Nilesh S. Patel v. James Smith ( 2020 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11253
________________________
D.C. Docket No. 7:17-cv-00085-HL
NILESH S. PATEL,
Plaintiff - Appellant,
versus
LANIER COUNTY GEORGIA, et al.,
Defendants,
JAMES SMITH,
Deputy Sheriff, Lanier County, Georgia, in his official and individual capacities,
Defendant - Appellee.
________________________
Appeals from the United States District Court
for the Middle District of Georgia
________________________
(August 11, 2020)
Before MARTIN, NEWSOM, and JULIE CARNES, Circuit Judges.
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NEWSOM, Circuit Judge:
This case principally presents two constitutional questions arising out of a
deputy sheriff’s decision to place a pretrial detainee in an unventilated, un-air-
conditioned transport van on a hot autumn day. First, by placing the detainee in
the van—for a total of about two hours, half of that time alone and unsupervised—
did the officer use unconstitutionally excessive force? And second, by ignoring the
detainee’s resulting distress—which included unconsciousness, shaking, profuse
sweating, and labored breathing—did the officer exhibit deliberate indifference to
a serious medical need? The district court answered both questions in the negative
and granted summary judgment for the officer. We will affirm the district court’s
decision in part—albeit on different grounds—and reverse in part.
We begin from the premises that exposure to uncomfortable heat is part and
parcel of life in the South and, accordingly, that not every “hot car” case will give
rise to a cognizable constitutional claim. Even so, viewing the facts of this
particular case in the light most favorable to our detainee—as we must, given the
procedural posture—we hold that the officer violated the Constitution in both
respects. And while we conclude that the law underlying the detainee’s excessive-
force claim was insufficiently “clearly established” to defeat the officer’s
entitlement to qualified immunity, we hold that the detainee’s deliberate-
indifference claim should have been allowed to proceed. We also hold that the
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district court erred in rejecting the detainee’s adjunct state-law claims on official-
immunity grounds.
I
A
Plaintiff Nilesh Patel and defendant Deputy James Smith present
dramatically different versions of the events underlying this appeal. Of course,
when “reviewing a district court’s grant of summary judgment, we view all the
evidence and draw all reasonable inferences in the light most favorable to the non-
moving party,” Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th
Cir. 2014), and affirm only if the evidence “presents no genuine issue of material
fact and compels judgment as a matter of law in favor of the moving party.” Id.
(quoting Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1307 (11th Cir. 2013)).
Accordingly, because the district court granted summary judgment for Deputy
Smith over Patel’s opposition, we take the facts here in the light most favorable to
Patel, and we draw all reasonable inferences in his favor.1
1
Despite this elementary principle of summary-judgment practice, Deputy Smith’s brief to us
largely forges its own narrative, retelling events from his perspective. See, e.g., Br. of Appellee
at 4–12. Let us reiterate at the outset that we expect the lawyers and litigants who appear before
us to account for procedural posture and settled standards of appellate review. A party who
prevails on a motion to dismiss or a summary-judgment motion is certainly free to alert us to his
disagreement with his opponent’s factual recitation. But when it comes to arguing the merits, he
should not—may not—rely on his own factual story. Rather, he should—must—accept his
opponent’s story and convince us that he is nonetheless entitled to prevail as a matter of law.
3
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In 2014, Patel pleaded guilty in Georgia state court to gambling- and tax-
related offenses and, as a result, was sentenced to five years’ probation and
required to forfeit a store that he had owned—Live Oak Liquors. A couple of
years later, Patel was arrested on charges that he had stolen or damaged previously
forfeited property from Live Oak Liquors. Although the warrant for Patel’s arrest
was issued in Lanier County, Georgia, he was held in a jail in the adjacent Cook
County because Lanier County’s facilities were too small to house all of its
detainees.
On October 4, 2016, Deputy Smith was tasked with transporting Patel from
Cook County to Lanier County for a bond hearing in connection with his arrest.
Deputy Smith initially placed Patel in a transport van and drove him from the Cook
County jail to the Lanier County courthouse, without incident. Patel was granted
bond at the hearing, but he couldn’t post it immediately, so Deputy Smith loaded
him back into the van and returned him to the Cook County jail—again, without
incident. A friend posted Patel’s bond shortly after he arrived back at the Cook
County jail, so Deputy Smith put Patel back into the van to return him to Lanier
County—this time to the Lanier County Sheriff’s Office—to complete some
release-related paperwork.
Along the way, Deputy Smith had to make a stop in Lowndes County to
pick up Brittney Grant, another pretrial detainee who was being taken to Lanier
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County to be released on bond. When Deputy Smith reached the Lowndes County
jail, he parked in a sally port—described here as “a metal garage attached to the
jail with large steel doors on both ends.” The outside temperature that day was at
least 85 degrees Fahrenheit, and although the port provided some shade to the van,
the port’s doors were closed, resulting in “very hot” conditions within the port
generally and, more to the point, inside the van. Deputy Smith left Patel in the van
for almost an hour—without any fan or air conditioning running—while he went
inside to retrieve Grant.
When Deputy Smith returned to the van escorting Grant, he “banged on the
window” several times, asking if Patel was “okay in there.” Having received no
response, Deputy Smith opened the rear doors of the van to find Patel lying
unconscious on the floor, sweating and hyperventilating. By performing a
“sternum rub,” Deputy Smith was able to rouse Patel, who then told Smith that he
had passed out from heat and asked for some water. Deputy Smith told Patel that
he would get him “some water on the way back to Lanier County,” assisted Patel
back onto the bench in the back of the van, got into the driver’s seat, and headed
for Lanier County. It is undisputed that once Deputy Smith cranked the van, a
ventilation fan circulated some air in the middle section, where Grant was seated.
But Grant testified that the fan didn’t “move very much air at all” and, further, that
because of a metal screen separating the middle section of the van from the rear
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section—where Patel was detained—she didn’t “believe any air could circulate
into the back area.” Grant also explained that although she “could hear the air
conditioner running in the front section of the van,” because of “a solid plexiglass
screen between the driver and the back of the van . . . no cool air made it into the
prisoner area of the van.”
During the drive to Lanier County, Patel again fell from the bench to the
floor of the van, where he remained—unconscious, hyperventilating, and with
mucus and saliva running from his nose and mouth—until Deputy Smith again
roused him upon their arrival. Deputy Smith never stopped for water, as he had
promised. 2 By the time they arrived in Lanier County, Patel had been in the back
of the van for more than two hours.
At the Lanier County Sheriff’s Office, Deputy Smith again roused Patel and
helped him to his feet, and Patel immediately got a drink from a water fountain.
