Daniel B. BORDER, Administrator of the estate of Deceased Adam N. Border; Daniel B. Border; Diane Border, Plaintiffs-Appellees, v. TRUMBULL COUNTY BOARD OF COMMISSIONERS, et al., Defendant, and Mike Palumbo, Defendant-Appellant.
No. 10-3167.
United States Court of Appeals, Sixth Circuit.
March 17, 2011.
831
BEFORE: MERRITT, CLAY, and GRIFFIN, Circuit Judges.
Defendant Mike Palumbo appeals the district court‘s interlocutory order denying his motion for summary judgment on the basis of qualified immunity from suit under
I.
The present case arises from the drug-overdose death of a pretrial detainee, plaintiffs’ decedent Adam N. Border, at the Trumbull County Jail in Ohio in January 2008. The relevant facts are set forth in the district court‘s Memorandum Opinion and Order denying in pertinent part defendant Michael Palumbo‘s motion for summary judgment:
This action arises out of Adam Border‘s (Border) arrest, subsequent transportation, and detention at the Trumbull County Jail. On January 12, 2008, [officers] responded to a BP gas station in Cortland, Ohio after receiving reports of a physical altercation involving Border and his ex-wife, Lacina Smith.
A. Arrest and Transportation
At the scene, witnesses observed that Border showed obvious signs of intoxication. In her affidavit, Lacina Smith states that Border was visibly intoxicated, his face was pale, his eyes were glazed, his speech was slurred, he had difficulty maintaining balance, and he had poor coordination. Smith recalls that another witness, Michael Overton, told officers that Border was under the influence.
Justin Schubert, a friend of Border, was also present at the scene and recalls that Border appeared intoxicated, had difficulty maintaining eye contact, had difficulty keeping his head up, and had difficulty maintaining consciousness. In his affidavit, Schubert states that he asked officers to look after Border. Schubert recalls telling the officers at the time that Border isn‘t acting like himself right now. Both Lacina Smith and Justin Schubert state that Border went behind the BP building before the police arrived. According to Schubert, Border was behind the building for approximately 1-2 minutes. A prescription bottle was later found at the scene, but not until a full 24 hours after Border‘s arrest, and after Border‘s death.
Border was arrested and transported to the Trumbull County Jail by City of Cortland Police Officer John Weston. In their briefs, multiple parties refer to a video recording, submitted by the City of Cortland, showing a portion of Border‘s transportation to the Trumbull County Jail. In the video, Border appears either intoxicated or very tired. While Border appears to nearly nod off multiple times, he is able to hold an intelligible conversation with Officer Weston throughout the video. At no point in the video does the subject of medications come up during the conversation between Border and Officer Weston.
B. Detention
At the Trumbull County Jail, Border was booked by Officer Michael Palumbo. Sometime shortly after he was booked, Border was treated by Noreen Whitlock for a gash on his forehead. Whitlock is an unlicensed medical assistant who, on the night of Border‘s death, was assigned general nursing duties and to distribute medications to inmates. While treating Border‘s forehead, Whitlock states that she asked Border if he drank anything or ingested anything. According to Whitlock, Border responded by telling her no several times. Officer Todd Harvey observed Border when he was brought to the second floor of the jail, which is where inmates are placed who are not deemed by a booking officer to be a suicide risk or otherwise require special monitoring. Officer Harvey observed that Border was steady on his feet, did not have difficulty walking, and was able to make his own bed. Thirty minutes later, Border requested an unoccupied cell. Officer Harvey denied the request, and recalls that during his conversation with Border, Border did not appear to complain of a medical problem, nor did he have trouble breathing or speaking. Throughout the evening of Border‘s death, various corrections officers conducted hourly watch tours. The purpose of these watch tours was to ensure that inmates were safe, to provide medical treatment to inmates if necessary, to respond to inmate concerns, and to ensure that all inmates were counted and present.... None of these officers reported any evidence or personal awareness that Border was experiencing any medical condition other than appearing intoxicated.
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Inmate Gary Smith, who was in the same pod with Border, recalls that Border was slumped over as he entered the pod and his eyes were red/glazed. Inmate Lewis Moler describes Border‘s
Lewis Moler also states, without identifying the individuals by name, that at some point during the evening the nurse told a C.O. that Border was messed up. According to Moler, the corrections officer responded by saying Border came in drunk and that he would sleep it off. Finally, Lewis Moler recalls that he witnessed inmate Gary Smith tell an unidentified corrections officer, over an intercom, that Border couldn‘t breathe. Moler states, [t]he C.O. told Gary they can‘t do anything until 6:00 [a.m.].
