Sandy Krout, individually and as Administratrix of the Estate of Bobby Joe Rylee, deceased, and survivors other v. Lee Goemmer, individually, Police Officer for the City of Russellville; Bobby Stevens, individually, Police Officer for the City of Russellville; Keith Spears, individually, Police Officer for the City of Russellville; Terry Cobb, individually, Police Officer for the City of Russellville; Todd Winesburg, individually, Police Officer for the City of Russellville; Luke Sawdy, individually, Supervisor of Jail for Pope County; Chris Ketcherside, individually, Correctional Officer for Pope County, Arkansas; Chris Johnston, individually, Correctional Officer for Pope County, Arkansas; Kevin Hill, individually, Correctional Officer for Pope County, Arkansas
No. 08-2781
United States Court of Appeals, Eighth Circuit
October 6, 2009
Submitted: April 15, 2009
Plaintiff/Appellee,
v.
Lee Goemmer, individually, Police Officer for the City of Russellville; Bobby Stevens, individually, Police Officer for the City of Russellville; Keith Spears, individually, Police Officer for the City of Russellville; Terry Cobb, individually, Police Officer for the City of Russellville; Todd Winesburg, individually, Police Officer for the City of Russellville,
Defendants,
Luke Sawdy, individually, Supervisor of Jail for Pope County; Chris Ketcherside, individually, Correctional Officer for Pope County, Arkansas; Chris Johnston, individually, Correctional Officer for Pope County, Arkansas; Kevin Hill, individually,
Defendants/Appellants.
No. 08-2815
Sandy Krout, individually and as Administratrix of the Estate of Bobby Joe Rylee, deceased, and survivors other,
Plaintiff/Appellee,
v.
Lee Goemmer, individually, Police Officer for the City of Russellville; Bobby Stevens, individually, Police Officer for the City of Russellville; Keith Spears, individually, Police Officer for the City of Russellville; Terry Cobb, individually, Police Officer for the City of Russellville; Todd Winesburg, individually, Police Officer for the City of Russellville,
Defendants/Appellants,
Luke Sawdy, individually, Supervisor of Jail for Pope County; Chris Ketcherside, individually, Correctional Officer for Pope County, Arkansas; Chris Johnston, individually,
Defendants.
Appeals from the United States District Court for the Eastern District of Arkansas.
Before LOKEN, Chief Judge, COLLOTON, Circuit Judge, and ROSENBAUM,1 District Judge.
COLLOTON, Circuit Judge.
Bobby Joe Rylee died after an altercation with police officers in Russellville, Arkansas, and a period of detention in the Pope County Detention Center. Sandy Krout, individually and as administratrix of Rylee‘s estate, brought an action under
I.
As Goemmer approached, Rylee began reversing his truck. Goemmer yelled at him to stop, saying that Rylee was going to back into the patrol car. Rylee eventually stopped, at which point Goemmer instructed him to exit the truck. Rylee did not get out, so Goemmer attempted to arrest him. As Goemmer tried to gain control of Rylee‘s left hand, a scuffle ensued. Officer Bobby Stevens of the RPD arrived on the scene shortly thereafter and ran toward Rylee and Goemmer, yelling at Rylee to get on the ground. After Goemmer attempted unsuccessfully to pull Rylee out of the truck, Stevens performed a hip toss maneuver, causing Rylee, Goemmer, and Stevens to fall to the pavement at the same time. Goemmer and Stevens remained on the ground with Rylee, attempting to gain control of his hands.
After the hip toss, RPD Officer Keith Spears arrived on the scene, followed seconds later by another RPD officer, Terry Cobb. Arkansas Tech security officer Greg McCuin and RPD Officer Todd Winesburg arrived thereafter.
The altercation lasted for five minutes. When it ended, Spears and McCuin lifted Rylee under his arms, dragged him to Cobb‘s patrol car, and placed him in the back seat. While he was dragged, Rylee was totally limp, with his head dangling and his feet not moving. Winesburg opened the rear driver‘s side door of Cobb‘s patrol car and pulled Rylee into the vehicle. Cobb then transported Rylee to the Pope County Detention Center.
They arrived at the detention center shortly before 2 a.m. Upon their arrival, Cobb removed Rylee from the patrol car and deposited him face down on the floor of the entryway, also known as the sally port. Cobb left Rylee in the custody of two correctional officers, Chris Ketcherside and Kevin Hill. Hill and Ketcherside offered to lift Rylee up, but Rylee said that he could not stand up, that his back and legs were broken, and that he could not feel his legs. They then picked him up and pulled him into the booking area. As they transported Rylee inside, they noticed a cut on his right
Luke Sawdy, the supervisor for the midnight to 8 a.m. shift, was in the booking area when Rylee was brought inside. Rylee stated that he could not stand up, and that he thought his legs were broken. Sawdy briefly looked at Rylee from ten feet away and thought he was drunk and uncooperative for refusing to stand up. Without asking Rylee any questions or meaningfully examining him, Sawdy instructed Hill and Ketcherside to put Rylee in an isolation cell, and to check on him every fifteen minutes. Hill and Ketcherside took Rylee to the cell, removed his handcuffs, and left him lying on the floor on his stomach. Rylee stated that his back was hurting, but when Ketcherside asked him if he wanted to see a doctor, Rylee said no.
