Charles Short v. J. Hartman ( 2023 )


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  • USCA4 Appeal: 21-1397         Doc: 51            Filed: 12/08/2023   Pg: 1 of 37
    PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 21-1396
    CHARLES WILLIS SHORT, individually and as Administrator of the Estate of
    Victoria Christine Short,
    Plaintiff - Appellant,
    v.
    J. D. HARTMAN, Sheriff of Davie County, in his individual and official capacity;
    CAMERON SLOAN, Captain, Chief Jailer with the Davie County Sheriff’s
    Department, in his individual and official capacity; DANA KELLY RECKTENWALD,
    Lieutenant, Operations Supervisor of the Detention Center with the Davie County
    Sheriff’s Department, in her individual and official capacity; TERESA MORGAN,
    a/k/a Teresa M. Godbey, Sergeant, Jailer-Detention Officer with the Davie County Sheriff’s
    Department, in her individual and official capacity; CRYSTAL COOK MEADOWS,
    Sergeant, Detention Officer with the Davie County Sheriff’s Department, in her
    individual and official capacity; MATTHEW TRAVIS BOGER, Jailer-Detention
    Officer with the Davie County Sheriff’s Department, in his individual and official
    capacity; JOHN OR JANE DOES 1-5, Jailers-Detention Officers with the Davie
    County Sheriff’s Department, in their individual and official capacities; WESTERN
    SURETY COMPANY; ANDREW C. STOKES, Sheriff of Davie County, in his
    individual and official capacity,
    Defendants - Appellees.
    --------------------------------------
    AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES
    UNION OF NORTH CAROLINA LEGAL FOUNDATION; AMERICAN CIVIL
    LIBERTIES UNION OF SOUTH CAROLINA; RIGHTS BEHIND BARS;
    RODERICK & SOLANGE MACARTHUR JUSTICE CENTER,
    Amici Supporting Appellant.
    USCA4 Appeal: 21-1397         Doc: 51            Filed: 12/08/2023   Pg: 2 of 37
    No. 21-1397
    CHARLES WILLIS SHORT, individually and as Administrator of the Estate of
    Victoria Christine Short,
    Plaintiff - Appellant,
    v.
    J. D. HARTMAN, Sheriff of Davie County, in his individual and official capacity;
    CAMERON SLOAN, Captain, Chief Jailer with the Davie County Sheriff’s
    Department, in his individual and official capacity; DANA KELLY RECKTENWALD,
    Lieutenant, Operations Supervisor of the Detention Center with the Davie County
    Sheriff’s Department, in her individual and official capacity; TERESA MORGAN,
    a/k/a Teresa M. Godbey, Sergeant, Jailer-Detention Officer with the Davie County Sheriff’s
    Department, in her individual and official capacity; CRYSTAL COOK MEADOWS,
    Sergeant, Detention Officer with the Davie County Sheriff’s Department, in her
    individual and official capacity; MATTHEW TRAVIS BOGER, Jailer-Detention
    Officer with the Davie County Sheriff’s Department, in his individual and official
    capacity; JOHN OR JANE DOES 1-5, Jailers-Detention Officers with the Davie
    County Sheriff’s Department, in their individual and official capacities; WESTERN
    SURETY COMPANY; ANDREW C. STOKES, Sheriff of Davie County, in his
    individual and official capacity,
    Defendants - Appellees.
    --------------------------------------
    AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES
    UNION OF NORTH CAROLINA LEGAL FOUNDATION; AMERICAN CIVIL
    LIBERTIES UNION OF SOUTH CAROLINA; RIGHTS BEHIND BARS;
    RODERICK & SOLANGE MACARTHUR JUSTICE CENTER,
    Amici Supporting Appellant.
    Appeal from the United States District Court for the Middle District of North Carolina, at
    Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:18-cv-00741-NCT-JLW)
    2
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    Argued: September 19, 2023                               Decided: December 8, 2023
    Before GREGORY and HEYTENS, Circuit Judges, and Deborah L. BOARDMAN, United
    States District Judge for the Maryland District, sitting by designation.
    Reversed and remanded by published opinion. Judge Gregory wrote the opinion, in which
    Judge Heytens and Judge Boardman joined.
    ARGUED: William Ellis Boyle, WARD & SMITH, PA, Raleigh, North Carolina, for
    Appellant. James R. Morgan, Jr., WOMBLE BOND DICKINSON (US) LLP, Winston-
    Salem, North Carolina, for Appellees. ON BRIEF: Rudolf Garcia-Gallont, WOMBLE
    BOND DICKINSON (US) LLP, Winston-Salem, North Carolina, for Appellees.
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    GREGORY, Circuit Judge:
    On the morning of August 24, 2016, Victoria Short 1 attempted suicide while in
    custody at the Davie County Detention Center (“Jail”). She died of her injuries about two
    weeks later. Her husband, Charles Short, individually and as the administrator of her
    estate, filed suit, bringing claims under 
    42 U.S.C. § 1983
     against the Davie County
    Sheriff’s Department, which is responsible for the care and custody of inmates in the Jail,
    and several employees of the Sheriff’s Department individually. He also alleged violations
    of state law. Defendant-Appellees moved for judgment on the pleadings pursuant to
    Federal Rule of Civil Procedure 12(c). The district court dismissed all of Mr. Short’s
    claims, including the claim under the Fourteenth Amendment for the detention officer’s
    deliberate indifference to Ms. Short’s risk of suicide, which is at issue in this appeal.
    Because the district court erred in concluding that the Complaint failed to state a claim, we
    reverse.
    I.
    On July 6, 2016, Victoria Short attempted suicide for the first time. 2 A deputy of
    the Davie County Sheriff’s Department, who had been dispatched to her home, called EMS
    and had Ms. Short transported to Forsyth County Hospital for emergency mental health
    treatment. At the hospital, it was determined that Ms. Short had taken between 50 and 100
    1
    We refer to Victoria Short as “Ms. Short” to distinguish her from her husband,
    Appellant Charles Short, whom we refer to as “Mr. Short.”
    2
    Unless stated otherwise, all facts are taken from the Amended Complaint.
    4
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    prescription medicine pills during her suicide attempt. She remained in the hospital for
    four days to receive in-patient treatment.
    About six weeks later, on August 22, 2016, at approximately 11:45 p.m., two
    officers in the Sheriff’s Department responded to another call at the Shorts’ home—this
    time because of a domestic disturbance between Ms. Short and her husband. Ms. Short
    told one of the officers that “she used a syringe found in the kitchen to ‘shoot up on Xanax
    pills,’” that “she was having withdraw[al]s from shooting up,” and that “she had not shot
    up since yesterday.” J.A. 145. The deputy’s report also noted that Ms. Short was
    “extremely upset and appeared to be on some type of narcotic as she was shaking
    uncontrollably, twitching from the neck area, and had needle marks all down both her
    arms.” 
    Id.
    The deputies took both Mr. and Ms. Short into custody and transported them to the
    Jail. On the way to the Jail, Ms. Short’s brother and Mr. Short told the deputies that Ms. Short
    was suicidal and had recently attempted suicide. Ms. Short appeared before a magistrate
    upon arriving at the Jail, and he placed her on a forty-eight-hour domestic hold. Mr. Short
    was released from custody after approximately four or five hours.
    The Amended Complaint alleges that, at 12:09 a.m. on August 23 (approximately
    half an hour after the deputies responded to the Shorts’ home), Ms. Short was examined by
    licensed practical nurse Linda Barnes. 3 Following the examination, Nurse Barnes placed
    3
    After Defendant-Appellees moved for judgment on the pleadings but before the
    district court ruled on the motion, the parties conducted and completed discovery, which
    revealed that Nurse Barnes had in fact examined Ms. Short at 12:09 p.m., twelve hours
    (Continued)
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    Ms. Short on the Jail’s withdrawal protocol, which included detoxing medications and
    heightened monitoring by Jail staff. However, Jail staff did not comply with the protocol’s
    monitoring requirements, which included checking on the inmate every fifteen minutes.
    Instead, a member of the Jail staff conducted walk-by observations, usually lasting only a
    few seconds, 30 minutes or more apart.