C. Death
Border was found dead in his pod around 5:30 a.m. on the morning of January 13, 2008. As soon as jail staff learned Border had stopped breathing, they immediately responded and attempted to resuscitate Border. The coroner later concluded that Border died of acute polydrug intoxication by consuming excessive amounts of drugs including oxycodone, methadone, citalopram, and benzodiazepines.
(Citations omitted.)
In December 2008, Border‘s parents, Daniel and Diane Border (plaintiffs), initiated the present suit, asserting a deprivation of their son‘s constitutional rights under
In July 2009, the City and County individual defendants filed motions for summary judgment, asserting qualified immunity from suit. On July 21, 2009, counsel for the County defendants sent a letter to plaintiffs’ counsel, notifying them that [w]e recently learned that Correction Officer Michael Palumbo, who booked [the decedent] into the Trumbull County Jail on January 12, 2008, made unauthorized changes to Mr. Border‘s Jail booking record in April 2009. According to the letter,
- On Mr. Border‘s Medical Observation form, which was completed by Mr. [Palumbo] on January 12, 2008, it is noted at item number four (4) that Mr. Border does not appear to be under the influence of barbiturates, heroin, or other drugs. However, in April 2009, Mr. Palumbo changed Mr. Border‘s Medical Observation form to indicate that Mr. Border appears to be under the influence of barbiturates, heroin, or other drugs.
- On Mr. Border‘s Medical Questionnaire form, which was completed by Mr. Palumbo on January 12, 2008, it is noted at item number nine (9) that Mr. Border has not fainted or had a head injury recently. However, in April 2009, Mr. Palumbo changed Mr. Border‘s Medical Questionnaire form to indicate that Mr. Border fainted or had a head injury recently.
Following a period of limited discovery,2 the district court issued an Opinion and Order granting in part and denying in part the summary judgment motions filed by the individual defendants. The district court held, in relevant part, that Officer Palumbo was not entitled to qualified immunity at this stage of the proceedings:
[T]he actions of Officer Michael Palumbo are distinct from actions of the other defendants in this case. Plaintiffs have put forth unchallenged evidence that Officer Palumbo altered jail records fifteen months after he booked Border into the Trumbull County Jail. According to a letter from counsel for Trumbull County, Officer Palumbo failed to note on a Medical Observation form that Border appeared to be under the influence of barbiturates, heroin or other drugs, but later altered the records to indicate that Border did appear to be under the influence of these substances. While it is by no means conclusive that Officer Palumbo committed any wrongdoing, these facts must be viewed in the light most favorable to Plaintiffs, and call into question whether Officer Palumbo was aware that Border had taken prescription medication, and whether he had knowledge that he should have communicated to the nurse, or otherwise sought medical care for Border. If so, Officer Palumbo was deliberately indifferent to Border‘s medical care, thus violating Border‘s Fourteenth Amendment Rights. Furthermore, a reasonable public official would have been aware that withholding such information violated Border‘s constitutional rights. Officer Palumbo is, therefore, not entitled to qualified immunity as a matter of law.
It is the district court‘s denial of qualified immunity to Officer Palumbo that is the subject of this interlocutory appeal.
II.
Because a plea of qualified immunity can spare an official not only from liability but from trial, [the courts] have recognized a limited exception to the categorization of summary judgment denials as nonappealable orders [under
When no facts are in dispute, whether an official receives qualified immunity is a question of law which we review de novo. Harris, 583 F.3d at 364. Plaintiffs bear the burden of demonstrating that a defendant is not entitled to qualified immunity. Binay v. Bettendorf, 601 F.3d 640, 647 (6th Cir. 2010); Chappell, 585 F.3d at 907. A defendant enjoys qualified immunity on summary judgment unless the facts alleged and evidence produced, when viewed in the light most favorable to the plaintiff, would permit a reasonable juror to find that: (1) the defendant violated a constitutional right; and (2) the right was clearly established. Jefferson v. Lewis, 594 F.3d 454, 459 (6th Cir. 2010) (quoting Morrison v. Bd. of Trustees of Green Twp., 583 F.3d 394, 400 (6th Cir. 2009)). In determining whether the requisite showing has been made, the court has discretion to decide which of these two elements to address first in light of the particular circumstances. Jefferson, 594 F.3d at 460 (citing Pearson, 129 S. Ct. at 818); Jones v. Byrnes, 585 F.3d 971, 975 (6th Cir. 2009).