Fifteen minutes later, per Sawdy‘s orders, Ketcherside returned to the cell to check on Rylee, who was still lying in the same position. Ketcherside asked him how he was feeling, and Rylee responded that he was doing fine. Ketcherside returned fifteen minutes later and again saw Rylee in the same position. Ketcherside asked Rylee if he was feeling better, and Rylee said that his arms were improving. Ketcherside continued to check on Rylee every fifteen minutes afterward, each time noticing that he was lying in the same position in which he was placed initially - a fact which he relayed to Sawdy.
At approximately 3 a.m., RPD Officer Spears arrived at the detention center to take photographs of Rylee. Spears asked Rylee if he needed any medical treatment or if he wanted to go to the hospital, and Rylee said no. Once Spears finished photographing Rylee, Spears suggested to Sawdy that Rylee be examined by emergency medical services (EMS) personnel, who were located in the same complex as the detention center. At around 4 a.m., Rylee was placed in a wheelchair and brought from the isolation cell to the booking area for observation. He sat in a slumped position in the wheelchair, with his head down.
At approximately 5:30 a.m., Rylee, who remained slumped in the wheelchair in the booking area, asked for help to lift his head, saying that he could not do so by himself. Michael Floyd, a correctional officer who is not a party to this lawsuit, helped Rylee reposition his neck three times so he could breathe more easily. As Floyd repositioned his neck, he asked Rylee if he needed help, but Rylee said no.
At around 7:15 a.m., Sawdy noticed that Rylee was having difficulty breathing, so he asked Ketcherside to help him reposition Rylee‘s neck. Because Rylee could not hold his neck up on his own, Sawdy and Ketcherside shifted his body in the wheelchair to prop up his head. This appeared to ease Rylee‘s breathing. At 8 a.m., the shift ended, and Sawdy, Hill, and Ketcherside left the detention center. Before departing, they noticed that Rylee was conscious and breathing. Chris Johnston, another correctional officer, came on duty at 8 a.m. He was informed that there had been an altercation between police and Rylee, that EMS personnel had examined Rylee, and that Rylee did not want to go to the hospital. Johnston saw Rylee slumped in the wheelchair, noticed that he was breathing, and assumed that he was passed out or sleeping. About twenty minutes later, as Johnston made his way to the property room, he again saw Rylee breathing.
EMS technicians Pam Logan and Haley, the same technician who previously had examined Rylee, initiated CPR on Rylee at 8:35 a.m., just under five minutes after he was found not breathing by the corporal. When Logan and Haley arrived, Rylee had no pulse and was in the last stages of cardiopulmonary arrest. Logan and Haley continued CPR, restored Rylee‘s pulse at approximately 8:49 a.m., and transported him to the hospital. Rylee never regained consciousness, and he died five days later. The cause of death was multiple blunt force injuries with complications; the principal factor was a neck fracture and spinal cord injury.
Krout brought an action under
II.
Ordinarily, we have no jurisdiction to hear an immediate appeal from a district court‘s order denying summary judgment, because such an order is not a final decision. See
III.
A.
We consider first the claims of the RPD officers, starting with Goemmer and Stevens. Their sole argument on appeal is that Rylee‘s death was caused by the hip toss, and not by any of the punches or blows allegedly administered by Goemmer and Stevens after Rylee was on the ground. They further contend that the hip toss was an objectively reasonable use of force under the Fourth Amendment, and that they are entitled to qualified immunity on that basis.
The district court ruled that genuine issues of material fact remained as to what caused Rylee‘s death - the hip-toss maneuver or subsequent actions of the City officers. In Miller v. Schoenen, 75 F.3d 1305 (8th Cir. 1996), this court explained
B.