    Also in the early morning hours of August 23, Sergeant Teresa Morgan completed
    two forms evaluating Ms. Short’s health. On the first form, some of the questions are
    addressed to the inmate (e.g., “Are you diabetic?”), while others are addressed to the officer
    (e.g., “Is the inmate . . .”). J.A. 221–22. Both Ms. Short and Sergeant Morgan signed the
    form. J.A. 223. One question, directed at the inmate, asks whether the inmate ever
    considered or attempted suicide. The response states “yes,” and the comment “last month”
    was added. J.A. 221. In response to the question of whether she uses drugs and, if so, how
    much, Ms. Short responded “yes” and “what ever can [sic] get my hands on.” J.A. 222.
    With respect to alcohol, she commented that she uses alcohol “every other day.” 
    Id.
    Another question, directed at the officer, asks, “does the inmate appear to be under the
    later than what was alleged in the Complaint. In their Answer to the Amended Complaint,
    the medical defendants, who included Nurse Barnes, denied the relevant allegation of the
    Amended Complaint but without explanation. J.A. 278. The Law Enforcement
    Defendants admitted the allegation that the examination occurred at 12:09 a.m. in their
    Answer, even though it has subsequently been revealed that this is incorrect. J.A. 46.
    Because this case comes to us on appeal from a Federal Rule of Civil Procedure 12(c)
    dismissal, facts revealed during summary judgment are not properly part of the record. See
    Massey v. Ojaniit, 
    759 F.3d 343
    , 347 (4th Cir. 2014). Whether Nurse Barnes examined
    Ms. Short at 12:09 a.m. or 12:09 p.m. is not outcome determinative here, and we rely on
    the allegation that this examination occurred at 12:09 a.m. for purposes of this appeal. On
    summary judgment however, the facts revealed during discovery will be properly before
    the court.
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    influence of, or withdrawing from drugs or alcohol? If yes explain.” 
    Id.
     The response
    states “yes” and “drugs.” 
    Id.
    The second form required Ms. Short to check “yes” or “no” in response to several
    questions relating to her mental health. J.A. 225. She checked “yes” for questions 5 and
    6: “Do you currently feel like you have to talk or move more slowly than you usually do?”
    and “Have there currently been a few weeks when you felt like you were useless or sinful?”
    
    Id.
     She checked “no” for “have you ever been in a hospital for emotional or mental health
    problems?” (question 8), but in the adjacent comment box she wrote, “when I tried to
    com[mit] suicide stayed in hospital [sic] 4 days.” 
    Id.
     The second section of the form
    provides a space for the officer’s comments and impressions, including a line to indicate
    whether the detainee is under the influence of alcohol or drugs, but nothing is marked in
    this section. 
    Id.
     The form then states that the detainee “should be referred for further
    mental health evaluation” if they answered “yes” to question 7, “yes” to question 8, or
    “yes” to at least two of questions 1 to 6. 
    Id.
     Based on these instructions, Ms. Short should
    have been referred. The next line of the form, which provides space for an officer to
    indicate whether the detainee was referred, is blank, but Sergeant Morgan signed on the
    appropriate signature line at the bottom of the page. 
    Id.
     At the conclusion of these
    evaluation processes, in the early morning hours of August 23, Ms. Short was placed in an
    isolation cell.
    Detention Officer Sarah Cook arrived for her shift at around 6:45 a.m. on August
    24. She overheard Officer Michael Brannock tell another detention officer that he had
    responded to the Shorts’ home in July following Ms. Short’s first suicide attempt. Based
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    on what she overheard, Officer Cook realized that Ms. Short was at risk of attempting
    suicide and, upon learning that Ms. Short was in an isolation cell and was not being
    observed as often as the Jail policy mandated, asked why Ms. Short was in isolation. She
    was told that Lieutenant Dana Recktenwald had ordered that Ms. Short be placed in
    isolation because Ms. Short was “being mouthy.” Ms. Short remained in isolation.
    At 9:30 a.m. on August 24, Detention Officer Matthew Boger conducted a walk-by
    observation in the female isolation unit to check on Ms. Short. He observed her sitting on
    her bed in the cell. According to the complaint, the CCTV footage shows that Ms. Short
    attempted suicide by hanging herself from the cell door with a bedsheet between 9:49 and
    9:56 a.m. During his next walk-by observation at 10:10 a.m., Officer Boger discovered
    Ms. Short hanging from the door. She was rushed to Wake Forest Baptist Medical Center
    and died on September 7, about two weeks later. She never regained consciousness.
    Davie County Detention Center Policy (“Policy” or “Prison Policy”) Section 4.10
    provides that inmates “identified as a suicide risk” must be “place[d] in a populated cell,
    never . . . in a single cell” and prison guards must check on inmates every ten to fifteen
    minutes and log their rounds. J.A. 227; see also J.A. 228 (“It is important to begin 10–15
    minute checks on a suicidal inmate, even if he or she is in a multi-occupant cell. This must
    be documented.”). For inmates identified as a suicide risk, the Policy also instructs officers
    to “remove all articles that the inmate has that may be used to commit suicide” and requires
    evaluation by a mental health professional. J.A. 168. The Policy also provides that all
    detention officers will receive “training to recognize signs that an inmate may be suicidal”
    and provides a list of non-exclusive factors that “may indicate that an inmate is considering
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    suicide,” and further instructs medical personnel and officers to “look carefully for any
    other indicators of potentially suicidal behavior.” J.A. 227. One of the factors is “previous
    attempts to commit suicide.” 
    Id.
     Another is “drug or alcohol intoxication or withdrawal.”
    J.A. 228. Under this Policy, Ms. Short should have been placed on suicide watch—she
    should have been in a populated cell, the bed sheet should have been removed from her
    cell, and prison guards should have conducted checks every 10–15 minutes.
    An internal investigation, conducted by a Sheriff’s Department employee, claimed
    that Ms. Short was placed in isolation because she had “a multitude of sores all over her
    body, some of which were oozing fluid. She was isolated for the safety of other inmates
    to avoid exposing them to a possible communicable disease.” J.A. 154–55. But this
    rationale contradicts what Officer Cook was told the morning of August 24: that Ms. Short
    was in isolation because she was “being mouthy.” 4 The investigation also concluded that
    officers and medical personnel followed all protocols—Ms. Short had displayed only
    “common withdrawal symptoms from narcotics and alcohol” and had no “current suicidal
    indicators.” J.A. 161. When the Sheriff’s Department finally reported Ms. Short’s death
    4
    The Amended Complaint also alleges that, “at some point on August 23,” Nurse Barnes
    authorized that Ms. Short be moved to isolation “allegedly due to having open draining
    sores all over her body.” J.A. 155. To reconcile this allegation with the allegation that Ms. Short
    was moved to isolation for “being mouthy,” and because we must make all reasonable
    inferences in favor of the plaintiff at this stage, we assume that Nurse Barnes’s
    authorization occurred after Ms. Short’s initial assignment to an isolation cell and that the
    initial decision was made because Ms. Short was “being mouthy.” This inference in no
    way contradicts the Amended Complaint because the allegation that Nurse Barnes’s
    authorization occurred “at some point” is entirely consistent with its occurrence later in
    time than Ms. Short’s initial assignment to an isolation cell.
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    to state regulators five months later, the state’s independent investigation refuted the
    findings of this internal investigation.
    II.
    Mr. Short, individually and in his capacity as administrator of Ms. Short’s estate,
    sued various Sheriff’s Department employees with authority over the Jail and its inmates,
    including Sergeant Morgan (collectively, the “Law Enforcement Defendants”), in both
    their official and individual capacities. 5 The suit also named Southern Health Partners, 6
    Nurse Barnes, Nurse Bailey, and Physician Assistant Manuel Maldonado as defendants
    (collectively, the “Medical Defendants”). Appellant alleged claims under Section 1983 for
    violations of Ms. Short’s Fourteenth Amendment rights and related claims under state law.