It is well-established that the Eighth Amendment‘s prohibition of cruel and unusual punishment provides the basis to assert a claim, under
A constitutional claim for deliberate indifference to serious medical needs has both objective and subjective components:
The objective component requires a plaintiff to show the existence of a sufficiently serious medical need. We have previously explained that where a plaintiff‘s claims arise from an injury so obvious that even a layperson would easily recognize the necessity for a doctor‘s attention, it is sufficient to show that he actually experienced the need for medical treatment, and that the need was not addressed within a reasonable time frame. In contrast, the subjective component requires a plaintiff to allege facts which, if true, would show that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk. Although the latter, subjective standard is meant to prevent the constitutionalization of medical malpractice claims, a plaintiff need not show that the officer acted with the specific intent to cause harm. Indeed, deliberate indifference to a substantial risk of serious harm to a prisoner is the equiva-
Deliberate indifference requires a degree of culpability greater than mere negligence, but less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. Perez v. Oakland Cnty., 466 F.3d 416, 424 (6th Cir. 2006) (internal quotation marks omitted). Where a prison official actually knew of a substantial health risk to an inmate‘s health, he nonetheless may be free of liability if he reasonably responded to it, even though the harm ultimately was not averted. Harrison v. Ash, C.O., 539 F.3d 510, 519 (6th Cir. 2008) (citation omitted).
In the present case, defendant Palumbo argues that the undisputed facts show that he was not deliberately indifferent to Border‘s serious medical needs because there was no indication, when Border arrived, that he had overdosed on drugs and, in any event, Palumbo referred him to the medical assistant, Noreen Whitlock, who then evaluated Border and determined that there was no medical emergency. Thus, Palumbo asserts, his after-the-fact alteration of the jail records is not relevant to the issue of qualified immunity. We disagree.3
The jail policies and procedures in place when Border was incarcerated provided training for all corrections officers on subjects including the supervision and health screening of prisoners, substance abuse, abnormal behavior, and the identification of new inmates who might be intoxicated or overdosing on drugs. When booking a detainee into the jail, corrections officers were to thoroughly screen and evaluate the detainee through questioning and visual observation for physical or psychological problems, and to document the health history on various jail medical questionnaires and forms. If, during the booking process, an officer determined that a detainee was intoxicated or overdosing on drugs, the officer was required to immediately contact medical personnel for the purpose of evaluating the individual and providing medical treatment, if necessary. If a detainee advised personnel during his incarceration that he required medical treatment, or if an officer observed that an inmate required medical treatment, treatment was to be provided as expeditiously as possible. Specifically, if a corrections officer observed or discovered that an inmate was exhibiting symptoms of a drug overdose, medical treatment will immediately be provided to the inmate, and an emergency medical squad will be contacted.
The evidence viewed in the light most favorable to plaintiffs shows that upon his arrest, Border was visibly intoxicated, his eyes were glazed, his speech was slurred, and his coordination and balance were compromised. He had difficulty keeping his head up and maintaining consciousness.
Palumbo booked Border into the jail at 6:45 p.m. on January 12, 2008. As part of the booking process, Palumbo was to com-
At her deposition, medical assistant Noreen Whitlock testified that she first saw Border on the night in question [w]hen [she] got called over to booking for his head [wound]. The extent of her conversation with Palumbo was that he called and said that he had someone over there with a head injury and needed me to come look at him. Whitlock cleaned the small little nick on the back of Border‘s head, applied antibiotic ointment, and gave him an ice pack. She asked him whether he had ingested anything, and he responded that he had consumed alcohol, but did not state the quantity. She did not recall smelling the odor of alcohol on Border‘s breath, but noticed that his eyes appeared reddened and discolored. Palumbo was present while Whitlock treated Border, but he said nothing to her regarding Border‘s general medical condition or his possible ingestion of drugs. Whitlock did not have the opportunity to observe Border while he was walking or standing because he remained seated during her visit. Whitlock then left the room and returned to the medical department to prepare for her evening rounds at the jail. She testified that when she was in the booking room with Border, there was no reason to believe that there was any type of medical emergency.