The next three officers, Spears, Cobb, and Winesburg, argue that only two officers allegedly struck Rylee after he was taken to the ground, and there is no evidence that any of them ever administered force against him. Our review of the record discloses one witness who averred that two or three officers participated in striking Rylee, although the identity of the officers involved is not clear. We need not resolve whether Spears, Cobb, and Winesburg should remain in the lawsuit based solely on allegations of striking Rylee. Krout advances an alternative theory that these officers violated Rylee‘s Fourth Amendment rights by failing to intervene to stop the allegedly unconstitutional use of force. On this point, we conclude that the record supports the district court‘s denial of qualified immunity for Spears, Cobb, and Winesburg.3
As of July 2006, it was clearly established that a state actor may be liable for an unreasonable seizure under the Fourth Amendment if he fails to intervene to prevent the unconstitutional use of excessive force by another official. In Putnam v. Gerloff, 639 F.2d 415 (8th Cir. 1981), this court held that a prison guard could be liable under
Taking the facts in the light most favorable to Krout, the evidence supports a finding that Spears, Cobb, and Winesburg violated Rylee‘s clearly established rights under the Fourth Amendment by failing to intervene when they had a duty and
There is also evidence from which a jury could find that Spears, Cobb, and Winesburg observed this use of excessive force and had an adequate opportunity to intervene and stop it, but unreasonably failed to do so. While Rylee was punched and kicked, Jones recalled seeing between six and eight officers at the scene, and Shoptaw observed several officers standing around, not saying or doing anything to stop the attack. All three officers admit that they were on the scene at various times during the incident, and a reasonable jury could thus conclude that they were among the six to eight or several officers who were observed by the witnesses.
Shoptaw testfied that the assault lasted for a good five minutes, a period which a jury could find sufficient to afford the onlooking officers an opportunity to intervene. The assault lasted for at least as long as it took Munhall, who observed the two officers kicking and punching Rylee from inside the restaurant, to conclude that the officers were going overboard, to run outside to try to get some badge numbers, and to continue watching until the assault stopped. There was sufficient time for Shoptaw, who was seated at a booth inside, to learn from a friend that a fight
IV.
A.
We turn finally to the claims of the four Pope County correctional officers: Sawdy, Hill, Ketcherside, and Johnston. They argue that even accepting the facts likely assumed by the district court regarding Rylee‘s medical care, they did not violate Rylee‘s clearly established rights under the
Deliberate indifference to an inmate‘s serious medical needs violates the
To establish deliberate indifference, Krout must show that Rylee suffered from one or more objectively serious medical needs, and that the correctional officers acted with a sufficiently culpable state of mind, Farmer, 511 U.S. at 834 (internal quotation omitted), namely, that they actually knew of, but deliberately disregarded, Rylee‘s medical needs. Id. at 837; Hartsfield, 491 F.3d at 397; Butler v. Fletcher, 465 F.3d 340, 345 (8th Cir. 2006). Under this subjective prong, the evidence must show that the officers recognized that a substantial risk of harm existed and knew that their conduct was inappropriate in light of that risk. Rich v. Bruce, 129 F.3d 336, 340 n.2 (4th Cir. 1997); see Gregoire v. Class, 236 F.3d 413, 418 & n.3 (8th Cir. 2000).
The showing of actual knowledge is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence. Farmer, 511 U.S. at 842. Thus, a factfinder may conclude that [an officer] knew of a substantial risk from the very fact that the risk was obvious. Id. But [i]t is not enough merely to find that a reasonable person would have known [about the risk], or that [the officer] should have known about the risk. Id. at 843 n.8. Similarly, the obvious inadequacy of a response to a risk may support an inference that the officer recognized the inappropriateness of his conduct.
Even if Krout satisfies the subjective awareness prong, the officers may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted. Id. at 844. It does not follow, however, that an unreasonable response - i.e., a negligent response - is sufficient to establish liability. Even if an official acts unreasonably in failing to take particular measures to improve conditions at a jail facility, for example, reasonableness is a negligence standard, and negligence cannot give rise to a deliberate indifference claim. Crow, 403 F.3d at 602 (internal quotation omitted); see Gregoire, 236 F.3d at 418. In the
B.
Krout argues that Rylee suffered from several objectively serious medical needs. She contends that he could not walk or feel his legs, that he had abrasions on his face and ear, and that later in the morning, he had difficulties breathing and could not hold his head upright on his own. Krout asserts that notwithstanding these objectively serious medical needs, Sawdy, Hill, and Ketcherside placed Rylee in an isolation cell without assessing his condition, and failed to call medical personnel when his breathing became noticeably worse later in the morning. As for Johnston, who came on shift at 8 a.m., Krout contends that he too ignored Rylee‘s breathing problems, and that after Rylee was found not breathing, he declined to perform CPR, even though the EMS dispatcher offered to guide him through the process.
We assume for purposes of this appeal that Rylee‘s inability to walk or feel his legs, as well as his difficulty breathing as the morning progressed, constitute objectively serious medical needs. The entitlement of the officers to qualified immunity thus turns on whether they knew of the serious medical need and were
By way of example, whether an inmate has alleged sufficient facts to allow a jury to conclude that the inmate faces a risk of assault from other inmates, prison officials know of the risk, and the reasonableness of their actions in light of a known risk are all reviewable in an appeal of a denial of qualified immunity at the summary-judgment stage. That much is so because prison officials must protect inmates from violence at the hands of other inmates, if they are aware of a substantial risk that such violence will occur. That is the ‘clearly established’ law. Examination of facts known to the prison officials is necessary in order to determine whether a reasonable official would have known that his failure to take some particular action to protect the inmate would violate that law.