Patel then waited in a holding room where he continued to show signs of distress—
he was shaking and sweating profusely, he had mucus running from his nose, he
2
Deputy Smith admits that Patel asked for water but asserts that he later declined when Smith
offered to get some. That assertion, though, is hard to reconcile with Grant’s and Patel’s
accounts. Grant testified that Deputy Smith said he would get water along the way but never did
and that Smith never brought any water in response to Patel’s request, and she never mentioned
anything about Patel declining water. For his part, Patel remembered asking for water, but not
whether he went on to decline it. A reasonable jury could conclude that Patel never declined an
offer of water from Deputy Smith.
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was still hyperventilating, and he was having noticeable difficulty speaking. Many
of the events at the Sheriff’s Office were captured on a security camera.3
When Deputy Smith entered the holding room with the bond paperwork,
Patel requested an ambulance. After initially objecting—“[W]hat do you need an
ambulance for? You’re being released.”—Deputy Smith complied. When
paramedics arrived, they transported Patel to a local hospital, where he was
diagnosed with heat exhaustion, heat syncope, and panic attack.
B
Patel sued Deputy Smith—along with other defendants, since voluntarily
dismissed—claiming that Smith had violated the Fourteenth Amendment in two
ways: (1) by using unconstitutionally excessive force when he placed Patel in an
unventilated, un-air-conditioned transport van and kept him there for an
unreasonable amount of time; and (2) by exhibiting deliberate indifference when
he recklessly disregarded Patel’s serious medical needs.4 Patel also brought state-
3
Based on the security-camera footage, Patel’s expert Dr. Reginald Nesbitt testified that he
needed medical attention to reduce the risk that his condition would progress to heat stroke.
4
Patel also claimed that Deputy Smith had violated his rights under the Fourth Amendment, but
as a pretrial detainee, his rights—if any—under the Fourth Amendment are unclear. “Although
some courts have extended Fourth Amendment protections into the pretrial detention phase,
‘[n]either [this Court] nor the Supreme Court has decided whether the Fourth Amendment
continues to provide individuals with protection from excessive force beyond the point at which
an arrest ends and pretrial detention begins.’” Piazza v. Jefferson Cty., 923 F.3d 947, 952 n.6
(11th Cir. 2019) (alterations in original) (citation omitted) (quoting J W ex rel. Williams v.
Birmingham Bd. of Educ., 904 F.3d 1248, 1259 (11th Cir. 2018)). We needn’t address Patel’s
Fourth Amendment claims, because for reasons we’ll explain, they would effectively merge into
Patel’s Fourteenth Amendment claims, in any event.
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law claims, including—as relevant to this appeal—allegations of negligence and
intentional infliction of emotional distress. Deputy Smith moved for summary
judgment, challenging Patel’s claims on the merits and claiming entitlement to
qualified immunity with respect to Patel’s federal constitutional claims and official
immunity with respect to his state-law claims. The district court granted the
motion, concluding that Deputy Smith hadn’t violated the Constitution and that
official immunity barred Patel’s negligence and intentional-infliction of emotional
distress claims.
This is Patel’s appeal. We will begin by analyzing Patel’s constitutional
claims, and then move to his state-law claims.
II
Patel’s two Fourteenth Amendment claims—alleging excessive force and
deliberate indifference to a serious medical need—are both subject to the doctrine
of qualified immunity, which bars many damages actions against government
officials. “An officer asserting a qualified-immunity defense bears the initial
burden of showing that he was ‘acting within his discretionary authority.’” Piazza
v. Jefferson Cty., 923 F.3d 947, 951 (11th Cir. 2019) (quoting Skop v. City of
Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007)). The district court here held that
Deputy Smith was acting in the scope of his discretionary authority, and Patel
hasn’t challenged that determination on appeal. Accordingly, Patel bears the
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burden to show not only (1) that Deputy Smith “violated a constitutional right” but
also (2) that “this right was clearly established at the time of the alleged violation.”
Caldwell, 748 F.3d at 1099 (internal quotation marks omitted) (quoting Holloman
ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004)). 5 We will
apply this framework to both of Patel’s constitutional claims, beginning with
excessive force.
A
1
Prior to Kingsley v. Hendrickson, 576 U.S. 389 (2015), we had held that “[a]
claim of excessive force under the Fourteenth Amendment [was] analyzed as if it
were an excessive-force claim under the Eighth Amendment” and, therefore, that a
“use of force against a pretrial detainee [was] excessive under the Fourteenth
Amendment if it ‘shock[ed] the conscience’” or was “applied maliciously and
sadistically to cause harm.” Fennell v. Gilstrap, 559 F.3d 1212, 1216 n.5, 1217
(11th Cir. 2009) (quotation omitted). In Kingsley, though, the Supreme Court
clarified that the Eighth Amendment’s malicious-and-sadistic standard—which
applies to incarcerated prisoners—does not extend to pretrial detainees. 576 U.S.
at 400–01. Instead, the Court held that a pretrial detainee’s Fourteenth
5
“Only cases from the United States Supreme Court, this Court, and the highest state court under
which the claim arose can clearly establish the law in our Circuit.” Caldwell, 748 F.3d at 1102
n.14.
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Amendment excessive-force claim is governed by a rule of “objective
reasonableness.” Id. at 396–97 (“[A] pretrial detainee must show only that the
force purposely or knowingly used against him was objectively unreasonable.”).
By adopting an objective-reasonableness criterion, the Kingsley Court
indicated a connection between the Fourteenth Amendment’s excessive-force
standard and the Fourth Amendment’s standard, rather than the Eighth
Amendment’s. Id. at 397 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989),
the seminal Fourth Amendment excessive-force case, for the proposition that
“objective reasonableness turns on the ‘facts and circumstances of each particular
case’”). We expressly adopted this understanding of Kingsley in Piazza v.
Jefferson County: “[I]nasmuch as it entails an inquiry into the objective
reasonableness of the officers’ actions,” we summarized, “the Fourteenth
Amendment standard has come to resemble the test that governs excessive-force
claims brought by arrestees under the Fourth Amendment.” 923 F.3d at 952–53.