    In March and April 2020, Appellant filed stipulations of voluntary dismissal of the Medical
    Defendants “based on negotiated settlement agreements with those parties.” Stipulation of
    Dismissal of LPN Linda Barnes, LPN Susan Desiree Bailey, & P.A. Manuel Maldonado
    at 2, Short v. Hartman, 1:18-cv-00741 (M.D.N.C. Mar. 25, 2020), ECF No. 77; Stipulation
    of Dismissal of Southern Health Partners, Inc. at 2, Short v. Hartman, 1:18-cv-00741
    5
    Specifically, the Law Enforcement Defendants are Sheriff Andrew Stokes, the Davie
    County Sheriff at the time of Ms. Short’s death; Sheriff J.D. Hartman, the Sheriff at the time
    Mr. Short sued and a deputy at the time of Ms. Short’s death; Captain Cameron Sloan, Chief
    Jailer of the Sheriff’s Department; and Lieutenant Dana Recktenwald, Sergeant Crystal Meadows,
    Sergeant Teresa Morgan, and Officer Matthew Boger, who were allegedly present at the
    Jail at various times during Ms. Short’s detention.
    Southern Health Partners (SHP) provided medical services to inmates at the Jail.
    6
    Nurse Barnes, Nurse Bailey, and PA Maldonado were employees of SHP.
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    (M.D.N.C. Apr. 1, 2020), ECF No. 78.                Accordingly, only the Law Enforcement
    Defendants remain as parties to this case.
    While discovery was ongoing, the Law Enforcement Defendants moved for
    judgment on the pleadings. Without ruling on the motion, the district court allowed the
    parties to continue discovery. After discovery closed, the Law Enforcement Defendants
    moved for summary judgment. Rather than ruling on the summary judgment motions, the
    district court ruled on the 17-month-old motion for judgment on the pleadings.
    The district court dismissed the individual capacity claims against Lieutenant Recktenwald,
    Sergeant Crystal Meadows, Officer Boger, and Sergeant Morgan, reasoning that “none of
    them is alleged to have personally deprived Mrs. Short of her constitutional rights.” Short v.
    Stokes, No. 1:18-cv-00741, 
    2021 WL 620933
    , at *7 (M.D.N.C. Feb. 17, 2021). The District
    Court also dismissed the individual capacity claims against Sheriff Stokes, Sheriff Hartman,
    and Captain Sloan because “the allegations against each of them appear to be based on a
    theory of respondeat superior, which cannot be a basis for individual liability under
    § 1983.” Id. at *6. The court then dismissed the official capacity claims on the basis that
    there were no sufficient allegations that “any individual defendants violated Mrs. Short’s
    constitutional rights.” Id. at *11. Finally, it declined to exercise supplemental jurisdiction
    over any state law claims because no federal law claims remained. Id.
    Appellant timely appealed, arguing that he properly alleged that Sergeant Morgan,
    in her individual capacity, violated Ms. Short’s constitutional rights. Appellant says that,
    if we agree with him and reverse the district court, we ought to remand with instructions to
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    reconsider the official capacity and state law claims over which the district court declined
    to exercise jurisdiction.
    We requested that the parties submit supplemental briefing addressing:
    (1) Whether the Fourteenth Amendment claims should be evaluated under the
    objective test announced in Kingsley v. Hendrickson, 
    576 U.S. 389
     (2015);
    (2) If Kingsley applies, whether this Court should remand for the court below to
    address, in the first instance, whether the objective test is met;
    (3) This Court’s recent decision in Stevens v. Holler, 
    68 F.4th 921
     (4th Cir. 2023),
    decided after the parties’ briefs were submitted.
    III.
    We review de novo a district court’s ruling on a Rule 12(c) motion for judgment on
    the pleadings. Edwards v. City of Goldsboro, 
    178 F.3d 231
    , 243 (4th Cir. 1999). In doing
    so, we “apply the standard for a Rule 12(b)(6) motion.” 
    Id.
     That standard requires that we
    accept all facts pled in the complaint as true and “draw all reasonable inferences in favor of
    the plaintiff.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 
    591 F.3d 250
    , 253 (4th
    Cir. 2009). To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient
    facts to state a claim that is “plausible on its face.” Id. at 570. “The plausibility standard is
    not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
    defendant has acted unlawfully.” Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009).
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    IV.
    We first address the issue raised by our request for supplemental briefing—whether
    Kingsley v. Hendrickson abrogated our prior precedent and requires us to recognize that
    pretrial detainees can state a claim based on a purely objective test under the Fourteenth
    Amendment for prison officials’ deliberate indifference to excessive risks of harm to the
    inmate. 
    576 U.S. 389
     (2015). Several cases have squarely presented this Court with the
    opportunity to decide whether Kingsley applies to pretrial detainees’ claims for deliberate
    indifference to an excessive risk of harm. So far, though, we have not reached the issue,
    instead resolving each case on alternative grounds. See, e.g., Moss v. Harwood, 
    19 F.4th 614
    , 624 n.4 (4th Cir. 2021) (“Because Moss has expressly endorsed application of the
    Eighth Amendment standard—including its subjective component—to his Fourteenth
    Amendment claim, we have no occasion to consider that question today.”); Mays v.
    Sprinkle, 
    992 F.3d 295
    , 300–01 (4th Cir. 2021) (“We need not resolve this argument as
    [Kingsley’s] standard would make no difference here because of qualified immunity.”).
    Leaving this question unresolved creates uncertainty in our jurisprudence and allows the
    issue to slip past both practitioners and courts, as happened in this case below. More than
    eight years after Kingsley, it is time we lay this issue to rest.
    A.
    Before we turn to the merits of Kingsley’s applicability, we must assure ourselves
    that the issue is properly before us. As the Supreme Court has cautioned, “[c]ourts do not,
    or should not, sally forth each day looking for wrongs to right.” Greenlaw v. United States,
    
    554 U.S. 237
    , 244 (2008). Rather, under the party presentation principle, we generally
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    address only the issues raised by the parties. 
    Id. at 243
    . However, “[c]ourts invested with
    the judicial power of the United States have certain inherent authority to protect their
    proceedings and judgments in the course of discharging their traditional responsibilities.”
    Degen v. United States, 
    517 U.S. 820
    , 823 (1996). This inherent power permits courts to
    “independently consider an issue not raised by the parties when necessary to protect
    important institutional interests.” United States v. Oliver, 
    878 F.3d 120
    , 124 (4th Cir.
    2017). One such institutional interest is “a court’s fundamental obligation to ascertain
    controlling law.” Dan Ryan Builders, Inc. v. Crystal Ridge Development, Inc., 
    783 F.3d 976
    , 980 (4th Cir. 2015). That is what we are doing here.
    Of course, “‘[j]ust because’ we have the inherent authority to act ‘does not mean
    that it is appropriate to use that power in every case.’” Oliver, 
    878 F.3d at 126
     (quoting
    Dietz v. Bouldin, 
    579 U.S. 40
    , 48 (2016)). In our adversarial system, “we rely on the parties
    to frame the issues for decision and assign courts the role of neutral arbiter of matters the
    parties present.” Greenlaw, 
    554 U.S. at 243
    . “Such adversary proceedings not only
    increase public confidence in the justice system, but they implicitly recognize that ‘parties
    know what is best for them and are responsible for advancing the facts and arguments
    entitling them to relief.’” Oliver, 
    878 F.3d at 126
     (quoting Greenlaw, 
    554 U.S. at 244
    ).
    “Habitual sua sponte consideration of a forfeited issue disincentivizes vigorous advocacy
    and thereby chips away at the foundation of our justice system.” 
    Id.
    But we cannot sacrifice the integrity of our jurisprudence to the party presentation
    principle. See Dan Ryan Builders, 
    783 F.3d at 980
    . For that reason, we have stated that
    the party presentation principle does not constrain our “fundamental obligation to ascertain
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    controlling law.” 
    Id.
     “When an issue or claim is properly before the court, the court is not
    limited to the particular legal theories advanced by the parties, but rather retains the
    independent power to identify and apply the proper construction of governing law.”
    Kamen v. Kemper Fin. Servs., Inc., 
    500 U.S. 90
    , 99 (1991). The Supreme Court has long
    recognized that a “court may consider an issue ‘antecedent to . . . and ultimately dispositive
    of’ the dispute before it, even an issue the parties fail to identify and brief.” U.S. Nat’l
    Bank of Or. v. Indep. Ins. Agents of Am., Inc., 
    508 U.S. 439
    , 447 (1993) (quoting Arcadia
    v. Ohio Power Co., 
    498 U.S. 73
    , 77 (1990)) (alteration in original). The question we have
    raised—whether Kingsley applies to the type of claim asserted in this case—is antecedent
    to our consideration of the district court’s disposition of Mr. Short’s claims. Accordingly,
    this issue is properly before us.
