April Myrick v. Fulton County, Georgia ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10441
____________________
APRIL M. MYRICK,
as guardian of Za'Kobe K. Rickerson, a minor
as guardian of Jordan I. Rickerson, a minor,
SHEENA PETTIGREW,
Mother and Natural Guardian
of Elijah Pettigrew, a minor,
THE ESTATE OF ANTONIO DEVON MAY,
by and through his Administrator April M. Myrick,
Plaintiffs-Appellants,
versus
FULTON COUNTY, GEORGIA,
SHERIFF THEORDORE JACKSON,
in his individual capacity,
SHERIFF OF FULTON COUNTY, GEORGIA,
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2 Opinion of the Court 22-10441
in his official capacity,
SERGEANT JOHN DOE,
in his official and individual capacities,
JOHN DOE DEPUTIES, individually,
NAPHCARE, INC., et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-02440-TWT
____________________
Before NEWSOM, LUCK, and TJOFLAT, Circuit Judges.
TJOFLAT, Circuit Judge:
This appeal arises from the tragic death of Antonio May on
September 11, 2018. April Myrick, Sheena Pettigrew, and the Es-
tate of Antonio May (collectively the “Appellants”) appeal the Dis-
trict Court’s orders dismissing their claims against Sheriff Theo-
dore Jackson and granting summary judgment to the Fulton
County Sheriff’s Department Officers, NaphCare, and NaphCare
employee Travis Williams. After careful review of the record (in-
cluding the portions of the incident captured on video), and with
the benefit of oral argument, we affirm the District Court’s dismis-
sal of the claims against Sheriff Jackson, and its grant of summary
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22-10441 Opinion of the Court 3
judgment to both the Officers and Williams. Because the District
Court erred in granting NaphCare summary judgment, however,
we vacate the District Court’s summary judgment in favor of
NaphCare and remand the case against NaphCare for further pro-
ceedings.
I.
A.
The Atlanta Police Department (the “APD”) responded to a
criminal trespass call at the American Cancer Society building in
downtown Atlanta very early in the morning on September 11,
2018. A male subject had thrown multiple rocks at the building,
shattering one of the glass windows. Upon their arrival, APD of-
ficers heard a male voice yelling and noticed a male subject laying
on the ground with his arms spread out. APD officers identified
the subject as Antonio May, and building security informed APD
that May threw the rocks at the building. May told the APD offic-
ers that he wanted to go to jail and indicated that he was not feeling
well; the APD officers took May to Grady Hospital to be examined.
Grady Hospital records show that May arrived around
5:30 AM and stated that he felt paranoid and thought someone was
chasing him. He also admitted to smoking methamphetamine that
night but refused lab work. The Grady Hospital records note that
May had a history of meth use and that he was also restless, was
picking at his skin, and had hyper-verbal speech. In addition to us-
ing methamphetamine, May admitted to consuming a large 22-
ounce beer that morning. May told hospital employees that he felt
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4 Opinion of the Court 22-10441
like he was having a mental breakdown and that he had been trying
to get the police to help him because of his paranoia, but that they
arrested him instead. May further indicated that he had been using
methamphetamine for several years, but claimed his problem was
not methamphetamine, but rather his mental breakdown. Finally,
the records indicate that May denied suicidal ideation, homicidal
ideation, audio or visual hallucinations, and prior psychological
hospitalizations. The hospital, on the recommendation of a psy-
chiatrist, released May to be transported to the Fulton County Jail,
as that structured environment was “likely to be of the most benefit
for him given his current meth intoxication.” They also stated that
May was “safe for discharge from a psychiatric perspective.”
B.
May arrived at the Fulton County Jail around 9:00 AM on
the morning of September 11, 2018. As a brief overview, the Ful-
ton County Jail contracts with NaphCare to provide all medical ser-
vices to the inmates at the jail. When an inmate arrives at the Ful-
ton County Jail, he is initially strip searched. He then goes to triage,
where a nurse or paramedic does a very brief intake screening prior
to taking custody of the inmate. The inmate then goes through the
booking process, after which the medical department performs a
full medical screening, or receiving screening, before the medical
provider at the jail determines where to house the inmate.
If the inmate expresses feelings of suicide or self-harm dur-
ing the intake examination, a mental health professional typically
evaluates him as soon as possible, and makes sure that he is
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22-10441 Opinion of the Court 5
observed and isolated so that he is not a danger to himself or others.
The medical provider on duty makes the final decisions regarding
detox procedures if an inmate indicates that he is on drugs or the
intake nurse or paramedic suspects that is the case.1 On the day
that May was taken to Fulton County Jail, the provider on duty was
David Didier.
EMT Travis Williams conducted May’s intake screening.2
When Williams asked him if he was suicidal, May indicated that he
was, but that he did not have a plan to harm himself. Williams also
stated that the arresting officer gave him paperwork from Grady
Hospital indicating doctors diagnosed May as having methadone
use disorder. 3 On the intake screening form, Williams noted that
May was actively or suspected to be detoxing and that May had
current suicidal thoughts, but that he had no current plan regarding
those thoughts.
When the intake screening is done, the nurse or paramedic
places the screening form in a dedicated place for the provider to
find, and the inmate moves to the booking process. If the intake
1 The medical provider—an employee of NaphCare and not the Fulton
County Jail—is typically a nurse practitioner or physician’s assistant in charge
of overseeing NaphCare’s provision of medical services.
2 Travis Williams was an employee of NaphCare, as was medical provider
David Didier.
3 The same records also indicate that May was diagnosed with substance-in-
duced psychotic disorder.
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screening reveals anything abnormal, the intake nurse or para-
medic reviews it with the provider. At his deposition, Williams
stated that after completing the intake screening, he took the form
to let the provider know about May’s suicidal ideations and poten-
tial drug use. On the way, Williams stated that he stopped at the
booking desk and told them that May had thoughts of suicide and
self-harm.4 He then testified that he told the medical provider on
duty, Didier, that May had come in from Grady with methadone
use disorder and substance-induced psychotic disorder, that he
voiced thoughts of suicide, and that he was possibly detoxing. 5
After Williams concluded May’s intake screening, the record
reveals little about what happened to May. The intake screening
took place around 9:00 AM, and then May was sent to booking.
Before booking could be concluded and May could be dressed out
and housed elsewhere in the jail, he needed to have a full medical
screening, also known as a receiving screening. Sergeant Myron
Bush, the intake supervisor from 7 AM–3 PM on September 11, re-
ported that, at some time during the booking process, May dis-
played erratic behavior and signs of mental illness, claiming that
people were watching him. Bush made the decision to place May
in holding cell 172 because it was near medical and medical would
4 Williams did not remember who he spoke with at the booking desk. Re-
gardless, it is undisputed that, whomever he told, that information was never
passed along to the other Fulton County Jail officers working that day.
5 According to Didier’s deposition testimony, he does not recall Williams in-
forming him that May was suicidal and detoxing.
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be able to observe May. The record shows that May was placed in
the holding cell by noon at the latest. Bush also reported that May
beat on the glass on the door of the holding cell a few times
throughout the day and took several minutes to comply with com-
mands. Bush decided to “fast track” May and get him through
medical screening as quickly as possible. He informed Sergeant Ja-
millah Saadiq, the incoming intake supervisor, that May was to be
fast tracked. Lieutenant Derrick Paige, Direct Action Response
Team (“DART”) commander and unit manager over the intake
area on September 11, 2018, also recalled that prior to May’s alter-
cation with the Officers, he observed May being combative and
banging on the glass on the door to the holding cell. Paige in-
structed May to put his shirt back on, and May complied, but he
continued to yell and curse at everyone and bang on the door as
people walked by.
NaphCare records show that May’s vitals were taken at
10:46 AM, and that someone attempted to take his vitals at
3:29 PM, but that attempt was not successful. Those records also
show that NaphCare ran a drug screening test on May, and that, at
the latest, the results of that test were available by 12:55 PM on
September 11, 2018. 6 The results show that May was positive for
6 The lab report indicates that the results were last updated at 11:55 AM CDT.
This would be 12:55 PM Eastern time, which is the time zone in Atlanta. This
does not indicate when the results were first available, but it does show that
by 1 PM at the latest—hours before the incident at issue here—NaphCare
knew or should have known that May tested positive for drugs.
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8 Opinion of the Court 22-10441
amphetamines, ecstasy, and methamphetamine. The record does
not indicate that May was ever treated for the drugs or that his su-
icidal thoughts were monitored while he was in the holding cell.
The parties do not dispute the point that none of the officers in-
volved were aware that May was suicidal or potentially detoxing.
C.
Sergeant Jamillah Saadiq, the intake supervisor on the after-
noon of September 11, 2018, first encountered May when she
walked through the intake area and saw him naked in the holding
cell. 7 She asked May to put his clothes on and went to get assis-
tance to see if they could get May’s clothes on and get him through
the rest of the intake process.