Notwithstanding Kingsley, the district court here pointedly distinguished
Fourth Amendment precedent, citing our pre-Kingsley cases for the proposition
that “[t]he standard for showing excessive force in violation of the Fourteenth
Amendment . . . is higher than that required to show excessive force in violation of
the Fourth Amendment.” Fennell, 559 F.3d at 1217. But as we clarified in
Piazza—which came down after the district court here issued its decision—that’s
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no longer true. After Kingsley, the Fourteenth Amendment’s standard is analogous
to the Fourth Amendment’s. Had the district court applied the correct standard—
Kingsley’s Fourth-Amendment-like objective-reasonableness test, informed by
several contextual considerations—we think it would have concluded, as we do,
that Deputy Smith violated Patel’s Fourteenth Amendment right to be free from
excessive force.6
We haven’t directly confronted a “hot car” case before now, but variations
of this fact pattern are understandably common. To try to bring clarity to the law
governing such circumstances, we’ll identify the considerations that inform our
decision, but we can’t hope to lay down a neat rule; as the Supreme Court has
explained—for better or worse—“objective reasonableness turns on the ‘facts and
circumstances of each particular case.’” Kingsley, 576 U.S. at 397 (quoting
Graham, 490 U.S. at 396). By way of elaboration, the Kingsley Court offered the
6
The district court seemed to think that Patel’s claim couldn’t be properly analyzed as an
excessive-force claim because it looked more like a conditions-of-confinement claim. Perhaps it
could be either. But Patel pleaded an excessive-force claim, and we think that placing and
holding a detainee in a hot, unventilated, un-air-conditioned van for transport between jails can
be understood as an application of force—and can thus be analyzed under Kingsley—even if it
might also have been pleaded (and analyzed) as a conditions-of-confinement claim. In any
event, the district court also refused to evaluate Patel’s claim as a challenge to his conditions of
confinement on the ground that a court “may not infer claims other than those that plainly appear
on the face of the complaint . . . .” Patel v. Lanier Cty., No. 7:17-CV-85 (HL), 2019 WL
1429231, at *6 (M.D. Ga. Mar. 29, 2019) (quoting GJR Investments, Inc. v. County of Escambia,
132 F.3d 1359, 1369 (11th Cir. 1998)).
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following list of relevant considerations, which it said were not meant “to be
exclusive”:
Considerations such as the following may bear on the reasonableness
or unreasonableness of the force used: [1] the relationship between the
need for the use of force and the amount of force used; [2] the extent
of the plaintiff's injury; [3] any effort made by the officer to temper or
to limit the amount of force; [4] the severity of the security problem at
issue; [5] the threat reasonably perceived by the officer; and [6]
whether the plaintiff was actively resisting.
Id. We will consider the Kingsley factors in turn and explain how they apply here.
First and foremost, Kingsley directs us to weigh “the relationship between
the need for the use of force and the amount of force used.” Id. Let’s initially
consider the “amount” side of the ledger. Whenever the force used against a
pretrial detainee consists in his subjection to hazardous conditions, the “amount of
force used” is a function of two component factors—(1) the severity of those
conditions and (2) the duration of his subjection to them. These two considerations
combine to create a sliding scale: The more severe the conditions, the shorter the
detention need be before it amounts to excessive force—and vice versa. Now, how
about “need”? In cases involving pretrial detainees, there is always (by definition)
some need to detain, at least until a judge authorizes a release. But, it seems to us,
the need for detention in relatively harsh conditions depends both on the threat that
the detainee poses and on the feasibility of alternative means of holding him.
Again, a sliding scale: Detention in harsher conditions may be justified where
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alternative modes of detention are not readily available, especially if the detainee
poses a heightened risk of danger to police or the public; by contrast, where the
detainee poses no particular risk or where an alternative is at hand, the “need” for
harsher modes of detention dissipates.
Here, Patel was kept in a hot transport van—without any ventilation or air
conditioning—for a period of approximately two hours. While those facts alone
don’t entitle Patel to a trial on his excessive-force claim, we note that detentions of
comparable duration and severity have been held to create jury questions. 7
7
Courts considering excessive-force claims arising from detention in extreme temperatures have
treated duration as an important factor. See, e.g., Hayenga v. Garth, No. 18-cv-02038-KLM,
2019 WL 2471086, at *8 (D. Colo. June 13, 2019) (“Here, Plaintiff has entirely omitted how
long he believes he was detained in the hot police car, which is an essential element to be taken
into consideration in connection with his excessive force claim. Without alleging such
information, Plaintiff cannot demonstrate that the force used was objectively unreasonable.”).
Detentions in potentially dangerous ambient temperatures for less than 30 minutes have
generally been treated as reasonable as a matter of law, while detentions lasting multiple hours
usually present fact questions. Compare Burchett v. Kiefer, 310 F.3d 937, 945 (6th Cir. 2002)
(holding that detaining the plaintiff in a police car in 90 degree heat for three hours created a
triable issue of excessive force), with Esmont v. City of New York, 371 F. Supp. 2d 202, 214
(E.D.N.Y. 2005) (granting summary judgment to the defendants and holding that leaving the
plaintiff in a squad car for 10 minutes was not excessive force). See also Smith v. Doe, No. 6:17-
cv-799-Orl-37TBS, 2017 WL 2464126, at *3–*4 (M.D. Fla. June 7, 2017) (collecting cases).
The few intermediate examples—all involving detentions of about an hour—have also been held
to create jury questions. See, e.g., Wilcomb v. City of Houston, No. H–17–1866, 2018 WL
925081, at *1, *4–*5 (S.D. Tex. Feb. 16, 2018) (holding that leaving an arrestee “outside in
unobstructed sunlight for an hour and twenty minutes while the temperature averaged 100.4
degrees Fahrenheit with a heat index of 106.3 degrees Fahrenheit” was a sufficient allegation of
excessive force). Of course, there are no hard-and-fast rules; courts must take duration into
account on a case-by-case basis. See Dukes v. Deaton, 852 F.3d 1035, 1042 (11th Cir. 2017)
(“Whether an officer’s actions are objectively reasonable is a function of the facts and
circumstances confronting them, without regard to their underlying intent or motivation.”
(quotation marks omitted)). Although many of these “hot car” cases arose under the Fourth
Amendment, the same basic standard applies post-Kingsley (as we have explained) to excessive-
force claims brought under the Fourteenth Amendment.
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Moreover, for nearly half of Patel’s detention—the 55 minutes during which he
was left unattended in the sally port—Deputy Smith presumably could have moved
him inside the Lowndes County jail while he made arrangements to transport
Grant. Hence, it seems to us that a significant fraction of the force applied to Patel
was not just harsh but also unnecessary.
Second, the “extent of the plaintiff’s injury.” We don’t think the Kingsley
Court meant to suggest that unforeseeable injuries can transform a reasonable
application of force into an excessive one. Cf. Wilkins v. Gaddy, 559 U.S. 34, 34
(2010) (instructing lower courts “to decide [Eighth Amendment] excessive force
claims based on the nature of the force rather than the extent of the injury”). But
resulting injuries can be an indicator, however imperfect, of the severity of the
force that caused them. Cf. McCottrell v. White, 933 F.3d 651, 664 (7th Cir. 2019)
(“The extent of injury is relevant to the Eighth Amendment inquiry because it
provides some indication of the amount of force applied, and because it may
suggest whether the use of force was plausibly necessary in a particular
situation . . . .”). Patel was diagnosed with heat exhaustion and related ailments as
a result of being locked in the hot transport van. These injuries, while not
permanent, are suggestive of the harshness of the force applied against him.