    B.
    We now turn to whether Kingsley abrogates our Circuit’s prior precedent and
    requires us to recognize that pretrial detainees can state a claim under the Fourteenth
    Amendment, based on a purely objective standard, for prison officials’ deliberate
    indifference to excessive risks of harm. 7 Like the Second, Sixth, Seventh, and Ninth
    7
    The Tenth Circuit has observed that “a deliberate indifference claim presupposes
    a subjective component.” Strain v. Regalado, 
    977 F.3d 984
    , 992 (10th Cir. 2020). But the
    Supreme Court has recognized that, outside of the Eighth Amendment context, the term
    “deliberate indifference” is not necessarily subjective. Instead, it is “the equivalent of
    reckless[ness],” which is an objective standard in the civil law context, but a subjective
    standard in the criminal law context. Farmer v. Brennan, 
    511 U.S. 825
    , 836–37 (1994).
    Indeed, in the context of municipal liability, the same term is used to describe a purely
    objective test. See 
    id.
     at 840 (citing Canton v. Harris, 
    489 U.S. 378
    , 389 (1989)). As the
    Sixth Circuit noted, “the Farmer Court adopted the subjective component of the test for
    (Continued)
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    Circuits, we find that it does. See Gordon v. County of Orange, 
    888 F.3d 1118
    , 1120,
    1122–25 (9th Cir. 2018); Darnell v. Pineiro, 
    849 F.3d 17
    , 34–35 (2d Cir. 2017); Miranda
    v. County of Lake, 
    900 F.3d 335
    , 351–52 (7th Cir. 2018); Brawner v. Scott County, 
    14 F.4th 585
    , 596 (6th Cir. 2021).
    Under our precedent, “[o]ne ‘panel cannot overrule the decision of a prior panel’
    . . . ‘[a]bsent contrary law from an en banc or Supreme Court decision.’” Carrera v. EMD
    Sales, Inc., 
    75 F.4th 345
    , 352 (2023) (quoting Desmond v. PNGI Charles Town Gaming,
    
    564 F.3d 688
    , 691 (4th Cir. 2009) and Taylor v. Grubbs, 
    930 F.3d 611
    , 619 (4th Cir. 2019)).
    Previous “panel precedent . . . is not binding if it subsequently proves untenable
    considering Supreme Court decisions,” Rose v. PSA Airlines, 
    80 F.4th 488
    , 506 (4th Cir.
    2023) (Heytens, J., concurring in part and dissenting in part) (internal quotation omitted),
    but “[w]e do not lightly presume that the law of our circuit has been overturned or rendered
    no longer tenable,” Carrera v. E.M.D. Sales Inc., 
    75 F.4th 345
    , 352 (4th Cir. 2023) (internal
    quotation omitted). A Supreme Court decision overrules or abrogates our prior precedent
    only if our precedent is “impossible to reconcile” with a subsequent Supreme Court
    decision. 
    Id.
     If it is “possible for us to read our precedent harmoniously” with Supreme
    Court precedent, we must do so. 
    Id. at 353
     (internal quotation omitted). This is a high bar.
    deliberate indifference under the Eighth Amendment based on the language and purposes
    of that amendment, focusing particularly on ‘punishments,’ and not on any intrinsic
    meaning of the term.” Brawner v. Scott County, 
    14 F.4th 585
    , 595 (6th Cir. 2021).
    Accordingly, like the Second, Sixth, Seventh, and Ninth Circuits we retain the term
    “deliberate indifference” despite adopting Kingsley’s purely objective standard. We
    nonetheless acknowledge that, to the average reader, the term “deliberate indifference”
    suggests subjectivity, and that an alternative term such as “objective indifference” may be
    preferable if we were writing on a clean slate.
    16
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    But here that bar has been met, and we hold, as four of our sister circuits 8 have
    previously, that Kingsley is irreconcilable with precedent requiring pretrial detainees to
    meet a subjective standard to succeed on claims under the Fourteenth Amendment for
    prison officials’ deliberate indifference to excessive risks of harm to the inmate. The fact
    that Kingsley refers broadly to “challenged governmental action” and speaks of claims
    under the Fourteenth Amendment generally, coupled with its heavy reliance on Bell v.
    Wolfish, demonstrate that Kingsley’s objective standard extends not just to excessive force
    claims; it applies equally to deliberate indifference claims. 
    441 U.S. 520
     (1979).
    i.
    Before turning to Kingsley, we examine the jurisprudential history leading up to our
    adoption of the subjective deliberate indifference standard for pretrial detainees’ claims
    under the Fourteenth Amendment. The Supreme Court first recognized a claim for
    deliberate indifference to a prisoner’s serious medical needs in Estelle v. Gamble—an
    Eighth Amendment case. 
    429 U.S. 97
     (1976). The Estelle Court, however, did not
    establish a standard for evaluating those claims. Two years later, this Court extended
    Estelle from Eighth Amendment claims to Fifth and Fourteenth Amendment Due Process
    Clause claims, reasoning that “due process is at least as co-extensive as the guarantees of
    8
    Notably, these four circuits all adopted Kingsley’s purely objective test, without
    considering the question en banc. See Darnell v. Pineiro, 
    849 F.3d 17
    , 35 (2d Cir. 2017);
    Gordon v. County of Orange, 
    888 F.3d 1118
    , 1124–25 (9th Cir. 2018); Miranda v. County
    of Lake, 
    900 F.3d 335
    , 352–53 (7th Cir. 2018); Brawner v. Scott County, 
    14 F.4th 585
    ,
    596–97 (6th Cir. 2021). They thus recognized, as we do here, that Kingsley mandates a
    departure from prior circuit precedent and eliminates the need for en banc consideration of
    the issue.
    17
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    the [E]ighth amendment.” Loe v. Armistead, 
    582 F.2d 1291
    , 1294 (4th Cir. 1978). Like
    the Supreme Court before, we did not establish a standard for evaluating those claims.
    After a few years without clarification from the Supreme Court, we filled the gap
    and adopted an objective test for Fourteenth Amendment claims of deliberate indifference
    to serious medical needs. See Whisenant v. Yuam, 
    739 F.2d 160
    , 164 (4th Cir. 1984);
    Martin v. Gentile, 
    849 F.2d 863
    , 870 (4th Cir. 1988). We drew that test from the Supreme
    Court’s decision in Bell v. Wolfish, 
    441 U.S. 520
     (1979). In Bell, the Supreme Court held
    that “[i]n evaluating the constitutionality of conditions or restrictions of pretrial detention
    . . . the proper inquiry is whether those conditions amount to punishment of the detainee.”
    
    Id. at 535
    . The Court in Bell explained that whereas the Eighth Amendment only protects
    post-conviction detainees from “cruel and unusual punishment,” the Fourteenth
    Amendment Due Process Clause protects pretrial detainees from being punished at all. 
    Id.
    at 535–37 & n.16.       As a result, any pretrial detention conditions that “amount to
    punishment” violate due process. As we read Bell,
    [t]o establish that a particular condition or restriction of his confinement is
    constitutionally impermissible “punishment,” the pretrial detainee must
    show either that it was (1) imposed with an expressed intent to punish or (2)
    not reasonably related to a legitimate nonpunitive governmental objective, in
    which case an intent to punish may be inferred.
    Martin, 
    849 F.2d at
    870 (citing Bell, 
    441 U.S. at
    538–40).
    Applying Bell, we held that deliberate indifference to serious medical needs violates
    the Fourteenth Amendment even in the absence of subjective intent to punish “because no
    legitimate nonpunitive goal is served by a denial or unreasonable delay in providing
    medical treatment where the need for such treatment is apparent.” 
    Id.
     at 871 (citing
    18
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    Whisenant, 
    739 F.2d at 164
    ). And in Gordon v. Kidd, we dispelled any doubt about
    whether that test required the plaintiff to show that the defendant knew of and consciously
    disregarded the health risk at issue. 
    971 F.3d 1087
     (4th Cir. 1992). “Stated succinctly,
    ‘[t]he key to deliberate indifference in a prison suicide case is whether the defendants knew,
    or reasonably should have known, of the detainee’s suicidal tendencies.’” 
    Id. at 1094
    (emphasis added) (quoting Elliott v. Cheshire County, 
    940 F.2d 7
    , 10–11 (1st Cir. 1991)).