At 8:00 p.m., Palumbo escorted Border to the second floor and placed him in a jail pod with several other inmates. One of the inmates stated in an affidavit that when Border arrived in the pod, he was physically unable to carry his own belongings. Border was huddled and slumped over, [and] his eyes were red/glazed. Another inmate averred that Border had difficulty walking and staying awake upon his arrival. A third inmate described Border as uncoordinated, slurring his speech, nodding out, and hallucinating during their conversations. When Whitlock next saw Border during her med pass, which ordinarily started at 8:00 p.m., he was having difficulty making his bed and appeared to be intoxicated and uncoordinated.
A plaintiff‘s assertion that officers should have known that a pretrial detainee had ingested drugs does not suffice to establish a claim of deliberate indifference. Weaver v. Shadoan, 340 F.3d 398, 411 (6th Cir. 2003); Watkins v. City of Battle Creek, 273 F.3d 682, 686 (6th Cir. 2001). When dealing with medical care for detainees, negligence does not state a cause of action under
In the instant case, however, viewing the evidence in the light most favorable to plaintiffs, Palumbo‘s notation on the altered forms that Border appeared to be under the influence of barbiturates, heroin, or other drugs and suffered a recent head injury, coupled with Border‘s signs of physical incapacity, severe intoxication and obvious disorientation witnessed by the inmates during the time period that Palumbo was interacting with Border, sufficiently establish from an objective standpoint that a serious medical need existed and, in addition, that a reasonable jury could conclude that Palumbo was aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed] and [he] ignored that risk. Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 899 (6th Cir. 2004).
[C]orrectional officers may not escape liability if the evidence showed that [they] merely refused to verify underlying facts that [they] strongly suspected to be true, or declined to confirm inferences of risk that [they] strongly suspected to exist. Phillips, 534 F.3d at 541 (citation and internal quotation marks omitted). See Pryor v. City of Ferndale, 248 Fed.Appx. 636, 642 (6th Cir. 2007) (unpublished) (holding that a serious medical need was demonstrated where the detainee, a diabetic who died in custody from heroin withdrawal, vomited, suffered bouts of diarrhea causing dehydration, was seen lying on the cell floor, and told officers that he was not feeling well and believed he was detoxing from heroin).
Contrary to Palumbo‘s assertion, the fact that he called the on-duty medical staff member, Noreen Whitlock, who then treated Border, does not relieve Palumbo of liability under these particular circumstances. Whitlock was not a nurse or
These circumstances serve to distinguish the present case from Spears v. Ruth, in which we held that an arresting police officer was not deliberately indifferent to the medical needs of a pretrial detainee, who died of a cocaine overdose, because there was no evidence to sustain the necessary inference that a substantial risk of serious harm existed, or that the officer drew that inference and chose to disregard the risk. Spears, 589 F.3d at 255. At the time of his arrest, the detainee was acting in a bizarre manner, but he was examined by trained EMTs at the scene, who decided not to take him to the hospital. Id. at 252. At the jail, a nurse conducted a second medical examination and likewise concluded that the detainee did not need to be transported to the hospital. Id. We held that, although the officer admitted that the detainee told him that he had smoked crack cocaine, the officer‘s failure to convey this fact to the EMTs and nurse was at worst negligen[ce], and the officer was entitled to rely on the EMT‘s and the jail nurse‘s assessments that [the detainee] did not need to be transported to the hospital. Id. at 255. See also Weaver, 340 F.3d at 412 (holding that police officer was not deliberately indifferent to the medical needs of a pretrial detainee who died in custody after ingesting a lethal dose of cocaine, where the officer lacked
By contrast, in the case at hand, Border was treated cursorily by an unlicensed medical assistant for a minor cut on his head. Despite Border‘s obvious intoxication and Palumbo‘s apparent knowledge that he was under the influence of drugs, Palumbo never informed Whitlock of these facts. Further discovery may shed light on Palumbo‘s actions. However, at this point in the case, plaintiffs’ evidence adequately demonstrates that Palumbo was aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed] and [he] ignored that risk. Blackmore, 390 F.3d at 899. We agree with the district court that, although it is by no means conclusive that Palumbo committed any wrong doing, the facts viewed in the light most favorable to plaintiffs call into question whether Officer Palumbo was aware that Border had taken prescription medication, and whether he had knowledge that he should have communicated to the nurse, or otherwise sought medical care for Border. If so, Officer Palumbo was deliberately indifferent to Border‘s medical care, thus violating Border‘s Fourteenth Amendment [r]ights.
III.
For the reasons set forth above, the judgment of the district court is affirmed.