Third, the “effort made by the officer to temper or to limit the amount of
force.” Kingsley, 576 U.S. at 397. What steps could Deputy Smith have taken to
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ameliorate Patel’s situation? Most obviously, he could have turned on the van’s
ventilation fans or, perhaps, cracked any windows that might have allowed air into
the prisoner compartment—but he didn’t. Other courts considering similar
circumstances have noted the presence or absence of ventilation or air conditioning
as an important factor. See, e.g., Burchett v. Kiefer, 310 F.3d 937, 945 (6th Cir.
2002) (faulting officers because they “could have left the windows slightly open,
for example, or utilized the car’s cooling or ventilation devices” but failed to do
so). As already noted, Deputy Smith could also have taken Patel inside the
Lowndes County jail—but again, he didn’t. So far as we can tell, Deputy Smith
didn’t make “any effort . . . to temper or to limit” Patel’s situation. Worse, for
much of the time, he left Patel alone—rendering any mitigation impossible, no
matter how obvious the need for relief might have become.
Finally—we’ll take Kingsley’s fourth, fifth, and sixth factors together—there
is no evidence to indicate that Deputy Smith faced any “security problem,” that he
“reasonably perceived” any “threat,” or that Patel “was actively resisting.” Id. By
all accounts, Patel never resisted Deputy Smith at all—and, indeed, as a result of
Smith’s neglect, Patel was, for much of the time, physically incapable of mounting
any resistance.
Although Kingsley’s list isn’t “exclusive,” its factors suffice to resolve the
constitutional question here. Construing the facts and accompanying inferences in
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his favor, the Kingsley factors tilt decisively toward Patel. Accordingly, we
conclude that in the particular circumstances of this case, Patel’s detention and
transport were “more severe than [was] necessary to . . . achieve a permissible
governmental objective.” Piazza, 923 F.3d at 952. Because the force Deputy
Smith applied was not “objectively reasonable,” it violated Patel’s Fourteenth
Amendment rights.
2
That’s the good news for Patel on excessive force. Now the bad: Although
we conclude that Deputy Smith violated Patel’s constitutional rights, we cannot
say that the underlying law applicable to Patel’s excessive-force claim was
sufficiently “clearly established” to defeat qualified immunity. Before explaining
why, we must first address Patel’s threshold contention that, in the context of a
Fourteenth Amendment excessive-force claim, he doesn’t have to show a clearly
established right.
a
The usual rule in a qualified-immunity case is that, in addition to proving a
constitutional violation, the plaintiff must demonstrate that the law underlying his
claim was “clearly established” at the time of the incident in question. See
Kingsley, 576 U.S. at 400 (quotation omitted). It is true, as Patel says, that in
Johnson v. Breeden, 280 F.3d 1308, 1321–22 (11th Cir. 2002), and Fennell, 559
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F.3d at 1216–17, we articulated a sui generis exception to that general rule for
Eighth and Fourteenth Amendment excessive-force claims. But that exception was
justified only by an idiosyncrasy of those claims—an idiosyncrasy that, with
respect to those arising under the Fourteenth Amendment, Kingsley eliminated. As
a result, Patel can no longer rely on our previous holdings but, rather, must prove
that his right not to be subjected to prolonged detention in the hot transport van
was clearly established. Let us explain.
In Fennell, we held that “[f]or claims of excessive force in violation of the
Eighth or Fourteenth Amendments, . . . a plaintiff can overcome a defense of
qualified immunity by showing only the first prong, that his Eighth or Fourteenth
Amendment rights have been violated.” 559 F.3d at 1216–17 (citing Johnson, 280
F.3d at 1321–22). That exception made sense, we said, “because, for an excessive-
force violation of the Eighth or Fourteenth Amendments, ‘the subjective element
required to establish it is so extreme that every conceivable set of circumstances in
which this constitutional violation occurs is clearly established to be a violation of
the Constitution . . . .’” Fennell, 559 F.3d at 1217 (alteration in original) (quoting
Johnson, 280 F.3d at 1321–22).
Normally, of course, such a square holding would bind us. “We are bound
to follow a prior panel or en banc holding, except where that holding has been
overruled or undermined to the point of abrogation by a subsequent en banc or
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Supreme Court decision.” Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir.
1998). Here, however, it’s clear to us that the Johnson/Fennel exception can’t
survive Kingsley, which “is clearly on point and has undermined [those decisions]
to the point of abrogation.” United States v. Archer, 531 F.3d 1347, 1352 (11th
Cir. 2008). The Johnson/Fennel exception rested entirely on the “extreme”
subjective-intent element of Eighth and (then) Fourteenth Amendment excessive-
force claims. Kingsley, though, expressly eliminated any subjective element for
such claims arising under the Fourteenth Amendment—at least as to the
excessiveness of the force. 576 U.S. at 395 (holding “that the relevant standard is
objective not subjective” and, accordingly, that “the defendant’s state of mind is
not a matter that a plaintiff is required to prove”). 8 In so doing, the Supreme Court
likewise eliminated the justification for the Johnson/Fennel exception itself—
8
Of course, the application of force must itself be intentional, or at least reckless. Kingsley, 576
U.S. at 396 (“[I]f an officer’s Taser goes off by accident or if an officer unintentionally trips and
falls on a detainee, causing him harm, the pretrial detainee cannot prevail on an excessive force
claim.”). But a subjective inquiry as to the application of force doesn’t help to justify the
Johnson/Fennel rule, which is based on a subjective standard “so extreme that every conceivable
set of circumstances in which this constitutional violation occurs is clearly established to be a
violation of the Constitution.” Fennell, 559 F.3d at 1217 (internal quotation marks and citation
omitted). Plainly, not every intentional use of force can be so described. Indeed, intentionality
(or possibly recklessness) as to the application of force is an element of an excessive-force claim
even in the Fourth Amendment context. See Kingsley, 576 U.S. at 401 (indicating that in the
Fourth Amendment context the Court has required a showing of “intent to commit the acts in
question” rather than a showing of “subjective intent” as “to whether the force intentionally used
was ‘excessive’” (citing Cty. of Sacramento v. Lewis, 523 U.S. 833, 854 & n.13 (1998))); id. at
396 (hinting that as to intent to commit the acts in question “recklessness in some cases might
suffice as a standard for imposing liability” for Fourth Amendment violations (citing Lewis, 523
U.S. at 849)).
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effectively undermining that special rule “to the point of abrogation,” at least as to
Fourteenth Amendment excessive-force claims. See Archer, 531 F.3d at 1352.