    See also Hill v. Nicodemus, 
    979 F.2d 987
    , 991–92 (4th Cir. 1992).
    In 1994, the Supreme Court finally adopted a test for Eighth Amendment deliberate
    indifference claims in Farmer v. Brennan. 
    511 U.S. 825
     (1994). That test is subjective:
    [A] prison official cannot be found liable under the Eighth Amendment for
    denying an inmate humane conditions of confinement unless the official
    knows of and disregards an excessive risk to inmate health or safety; the
    official must both be aware of facts from which the inference could be drawn
    that a substantial risk of serious harm exists, and he must also draw the
    inference.
    
    Id.
     at 837–38.
    The Eighth Amendment drove Farmer’s reasoning and circumscribed its holding.
    After identifying “deliberate indifference” with recklessness, Farmer observed that there
    are two forms of recklessness. Criminal recklessness is subjective, requiring conscious
    disregard of a risk of which the defendant is aware. 
    Id.
     at 836–37. By contrast, civil
    recklessness is objective, encompassing action or failure to act “in the face of an
    unjustifiably high risk of harm that is either known or so obvious that it should be known.”
    
    Id. at 836
    . Farmer held that Eighth Amendment deliberate indifference required criminal
    recklessness—the subjective form—because the Eighth Amendment restricts only cruel
    19
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    and unusual punishment, 
    id. at 837
    , and the Court’s precedents “mandate[d] inquiry into a
    prison official’s state of mind when it is claimed that the official has inflicted cruel and
    unusual punishment,” 
    id. at 839
    . Having previously “rejected a reading of the Eighth
    Amendment that would allow liability to be imposed on prison officials solely because of
    the presence of objectively inhumane prison conditions,” the Court concluded that only a
    subjective test for Eighth Amendment deliberate indifference would respect its preexisting
    Eighth Amendment rules. 
    Id. at 839
    . In sum, Farmer adopted a subjective test for Eighth
    Amendment claims on Eighth Amendment grounds.
    Nevertheless, in the years that followed, a consensus emerged among the courts of
    appeal that Farmer’s subjective Eighth Amendment standard applied to Fourteenth
    Amendment claims. See, e.g., Upham v. Gallant, 99-2224, 2000 WL1425759, at *1 (1st
    Cir. 2000); Caiozzo v. Koreman, 
    581 F.3d 63
    , 66 (2d Cir. 2009); Serafin v. City of
    Johnstown, 
    53 F. App’x 211
    , 213–14 (3d Cir. 2002); Hare v. City of Corinth, 
    74 F.3d 633
    ,
    636 (5th Cir. 1996); Polk v. Parnell, No. 96-5711, 
    1997 WL 778511
    , at *1 (6th Cir. 1997);
    Henderson v. Sheahan, 
    196 F.3d 839
    , 844–45 (7th Cir. 1999); Crow v. Montgomery, 
    403 F.3d 598
    , 601 (8th Cir. 2005); Schell v. Richards, No. 97-15743, 
    1997 WL 664988
    , at *1
    (9th Cir. 1997); Dean v. Hamblin, No. 95-2088, 
    1995 WL 623650
    , at *2 (10th Cir. 1995);
    Cottrell v. Caldwell, 
    85 F.3d 1480
    , 1490 (11th Cir. 1996).
    We, too, extended Farmer to Fourteenth Amendment claims, but, like several of our
    sister circuits, we did not provide extensive reasoning. The most satisfying justification
    that we can glean from our prior caselaw is that we relied on the Supreme Court’s assertion
    in City of Revere v. Massachusetts General Hospital that protections for pretrial detainees
    20
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    under the Fourteenth Amendment are “at least as great as the Eighth Amendment
    protections available to a convicted prisoner.” 
    463 U.S. 239
    , 244 (1983). At least with
    respect to deliberate indifference claims, we have consistently read this to mean that
    protections under the Fourteenth Amendment are the same as those under the Eighth
    Amendment and, consequently, should be evaluated under the same standard. See, e.g.,
    Stevens v. Holler, 
    68 F.4th 921
    , 931 (4th Cir. 2023) (citing City of Revere for this
    proposition and then applying the Farmer standard).
    Our decision in Martin v. Bowman adopted Farmer’s Eighth Amendment holding
    and applied it to pretrial detainees. No. 94-6246, 
    1995 WL 82444
     (4th Cir. 1995). We did
    this despite recognizing that (1) Farmer confined itself to the Eighth Amendment context,
    and (2) “deliberate indifference” did not have to be a subjective standard—in fact, it was,
    and still is, an objective standard in Monell claims. Id.; see Farmer, 
    511 U.S. at 841
     (stating
    that it “would be hard to describe” the test for municipal liability for failure to train, which
    “permit[s] liability to be premised on obviousness or constructive notice, as anything but
    objective”)).
    We revisited Farmer’s applicability to the Fourteenth Amendment in Ervin v.
    Magnum but did not provide substantially more reasoning. No. 93-7129, 
    1997 WL 664606
    (4th Cir. 1997). There, we wrote:
    As a practical matter . . . we do not distinguish between the Eighth and
    Fourteenth Amendments in the context of a pretrial detainee’s § 1983 claim.
    Despite the Supreme Court’s suggestion that pretrial detainees may be afforded
    greater protection than convicted prisoners, the circuit courts have generally
    analyzed both situations under the same “deliberate indifference” standard.
    Id. at *4 (citations omitted).
    21
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    It is true that if a Fourteenth Amendment claimant is entitled to at least as much
    protection as an Eighth Amendment claimant, then whatever treatment violates the Eighth
    violates the Fourteenth. But it does not follow that treatment violates the Fourteenth only
    if it violates the Eighth. In Ervin and the cases that followed, see Young v. City of Mount
    Ranier, 
    238 F.3d 567
    , 575–76 (4th Cir. 2001); Grayson v. Peed, 
    195 F.3d 692
    , 695 (4th
    Cir. 1999), we elided the distinction between the Eighth Amendment claims of post-
    conviction detainees and the Fourteenth Amendment claims of pretrial detainees.
    That brings us to Kingsley.
    ii.
    The Supreme Court’s ruling in Kingsley v. Hendrickson upends the assumption that
    Fourteenth Amendment Due Process Clause claims should be treated the same as Eighth
    Amendment claims. In Kingsley, the Supreme Court held that, to state a Fourteenth
    Amendment Due Process Clause claim for excessive use of force, a pretrial detainee need
    allege only that the officer used objectively unreasonable force. Kingsley, 576 U.S. at 396–
    97. If that were all Kingsley did, then it would not only be “possible for us to read our
    [deliberate indifference] precedent harmoniously,” it would be easy. See Carrera, 75 F.4th
    at 353. But Kingsley did more. It reiterated that a pretrial detainee may state a claim under
    the Fourteenth Amendment by satisfying Bell’s objective standard. Kingsley, 576 U.S. at
    398 (citing Bell, 
    441 U.S. at 561
    ). And Kingsley rejected our only ground for replacing the
    objective Bell test for Fourteenth Amendment deliberate indifference claims with Farmer’s
    subjective Eighth Amendment test. See id. at 400 (stating that because the language of the
    Eighth and Fourteenth Amendments differs, “the nature of the claims often differs”). For
    22
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    those two reasons, it is “impossible to reconcile” Kingsley with our subjective deliberate
    indifference test for Fourteenth Amendment claims. See Carrera, 75 F.4th at 352.
    Kingsley is clear: The Fourteenth Amendment Due Process Clause protects pretrial
    detainees from “governmental action” that is not “rationally related to a legitimate
    nonpunitive governmental purpose” or that is “excessive in relation to that purpose.”
    Kingsley, 576 U.S. at 398 (quoting Bell, 
    441 U.S. at 561
    ) (internal quotation marks
    omitted). That test is “solely an objective one.” Id. at 397. As Kingsley observed, Bell
    applied that “objective standard” to a challenge to “a variety of prison conditions, including
    a prison’s practice of double bunking”—not just to excessive force claims. Id. “In doing
    so, [Bell] did not consider the prison officials’ subjective beliefs about the policy.” Id.