She requested assistance from DART Officer Aaron Cook.8
Cook, along with Officers Omar Jackson and Jamel Goodwine, ar-
rived and noticed May naked and masturbating in the cell9—in
7 She worked the 3 PM–11 PM shift and took over from Sergeant Myron Bush,
who was the intake supervisor for the previous shift.
8 Direct Action Response Team, or DART, members were solely assigned to
DART and were not stationed at any specific location within the Fulton
County Jail. Instead, they provided facility patrol, removed contraband from
inmates’ cells during shakedowns, assisted with floor operations when needed,
responded to emergencies, and engaged inmates if an inmate became com-
bative. DART members received additional training, such as tactical school,
beyond what a floor officer normally received.
9 Officers Jackson and Goodwine did not recall seeing May masturbating, but
did recall seeing him naked in the cell.
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violation of both jail policy and state law. Cook instructed May to
get dressed. Cook then asked for the door to cell 172 to be opened
while he continued to give loud verbal commands to May to back
up and then get face down on the ground. May responded by say-
ing something along the lines of “I ain’t doing that shit,” and took
an aggressive stance—clenched fists and separated feet—in front of
the cell door. At this point, Cook removed his county-issued taser
and gave another loud verbal command to get on the ground; May
still did not comply. May, still in an aggressive stance, then stepped
toward Officer Cook.10 All three officers testified that, at that mo-
ment, they believed May represented a threat to them. Cook then
deployed his taser, striking May in the back.11 May fell to the
ground, but almost immediately got back up and charged at the
officers while screaming, kicking, and punching. Cook twice at-
tempted to send another charge through the taser to incapacitate
May but, according to the taser logs, these additional attempts had
no potential for effectiveness.
By now, other officers had joined to help get May under con-
trol. Officer Jackson, assisted by Officers Goodwine and Jason
10 Appellants argue that the Officers’ testimony that May stepped toward
Cook is not credible and that the Officers’ depositions contradict the state-
ments they gave immediately after the incident. We address this argument
infra part III.A.1.
11 The taser log shows that Cook’s taser was deployed at 3:49.22 PM and that
the charge was partially successful for the first two seconds, but then the con-
nection was lost.
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10 Opinion of the Court 22-10441
Roache, attempted to restrain May’s legs, but May continued to
kick. To gain compliance, Officer Jackson stunned May’s left leg
with his taser, which allowed him to cross May’s legs at the an-
kles. 12 Officer William Whitaker observed May kicking at the
other officers and, believing him to be an immediate threat, de-
ployed his taser; the taser had no effect on May. 13 Officer Whita-
ker attempted to drive stun May with his taser three times; these
attempts may have been successful.14 Believing the stuns to be in-
effective, and because May was still being combative, refusing to
get down, and trying to exit the cell, Whitaker pepper-sprayed May
in the face.
After Officer Whitaker deployed the pepper spray, Officer
Roache took May to the ground using a tactical maneuver. With
the help of Officers Cook, Jackson, and Goodwine, Officer Roache
successfully placed leg irons on May.15 May continued to punch at
Officer Roache. Officer Kenesia Strowder, who noticed her team-
mates struggling with May while she conducted crowd control,
stepped in to help and attempted to handcuff May. May continued
12 The taser log shows that Jackson’s taser was used to stun May at
3:50.11 PM.
13 According to the log, Officer Whitaker deployed his taser at 3:50.18 PM.
14 Of the three attempts to stun May, the taser log indicates that the first had
no potential for effectiveness. The second and third attempts to stun May
might have been successful.
15 This was the only time Officer Goodwine made contact with May.
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to resist and grabbed Strowder’s handcuffs; Strowder gave May
verbal commands to drop the cuffs. When May did not comply,
Strowder struck him with a closed fist four times—once in each of
the face, arm, hand, and back. Officer Jermaine Copeland then ap-
plied handcuffs to May. The handcuffs were transferred to waist
chains as May continued to kick his legs. Officer Guito Delacruz
put a spit mask over May’s face after seeing him spit.
With May restrained, Officers Cook, Jackson, Whitaker, and
Roache placed May in a restraint chair16 and moved him to the
showers for decontamination, as is protocol after using pepper
spray. 17 The Officers placed May in the restraint chair with the
following restraints applied: handcuffs, waist chain, leg restraints,
and the shoulder straps from the chair itself. May continued his
aggressive and combative behavior. The Officers removed May’s
spit mask and decontaminated his face with cool water from a hose.
16 There is much debate in this case as to whether the chair used to transport
May from the holding cell to the shower and then to the property room was a
restraint chair or a transport chair. The difference in the type of chair used is
not relevant for purposes of this appeal. For consistency, we refer to it as a
restraint chair because this case comes to us on a motion for summary judg-
ment, and Appellants classified it as a restraint chair.
17 According to their depositions, Officers Copeland, Goodwine, and Dela-
cruz never touched the restraint chair. Following the incident, Officers Cook,
Jackson, Whitaker, Roache, and Delacruz, as well as Lieutenant Derrick Paige,
were disciplined for improperly applying the restraint chair’s wrist restraints
and failing to remove the waist chain and leg irons in a timely manner; the
Officers testified during the Fulton County Sheriff’s Office of Professional Ser-
vices investigation that they used a transport chair and not a restraint chair.
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After they removed the leg restraints, the Officers attempted to
dress May, who continued to kick and resist. As they attempted to
dress May, Officers Whitaker and Roache each delivered one
closed-hand strike to May’s legs to gain compliance. Once they
dressed May, the Officers reapplied his restraints, including the spit
mask, and Officer Whitaker wheeled May into the property room
for examination by the medical staff.
Officer Cook left the property room to get Didier, the med-
ical provider, who was required to perform an evaluation after a
use of force incident. Shortly thereafter, Didier arrived in the prop-
erty room. Didier conducted a visual evaluation of May, who was
awake and not in distress. Didier then left the area to gather equip-
ment. As Didier performed his assessment, DART Commander
and Intake Unit Manager Lieutenant Derrick Page arrived. Be-
cause May no longer appeared to be resisting, Lieutenant Paige in-
structed the officers to remove the handcuffs and place May’s
hands in the chair restraints, which they began to do.
At some point the officers realized May had become unre-
sponsive. Approximately fifteen seconds after Didier left, Officer
Whitaker lifted May’s spit mask. May’s legs and head moved at
that time. Approximately ten seconds later, Whitaker rocked the
chair up and down slightly; May did not move. Approximately ten
seconds after that, Whitaker dropped the chair into resting posi-
tion, which jolted May but did not cause any reaction. The officers
began to look at May and touch him, but May did not respond.
Lieutenant Paige directed the officers to get May out of the chair
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and start lifesaving measures. The officers began to remove May’s
restraints and move him to the floor, which took about two
minutes. During this time, May remained unresponsive in the
chair.
Officer Roache gave May chest compressions while Officer
Copeland performed rescue breathing. For about the next half
hour, various officers, medical staff, and Atlanta Fire Department
personnel—who arrived on scene approximately 15 minutes after
May became unresponsive—attempted to resuscitate May, who
died on the floor of the property room. According to the medical
examiner’s report, May died of sudden cardiovascular collapse due
to probable excited delirium with physical restraint use and acute
methamphetamine intoxication; the manner of death is listed as
undetermined.
D.
On May 29, 2019, Appellants 18 brought this lawsuit in the
United States District Court for the Northern District of Georgia
alleging the following claims, all stemming from May’s death:
1. Excessive force and deliberate indifference claims under 42
U.S.C. § 1983 against Jason Roache, Derrick Paige, Jamel
Goodwine, William Whitaker, Aaron Cook, Omar Jackson,
18 Appellants are May’s estate; April Myrick, the legal guardian and grand-
mother of two of May’s children, Za’Kobe and Jordan Rickerson; and Sheena
Pettigrew, the mother and natural guardian of Elijah Warren, another of
May’s children.
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14 Opinion of the Court 22-10441
Jermaine Copeland, Kenesia Strowder, and Guito Delacruz
(collectively, the “Officers”);19
2. Supervisory liability under 42 U.S.C. § 1983 against Fulton
County, Georgia and Sheriff Theodore Jackson for unconsti-
tutional policies that led to May’s death; 20
3. Common law and statutory failure to warn claims against
Axon Enterprise; 21
4. Discrimination under the Americans with Disabilities Act
(the “ADA”) and Rehabilitation Act against Sheriff Jackson
in his official capacity and against Fulton County, Georgia;22
19 Jasmine Rowe, Jamillah Saadiq, Mary Stovall, and Jordan Wilcher were
originally listed as defendants on the excessive force and deliberate indiffer-
ence claims, but the parties jointly stipulated to dismiss all claims against those
officers under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). Appellants
moved the District Court to add Myron Bush as a defendant to the excessive
force and deliberate indifference claims, but the District Court denied that re-
quest.
20 Fulton County moved the District Court to dismiss all the claims against it.
The District Court granted that motion. Appellants do not appeal the dismis-
sal of claims as to Fulton County, so that claim is not before this Court on
appeal.
21 The parties stipulated to the dismissal of all claims against Axon Enterprise,
Inc. pursuant to Rule 41(a)(1)(A)(ii).