And if that weren’t enough, the Kingsley Court expressly acknowledged that the
clearly-established prong of the qualified-immunity inquiry would govern such
claims. See 576 U.S. at 400 (“Additionally, an officer enjoys qualified immunity
and is not liable for excessive force unless he has violated a ‘clearly established’
right . . . .” (quotation omitted)). As a result, although the Johnson/Fennel
exception continues to apply to Eighth Amendment claims, we must abandon it as
applied in the Fourteenth Amendment context.
b
Applying the ordinary qualified-immunity framework, we conclude that
Patel’s constitutional rights here were not clearly established at the time of his
transport between Cook, Lowndes, and Lanier Counties. A right is clearly
established when “the state of the law g[ives] the [defendants] fair warning that
their alleged conduct [is] unconstitutional.” Caldwell, 748 F.3d at 1102 (second
alteration in original) (quoting Cottone v. Jenne, 326 F.3d 1352, 1359 (11th Cir.
2003)). “There are various ways to evaluate whether a right is clearly established”:
First, the plaintiff can point to a materially similar case decided at the
time of the relevant conduct by the Supreme Court, the Eleventh
Circuit, or the relevant state supreme court. . . . The prior case law
need not be directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate. Second, the
plaintiff can identify a broader, clearly established principle that
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should govern the novel facts of the situation. Third, the plaintiff can
show that the conduct at issue so obviously violated the Constitution
that prior case law is unnecessary.
J W ex rel. Williams v. Birmingham Bd. of Educ., 904 F.3d 1248, 1259–60 (11th
Cir. 2018) (internal quotation marks and citations omitted). At the time of the
constitutional violation here, there existed no clearly established law that could
have given Deputy Smith fair notice that confining Patel as he did amounted to
excessive force.
For starters, Patel can point to no “materially similar case.” Id. The closest,
it seems to us, is Danley v. Allen, which held that “subjecting a prisoner to special
confinement that causes him to suffer increased effects of environmental
conditions—[t]here . . . pepper spray lingering in the air and on him—can
constitute excessive force.” 540 F.3d 1298, 1308 (11th Cir. 2008), overruled in
part on other grounds as recognized by Randall v. Scott, 610 F.3d 701 (11th Cir.
2010). 9 But the force used against Danley was altogether different from the force
used against Patel. Danley was left to stew in pepper-spray vapor in a poorly
ventilated cell, and although he was released from the fumes and allowed a quick
shower after 20 minutes—less time than the two hours that Patel was left in the
9
“This circumstance is to be distinguished from environmental conditions that generally affect
the inmates in the jail, which are analyzed as conditions of confinement claims.” Danley, 540
F.3d at 1309.
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van—his shower, we emphasized, “did not permit him adequate time for effective
decontamination.” 540 F.3d at 1304, 10. Because the jailers took only this
“inadequate measure to ameliorate the effects” of their use of force, we explained,
Danley ultimately spent “a total of twelve to thirteen hours of suffering” in jail
without ever being able to fully cleanse himself of the pepper-spray residue. Id. at
1305, 10. In any event, our holding that the pepper-spray incident in Danley was
unconstitutional didn’t give Deputy Smith fair notice that his treatment of Patel
was excessive. Although our precedent clearly establishes that environmental
conditions can amount to excessive force in violation of the Fourteenth
Amendment, our previous cases would not have put Deputy Smith on notice that
the particular conditions he caused were sufficiently harsh.
We note that Danley cites Burchett—a Sixth Circuit case with facts quite
similar to this one—for the proposition “that confining . . . an arrestee, in a ‘police
car with the windows rolled up in ninety degree heat for three hours constituted
excessive force’ in violation of the Fourth Amendment.” 540 F.3d at 1309
(quoting Burchett, 310 F.3d at 945). But a mere citation to an out-of-circuit
decision—even with approval, and even with an accompanying factual précis—
cannot clearly establish the law for qualified-immunity purposes. See Caldwell,
748 F.3d at 1102 n.14 (“Only cases from the United States Supreme Court, this
Court, and the highest state court under which the claim arose can clearly establish
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the law in our Circuit.”); cf. also Jones v. Cannon, 174 F.3d 1271, 1288 n.11 (11th
Cir. 1999) (“[D]icta cannot clearly establish the law for qualified immunity
purposes.” (citing Hamilton v. Cannon, 80 F.3d 1525, 1530 (11th Cir.1996))).
Moreover, and in any event, even if Burchett—or Danley’s citation of it—
could clearly establish the law in general, it wouldn’t clearly establish that Deputy
Smith’s particular conduct violated Patel’s constitutional rights. The detention in
Burchett was both (1) somewhat longer—three hours with no ventilation, as
compared to two hours here, less than half of which was wholly unventilated—and
(2) somewhat more severe—a 90 degree ambient temperature, as compared to 85
degrees. 310 F.3d at 940. Close, but not close enough—because all agree that
confining a pretrial detainee in a hot vehicle for just a short time wouldn’t be
unreasonable, law-enforcement officials need some leeway in this area.
Accordingly, we will not impute notice in a hot-car case unless the analogy to
preexisting case law is clear.
Nor, we think, does any “broad[] . . . legal principle” laid down in any
controlling case clearly establish that Deputy Smith’s application of force was
excessive. J W, 904 F.3d at 1259. Although Kingsley established that all
objectively unreasonable applications of force against pretrial detainees violate the
Fourteenth Amendment, 576 U.S. at 396–97, confining a prisoner in a hot transport
van, even for a couple of hours, is not so obviously unreasonable that Deputy
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Smith should have known better in the absence of case law more closely on point.
Patel doesn’t point to any other case that established “a broad[], clearly established
principle that should govern the novel facts of the situation,” J W, 904 F.3d at
1259, and we aren’t aware of any.
Nor, finally, was Deputy Smith’s conduct so egregious “that prior case law
is unnecessary” to establish a clear violation of the Fourteenth Amendment. Id. at
1260. Although Patel’s detention and transport were no doubt exceedingly
uncomfortable—and as it turns out, dangerous—Deputy Smith’s conduct was not
akin to those instances “so far beyond the hazy border between excessive and
acceptable force that [the officer] had to know he was violating the Constitution
even without caselaw on point.” Lee v. Ferraro, 284 F.3d 1188, 1190–91, 1199
(11th Cir. 2002) (alteration in original) (quotation omitted) (identifying a violation
of a clearly established constitutional right despite a dearth of relevant case law
where an officer stopped the plaintiff for honking her horn, excoriated her in
profane and racially incendiary terms, pulled her from her car, frisked her, and
slammed her head against the trunk, all without any resistance on her part).