    And, notably, Kingsley itself likewise speaks broadly of “challenged governmental action,”
    as opposed to only the government’s use of excessive force. Id. at 398. Of course, a
    showing of subjective intent can still help a pretrial detainee state a claim for action that
    “amounts to punishment,” because “‘punishment’ can consist of actions taken with an
    ‘expressed intent to punish.’” Id. (quoting Bell, 
    441 U.S. at 538
    ). But such a showing is
    not necessary.
    Our subjective deliberate indifference test for pretrial detainees’ Fourteenth
    Amendment claims is irreconcilable with the Kingsley–Bell objective test. Under Kingsley,
    “a pretrial detainee can prevail by providing only objective evidence that the challenged
    governmental action is not rationally related to a legitimate governmental objective or that
    it is excessive in relation to that purpose.” 
    Id.
     Under our subjective test, however, a pretrial
    detainee must also show that the defendant “knew of and disregarded [a] substantial risk
    23
    USCA4 Appeal: 21-1397       Doc: 51          Filed: 12/08/2023      Pg: 24 of 37
    to the inmate’s health or safety.” Stevens v. Holler, 
    68 F.4th 921
    , 931 (4th Cir. 2023). The
    showing sufficient to satisfy Kingsley’s objective test is necessary but insufficient to satisfy
    our subjective test. It is “impossible to reconcile” our post-Farmer cases with Kingsley.
    See Carrera, 75 F.4th at 352.
    Further, Kingsley repudiated the reasoning we followed in adopting the subjective
    test for deliberate indifference claims in the first place. Our precedent extended Farmer’s
    Eighth Amendment test to Fourteenth Amendment claims by dismissing the distinction
    between the two amendments as a distinction without a difference. See Martin, 
    1995 WL 82444
    , at *3; Ervin, 
    1997 WL 664606
    , at *4; Grayson, 
    195 F.3d at 695
    ; Young, 
    238 F.3d at
    575–76. Kingsley commands the opposite. “The language of the two Clauses differs,
    and the nature of the claims often differs.” Kingsley, 576 U.S. at 400. Specifically,
    Kingsley directs us to be more solicitous of the Fourteenth Amendment claims of a pretrial
    detainee than the Eighth Amendment claims of a post-conviction detainee, for “pretrial
    detainees (unlike convicted prisoners) cannot be punished at all.” Id. In fact, when the
    defendant officials in Kingsley argued that Eighth Amendment case law supplies the
    Fourteenth Amendment standard, Kingsley rejected that maneuver out of hand for failing
    to respect the distinctions between the amendments. Id. at 400–01. Because “there is no
    need here, as there might be in an Eighth Amendment case, to determine when punishment
    is unconstitutional,” the heightened, subjective Eighth Amendment deliberate indifference
    standard does not extend to Fourteenth Amendment cases.               Id.   For a Fourteenth
    Amendment claim, it is enough that the challenged action is not rationally related to a
    legitimate nonpunitive purpose or is excessive in relation to that purpose. Id. at 398.
    24
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    Now that Kingsley requires us to properly distinguish Eighth Amendment claims from
    Fourteenth Amendment claims, our prior precedent applying a subjective deliberate
    indifference standard is “no longer tenable.” Carrera, 75 F.4th at 352 (quotation omitted).
    We cannot harmonize Kingsley with our prior Fourteenth Amendment deliberate indifference
    precedent. The only way to respect the distinction Kingsley drew between the Eighth and
    Fourteenth Amendments is to recognize that Kingsley’s objective test extends to all pretrial
    detainee claims under the Fourteenth Amendment claims for deliberate indifference to an
    excessive risk of harm. We therefore conclude that Kingsley abrogated our prior precedent.
    iii.
    To persuade us that Kingsley does not disturb the law of our circuit, Appellees
    extensively quote the Tenth Circuit’s decision in Strain v. Regalado, the most thoroughly
    reasoned opinion declining to apply Kingsley’s objective test to deliberate indifference
    claims. 
    977 F.3d 984
     (10th Cir. 2020). 9 The Tenth Circuit brushed aside any conflict
    between Kingsley and that court’s subjective test for Fourteenth Amendment deliberate
    indifference claims primarily by construing Kingsley narrowly: as addressing only
    excessive force claims, “nothing more, nothing less.” 
    Id. at 991
    . But that reading reduces
    Kingsley’s reasoned judgment to an arbitrary fiat. Kingsley did not decree on a whim that
    we must use an objective test for excessive force claims. Kingsley found that a pretrial
    detainee may state a claim for excessive force on a purely objective basis because “our
    9
    Three other circuits have retained the subjective test with little analysis or none at
    all. See Whitney v. City of St. Louis, 
    887 F.3d 857
    , 860 n.4 (8th Cir. 2018); Dang ex rel.
    Dang. v. Sheriff, Seminole Cnty., 
    871 F.3d 1272
    , 1279 n.2 (11th Cir. 2017); Alderson v.
    Concordia Parish Corr. Facility, 
    848 F.3d 415
    , 419 n.4 (5th Cir. 2017).
    25
    USCA4 Appeal: 21-1397       Doc: 51          Filed: 12/08/2023       Pg: 26 of 37
    precedent” (above all, Bell) already recognizes that a pretrial detainee may state a due
    process claim against “a variety of prison conditions” by an “objective standard.” Kingsley,
    576 U.S. at 397–98. We cannot avoid the conflict between Kingsley and our case law by
    ignoring Kingsley’s rationale.
    The Tenth Circuit also tried to cabin Kingsley by distinguishing the purposes of
    excessive force claims and deliberate indifference claims. “The deliberate indifference cause
    of action does not relate to punishment,” Strain says, “but rather safeguards a pretrial
    detainee’s access to adequate medical care.” 977 F.3d at 991. For that reason, the Tenth
    Circuit reasoned, the Kingsley–Bell objective test for treatment that “amounts to punishment”
    does not govern deliberate indifference claims. Id. While it is certainly true that the deliberate
    indifference cause of action safeguards a detainee’s right to medical care, it is not true that
    this cause of action does not relate to punishment. The Supreme Court recognized an Eighth
    Amendment claim for deliberate indifference because the “denial of medical care may result
    in pain and suffering which no one suggests would serve any penological purpose”—that is,
    because it would amount to unjust punishment. Estelle, 
    429 U.S. at
    103–04.
    In yet another attempt to harmonize Kingsley with a subjective test for deliberate
    indifference, Strain emphasizes that “[e]xcessive force requires an affirmative act, while
    deliberate indifference often stems from inaction.” Strain, 977 F.3d at 991. To the Tenth
    Circuit, “‘the Kingsley standard is not applicable to cases where a government official fails
    to act’ because ‘a person who unknowingly fails to act—even when such a failure is
    objectively unreasonable—is negligent at most.’” Id. (quoting Castro v. County of Los
    Angeles, 
    833 F.3d 1060
    , 1086 (9th Cir. 2016) (en banc) (Ikuta, J., dissenting)). Yet
    26
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    Kingsley and Farmer expressly rejected that proposition. Kingsley, 576 U.S. at 395–96;
    Farmer, 
    511 U.S. at 837
    . The Supreme Court has recognized that an objective test requires
    civil recklessness, observing that “civil law generally calls a person reckless who acts or
    (if the person has a duty to act) fails to act in the face of an unjustifiably high risk of harm
    that is either known or so obvious that it should be known.” Farmer, 
    511 U.S. at
    836–37
    (emphasis added).      We cannot reconcile our deliberate indifference precedents with
    Kingsley by artificially limiting Kingsley’s objective test to claims that require “affirmative
    act[s],” Strain, 977 F.3d at 991, on the spurious ground that deliberate indifference would
    collapse into negligence otherwise. Recklessness is a lower bar than intent, but a higher
    bar than negligence.
    In short, we find Strain’s reasoning unpersuasive and hold that Kingsley is
    irreconcilable with our prior precedent. Kingsley repudiates a subjective requirement for
    pretrial detainees’ Fourteenth Amendment claims and permits pretrial detainees to state
    Fourteenth Amendment claims for deliberate indifference to a serious risk of harm on the
    purely objective basis that the “governmental action” they challenge is not “rationally
    related to a legitimate nonpunitive governmental purpose” or is “excessive in relation to
    that purpose.” Kingsley, 576 U.S. at 398 (quoting Bell, 
    441 U.S. at 561
    ) (internal quotation
    marks omitted).
    iv.