22 Appellants do not reference their ADA or Rehabilitation Act claims in their
appeal, so this issue is not properly before this Court. See Access Now, Inc. v.
Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or
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5. Medical negligence under Georgia law against NaphCare,
Inc. and paramedic Travis Williams. 23
Sheriff Jackson moved the District Court to dismiss the
claims against him. The District Court granted that motion. Spe-
cifically, the Court found that, as an arm of the State, Sheriff Jack-
son was not a person within the meaning of § 1983. As such, the
Court held that it lacked jurisdiction to entertain the § 1983 claims
against Sheriff Jackson (in his official capacity) because he was en-
titled to Eleventh Amendment immunity. With respect to Sheriff
Jackson in his individual capacity, the District Court held that he
was entitled to qualified immunity on the § 1983 claims of supervi-
sory liability based on a failure to train and inadequate policies be-
cause Appellants (1) failed to demonstrate that qualified immunity
was not appropriate on the failure to train claims; (2) did not plau-
sibly allege a history of widespread abuse that would have placed
Sheriff Jackson on notice of a need for correction; (3) had not plau-
sibly alleged that a causal connection existed between Sheriff Jack-
son and the alleged constitutional violation; (4) had not plausibly
pleaded that the Sheriff directed the deputies to act unlawfully or
knew that they would do so and failed to stop them; and (5) had
not shown that it was clearly established that the Sheriff had an ob-
ligation to disregard the medical expertise of the contractors he
argument that has not been briefed before this court is deemed abandoned
and its merits will not be addressed.”).
23 Appellants moved the District Court to add David Didier as a defendant to
the medical negligence claim. The Court also denied that request.
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16 Opinion of the Court 22-10441
hired to provide healthcare. The District Court dismissed the ADA
and Rehabilitation Act claims because Appellants did not success-
fully allege that Sheriff Jackson (or any Fulton County Jail em-
ployee) was aware of May’s disability, so he could not have discrim-
inated against him based on that disability.
Following discovery, the Fulton County Officers moved the
District Court for summary judgment on the claims against them.
The District Court granted that motion on qualified immunity
grounds. The Court held that, under the objective reasonableness
standard, the Officers did not subject May to objectively unreason-
able force. May violated both jail policy and state law, refused to
put on his clothes, and ignored instructions. Once May stepped
towards Officer Cook, Cook deployed his taser. This was a reason-
able amount of force in the Court’s view. According to the Court,
“the crucial fact underlying this analysis is May’s step toward the
Officers. . . . This step . . . indicates that a reasonable officer under
the same circumstances could have determined that May repre-
sented a safety or flight risk.” Order, Doc. 240 at 17.
The District Court similarly found all of the following to be
objectively reasonable uses of force, given May’s continued re-
sistance to the Officers and noncompliance with their commands:
the subsequent taser deployments; Officer Whitaker’s use of the
pepper spray; Officer Roache’s takedown of May; Officer
Strowder’s closed-fist strikes; Officer Delacruz’s use of a spit mask;
and the use of a restraint chair with additional restraints by Officers
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22-10441 Opinion of the Court 17
Paige, Delacruz, Whitaker, Roache, and Jackson.24 The District
Court also found that Appellants had not provided specific case law
that would indicate that the alleged constitutional violations were
clearly established, instead painting the collective use of force by all
Officers as collectively unreasonable. According to the Court, the
actions of the Officers “do not represent such shocking conduct
that their unconstitutionality can be inferred by anything less than
clear precedent.” Order, Doc. 240 at 24. The Officers were thus
entitled to qualified immunity on the excessive force claim.
The District Court also granted the Officers summary judg-
ment on the deliberate indifference claim. Even if Appellants had
successfully met the first element of such a claim—showing a sub-
stantial risk of serious harm—the Court held that they did not show
a genuine issue of material fact as to the second—deliberate indif-
ference to that risk. This was because the video footage “dispels
any notion that the Officer Defendants responded unreasonably to
May’s conditions.” Id. at 26. Because the Officers got May medical
assistance and reacted when he became unconscious, Appellants
failed to show that the Officers were deliberately indifferent.
Like the Officers, NaphCare and Travis Williams jointly
moved the District Court for summary judgment as to the medical
negligence claims against them. As it did with the Officers, the
24 On appeal, Appellants make arguments regarding only three of these al-
leged uses of excessive force: Officer Cook’s use of the taser, Officer
Strowder’s closed-fist strikes, and the use of illegal restraints by Officers Dela-
cruz, Cook, Whitaker, Roache, and Jackson.
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District Court granted their motion. The District Court focused
the bulk of its order on the third element of a medical malpractice
claim under Georgia law—proximate cause. Importantly, the
Court noted: “Both of the experts concede in their conclusions that
an intervening event—May’s altercation with the Officer Defend-
ants—occurred between the actions of the NaphCare Defendants
and May’s death.” Id. at 30. According to the Court, “too many
actions and choices made by May and the Officers [stood] in be-
tween the decisions of the NaphCare Defendants and May’s death
to deem their failure to sedate May the proximate cause of the
events.” Id.
E.
In their timely appeal, Appellants largely reassert the same
arguments as below. They argue that Sheriff Jackson is not entitled
to Eleventh Amendment immunity in his official capacity, that he
is a person within the meaning of § 1983, that he is not entitled to
qualified immunity in his individual capacity, and that he can be
held liable under a supervisory liability theory in both his official
and individual capacities. They further argue that Williams and
NaphCare are not entitled to summary judgment because they
have shown proximate cause between May’s death and the lack of
medical care he received, as required by Georgia law. Finally, Ap-
pellants argue that the Officers are not entitled to summary judg-
ment on the excessive force and deliberate indifference claims be-
cause (1) the amount of force used on May was not objectively rea-
sonable; (2) the Officers’ depositions are not credible; and (3) none
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22-10441 Opinion of the Court 19
of the Officers rendered first aid, offered to assist, or took May di-
rectly to receive medical care. We address each of these claims in
turn.
II.
To begin, we address Appellants’ argument that the District
Court erred in granting Sheriff Jackson’s motion to dismiss. We
review a district court’s ruling on a motion to dismiss for lack of
subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1) de novo. Smith v. United States, 7 F.4th 963, 973 (11th Cir.
2021). Likewise, we review a district court’s grant of a motion to
dismiss for failure to state a claim under Federal Rule of Civil Pro-
cedure 12(b)(6) de novo. McGroarty v. Swearingen, 977 F.3d 1302,
1306 (11th Cir. 2020). We accept the factual allegations in the com-
plaint as true and construe them in the light most favorable to the
plaintiff. Id. We may dismiss a complaint pursuant to Rule 12(b)(6)
on a dispositive issue of law. Patel v. Specialized Loan Servicing, LLC.,
904 F.3d 1314, 1321 (11th Cir. 2018) (citing Marshall Cnty. Bd. of
Educ. v. Marshall Cnty. Gas Dist., 992 F.3d 1171, 1174 (11th Cir.
1993)).
A.
“An assertion of Eleventh Amendment immunity essentially
challenges a court’s subject matter jurisdiction.” Seaborn v. Fla.
Dep’t of Corrs., 143 F.3d 1405, 1407 (11th Cir. 1998). The Eleventh
Amendment bars suit against a state by its own citizens and by cit-
izens of another state—even if the state is not a named party to the
action. Edelman v. Jordan, 415 U.S. 651, 662–63, 94 S. Ct. 1347, 1355
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20 Opinion of the Court 22-10441
(1974). The law is “well-settled that Eleventh Amendment immun-
ity bars suits brought in federal court when the State itself is sued
and when an ‘arm of the [s]tate’ is sued.” Manders v. Lee, 338 F.3d
1304, 1308 (11th Cir. 2003) (en banc) (internal citation omitted).
Whether Sheriff Jackson is entitled to Eleventh Amendment im-
munity thus turns on whether he was acting as an arm of the state,
which in turn depends on “the particular function in which [he]
was engaged when taking the actions out of which liability is as-
serted to arise.” Id. Taken together, the Appellants’ allegations
point to Sheriff Jackson engaging in the following “particular func-
tions”: creating and implementing force policy; hiring, training,
and disciplining officers; and providing medical care to detainees.
We consider four factors in determining whether an entity
is an “arm of the state”: (1) how state law defines the entity; (2)
what degree of control the state maintains over the entity; (3)
where the entity derives its funds; and (4) who is responsible for
judgments against the entity. Id. at 1309. Whether Sheriff Jackson
is an “arm of the state” for Eleventh Amendment purposes is a
question of federal law, but that federal question can only be an-
swered by considering provisions of state law. Id.
1.
Our seminal case on whether a defendant is an “arm of the
state” for Eleventh Amendment immunity purposes, Manders v.