Having exhausted all alternatives and found nothing in the then-existing law
that would have given Deputy Smith fair notice that his particular conduct
amounted to excessive force in violation of the Fourteenth Amendment, we are
constrained to conclude that he is protected by qualified immunity as to Patel’s
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first claim. We therefore affirm the district court’s grant of summary judgment on
this point, albeit on different grounds.
B
We turn, then, to Patel’s allegation that Deputy Smith exhibited deliberate
indifference, in violation of the Fourteenth Amendment, by failing to provide
medical care in response to his serious medical need. This claim, of course, is
subject to the same two-step qualified-immunity analysis that governed Patel’s
excessive-force claim. We will consider the two prongs in turn.
1
The basic standards governing Patel’s Fourteenth Amendment deliberate-
indifference claim are uncontested and, here, are “identical to those under the
Eighth.” Goebert v. Lee Cty., 510 F.3d 1312, 1326 (11th Cir. 2007). Patel bears
the burden of proving (1) that he had an objectively “serious medical need,” (2)
that Deputy Smith acted with subjective “deliberate indifference to [that] serious
medical need,” and (3) that he suffered an “injury . . . caused by [Deputy Smith’s]
wrongful conduct.” Id. “A serious medical need is ‘one that has been diagnosed
by a physician as mandating treatment or one that is so obvious that even a lay
person would easily recognize the necessity for a doctor’s attention,’” Taylor v.
Hughes, 920 F.3d 729, 733 (11th Cir. 2019) (quotation omitted), and, in either
instance, “that, if left unattended, poses a substantial risk of serious harm,” Mann
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v. Taser Int’l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009) (quoting Farrow v. West,
320 F.3d 1235, 1243 (11th Cir. 2003)). A defendant is deliberately indifferent to a
plaintiff’s serious medical need when he “(1) ha[s] subjective knowledge of a risk
of serious harm; (2) disregard[s] that risk; and (3) act[s] with more than gross
negligence.” Harper v. Lawrence Cty., 592 F.3d 1227, 1234 (11th Cir. 2010).10
Patel argues that he suffered from a serious medical need during his
transport between Cook, Lowndes, and Lanier Counties and that Deputy Smith was
deliberately indifferent to it. In rejecting this claim, the district court said that
Patel “fail[ed] to cite to any case law or evidence to support his contention that his
unresponsiveness . . . was an objectively serious medical need.”
We disagree. Taking the facts in the light most favorable to Patel, there was
ample evidence. Grant testified that when she was brought to the van, Patel was
“lying unconscious on the floor of the van” and “breathing very fast,” that no fan
10
We pause briefly to flag a tension within our precedent regarding the minimum standard for
culpability under the deliberate-indifference standard. Although we have repeatedly noted that
“a claim of deliberate indifference requires proof of more than gross negligence,” e.g., Townsend
v. Jefferson Cty., 601 F.3d 1152, 1158 (11th Cir. 2010) (emphasis added), another line of our
cases favors the phrase “more than mere negligence,” McElligott v. Foley, 182 F.3d 1248, 1255
(11th Cir. 1999) (emphasis added). A panel of this Court recently suggested that “the ‘more than
mere negligence’ standard in McElligott is more consistent with Farmer [v. Brennan, 511 U.S.
825 (1994),] than the ‘more than gross negligence’ standard in Townsend.” Melton v. Abston,
841 F.3d 1207, 1223 n.2 (11th Cir. 2016). These competing articulations—“gross” vs. “mere”
negligence—may well represent a distinction without a difference because, as explained below,
the Supreme Court itself has likened the deliberate-indifference standard to “subjective
recklessness as used in the criminal law.” Farmer, 511 U.S. at 839–40 (emphasis
added). Accordingly, no matter how serious the negligence, conduct that can’t fairly be
characterized as reckless won’t meet the Supreme Court’s standard.
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or air conditioning was running, and that the back of the van was “very hot.” She
further testified that she was surprised that no one offered medical care to Patel
because “it was clear to [her] that [he] was in distress.” She added that even after
Deputy Smith roused Patel, placed him back on a bench, and began driving, Patel
didn’t open his eyes, continued to hyperventilate, and “appeared to be
unconscious.” Finally, she explained that on the way to Lanier County, Patel again
fell to the floor of the van, that he was still unconscious, that he was
hyperventilating, and that he had mucus running from his nose and mouth.
To Grant’s account, Patel added expert testimony regarding his condition
after Deputy Smith finally delivered him to Lanier County. In particular, Dr.
Reginald Nesbitt testified not only about his ultimate diagnosis—heat exhaustion,
heat syncope, and panic attack—but also about the seriousness of the symptoms he
saw in security-camera footage. Even Deputy Smith admitted to noticing some of
the symptoms that indicated a need for medical care—that Patel was shaking and
that mucus was running out of his nose.
A jury could infer from these facts all the necessary elements of a deliberate-
indifference-to-medical-needs claim. First, a jury could conclude that Patel’s
condition was objectively serious. Because Patel was not diagnosed as needing
medical care until after the conduct he complains of, his claim requires evidence
that “even a lay person would easily recognize the necessity for a doctor’s
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attention.” Taylor, 920 F.3d at 733 (internal quotation marks and citation omitted).
Check; even to a layperson, unconsciousness alone should serve as a strong
indicator of the need for immediate medical attention, at least where—as here—
context doesn’t indicate a benign explanation. On the record before us, we cannot
simply assume that Patel was sleeping peacefully; viewed in the light most
favorable to Patel, the facts permit the reasonable inference that his
unconsciousness was a sign of distress. Moreover, Patel wasn’t just unconscious,
he was sweating and hyperventilating—more than enough to indicate to a
layperson that he needed help. Finally, there was evidence of shaking, profuse
drooling, and a severely runny nose, as well as difficulty speaking. Not
surprisingly in light of all this evidence, Grant—a layperson and eyewitness to
Patel’s condition—testified that Patel’s physical distress was “clear.”
As for the second, subjective prong, we think the evidence that Deputy
Smith witnessed most of Patel’s symptoms firsthand and yet provided no medical
attention suffices to demonstrate that Smith was deliberately indifferent. A jury
doesn’t need direct evidence of Deputy Smith’s state of mind but, rather, may infer
the necessary subjective facts from circumstantial evidence—including inferences
“from the very fact that the risk was obvious.” Goebert, 510 F.3d at 1327 (internal
quotation marks omitted) (quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994)).
Here, the circumstantial evidence would allow a jury to infer “subjective
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knowledge of a risk of serious harm” because (1) Deputy Smith witnessed
symptoms that even a layperson could recognize as indicating that risk and (2)
Smith wasn’t any ordinary layperson—he was trained as a medical first responder.