75 F.3d at 1308 (emphasis added). We assess the record during two periods of time, the first encompassing the period before arrival of the EMS technicians, and the second spanning the period after the EMS personnel departed until Rylee was found not breathing.
When Riley arrived at the detention center, he stated to Sawdy, Hill, and Ketcherside that his back and legs were broken, and that he could not feel his legs. He also had abrasions on his face and blood in his right ear, and he had to be transported by Hill and Ketcherside from the sally port to the booking area, and then to the isolation cell. While Rylee was in the isolation cell, Ketcherside saw (and Sawdy was informed) that he remained on his stomach in the same position in which he had been placed initially, moving only his arms. Given these facts, Sawdy, Hill, and Ketcherside recognized substantial risks to Riley‘s health.
The record does not establish, however, that they were deliberately indifferent to those risks. Although all three officers were aware that Sawdy had not meaningfully assessed Rylee, they knew that Rylee was under close observation, with
This evidence does not support a finding that Sawdy, Hill, or Ketcherside were deliberately indifferent in responding to Rylee‘s serious medical need. The officers did not ignore the detainee; they inquired several times whether he desired medical attention. Rylee declined to go to the hospital at least three times - once when he was placed in the cell initially, a second time when Spears came to photograph him, and a third time when asked by Haley. He also told Ketcherside during a periodic check that he was doing fine. Despite these refusals, Sawdy arranged for an examination by Haley, a trained medical technician, who concluded that there was nothing abnormal about Rylee‘s condition. Thus, the officers knew that Rylee did not want to go to the hospital, that he was being monitored every fifteen minutes and then observed in the booking area, that Sawdy called EMS, and that Haley reported no medical emergency. This evidence is insufficient to demonstrate that Sawdy, Hill, or Ketcherside deliberately disregarded a serious medical need of Rylee‘s during this period.
Krout concedes that the defendants have a “pass” from liability for deliberate indifference between the time when Haley examined Rylee (and perceived no need for treatment) and when Rylee developed breathing problems later in the morning.
Although all three officers recognized that Rylee‘s breathing deteriorated during this period, the fact remains that Haley had concluded that Rylee‘s condition was not abnormal, and Rylee had declined several times to go to the hospital. There is no evidence that Sawdy, Hill, or Ketcherside subjectively questioned Haley‘s conclusion or otherwise had reason not to rely on it. That a trained medical technician did not appreciate the risks attendant to Rylee‘s condition undermines an inference that the untrained officers obviously knew that Rylee was at serious risk to stop breathing or that his neck was broken. Given what they did know, it cannot be said that the officers deliberately ignored Rylee‘s plight. Sawdy, Ketcherside, and Floyd assisted him in adjusting his position, and they located Rylee in the booking area for immediate observation. The record in the light most favorable to Krout at most shows negligence by Sawdy, Hill, and Ketcherside in failing to summon medical personnel for another visit when Rylee‘s condition appeared to deteriorate. The evidence is insufficient to demonstrate deliberate indifference, and the officers are entitled to qualified immunity.
The remaining question is whether Johnston, who arrived at the detention center at 8 a.m., deliberately disregarded Rylee‘s medical needs during the thirty minutes before Rylee stopped breathing. Krout argues that Johnston ignored Rylee‘s shallow breathing, but the information available to Johnston when he arrived on shift was that EMS personnel had examined him, and that Rylee had refused to go to the hospital.
Johnston‘s failure to perform CPR also does not amount to deliberate indifference. After the EMS dispatcher asked Johnston whether he wanted to perform CPR, and offered to guide him through the process, Johnston relayed the question to his superior, who expressed concern that no one at the detention center was trained in CPR. EMS personnel are located in the same complex as the detention center, so it took EMS only four minutes to respond to the call and to begin administration of CPR. It is debatable whether Johnston‘s choice to await the arrival of medical personnel rather than to attempt CPR based on telephonic instruction was reasonable, but the evidence does not show that he deliberately ignored Rylee‘s medical condition. At most, he made an unreasonable judgment call under the circumstances, and that is insufficient to establish a constitutional violation or to defeat qualified immunity.
* * *
For the foregoing reasons, we dismiss the appeals of Goemmer and Stevens for lack of jurisdiction, affirm the denial of qualified immunity as to Spears, Cobb, and Winesburg, and reverse the denial of qualified immunity as to Sawdy, Hill, Ketcherside, and Johnston.