Lee, also deals with a county sheriff in Georgia. It also addresses
the sheriff’s “force policy at the jail and the training and disciplining
of his deputies in that regard.” Manders, 338 F.3d at 1307–09. As
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22-10441 Opinion of the Court 21
such, with respect to the first two “particular functions” Sheriff
Jackson allegedly performed—implementing force policy and
training and disciplining his officers—we need only look to Manders
because it deals with the law of the same state, the same type of
actor, and the same specific functions. Under Manders, Sheriff Jack-
son acted as an arm of the state with respect to his force policy and
training and disciplining his officers, and he is entitled to Eleventh
Amendment immunity. See id. at 1328.
In Manders, we held that because, under state law, “the sher-
iff wears a ‘state hat’ when he creates and implements force policy
in the jail,” the first factor weighed heavily in favor of immunity.
Id. at 1319. We also found that, as to the second factor, “only the
State possesses control over sheriffs’ force policy and that control
is direct and significant in many areas, including training and disci-
pline.” Id. at 1320. The counties, on the other hand, have no au-
thority or control over force policy. Id. at 1322. The third factor—
who funds the entity—also tilted in favor of immunity. Though
the county bore the major burden of funding sheriffs’ offices and
jails, it did so because of a state mandate. Id. at 1323. Ultimately,
“[p]ayment of Sheriff [Jackson’s] budget, when required by the
State, does not establish any control by [Fulton] County over his
force policy at the jail or how he trains and disciplines his [offic-
ers].” Id. at 1324. As far as who is responsible for paying judgments
against the entity, under Georgia law, neither the State nor the
county were required to pay an adverse judgment against the sher-
iff—but the funds of both were implicated by such a judgment. Id.
at 1329. We did not hold that this final factor pointed towards
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22 Opinion of the Court 22-10441
immunity, saying only that “[a]t a minimum, this final factor does
not defeat [it].” Id.In sum, Sheriff Jackson acted as an “arm of the state” with
respect to force policy and training and disciplining officers. He is
entitled to Eleventh Amendment immunity.
2.
The other specific function Sheriff Jackson performed was
providing medical care. Manders does not speak directly to
whether Sheriff Jackson acted as an “arm of the state” with respect
to the provision of medical care, but its discussion of the structure
of the sheriff’s office, generally speaking, is still instructive. The
State still controls, trains, and disciplines the sheriff’s office. Our
discussion of the third and fourth Manders factors apply with equal
force here. The third factor tilts in favor of immunity because
some state money goes to the sheriff’s office, and a state mandate
requires the county to fund the sheriff’s budget but prohibits the
county from dictating how the sheriff spends those funds. Id. at
1323. The fourth factor does not point in either direction—coun-
ties are not responsible for adverse judgments against the sheriff in
his official capacity, and no state law requires the state to pay those
judgments either. Id. at 1324–28.
Manders’s discussion of the first and second factors is not di-
rectly applicable to the provision of medical care. We address them
now. With respect to the second factor, control, Georgia courts
have interpreted O.C.G.A. § 42-4-4(a)(2) as “giving sheriffs exclu-
sive control vis-à-vis the county over choosing vendors for medical
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22-10441 Opinion of the Court 23
care.”25 Lake v. Skelton, 840 F.3d 1334, 1339–40 (11th Cir. 2016).
Specifically, the Georgia Supreme Court held:
A sheriff is an elected, independent constitutional of-
ficer who is not an employee of the [county] board
and is not, therefore, subject to the control of the
board. The sheriff’s duties include a duty to provide
medical care to prisoners placed in his custody. To
fulfill that duty, the sheriff is necessarily vested with
authority to enter into contracts with medical care
providers. The board cannot control the sheriff’s
choice.
Bd. of Comm’rs of Spalding Cnty. v. Stewart, 668 S.E.2d 644, 645 (Ga.
2008) (internal citations omitted). This supports the conclusion
that a sheriff acts as an “arm of the state” when he provides medical
care because the county has no control over the way such care is
provided.
Finally, we consider the first factor—how Georgia state law
defines the entity. Manders clearly stated that in addition to per-
forming common law duties to enforce the law and preserve the
peace on behalf of the State, the sheriff’s office “perform[s] specific
statutory duties, directly assigned by the State.” Manders, 338 F.3d
at 1319 (emphasis added). One such statutory duty assigned by the
25 O.C.G.A. § 42-4-4(a)(2) reads, in pertinent part: “It shall be the duty of the
sheriff . . . [t]o furnish persons confined in the jail with medical aid, heat, and
blankets, to be reimbursed if necessary from the county treasury, for neglect
of which he shall be liable to suffer the penalty prescribed in this Code sec-
tion.”
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24 Opinion of the Court 22-10441
state is furnishing medical aid. O.C.G.A. § 42-4-4(a)(2) (“It shall be
the duty of the sheriff [t]o furnish persons confined in the jail with
medical aid . . . .” (emphasis added)).
Further, in Lake v. Skelton we discussed O.C.G.A. § 42-5-2,
according to which it is “the responsibility of the governmental
unit, subdivision, or agency having the physical custody of an in-
mate to maintain the inmate, furnishing him food, clothing, and
any needed medical and hospital attention.” 840 F.3d at 1340 (quot-
ing O.C.G.A. § 42-5-2). We stated that Georgia law clearly required
the sheriff to “take . . . custody of the jail and the bodies of such per-
sons as are confined therein.” Id. (quoting O.C.G.A. § 42-4-4(a)(1)).
This meant that the sheriff, not the county, was the governmental
unit with custody of the inmates. Id. Thus “Section 42-5-2 sup-
port[ed the] conclusion that Georgia imposes food-service respon-
sibilities directly on the sheriff as part of his custodial duties.” Id.
If, under § 42-5-2, the sheriff wears a “state hat” with respect to
food-service responsibilities, that same provision must lead to the
conclusion that the sheriff wears a “state hat” with respect to the
provision of medical care as well. Indeed, our holding in Lake that
the sheriff was an arm of the state with respect to providing food
relied at least in part on the idea that, under Georgia law, the sheriff
was an arm of the state with respect to providing medical care. See
id. at 1342.
As in Manders and Lake, the first three factors here weigh in
favor of immunity. The fourth factor does not defeat it. Alto-
gether, we conclude that Sheriff Jackson acted as an “arm of the
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22-10441 Opinion of the Court 25
state” and is entitled to Eleventh Amendment immunity with re-
spect to the particular function of providing medical care. The Dis-
trict Court correctly dismissed the claims against Sheriff Jackson in
his official capacity.
B.
We next turn to Appellants’ argument that the District
Court improperly dismissed their claims against Sheriff Jackson in
his individual capacity for supervisory liability under 42 U.S.C.
§ 1983. A complaint is subject to dismissal under Rule 12(b)(6)
when its factual allegations, on their face, establish an affirmative
defense that bars recovery. Ingram v. Kubik, 30 F.4th 1241, 1250
(11th Cir. 2022). That means that if a defendant raises the affirma-
tive defense of qualified immunity, the district court must dismiss
any claims that do not allege a violation of clearly established law.
Id.Qualified immunity “shields a government official from lia-
bility unless he violates ‘clearly established statutory or constitu-
tional rights of which a reasonable person would have known.’”
Piazza v. Jefferson Cnty., 923 F.3d 947, 951 (11th Cir. 2019) (quoting
Foy v. Holston, 94 F.3d 1528, 1532 (11th Cir. 1996)). The defendant
asserting the qualified immunity defense bears the initial burden of
showing that he or she was acting within his or her discretionary
authority.26 Id. at 951. After the defendant makes this showing,
26 In the instant case, the parties do not dispute that Sheriff Jackson was acting
within his discretionary authority.
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26 Opinion of the Court 22-10441
the burden shifts to the plaintiff to show that qualified immunity is
not appropriate. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).
The Supreme Court has established a two-part test for eval-
uating a claim of qualified immunity. We must ask (1) whether,
taken in the light most favorable to the injured party, the facts al-
leged show the officer’s conduct violated a constitutional right; and
(2) if the right violated under those alleged facts was clearly estab-
lished at the time of the alleged violation. Ashcroft v. al-Kidd, 563
U.S. 731, 735, 131 S. Ct. 2074, 2080 (2011). Courts have discretion
to consider these two questions in whichever order they find ap-
propriate in light of the particular case. Pearson v. Callahan, 555 U.S.
223, 236, 129 S. Ct. 808, 818 (2009). For a plaintiff to overcome a
claim of qualified immunity, both questions must be answered af-
firmatively. If the answer to one is “no,” the court need not reach
the other.
Turning to Appellants’ supervisory liability claim, we begin
by acknowledging that “the standard by which a supervisor is held
liable in [his or her] individual capacity for the actions of a subordi-
nate is extremely rigorous.” Christmas v. Harris Cnty., 51 F.4th 1348,
1355 (11th Cir. 2022) (quoting Braddy v. Fla. Dep’t of Lab. & Emp’t.