Id. (internal quotation marks omitted) (quoting Bozeman v. Orum, 422 F.3d 1265,
1272 (11th Cir. 2005), abrogated on other grounds by Kingsley v. Hendrickson,
576 U.S. 389 (2015)). A jury could also find “disregard” of the risk based on the
fact that Deputy Smith provided no intervention until after he delivered Patel to the
Lanier County Sheriff’s Office, and then only reluctantly. Id. (internal quotation
marks omitted) (quoting Bozeman, 422 F.3d at 1272). Finally, the conduct here
was worse “than gross negligence” because Deputy Smith utterly refused to
respond to the severe symptoms that he saw. Harper, 592 F.3d at 1234. Deputy
Smith’s total inaction is telling; he not only failed to enlist the help of a medical
professional in the face of a serious medical need, but he failed even to provide
water on request and made no attempt to treat Patel himself despite having first-
responder training. And of course it was Deputy Smith’s neglect—leaving Patel in
a hot, unventilated, un-air-conditioned transport van—that created the danger in
the first place.
Finally, the evidence amply supports the conclusion that Deputy Smith’s
deliberate indifference caused Patel harm. Patel’s hospitalization and diagnoses
alone suffice to establish a jury question as to injury. And the very identity of his
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diagnosed conditions—heat exhaustion and heat syncope—indicate heat exposure
as their most likely cause.
* * *
For all these reasons, we conclude that Patel has presented sufficient
evidence to prove every element of a Fourteenth Amendment deliberate-
indifference claim.
2
We turn once more, then, to the second step of qualified immunity—that is,
whether the right that Patel alleges was clearly established. Although we haven’t
identified any controlling case with closely analogous facts, we think “the novel
facts of the situation” are obviously governed by a “broader, clearly established
principle.” J W, 904 F.3d at 1259. “The knowledge of the need for medical care
and intentional refusal to provide that care has consistently been held to surpass
negligence and constitute deliberate indifference.” Ancata v. Prison Health Servs.,
Inc., 769 F.2d 700, 704 (11th Cir. 1985). Both aspects of this articulation—
knowledge and intentional refusal—are on full display here.
This broad principle has put all law-enforcement officials on notice that if
they actually know about a condition that poses a substantial risk of serious harm
and yet do nothing to address it, they violate the Constitution. No more notice was
necessary because “the assumed circumstances here are stark and simple, and the
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[preexisting] decisional language . . . obviously and clearly applies.” Bozeman,
422 F.3d at 1274. This is not a case in which a law-enforcement officer provided
inadequate aid, the reasonableness of which can be fairly disputed. Here, at least
on the facts as we must take them, Deputy Smith provided no timely aid—he was
confronted with a serious medical need and did nothing. Because we have made
clear that such complete abdication in the face of a known serious need is
unconstitutional, Deputy Smith is not entitled to qualified immunity.11
* * *
11
We have previously suggested in dicta that “[a] finding of deliberate indifference necessarily
precludes a finding of qualified immunity; prison officials who deliberately ignore the serious
medical needs of inmates cannot claim that it was not apparent to a reasonable person that such
actions violated the law.” Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1186 (11th Cir.
1994), overruled in part on other grounds by Hope v. Pelzer, 536 U.S. 730 (2002) (quoting
Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir.1992)). Subsequently, however, we have
reserved the question whether prior decisional law must clearly establish that the specific
medical issue complained of—here, heat exhaustion—counts as a serious medical need.
Lancaster v. Monroe Cty., 116 F.3d 1419, 1426 n.7 (11th Cir. 1997), overruled in part on other
grounds by LeFrere v. Quezada, 588 F.3d 1317 (11th Cir. 2009). We have also opined, in dicta,
that our “general statement of law ordinarily does not preclude qualified immunity in cases
involving a delay in medical treatment for a serious injury” because “[t]he cases are highly fact-
specific and involve an array of circumstances pertinent to just what kind of notice is imputed to
a government official and to the constitutional adequacy of what was done to help and when.”
Bozeman, 422 F.3d at 1274. We think it unlikely that an officer will be able to avail himself of
qualified immunity where, as here, the evidence allows the inference that he was aware of and
flatly ignored a serious risk of harm requiring medical attention just because our prior case law
didn’t put him on notice of that risk. Because a serious medical need is, by definition, one that
has been diagnosed as needing treatment or one that would be obvious to lay people, no officer
can be unfairly surprised to learn that he violated the Constitution by flatly ignoring it. We leave
open the question whether an officer who takes inadequate measures to treat a dangerous
condition may be entitled to qualified immunity where previous case law didn’t put him on
notice that his response was deficient.
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So ends our analysis of Patel’s federal constitutional claims. Construing the
facts and associated inferences in the light most favorable to Patel, we have
identified two violations of the Fourteenth Amendment—one because Deputy
Smith employed excessive force in detaining Patel in a hot, unventilated, and un-
air-conditioned transport van for approximately two hours, and another because
Deputy Smith was deliberately indifferent to Patel’s resulting medical needs. We
conclude that qualified immunity shields Deputy Smith from liability on Patel’s
excessive-force claim, but not on his deliberate-indifference claim.
III
We turn, finally, to Patel’s state-law claims—for negligence and intentional
infliction of emotional distress—and to Deputy Smith’s corresponding official-
immunity defense. The district court granted summary judgment to Deputy Smith
on official-immunity grounds. “Under Georgia law, a public officer or employee
may be personally liable only for [1] ministerial acts negligently performed or [2]
acts performed with malice or an intent to injure.” Grammens v. Dollar, 697
S.E.2d 775, 777 (Ga. 2010) (internal quotation marks omitted) (quoting Cameron
v. Lang, 549 S.E.2d 341, 344 (Ga. 2001)). Indeed, the immunity goes farther than
that; unless the public employee acts maliciously or pursuant to a ministerial duty,
he is immune not just from liability but also from suit based on the performance or
nonperformance of his official functions. Barnett v. Caldwell, 809 S.E.2d 813, 847
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(2018). Notably, the question whether official immunity attaches cannot always be
decided on summary judgment: “While the question of whether a government
employee is entitled to official immunity is one of law that the trial court
ultimately must determine, where the relevant facts pertaining to immunity are in
dispute, the trial court is without authority to resolve those factual issue on a
motion for summary judgment.” Glass v. Gates, 716 S.E.2d 611, 621 (Ga. Ct.
App. 2011).
Although Patel did not move for summary judgment on his state-law claims,
he opposed Deputy Smith’s immunity-based motion and continues to contest it on
appeal. In particular, Patel contends that official immunity does not apply because
Deputy Smith violated a “ministerial” duty by leaving him unattended in the
transport van. “A ministerial act is commonly one that is simple, absolute, and
definite, arising under conditions admitted or proved to exist, and requiring merely
the execution of a specific duty.” Grammens, 697 S.E.2d at 777 (internal quotation
marks omitted) (quoting McDowell v. Smith, 678 S.E.2d 922, 924 (Ga. 2009)). Its
opposite is a discretionary act, which “calls for the exercise of personal
deliberation and judgment, which in turn entails examining the facts, reaching
reasoned conclusions, and acting on them in a way not specifically directed.” Id.