    To state a claim for deliberate indifference to a medical need, the specific type of
    deliberate indifference claim at issue in this case, a pretrial detainee must plead that (1)
    they had a medical condition or injury that posed a substantial risk of serious harm; (2) the
    27
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    defendant intentionally, knowingly, or recklessly acted or failed to act to appropriately
    address the risk that the condition posed; (3) the defendant knew or should have known (a)
    that the detainee had that condition and (b) that the defendant’s action or inaction posed an
    unjustifiably high risk of harm; and (4) as a result, the detainee was harmed. We take this
    test to be the same test our sister circuits have adopted. See Darnell v. Pineiro, 
    849 F.3d 17
    , 35 (2d Cir. 2017); Gordon v. County of Orange, 
    888 F.3d 1118
    , 1124–25 (9th Cir.
    2018); Miranda v. County of Lake, 
    900 F.3d 335
    , 352–53 (7th Cir. 2018); Brawner v. Scott
    County, 
    14 F.4th 585
    , 596–97 (6th Cir. 2021).
    The objective test we adopt today differs from our prior subjective test in one respect
    only. The plaintiff no longer has to show that the defendant had actual knowledge of the
    detainee’s serious medical condition and consciously disregarded the risk that their action
    or failure to act would result in harm. That showing remains sufficient, but it is no longer
    necessary. Now, it is sufficient that the plaintiff show that the defendant’s action or
    inaction was, in Kingsley’s words, “objectively unreasonable,” 576 U.S. at 397: that is, the
    plaintiff must show that the defendant should have known of that condition and that risk,
    and acted accordingly. Or as the Supreme Court put it when describing civil recklessness
    in Farmer, it is enough that the plaintiff show that the defendant acted or failed to act “in
    the face of an unjustifiably high risk of harm that is either known or so obvious that it
    should be known.” Farmer, 
    511 U.S. at 836
    . We go no further.
    To be clear, it is still not enough for the plaintiff to allege that the defendant
    negligently or accidentally failed to do right by the detainee. See Kingsley, 576 U.S. at
    28
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    396; Brawner, 14 F.4th at 596; Gordon, 888 F.3d at 1125; Miranda, 
    900 F.3d at
    353–54.
    Negligence was not enough before, Stevens, 68 F.4th at 931, and it is not enough now.
    V.
    Having determined that the proper test for pretrial detainees’ claims under the
    Fourteenth Amendment is an objective one, we could remand without considering anything
    further, because the district court improperly applied a subjective standard. But because
    we conclude that the allegations in the Complaint suffice to state a claim under any test—
    including the subjective Eighth Amendment deliberate indifference test—we additionally
    explain why the district court erred in granting judgment on the pleadings, and why, as a
    result, this case can proceed past the pleadings stage.
    As explained above, the objective test is not the sole means of showing a Fourteenth
    Amendment violation. We have previously stated that “a pretrial detainee makes out a
    violation at least where he shows deliberate indifference to serious medical needs under
    cases interpreting the Eighth Amendment.” Mays v. Sprinkle, 
    992 F.3d 295
    , 300 (4th Cir.
    2021) (emphasis added). Though the Supreme Court instructed in Kingsley that an
    objective test is proper for pretrial detainees’ claims under the Fourteenth Amendment, a
    pretrial detainee can still state a claim if they can meet the more demanding Eighth
    Amendment standard. In other words, satisfying the Eighth Amendment test remains
    sufficient, but is no longer necessary, for a pretrial detainee to state a claim for deliberate
    indifference to a serious medical need. Because the facts alleged in the Complaint are
    sufficient to satisfy even the Eighth Amendment deliberate indifference test against
    29
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    Sergeant Morgan, we conclude that the district court erred in dismissing the Complaint for
    failure to state a claim, and reverse.
    The deliberate indifference test “includes objective and subjective elements.” Mays,
    992 F.3d at 300.      The objective element requires an objectively “serious” medical
    condition. Id. A condition is objectively serious if it is “diagnosed by a physician as
    mandating treatment” or is “so obvious that even a lay person would easily recognize the
    necessity for a doctor’s attention.” Scinto v. Stansberry, 
    841 F.3d 219
    , 225 (4th Cir. 2016).
    The subjective element requires that the prison official acted with deliberate indifference
    to inmate health or safety, meaning that the official “had actual subjective knowledge of
    both the inmate’s serious medical condition and the excessive risk posed by the official’s
    action or inaction.” Jackson v. Lightsey, 
    775 F.3d 170
    , 178 (4th Cir. 2014).
    In applying the deliberate indifference test, we first ask whether Ms. Short had an
    objectively serious medical condition. See Mays, 992 F.3d at 303. “A substantial risk of
    suicide is certainly the type of ‘serious harm’ that is contemplated by the first prong” of
    the deliberate indifference test. Brown v. Harris, 
    240 F.3d 383
    , 389 (4th Cir. 2001). The
    Complaint alleges that Ms. Short had very recently attempted suicide, was undergoing
    severe withdrawal, and was experiencing feelings of uselessness or sinfulness. These
    allegations demonstrate a substantial risk of suicide, and, by extension, satisfy the objective
    prong of the deliberate indifference test.
    Turning to the second element, Sergeant Morgan “had actual subjective knowledge
    of both the inmate’s serious medical condition and the excessive risk posed by the official’s
    action or inaction.” Jackson, 
    775 F.3d at 178
    . Ms. Short conveyed all of these facts—her
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    recent suicide attempt, her daily drug use and consequent withdrawal, and her feelings of
    worthlessness—to Sergeant Morgan when Sergeant Morgan processed Ms. Short and
    completed two health screening forms evaluating Ms. Short’s mental health.                The
    Complaint therefore sufficiently alleges that Sergeant Morgan had actual subjective
    knowledge of Ms. Short’s condition.
    Sergeant Morgan also knew the excessive risk posed by her action or inaction.
    Section 4.10 of the Prison Policy clearly laid out suicide risk factors of which officers
    should be aware. These risk factors include “previous attempts to commit suicide,”
    “depression,” and “drug or alcohol intoxication or withdrawal.” An officer’s failure to act
    “if they demonstrably knew or had reason to know that a suicide was imminent” constitutes
    deliberate indifference. Buffington v. Baltimore County, 
    913 F.3d 113
    , 120 (4th Cir. 1990).
    Based on the Prison Policy, on which Sergeant Morgan had been trained, Sergeant Morgan
    knew that Ms. Short posed a serious suicide risk if Sergeant Morgan did not act. And
    Sergeant Morgan was not powerless to mitigate this risk—the Prison Policy lays out several
    steps Sergeant Morgan could have taken, including placing Ms. Short in a populated cell,
    removing items such as bedsheets with which Ms. Short could hang herself from the cell,
    and conducting regular checks every ten to fifteen minutes. J.A. 228. Sergeant Morgan
    took none of these steps.
    We recently stated, in Stevens v. Holler, that “protocol violations” demonstrate that a
    defendant “knew of and disregarded a substantial risk of serious injury to the detainee or that
    they actually knew of and ignored a detainee’s serious need for medical care.” Stevens v.
    Holler, 
    68 F.4th 921
    , 932 (4th Cir. 2023) (quoting Young v. City of Mount Rainier, 
    238 F.3d 31
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    567, 575–76 (4th Cir. 2001)); see also Younger v. Crowder, 
    79 F.4th 373
    , 384 (4th Cir. 2023)
    (stating that failure to follow “unwritten policy” was evidence supporting jury’s finding that
    second prong was satisfied). As in Stevens, the allegation that Sergeant Morgan failed to
    follow established protocol that unambiguously applied to the situation at hand is sufficient
    to satisfy the subjective prong of the deliberate indifference test. Stevens, 68 F.4th at 933.
    Though a violation of a local policy does not by itself violate the Constitution or
    give rise to a § 1983 claim, it is nevertheless instructive both in determining the seriousness
    of the risk posed and in determining whether an officer knew of “the excessive risk posed
    by the official’s action or inaction.” Jackson, 
    775 F.3d at 178
    . The Jail established the
    Prison Policy to create a baseline of when a risk of suicide is sufficiently severe such that
    additional steps must be taken. These judgments can serve as a proxy for when an inmate’s
    medical need is so “obvious that even a lay person would easily recognize” it. See Mays,
    992 F.3d at 300. This Policy was implemented for a reason; we cannot now cast it aside
    as entirely irrelevant to the question of whether additional action was necessary, even
    though the Policy unambiguously provides that it was.
