervisory lability, plaintiff must show that the

policy or lack thereof created a “pervasive and

unreasonable risk of harm.” Stroud, 13 F.3d at 799.

Plaintiff makes no factual showing to support such a

finding.

App. 55

With respect to the use of force, detailed and

specific procedures are contained in Policy 7.09.

Plaintiffs own expert testified that Policy 7.09 is a

reasonable example of proper correctional practice.

(Katsaris Dep. pp. 111, 166). Defendant Causey

testified to the widespread use of handcuffs in

detention facilities as a safety measure for officers

and inmates alike, and plaintiffs expert corroborated

this testimony. (Causey Dep. pp. 74, 78; Katsaris

Dep. p. 237). To support lability on this claim, the

policy complained of must generate “an

unreasonable risk of harm of constitutional injury.”

Stroud, 13 F.3d at 799. Plaintiff has failed to make

such a showing.

Further, plaintiff has failed to demonstrate

how the use of the handcuffs within the New

Hanover County Jail is causally lnked to the

particular constitutional injury allegedly suffered by

Rummer, since the injury allegedly resulted from

defendant Hudson’s maiueuver, not his use of

handcuffs. At the time Rummer was taken down,

only one of his hands was cuffed. (Hudson Dep. p. 58;

Hansen Aff. 4 5). Defendant Hudson testified that

Rummer landed on his left arm, which was not

secured by handcuffs. (Hudson Dep. p. 58). Aside

froin plaintiffs bare allegation that there is a causal

link, the record contains no support for such a claim.

Plaintiff bears a heavy burden to make a

showing of supervisory liability. Slakan, 737 F.2d at

373. On a motion for summary judgment, the court

tests for a “genuine issue” through recourse to the

relevant law, “view[ing] the evidence presented

through the prism of the substantive evidentiary

App. 56

burden.” Anderson, 477 U.S. at 254. Plaintiff must

rely on more than “airy generalities, conclusory

assertions and hearsay statements.” Roane, 378 F.3d

at 400. Here, where plaintiffs burden is high and

factual support is nonexistent on several necessary

elements of the claim, summary judgment is

appropriate.

In accordance with the foregoing, it is

established that as a matter of law, defendants

Parker, Hayes, and Causey are not liable under a §

1983 claim of supervisory liability, and accordingly,

plaintiffs supervisory lability claims are dismissed.

F. State Wrongful Death Claim Against

Defendants Hudson, Causey, Parker, and

Hayes

Defendants Hudson, Causey, Parker, and

Hayes also seek to dismiss, pursuant to Rule 56,

plaintiffs wrongful death claim under North

Carolina General Statute section 28A-18-2(a).

Plaintiff argues that a court ruling on this claim is

premature because discovery to this point has been

limited to qualified 1mmunity, and no discovery

specifically related to this claim has_ been

undertaken. In the alternative, plaintiff argues that

the elements of a state wrongful death claim have

been established.

North Carolina General Statute section 28A-

18-2(a) provides in relevant part:

When the death of a person is caused

by a wrongful act, neglect or default of

App. 57

another, such as would, if the injured

person had lived, have entitled him to

an action for damages therefore, the

person or corporation that would have

been so liable, and his or their

personal representatives or collectors,

shall be liable to an _ action for

damages. to be brought by the

personal representative or collector of

the decedent;

N.C. Gen. Stat. § 28A-18-2(a)

The Fourth Circuit has held that where an

officer's actions “were, as a matter of law, reasonable

in the circumstances of [the] case, they cannot be

negligent or wrongful, as required by N.C. Gen. Stat

§ 28A-18-2(a).” Sigman v. Town of Chapel Hill, 161

I.3d 782, 789 (4th Cir. 1998). Having determined

that defendants actions were reasonable, the court

finds that “plaintiffs have no state law claim.” Id

Accordingly, plaintiffs wrongful death claim against

defendants is dismissed.

CONCLUSION

or the foregoing reasons, defendants’ motion

for summary judgment (DE # 91) is GRANTED as to

plaintiffs remaining claims. The remaining motions

of or relating to trial issues, are DENIED as MOOT,

where the Clerk of Court is directed to discontinue

the case from the trial docket and now to CLOSE it.