(internal quotation marks omitted) (quoting McDowell, 678 S.E.2d at 924). “A
ministerial duty may be established in a variety of ways, including by written or
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unwritten policy, a supervisor’s directive, or by statute.” Hill v. Jackson, 783
S.E.2d 719, 725 (Ga. Ct. App. 2016).
In support of his argument that Deputy Smith is not entitled to official
immunity, Patel points to a written policy of the Lanier County Sheriff’s Office on
the subject of “Transporting Arrested Persons,” which he says creates a ministerial
duty not to leave detainees alone in vehicles during transport. The text of the
policy does appear to lay down a “simple, absolute, and definite” duty to that
effect. Grammens, 697 S.E.2d at 777 (internal quotation marks and citation
omitted). Under the subheading “Transport Guidelines,” Policy Statement 7 reads:
“Detainees may not be left unattended during transport.” Deputy Smith doesn’t
deny the existence of such a policy—nor, apparently, does he dispute that the
policy sets out a ministerial duty. Instead, he insists that the policy doesn’t apply
to the transport of pretrial detainees like Patel, but “solely to recently arrested
individuals being transported in custody for the first time.” Br. of Appellee at 31.
To be sure, certain elements of the policy might be read to suggest that it is
limited to recent arrestees. For one thing, the subject heading of the policy reads:
“Transporting Arrested Persons.” For another, the policy requires every detainee
to be “thoroughly searched for any weapons or contraband . . . prior to transport,”
and for transporting officers to provide the dispatcher with the “[i]dentity of the
detainee . . . so a warrant check can be completed” and the “[a]rrest location”—
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procedures that perhaps apply more naturally in the context of an initial arrest than
the context of transporting a pretrial detainee to or from a hearing. The policy also
uses terms like “arrestee,” “person in custody,” and “[a]rrested [p]erson[]”
alongside the more general “detainee,” arguably indicating that the terms are
interchangeable, and thus that the scope of the word “detainee” should be
circumscribed.
On balance, though, we think the policy’s text indicates that it applies to the
transport of all detainees. Although the policy occasionally uses other terms as
well, it overwhelmingly favors the general term “detainee.” Additionally, while
the policy’s search protocol might apply most obviously in the context of a fresh
arrest, the same provision unambiguously refers to “[a]ll detainees”—a broad term
that resists a narrow interpretation. And it is entirely sensible to insist on a
thorough search before any “detainee” is transported; a pretrial detainee, for
instance, could well have some item of jail-made contraband on his person.
Perhaps most significantly, Policy Statement 6 under the “Transport Guidelines”
subheading—the provision immediately preceding the one that creates the
ministerial duty here—seems to confirm that the policy applies to more than just
those recently arrested. It reads: “Transport of detainee[s] for any reason after
incarceration, is accomplished by sworn officers or specially trained transportation
officers.” The phrase “[t]ransport of detainee[s] . . . after incarceration” cannot be
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squared with an interpretation of the word “detainee” that is limited to recent
arrestees.
Accordingly, we think the textual evidence tilts in favor of Patel’s position.
In addition to his textual arguments, though, Deputy Smith introduced oral
testimony to support his contention that the policy doesn’t apply to pretrial
detainees. Lanier County Lieutenant Sheriff Robert Cuellar testified that no
written policies govern the transportation of pretrial detainees. Lieutenant Jerry
Cherry likewise testified that leaving a detainee unattended in a transport van
doesn’t violate any written policy. Cherry also stated that when transporting
multiple inmates to different jails, department practice is to leave those not being
dropped off in the van with the fan running, although he admitted that he had never
personally confronted that situation.
Given the strength of Patel’s textual arguments, the supervising officers’
testimony cannot demonstrate the absence of a ministerial duty as a matter of law,
so as to justify summary judgment in Deputy Smith’s favor. Nevertheless, their
testimony does suggest that, in practice, the policy might have been implemented
by Deputy Smith’s superiors in a way that departed from the policy’s language.
Patel does not deny that testimonial evidence contradicting a written policy can be
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considered when deciding whether a ministerial duty existed 12—he merely argues
that the evidence here creates a factual question that a jury should decide. We
agree.
On remand, then, a jury should determine—in light of the written policy and
the testimonial evidence—whether Deputy Smith’s conduct was governed by a
“specific, simple, absolute, and definite duty” not to leave detainees like Patel
unattended during transport. See Barnett, 809 S.E.2d at 816 (“[A] written (or
unwritten) policy, a supervisor’s specific directive, or a statute may establish a
ministerial duty—but only if the directives are so clear, definite, and certain as to
merely require the execution of a specific, simple, absolute, and definite duty, task
or action in a specified situation without any exercise of discretion.”). The jury’s
answer to this question will inform the district court’s legal conclusion as to
whether official immunity applies. We therefore reverse the district court’s grant
of summary judgment to Deputy Smith on official immunity grounds.
12
Both parties accept the proposition that testimonial evidence extrinsic to a written policy may
be introduced for the purpose of contradicting its terms when determining whether a ministerial
duty existed, and both cite Davis v. Phenix City for that proposition. 513 F. Supp. 2d 1241, 1250
n.2 (M.D. Ala. 2007) (reasoning that “while interpretation of written policies is generally a
question of law,” conflicting testimony can “create[] a question [of fact] as to what the true
practice is”). We haven’t found any direct support for this proposition in Georgia law, but
because Patel doesn’t dispute it, we assume—without deciding—that it is correct. And because
Patel didn’t move for summary judgment, we needn’t decide whether or not the particular
testimony here was enough to create a genuine issue of fact. Even assuming it was, it still
wouldn’t be enough to resolve the question in Deputy Smith’s favor as a matter of law.
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IV
In summary, we hold that the district court prematurely terminated claims
that should have been considered at trial. The record contains sufficient evidence
to support Patel’s claim that Deputy Smith violated the Fourteenth Amendment
both by employing excessive force and by failing—with deliberate indifference—
to address Patel’s serious medical need. And although the law supporting Patel’s
excessive-force claim was not sufficiently clearly established to overcome Deputy
Smith’s qualified-immunity defense, Patel’s deliberate-indifference claim should
not have been disposed of summarily. Additionally, because the record would
permit a jury to find that Deputy Smith was subject to a ministerial duty not to
leave Patel unattended, Patel’s state-law claims should have survived the motion
for summary judgment, as well.
AFFIRMED in part, REVERSED in part, and REMANDED.
37