    Appellees contend that Ms. Short’s risk of suicide was not sufficiently imminent to
    require Sergeant Morgan to act in any way to mitigate the risk. Faced with a previous
    suicide attempt, active and severe withdrawal, and a Prison Policy that unambiguously
    instructs officers that in this exact situation additional steps must be taken, it seems that
    Appellees ask us to hold that a risk of suicide is only sufficiently imminent when a detainee
    expressly tells a prison official that they are planning to commit suicide at that time. But
    if someone were lying on the ground, gasping for air, and clutching their chest, we wouldn’t
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    require them to tell the prison official “I am having a heart attack right now” before
    concluding that the prison official should have taken action. So too here. A very recent
    suicide attempt, alone or coupled with feelings of worthlessness and severe withdrawal
    symptoms, are sufficiently obvious indicators of suicide that a lay person could recognize
    them. 10 See Scinto, 
    841 F.3d at 225
    .
    Appellees further contend that Sergeant Morgan was entitled to defer to Nurse Barnes’s
    and Nurse Bailey’s professional judgments that Ms. Short did not pose a suicide risk. In
    support, Appellees principally cite Shakka v. Smith. 
    71 F.3d 162
     (4th Cir. 1995). There, this
    Court held that prison officials were not deliberately indifferent in withholding the inmate’s
    wheelchair, where they were acting on the express instructions of a prison psychologist. 
    Id. at 167
    . The psychologist had ordered the wheelchair “be removed temporarily for Shakka’s own
    protection and the protection of others.” 
    Id.
    Though the Amended Complaint in this case contains some conflicting allegations
    regarding why Ms. Short was placed in solitary confinement, it alleges that “being mouthy”
    was at least one reason. J.A. 159. At this stage in the proceedings, we must credit this version
    of events and construe the allegations in favor of Appellant. Nemet Chevrolet, Ltd., 
    591 F.3d at 253
     (stating that we must “draw all reasonable inferences in favor of the plaintiff”).
    Because this justification has nothing to do with a medical judgment, Sergeant Morgan cannot
    hide behind Shakka to justify her failure to place Ms. Short in a populated area of the prison.
    10
    Of course, this would be a very different situation if Sergeant Morgan were not
    aware of Ms. Short’s recent suicide attempt or her withdrawal symptoms. See Grayson v.
    Peed, 
    195 F.3d 692
    , 695 (4th Cir. 1999) (“The law cannot demand that officers be mind
    readers.”). But the Complaint alleges that Sergeant Morgan was aware of these facts.
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    Unlike in Shakka, Sergeant Morgan was not acting on the express instruction of a medical
    provider—Appellees merely contend that Sergeant Morgan did not violate Ms. Short’s
    constitutional rights because the nurses who examined Ms. Short did not take or order these
    additional steps either. But Sergeant Morgan cannot use the Medical Defendants’ conduct or
    failure to act to shield her from liability on these facts. Holding otherwise would shield non-
    medical defendants from liability whenever a medical provider was at some point consulted.
    This Court’s decision in Iko v. Shreve supports this conclusion. 
    535 F.3d 225
     (4th
    Cir. 2008). There, an inmate was pepper sprayed in the course of a cell extraction and
    transfer to a different cell. 
    Id.
     at 231–32. As part of the cell-extraction procedure, the
    inmate was taken “to a nearby medical room to be examined by a nurse.” 
    Id. at 232
    . In
    the medical room, in the nurse’s presence, the inmate collapsed. 
    Id.
     “The officers caught
    him and directed him into a nearby wheelchair for transportation to the” new cell. 
    Id.
    Neither the officers nor the nurse provided or requested any medical treatment. 
    Id.
     The
    officers argued that they were not deliberately indifferent because they “were entitled to
    defer to the actions and medical decisions of the nurse.” 
    Id. at 242
    . This Court rejected
    this argument, because Iko did not “present a situation in which prison officials might be
    held liable for the actions or inactions of a medical professional. The officers face liability
    for their own decisions, made while Iko was in their charge.” 
    Id.
     This Court also stated
    that Iko was “further distinguishable from the precedent on which the officers seek to rely
    because it is undisputed that Iko received no medical treatment whatsoever. There was no
    medical opinion to which the officers could have deferred.” 
    Id.
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    The same is true here. Appellant seeks to hold Sergeant Morgan accountable for her
    own decision not to take steps to mitigate Ms. Short’s risk of suicide. Further, there is no
    allegation that Sergeant Morgan communicated with either nurse prior to placing Ms. Short
    in isolation. In the absence of an allegation that Sergeant Morgan knew of and relied on a
    medical provider’s evaluation in the moment, she cannot use the medical provider’s inaction
    to justify her own post-hoc. We thus conclude that the Complaint sufficiently alleges that
    Sergeant Morgan was deliberately indifferent to Ms. Short’s serious medical needs by failing
    to follow the steps outlined in the Prison Policy to mitigate Ms. Short’s suicide risk.
    VI.
    Appellees also argue in their supplemental brief, for the first time, that Sergeant Morgan
    is entitled to qualified immunity because it was not “clearly established” that she could not
    rely on the judgment of medical professionals. This argument was not raised in Appellees’
    initial brief, nor has Appellant had the opportunity to address the issue before this Court. “A
    party waives an argument by failing to present it in its opening brief or by failing to develop
    its argument—even if its brief takes a passing shot at the issue.” Grayson O Co. v. Agadir Int’l
    LLC, 
    856 F.3d 307
    , 316 (4th Cir. 2017) (cleaned up). This principle applies to both parties,
    not just to the appellant. See United States v. Legins, 
    34 F.4th 304
    , 319 n.18 (4th Cir. 2022)
    (applying the principle of waiver to an argument the appellee failed to raise in its brief).
    Accordingly, we make only two small observations concerning the availability of qualified
    immunity but decline to decide whether qualified immunity is in fact available to Appellees.
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    First, under Iko, where officers are being held accountable “for their own decisions,”
    they cannot rely on medical professionals’ lack of action as a shield for liability. Iko, 
    535 F.3d at 242
    . Under this precedent, Sergeant Morgan may be hard pressed to explain why
    she was entitled to rely on Nurse Barnes’s and Nurse Bailey’s lack of action under “clearly
    established” precedent. Second, under this Court’s precedent, qualified immunity is
    generally not available at all for deliberate indifference claims. We held in Thorpe v.
    Clarke that “when ‘plaintiffs have made a showing sufficient to’ demonstrate an intentional
    violation of the Eighth Amendment, ‘they have also made a showing sufficient to overcome
    any claim to qualified immunity.’” 
    37 F.4th 926
    , 934 (4th Cir. 2022) (quoting Beers-
    Capitol v. Whetzel, 
    256 F.3d 120
    , 142 n.15 (3d Cir. 2001)). Accordingly, “[B]ecause the
    Eighth Amendment’s deliberate-indifference standard requires knowing conduct, an
    official who was deliberately indifferent could not also believe ‘that [their] actions
    comported with clearly established law.’” Pfaller Amonette, 
    55 F.4th 436
    , 446 (4th Cir.
    2022) (quoting Thorpe, 37 F.4th at 939). Nonetheless, we decline to decide the availability
    of qualified immunity in this particular case, because the issue is not properly presented.
    VII.
    For the foregoing reasons, we reverse and remand the district court’s dismissal of
    Appellant’s claims against Sergeant Morgan. Additionally, because the district court
    dismissed Appellant’s Monell claim and state law claims only on the basis that Appellant
    had not properly alleged an individual capacity claim, we reverse and remand the district
    court’s dismissal of the Monell and state law claims. Finally, we recognize that the
    36
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    Supreme Court’s decision in Kingsley abrogated our prior precedent, which is
    irreconcilable with Kingsley’s mandate that pretrial detainees’ Fourteenth Amendment
    claims be evaluated under the objective framework we identify in this opinion.
    REVERSED AND REMANDED
    37
    

Document Info

Docket Number: 21-1397

Filed Date: 12/8/2023

Precedential Status: Precedential

Modified Date: 12/9/2023