Sec., 133 F.3d 797, 802 (11th Cir. 1998)). It is well established in this
Circuit that “supervisory officials are not liable under § 1983 for the
unconstitutional acts of their subordinates on the basis of re-
spondeat superior or vicarious liability.” Cotton v. Jenne, 326 F.3d
1352, 1360 (11th Cir. 2003) (quoting Hartley v. Parnell, 193 F.3d 1263,
1269 (11th Cir. 1999)). “Instead, supervisory liability under § 1983
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22-10441 Opinion of the Court 27
occurs either when the supervisor personally participates in the al-
leged unconstitutional conduct or when there is a causal connec-
tion between the actions of a supervising official and the alleged
constitutional deprivation.” Id. at 1360 (citing Gonzalez v. Reno, 325
F.3d 1228, 1234 (11th Cir. 2003)).
Here, Appellants do not allege that Sheriff Jackson person-
ally participated in the alleged unconstitutional conduct, so they
must allege facts that show a causal connection between his actions
and the alleged constitutional deprivation. Appellants can meet
that extremely rigorous challenge in several ways. A causal con-
nection may be established when:
(1) a history of widespread abuse puts the responsible
supervisor on notice of the need to correct the al-
leged deprivation, and he or she fails to do so; (2) a
supervisor’s custom or policy results in deliberate in-
difference to constitutional rights; or (3) facts support
an inference that the supervisor directed subordinates
to act unlawfully or knew that subordinates would act
unlawfully and failed to stop them from doing so.
Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007) (internal quo-
tation marks and citations omitted).
The complaint does not allege that Sheriff Jackson person-
ally directed the Officers to act unlawfully or that he knew they
would do so and failed to stop them. That leaves options one and
two. With respect to the first, “[t]he deprivations that constitute
widespread abuse sufficient to notify the supervising official must
be obvious, flagrant, rampant and of continued duration, rather
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28 Opinion of the Court 22-10441
than isolated occurrences.” Christmas, 51 F.4th at 1355 (quoting
Keith v. DeKalb Cnty., 749 F.3d 1034, 1048 (11th Cir. 2014)). Any at-
tempt by Appellants to demonstrate a causal connection between
Sheriff Jackson and the alleged constitutional deprivation based on
such a history of widespread abuse must fail. There is simply noth-
ing alleged in the complaint demonstrating that Sheriff Jackson
would have had notice of the alleged widespread abuse.
Three allegations in the complaint address alleged obvious,
flagrant, rampant, and continued abuse. First, according to the
complaint, “Fulton County, GA has paid numerous settlements and
judgments based on the unconstitutional actions of the Fulton
Sheriff and Sheriff deputies.” This does not come close to showing
a widespread history of abuse. There is no indication that the judg-
ments and settlements were for the same types of allegedly uncon-
stitutional actions. There is no indication that these incidents were
of continued duration, as opposed to isolated incidents, with one
occurring every few years. See Clark v. Evans, 840 F.2d 876, 885 (11th
Cir. 1988) (“[I]t is clear that four cases in four years would have been
insufficient to put [the Sheriff] on notice . . . .”).
Second, the complaint alleges that Sheriff Jackson permitted
a custom of excessive force by permitting unwarranted use of
tasers on inmates, “as evidenced by jail staff and inmates hearing
deputies use the term ‘Taser Tuesday’ on the day Mr. May was
TASED at the jail.” But that statement by itself does not indicate
that such a policy or custom existed. There is no indication in the
complaint of even a single other allegedly unwarranted tasing.
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22-10441 Opinion of the Court 29
Finally, the complaint alleges that Sheriff Jackson’s deliberate
indifference through his “failure or failures to train as alleged” are
“failures of policy, widespread practice, and/or custom.” But
again, the complaint does not allege any facts outside of the inci-
dent with May, and an isolated incident does not give sufficient no-
tice of a failure to train. The abuses must be of a continuous na-
ture.
The last remaining avenue for establishing a causal connec-
tion is to show a custom or policy that resulted in deliberate indif-
ference to May’s constitutional rights. Appellants can also allege
“that the absence of a policy led to a violation of constitutional
rights.” Piazza, 923 F.3d at 957 (citing Rivas v. Freeman, 940 F.2d
1491, 1495 (11th Cir. 1991)). A policy is a “decision that is officially
adopted by the [law enforcement agency], or created by an official
of such rank that he or she could be said to be acting on behalf of
the [law enforcement agency].” Christmas, 51 F.4th at 1356 (quot-
ing Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.
1997)). “A custom is an unwritten practice that is applied consist-
ently enough to have the same effect as a policy with the force of
law.” Id. (quoting Goebert v. Lee Cnty., 510 F.3d 1312, 1332 (11th
Cir. 2007)). “Demonstrating a policy or custom requires showing
a persistent and wide-spread practice.” Goebert, 510 F.3d at 1332(quoting Depew v. City of St. Mary’s, 787 F.2d 1496, 1499 (11th Cir.
1986) (alterations adopted)). Importantly, the unconstitutional act
“must have been carried out pursuant to the alleged policy or cus-
tom.” Christmas, 51 F.4th at 1356 (internal quotation marks and
citations omitted).
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30 Opinion of the Court 22-10441
But proving that a policy (or absence thereof) or custom
caused a constitutional harm would require Appellants to point to
multiple incidents. Piazza, 923 F.3d at 957 (citing Rivas, 940 F.2d at
1495–96); see also Grech v. Clayton Cnty., 335 F.3d 1326, 1330 (11th
Cir. 2003) (en banc) (“Because a county rarely will have an offi-
cially-adopted policy of permitting a particular constitutional vio-
lation, most plaintiffs [ ] must show that the county has a custom
or practice of permitting it and that the [ ] custom or practice is the
moving force behind the constitutional violation.”). “A single inci-
dent of a constitutional violation is insufficient to prove a policy or
custom even when the incident involves several subordinates.” Pi-
azza, 923 F.3d at 957 (alteration adopted) (quoting Craig v. Floyd
Cnty., 643 F.3d 1306, 1312 (11th Cir. 2011)). Under § 1983, proof of
a single incident of unconstitutional activity is only sufficient to im-
pose liability on a governmental entity as part of a policy or custom
if the challenged policy itself is unconstitutional. Ireland v. Prum-
mell, 53 F.4th 1274, 1289 (11th Cir. 2022) (citing City of Oklahoma
City v. Tuttle, 471 U.S. 808, 823–24, 105 S. Ct. 2427, 2436 (1985) (plu-
rality opinion)); see also Craig v. Floyd Cnty., 643 F.3d 1306, 1311
(11th Cir. 2011) (“In the absences of a series of constitutional viola-
tions from which deliberate indifference can be inferred, the plain-
tiff must show that the policy itself is unconstitutional.” (cleaned
up)).
The complaint focuses only on May’s experience at the Ful-
ton County Jail—it does not point to other instances of excessive
force or deliberate indifference aside from noting that Fulton
County has paid judgments and settlements for unknown claims in
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22-10441 Opinion of the Court 31
the past. Because Appellants’ complaint focuses solely on May’s
experience—a single incident of allegedly unconstitutional activ-
ity—and because none of the policies or customs it alleges are un-
constitutional on their own, the complaint does not, as a matter of
law, state a claim against Sheriff Jackson for supervisory liability.
See Piazza, 923 F.3d at 958.
Because Appellants cannot overcome Sheriff Jackson’s de-
fense of qualified immunity, the District Court correctly granted
his motion to dismiss.
III.
Next, we address Appellant’s argument that the District
Court improperly granted summary judgment to the Officers for
the 42 U.S.C. § 1983 excessive force and deliberate indifference
claims against them. We review a district court’s grant of sum-
mary judgment based on qualified immunity de novo. Stephens v.
DeGiovanni, 852 F.3d 1298, 1313 (11th Cir. 2017). Summary judg-
ment is proper where the evidence “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a). At this stage, we
review the evidence, draw all reasonable inferences, and resolve all
doubts in favor of the non-moving party—but only to the extent
supportable by the record. Baxter v. Roberts, 54 F.4th 1241, 1253
(11th Cir. 2022). In cases where a video contradicts the non-
movant’s version of the facts, we accept the video’s depiction in-
stead and view the facts in the light depicted by the video. Id. (quot-
ing Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018)). “We
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32 Opinion of the Court 22-10441
may affirm on any ground supported by the record, regardless of
whether that ground was relied upon or even considered below.”
Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017) (per cu-
riam).
The Officers raised the affirmative defense of qualified im-
munity. Qualified immunity shields “government officials per-
forming discretionary functions . . . from liability for civil damages
insofar as their conduct does not violate clearly established statu-
tory or constitutional rights of which a reasonable person would
have known.”27 Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.
2727, 2738 (1982). We have said that qualified immunity “protect[s]
from suit all but the plainly incompetent or one who is knowingly
violating the federal law.” Ferraro, 284 F.3d at 1194 (internal quota-
tion marks and citation omitted).
The same two-part test discussed in part II.B, supra, applies
in the summary judgment context as well: to overcome a defense
of qualified immunity, Appellants must show (1) the Officers vio-
lated a constitutional right and (2) that right was clearly established
at the time of the alleged violation. Piazza, 923 F.3d at 951.
“Clearly established” means that “at the time of the officer’s con-
duct, the law was sufficiently clear that every reasonable official
would understand that what he is doing is unlawful.” District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (internal quotation
marks and citations omitted). That is, “existing law must have
27 It is undisputed that the Officers were acting in their discretionary capacity.
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22-10441 Opinion of the Court 33
placed the constitutionality of the officer’s conduct ‘beyond de-
bate.’” Id. (quoting al-Kidd, 563 U.S. at 741, 131 S. Ct. at 2083).
Plaintiffs can show that a constitutional right was clearly estab-
lished in three ways: (1) citing case law with indistinguishable facts
that clearly establishes the constitutional right; (2) pointing to a
broad statement of principle within the Constitution, statute, or
case law that clearly establishes the constitutional right; or (3) alleg-
ing conduct so egregious that a constitutional right was clearly vi-
olated, even in the total absence of case law. Lewis v. City of W. Palm
Beach, 561 F.3d 1288, 1291–92 (11th Cir. 2009) (citing Mercado v. City
of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005)).
A.
Claims alleging excessive force by pretrial detainees are gov-
erned by the Fourteenth Amendment’s Due Process Clause.
Crocker v. Beatty, 995 F.3d 1232, 1246 (11th Cir. 2021). A detainee
must show “that the force purposely or knowingly used against
him was objectively unreasonable.” Kingsley v. Hendrickson, 576
U.S. 389, 397, 135 S. Ct. 2466, 2473 (2015). If an officer used objec-
tively unreasonable force, he or she violated a detainee’s Four-
teenth Amendment rights. This would satisfy the first prong of the
qualified immunity analysis.
Objective reasonableness turns on the “facts and circum-
stances of each particular case.” Id. (quoting Graham v. Connor, 490
U.S. 386, 396, 109 S. Ct. 1865, 1872 (1989)). A court “must make
this determination from the perspective of a reasonable officer on
the scene, including what the officer knew at the time, not with the
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34 Opinion of the Court 22-10441
20/20 vision of hindsight.” Id. The following non-exhaustive list
of factors bears on the reasonableness of the force used:
the relationship between the need for the use of force
and the amount of force used; the extent of the plain-
tiff’s injury; any effort made by the officer to temper
or to limit the amount of force; the severity of the se-
curity problem at issue; the threat reasonably per-
ceived by the officer; and whether the plaintiff was ac-
tively resisting.
Id. A court also needs to consider the “legitimate interests that
stem from the government’s need to manage the facility in which
the individual is detained, appropriately deferring to policies and
practices that in the judgment of jail officials are needed to preserve
internal order and discipline and to maintain institutional security.”
Id. (internal quotation marks and citation omitted) (alteration
adopted).
We may not examine the actions of a group of defendants
collectively. “[E]ach defendant is entitled to an independent quali-
fied-immunity analysis as it relates to his or her actions and omis-
sions. So we must be careful to evaluate a given defendant’s qual-
ified-immunity claim, considering only the actions and omissions
in which that particular defendant engaged.” Alocer v. Mills, 906
F.3d 944, 951 (11th Cir. 2018).
The only allegedly excessive uses of force addressed by Ap-
pellants in this Court are: (1) Officer Cook’s use of his taser; (2)
Officer Strowder’s closed-fist strikes; and (3) Officers Delacruz,
Cook, Whitaker, Roache, and Jackson’s use of additional restraints.
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22-10441 Opinion of the Court 35
As explained below, the District Court did not err in granting sum-
mary judgment with respect to these claims.
1.
Officer Cook’s use of his taser against May was not objec-
tively unreasonable force and did not violate May’s constitutional
rights when viewed under the Kinglsey factors. Officer Cook ap-
proached May’s cell because May was naked and masturbating in
violation of jail policy and state law. May actively resisted Cook’s
directive for May to put his clothes on. Officer Cook’s interaction
with May stemmed from the need to preserve internal order and
discipline and to maintain institutional security. Officer Cook’s use
of the taser came after several attempts to get May to comply. Of-
ficer Cook reasonably perceived May to be a threat because May
was noncompliant and took an aggressive stance. In fact, all three
officers present at that moment perceived May to be a threat. Fur-
ther, after being tased by Officer Cook, May continued to resist and
became even more combative, indicating that his injuries from the
taser were not severe. Under the Kingsley factors, then, Officer
Cook’s use of his taser was reasonable under the circumstances.
This conclusion also conforms to this Court’s precedent. See Draper
v. Reynolds, 369 F.3d 1270, 1277–78 (11th Cir. 2004) (holding that a
single use of a taser to subdue a hostile, belligerent, and uncooper-
ative suspect was not excessive force).
Appellants’ primary argument is that the Officers’ testimony
that May stepped towards Officer Cook is not credible and that
without that fact, Officer Cook’s initial use of the taser was
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36 Opinion of the Court 22-10441
unreasonable. They argue that if May had stepped toward Officer
Cook, as several officers stated in their depositions, the taser prong
would not have landed on his lower back. The autopsy report
shows a 1/8 x 1/8 inch blackened abrasion with a central puncture
mark on the lateral right side of May’s lower back, just above the
right buttock. Officer Jackson’s after-incident report and deposi-
tion testimony confirm that this was the taser probe fired by Officer
Cook. Appellants also argue that the Officers’ testimony that May
stepped towards Officer Cook—a crucial fact—is unreliable be-
cause it contradicts the written statements made after the incident,
because none of the Officers were wearing body cameras, and be-
cause the Officers were “likely coached by [their] counsel to fit
[their] testimony within the confines of qualified immunity.”
There may be a question as to whether May stepped toward
Officer Cook. Appellants are correct that none of the officers men-
tioned the alleged step in their incident reports. But we need not
address whether May stepped toward Officer Cook. Even assum-
ing that he didn’t, it was reasonable under the circumstances for
Officer Cook to tase May. The undisputed record, when viewed in
the light most favorable to Appellants, shows that (1) May was na-
ked in his cell in violation of jail policy and state law; (2) Officer
Cook repeatedly instructed May to put his clothes on; (3) May re-
fused to comply; (4) May was defiant and took an aggressive stance;
(5) Officer Cook tased May; (6) the taser was only partially effec-
tive; and (7) May jumped back up almost immediately and contin-
ued to resist. These facts, when viewed through the lens of the
Kingsley factors, do not suggest that Officer Cook’s initial use of his
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22-10441 Opinion of the Court 37
taser on May was objectively unreasonable, so we cannot say that
Officer Cook violated May’s Fourteenth Amendment rights.
We have said that “where a suspect appears hostile, belliger-
ent, and uncooperative, use of a taser might be preferable to a phys-
ical struggle causing serious harm to the suspect or the officer.”
Smith v. LePage, 834 F.3d 1285, 1294 (11th Cir. 2016). That fairly
describes the situation in this case. May was naked in his cell in
violation of jail policy and state law. When Officer Cook told him
to get dressed, he replied “I ain’t doing that shit.” May then as-
sumed an aggressive stance—or, as Officer Cook described it, a
“fighting stance. Closed, clenched fists, separated feet.” Doc. 209-
5 at 24:14–15. May’s conduct reasonably caused Officer Cook to
believe May wanted to harm him.
Under our precedent, and given the situation that he con-
fronted, Officer Cook was within his rights to tase May. We have
declined to find a Fourth Amendment violation in similar circum-
stances. In Draper v. Reynolds, we held that it was reasonable to tase
a suspect who defied lawful orders, “used profanity, moved around
and paced in agitation, and repeatedly yelled” at law enforcement.
369 F.3d at 1278. All that was also true here. If anything, May’s
aggressive stance made the situation here more volatile, in that it
gave the officers reason to believe that a brawl might ensue. So if
it was reasonable to tase the suspect in Draper, it was reasonable to
tase May here. See id. (observing that trying to use force to subdue
the suspect, rather than deploying the taser, could have “escalated
a tense and difficult situation into a serious struggle”). As such, the
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38 Opinion of the Court 22-10441
District Court properly granted Officer Cook summary judgment
based on qualified immunity.
2.
Nor were the closed-fist strikes delivered by Officer
Strowder objectively unreasonable. Officer Strowder, both in her
deposition and her after-incident statement, said that she saw her
colleagues involved in an altercation with May and stepped in to
help handcuff May, who continued to resist and grabbed her hand-
cuffs. Strowder testified that she gave May verbal commands to
drop the cuffs and that when he did not comply, she struck him
with a closed fist four times—once in each of the face, arm, hand,
and back.
In the first place, Appellants attempt to create a genuine is-
sue of material fact by arguing that Officer Copeland’s deposition
testimony directly contradicts Officer Strowder’s version of events.
According to Appellants, Officer Copeland’s testimony shows that
“May permitted the officers to handcuff him without any issues.”
Officer Copeland did not dispute Officer Strowder’s testimony; he
said he did not recall May grabbing her handcuffs, or her delivering
closed-fist strikes—not that those things did not occur. But even if
he had disputed Officer Strowder’s recollection of events, Officer
Copeland’s testimony was not, as Appellants argue, that May “did
not resist being placed in handcuffs and permitted the officers to
handcuff him without any issues.” Officer Copeland indicated that
there was an ongoing struggle—as did the testimony of every of-
ficer involved.
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22-10441 Opinion of the Court 39
Even under the most favorable version of events, there is
simply no dispute that an active struggle was ensuing in the holding
cell. Under the Kingsley factors, Officer Strowder’s punches were
not objectively unreasonable given the struggle between May and
the Officers—regardless of whether he grabbed her handcuffs.
May actively resisted. Officer Strowder gave May verbal warnings.
Her closed-fist strikes were in response to that resistance and the
safety and security risks May posed. The injury resulting from the
punches was relatively minimal.
Because Officer Strowder’s use of force was not clearly un-
reasonable, she did not violate May’s Fourteenth Amendment
rights. The District Court properly granted her summary judg-
ment as well.
3.
Finally, Appellants argue that Officers Delacruz, Cook,
Whitaker, Roache, and Jackson used excessive force when they
placed additional restraints on May while he was in the restraint
chair. We need not decide if one of May’s constitutional rights was
violated by the additional restraints because, even if it was, that
right was not clearly established. 28
28 It is true that Officers Delacruz, Cook, Whitaker, Roache, and Jackson were
disciplined for violating Fulton County Jail policy with respect to the addi-
tional restraints. But violation of a local policy or procedure does not auto-
matically mean that May’s constitutional rights were violated. See Davis v.
Scherer, 468 U.S. 183, 194, 104 S. Ct. 3012, 3019 (1984) (“Officials sued for con-
stitutional violations do not lose their qualified immunity merely because their
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40 Opinion of the Court 22-10441
Appellants can show that a constitutional right was clearly
established in three ways: (1) citing case law with indistinguishable
facts; (2) pointing to a broad statement of principle within the Con-
stitution, statute, or case law; or (3) alleging conduct so egregious
that everyone would know it violated the Constitution. Lewis, 561
F.3d at 1291–92. There is simply no case law with indistinguishable
facts that would clearly establish this constitutional right, nor do
Appellants point to any. In fact, most case law in this Circuit would
tend to indicate that the use of restraints was permissible. See, e.g.,
Brown v. City of Hunstville, 608 F.3d 724, 740 (11th Cir. 2010) (“For
even minor offenses, permissible force includes physical restraint,
use of handcuffs, and pushing into walls.”). Similarly, Appellants
do not point to a broad statement of principle within the Constitu-
tion, statute, or case law that would establish the right.
That leaves the third option—conduct so egregious that any
person would know it was unconstitutional. Appellants argue that
the preeminent case using egregious behavior to clearly establish a
constitutional right—Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508
(2002)—applies. In Hope, the defendant was placed in leg irons,
handcuffed to a hitching post, and made to stand in the Alabama
sun in June for seven hours with no shirt, no bathroom breaks, and
only one glass of water. Id. at 734–35, 122 S. Ct. at 2512–13. His
conduct violates some statutory or administrative provision.”). Simply be-
cause something is in violation of a policy, or even illegal, does not make it
unconstitutional.
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22-10441 Opinion of the Court 41
arms were above shoulder height the entire time. Id. at 734, 122 S.
Ct. at 2512. The guards taunted him. Id. at 735, 122 S. Ct. at 2513.
But the situation in Hope is far removed from the type of be-
havior exhibited by the Officers here. Qualified immunity operates
to make sure that “before they are subjected to suit, officers are on
notice their conduct is unlawful,” and serves to give them “fair
warning.” Id. at 739–40, 122 S. Ct. at 2515 (internal quotation
marks and citations omitted). In the absence of case law or a broad
statement or principle that clearly establishes a constitutional right,
the behavior in question must be so obviously unconstitutional
that any reasonable officer would have notice. That is just not the
case here. We cannot say that using additional restraints to
transport May from the holding cell to the shower and from the
shower to the property room was so obviously unconstitutional
that any officer would have fair warning that they were violating a
detainee’s constitutional rights.
Because it was not clearly established that the Officers’ ac-
tions would have violated May’s constitutional rights, we need not
decide whether such a constitutional right existed. The District
Court did not err in granting the Officers summary judgment with
respect to the restraints.
B.
We now turn to Appellants’ allegation that Officers Roache,
Goodwine, Whitaker, Cook, Delacruz, Copeland, Jackson, and
Lieutenant Paige exhibited deliberate indifference to May’s serious
medical need, in violation of the substantive component of the
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42 Opinion of the Court 22-10441
Fourteenth Amendment’s Due Process Clause, when they “liter-
ally stood by and watched Mr. May struggle and go unconscious
without offering any assistance.” This claim, like the excessive
force claims discussed above, is subject to the same two-step qual-
ified immunity analysis. Deliberate indifference claims made un-
der the Fourteenth Amendment are held to the same standards as
deliberate indifference claims made under the Eighth Amendment.
Goebert, 510 F.3d at 1326.
A claim of deliberate indifference to serious medical needs
includes both an objective and subjective component. Keohane v.
Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257, 1266 (11th Cir. 2020). Appel-
lants must show (1) that May had an objectively serious medical
need; (2) that the Officers acted with subjective deliberate indiffer-
ence to that need; and (3) that the Officers’ deliberate indifference
caused May injury. Patel v. Lanier Cnty., 969 F.3d 1173, 1188 (11th
Cir. 2020).
The District Court assumed that Appellants established that
May had an objectively serious medical need, so we will as well.
But the District Court found—and we agree—that Appellants can-
not establish a genuine issue of material fact as to the second ele-
ment. The “deliberate indifference” element itself has three ele-
ments. A defendant is deliberately indifferent to a serious medical
need when he or she (1) has subjective knowledge of a risk of seri-
ous harm; (2) disregards that risk; and (3) acts with more than gross
negligence. Id. (quoting Harper v. Lawrence Cnty., 592 F.3d 1227,
1234 (11th Cir. 2010)).
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22-10441 Opinion of the Court 43
Even if we assume that the Officers had subjective
knowledge of the serious risk of medical harm, we cannot say that
they disregarded that risk or that they acted with more than gross
negligence. Taken in the light most favorable to Appellants, the
video of the property room plainly shows that very soon after en-
tering the property room, Didier conducted an initial examination
of May, who was conscious, alert, and not showing any signs of
distress at the time. Didier left to get medical equipment and while
he was gone, May began to exhibit signs of distress. The video
shows clearly that the Officers noticed the change in May and im-
mediately responded. They began to touch him and see if he was
alert. They undid his restraints and got him on the floor. They
began to provide CPR until medical personnel arrived. That the
Officers responded shows that they did not disregard May’s needs,
and the actions they took in responding were not “more than
grossly negligent.” Even if Appellants are correct, and the Officers
should have taken May to Didier’s office as opposed to waiting for
Didier in the property room, that does not meet the high bar of
being “more than grossly negligent.”
Because Appellants cannot show that the Officers were de-
liberately indifferent to May’s serious medical need, they cannot
show his Fourteenth Amendment rights were violated. As such,
the Officers are entitled to qualified immunity and the District
Court did not err in granting them summary judgment.
IV.
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44 Opinion of the Court 22-10441
We turn now to the final set of claims brought by Appel-
lants—the Georgia medical negligence claims against Travis Wil-
liams and NaphCare. The District Court granted summary judg-
ment on these claims in favor of Williams and NaphCare. The
same summary judgment standards discussed earlier thus apply.
In Georgia, “[a] person professing to practice surgery or the
administering of medicine for compensation must bring to the ex-
ercise of his profession a reasonable degree of care and skill. Any
injury resulting from a want of such care and skill shall be a tort for
which a recovery may be had.” O.C.G.A. § 51-1-27. A claim under
this medical malpractice statute essentially has three elements. A
plaintiff must show (1) the duty inherent in the doctor-patient rela-
tionship; (2) the breach of that duty by failing to exercise the requi-
site degree of skill and care; and (3) that this failure was the proxi-
mate cause of the injury sustained. Med. Ctr. of Cent. Ga. v. Landers,
616 S.E.2d 808, 813 (Ga. Ct. App. 2005). 29 Further, O.C.G.A. § 9-
11-9.1 requires plaintiffs to attach to the complaint an affidavit from
an expert setting forth at least one negligent act or omission.30 To
29 The first element of the claim—that a doctor-patient duty exists—is not in
dispute. Fulton County Jail contracted with NaphCare to provide the medical
care needed at the jail.
30 “In any action for damages alleging professional malpractice against: (1) [a]
professional licensed by the State of Georgia . . . the plaintiff shall be required
to file with the complaint an affidavit of an expert competent to testify, which
affidavit shall set forth specifically at least one negligent act or omission
claimed to exist and the factual basis for each such claim.” O.C.G.A. § 9-11-
9.1(a).
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22-10441 Opinion of the Court 45
satisfy this requirement, Appellants attached an affidavit from Dr.
Joseph Wright.
A.
The second element of a medical malpractice claim is dis-
positive with respect to Travis Williams. Taking the facts in the
light most favorable to Appellants, as we must, the record shows
that May arrived at the Fulton County Jail around 9:00 AM on Sep-
tember 11, 2018. Williams conducted his intake screening. May
told Williams that he was suicidal but that he did not plan to harm
himself. The arresting officer gave Williams paperwork from
Grady showing that May had methadone use disorder. Williams
noted on the screening form that May was actively or suspected to
be detoxing and that he had suicidal thoughts. After completing
the screening, Williams took the form and placed it in the dedicated
place for the provider to find it. Williams also told Didier, the med-
ical provider on duty, that May had come in from Grady with
methadone use disorder and substance-induced psychotic disorder,
that he voiced thoughts of suicide, and that he was possibly detox-
ing.
Dr. Timothy Hughes, who served as Appellants’ standard of
care expert, argued that Williams breached the standard of care in
two ways. First, Williams failed to immediately communicate in-
formation about May’s drug problems and drug-induced psychotic
behavior to the jail medical provider. Second, Williams failed to
communicate May’s claim of suicidal ideation to the appropriate
medical or mental health provider for actionable medical orders.
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46 Opinion of the Court 22-10441
Dr. Hughes testified that if Williams had communicated his find-
ings to the medical provider, he would have complied with the
standard of care.
But nothing in the record suggests—and therefore no rea-
sonable jury could find—that Williams failed to communicate his
findings. The intake screening form clearly shows that Williams
marked that May was actively or suspected to be detoxing and that
he had current suicidal thoughts. Williams’s deposition testimony
indicated that he took the intake sheet, went to the provider, and
told him that May had methadone use disorder, was possibly de-
toxing, and had thoughts of suicide. The only evidence in the rec-
ord that could even potentially challenge that testimony is Didier’s
testimony that he did not recall Williams informing him about
May. But Didier never refuted that it happened—he simply indi-
cated that he did not remember it.
Because all evidence in the record shows that Williams did
not breach his duty of care to May, the District Court was correct
in granting summary judgment in his favor.
B.
Finally, we address the medical negligence claim against
NaphCare. We agree with Appellants that the District Court was
too quick to grant NaphCare summary judgment. This claim turns
on the third element of a Georgia medical malpractice claim—
proximate cause.
A plaintiff cannot succeed on a medical malpractice claim,
even if there is evidence of negligence, “unless the plaintiff
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22-10441 Opinion of the Court 47
establishes by a preponderance of the evidence that the negligence
either proximately caused or contributed to cause plaintiff harm.”
Zwiren v. Thompson, 578 S.E.2d 862, 864 (Ga. 2003) (internal quota-
tion marks and citation omitted). To establish proximate cause by
a preponderance of the evidence in a Georgia medical malpractice
claim, the plaintiff must use expert testimony. Id. at 865. “Georgia
case law requires only that an expert state an opinion regarding
proximate causation in terms stronger than that of medical possi-
bility, i.e., reasonable medical probability or reasonable medical
certainty.” Id. at 867. “What amounts to proximate cause is unde-
niably a jury question.” Id. at 865 (quoting Ontario Sewing Mach.
Co. v. Smith, 572, S.E.2d 533, 536 (Ga. 2002)); see also Dowdell v. Wil-
helm, 699 S.E.2d 30, 32 (Ga. Ct. App. 2010) (“Normally, questions
of proximate cause are for the jury, but plain and indisputable
cases . . . may be decided by the court as a matter of law.”). That
question must be “determined on the facts of each case upon mixed
considerations of logic, common sense, justice, policy and prece-
dent.” Zwiren, 578 S.E.2d at 865 (quoting Atlanta Obstetrics & Gy-
necology Grp. v. Coleman, 398 S.E.2d 16, 17 (Ga. 1990)).
In their response to NaphCare’s motion for summary judg-
ment, Appellants relied mainly on the medical report and deposi-
tion of Dr. Timothy Hughes, but also referred to the report and
deposition of Dr. William Anderson, as well as the affidavit from
Dr. Wright that they had attached to their complaint as required
by O.C.G.A. § 9-11-9.1.
As relevant here, Dr. Hughes’s report stated:
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48 Opinion of the Court 22-10441
It is my expert opinion that had Mr. May been appro-
priately screened and examined with the correct and
prompt follow through by NaphCare medical staff, to
include immediate classification to suicide watch and
to have appropriate sedation ordered for his metham-
phetamine-induced psychotic behavior, the events
that transpired and culminated in an episode of ex-
cited delirium and subsequent sudden cardiac
death—further exacerbated by the use of force sec-
ondary to his untreated psychotic behaviors—would
in all medical probability not [have] occurred. 31
In short, Dr. Hughes’s report concluded the failure of NaphCare
medical staff to properly screen, examine, and treat May was the
proximate cause of his death. This testimony is supported by both
Dr. Anderson32 and Dr. Wright. 33
31 In his deposition, Dr. Hughes twice stated that, had earlier intervention and
observation on the part of NaphCare occurred, it is “more probable than not”
that the confrontation—and May’s death—would not have occurred.
32 Dr. Anderson testified that had May been treated medically, as opposed to
with force, the outcome would have been different.
33 According to Dr. Wright: “Had Mr. May been closely observed in a medical
setting and put on chemical sedation at the Fulton County Jail as opposed to
being placed in a holding cell with no medical treatment, with a reasonable
degree of medical certainty, the confrontation between the deputies and Mr.
May would not have occurred, or Mr. May would have been treated differ-
ently based on his medical and psychological issues, thereby preventing his
death.”
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22-10441 Opinion of the Court 49
The District Court held that, even if it was admitted, this
testimony “would not provide sufficient support for a medical mal-
practice claim under Georgia law.” Order, Doc. 240, at 29–30. Ac-
cording to the Court, May’s altercation with the Officers occurred
between the actions of the NaphCare defendants and May’s death.
The Court found that “too many actions and choices made by May
and the Officers stand in between the decisions of the Naphcare
defendants and May’s death to deem their failure to sedate May the
proximate cause of the events.” Id. at 30. As such, the District
Court held that the encounter between May and the Officers broke
the natural and continuous sequence of events required for proxi-
mate cause. Id. at 30–31.
We agree with Appellants that, based on Dr. Hughes’s testi-
mony, there is enough of a genuine issue of material fact for
NaphCare’s liability to reach a jury. Dr. Hughes did not solely rest
his argument on NaphCare’s failure to sedate May. It was the fail-
ure of the staff to follow through with May at all that was the prob-
lem. While this included the need for sedation, it also included im-
mediate classification to suicide watch and observation.
This is not a “plain and indisputable” case. Dr. Hughes
clearly stated that, in his medical opinion, May’s death “would in
all medical probability not occurred,” but-for breach of the stand-
ard of care by NaphCare. To be clear, we do not hold that
NaphCare’s employees were the proximate cause of May’s death.
We hold only that, based on Dr. Hughes’s testimony, there is a gen-
uine issue of material fact as to whether NaphCare employees were
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50 Opinion of the Court 22-10441
the proximate cause of May’s death. A reasonable jury could find
that they were. 34
V.
We affirm the District Court’s dismissal of the claims against
Sheriff Jackson in both his official and individual capacities. We
also affirm the grant of summary judgment to the Officers and
Travis Williams. We vacate, however, the grant of summary judg-
ment to NaphCare, and we remand the matter to the District
Court.35
34 Prior to its motion for summary judgment, NaphCare moved to exclude
portions of Dr. Hughes’s report and subsequent testimony under Daubert v.
Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S. Ct. 2786 (1993). Namely,
NaphCare argued that Dr. Hughes’s opinions “amount[ed] to nothing more
than speculation and personal opinions with no identifiable scientific support,
and so they must be excluded.” The District Court denied this motion as moot
in its order granting summary judgment to NaphCare. Our holding also says
nothing as to the admissibility of Dr. Hughes’s opinions.
35 The District Court only had jurisdiction over the state medical negligence
claim because it exercised supplemental, or pendent, jurisdiction over it. See
28 U.S.C. § 1367(a) (“[I]n any civil action of which the district courts shall have
original jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action within such
original jurisdiction that they form part of the same case or controversy under
Article III of the United States Constitution.”). When, as here, the federal
claims have been disposed of and all that remains is the state law claim, we
have encouraged the dismissal of the remaining state law claim. See Vibe Micro,
Inc. v. Shabanets, 878 F.3d 1291, 1296 (11th Cir. 2018) (“When all federal claims
are dismissed before trial, a district court should typically dismiss the pendent
state claims as well.”). At the very least, the District Court must be mindful of
its obligation to ensure that the factors underlying supplemental jurisdiction—
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22-10441 Opinion of the Court 51
AFFIRMED IN PART, VACATED AND REMANDED IN
PART
judicial economy, convenience, fairness, and comity—continue to weigh in
favor of exercising jurisdiction. See Ameritox, Ltd. v. Millennium Lab’ys, Inc., 803
F.3d 519, 537 (11th Cir. 2015) (“[O]nce a district court possesses discretion to
dismiss the supplemental claims, it must be continuously mindful regarding
whether or not the factors favor dismissal.”).