                        NOT RECOMMENDED FOR PUBLICATION

                                     File Name: 20a0015n.06

                                        CASE NO. 19-1119

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

  TAMMY KORTHALS,                                       )                       FILED
                                                        )                 Jan 13, 2020
      Plaintiff-Appellee,                               )             DEBORAH S. HUNT, Clerk
                                                        )
                  v.                                    )   ON APPEAL FROM THE
                                                        )   UNITED STATES DISTRICT
  COUNTY of HURON, et al.,                              )   COURT FOR THE EASTERN
                                                        )   DISTRICT OF MICHIGAN
      Defendants-Appellants.                            )
                                                        )

Before: BATCHELDER, WHITE, and MURPHY, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. Huron County Deputy Sheriff Bradley

Strozeski arrested Tammy Korthals for driving under the influence of alcohol.             Korthals’s

intoxication was so severe that he took her directly to the hospital and, though the hospital cleared

her, she still had evident difficulty walking or maintaining her balance. Despite this difficulty,

when they arrived at the jail, Deputy Strozeski left Korthals’s hands cuffed behind her back as he

led her from the car, down a hallway, and up two stairs. This created a risk that she could stumble

and, being unable to use her hands to protect herself, suffer a serious injury. Deputy Strozeski

could have reduced that risk by walking behind or alongside Korthals, watching her carefully, and

holding onto her for physical assistance or support. He did none of these and was atop the stairs,

about six feet in front of her, when she lost her balance, fell backward from the second step, and

hit her head on the floor, suffering severe injuries.

       Korthals sued, pursuant to 42 U.S.C. § 1983, claiming that Deputy Strozeski committed a

constitutional violation when he allowed her to fall on the stairs and that Huron County’s failure

to properly train its officers or implement a policy for handling impaired inmates subjected it to
Case No. 19-1119, Korthals v. County of Huron


municipal liability for that same violation. The defendants moved for summary judgment based

on Deputy Strozeski’s assertion of qualified immunity, but the district court denied the motion.

Korthals v. Cty. of Huron, No. 17-10319, 2019 WL 176722, at *1 (E.D. Mich. Jan. 11, 2019).1

The district court aptly framed the constitutional right at issue as an arrestee’s Fourteenth

Amendment right to be free from “a substantial risk of serious harm,” id. at *2 (citing Farmer v.

Brennan, 511 U.S. 825, 834 (1994), Richmond v. Huq, 885 F.3d 928, 937 (6th Cir. 2018), and

Richko v. Wayne Cty., 819 F.3d 907, 915 (6th Cir. 2016)), and properly recited the test as requiring

the plaintiff to show both an objective “substantial risk of serious harm . . . [and] that the prison

official [subjectively] knew of and [deliberately] disregarded” that risk, id. (quoting Farmer, 511

U.S. at 837) (quotation marks omitted). The court found that Korthals’s evidence could persuade

a jury of a substantial risk of serious harm on the stairs due to her extreme intoxication and

impaired motor function (balance) while her hands were cuffed behind her back, and that Deputy

Strozeski subjectively knew of and deliberately disregarded that risk. Id. at *3. In rejecting Deputy

Strozeski’s claim of qualified immunity, the court held that the particular right under these

circumstances—and Deputy Strozeski’s violation of that right—were clearly established by

Carroll v. City of Quincy, 441 F. Supp. 2d 215, 223 (D. Mass. 2006). Id.

        In this interlocutory appeal, Deputy Strozeski claims the district court erred by denying

him qualified immunity.2          Qualified immunity shields government officials engaged in the

performance of discretionary functions from standing trial for civil liability unless their actions

violate clearly established rights of which a reasonable person would have known. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). The plaintiff suing such an official bears the burden of


        1
          The court granted summary judgment on Korthals’s state-law gross-negligence claim, finding that Deputy
Strozeski was not the proximate cause of her injury. Korthals, 2019 WL 176722, at *5. Korthals did not appeal.
        2
          We have jurisdiction over this interlocutory appeal from the denial of qualified immunity. See Bunkley v.
City of Detroit, 902 F.3d 552, 560 (6th Cir. 2018). Our review is de novo, accepting Korthals’s version of the facts
and drawing all reasonable inferences in her favor. Id.
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Case No. 19-1119, Korthals v. County of Huron


overcoming the qualified-immunity defense. Quigley v. Tuong Vinh Thai, 707 F.3d 675, 681 (6th

Cir. 2013). At the summary-judgment stage, the plaintiff must show that (1) the defendant violated

a constitutional right and (2) that right was clearly established. Id. at 680.

         Common sense dictates that Deputy Strozeski should have exercised caution in taking the

drunken, unsteady, and handcuffed Korthals up the stairs. We certainly do not condone his failure

to do so. It was unreasonable, inexcusable, and, in fact, negligent. But “deliberate indifference

entails something more than mere negligence,” Farmer, 511 U.S. at 835; it means the official

actually recognized and then disregarded the risk, id. at 837-38. While Korthals has clearly stated

a strong negligence case, it is less clear that Deputy Strozeski’s failure to use caution was not

merely careless, inattentive, or sloppy, but was, instead, a conscious disregard of a recognized

risk.3 Regardless, let us assume, arguendo, that Deputy Strozeski was deliberately indifferent to

the risk and that he violated Korthals’s constitutional right to be free from that risk.

         The determinative question becomes whether that right was “clearly established,” so as to

overcome qualified immunity. See Harlow, 457 U.S. at 818. There are two aspects to qualified

immunity’s “clearly established” element that the district court overlooked or misunderstood. The

first is that, “to determine if the law is clearly established . . . , we look principally to the law of

this circuit and to the Supreme Court.” Perez v. Oakland Cty., 466 F.3d 416, 427 (6th Cir. 2006);

Coley v. Lucas Cty., 799 F.3d 530, 540 (6th Cir. 2015). The district court relied on a single case

from the District of Massachusetts. As a general principle, it is doubtful that decisions from out-



         3
            It is possible that even this ordinary application of deliberate indifference might not apply to the present
circumstances, given Farmer’s admonition against the use of the deliberate-indifference theory in excessive force
cases, asserting that “where the decisions of prison officials are typically made in haste, under pressure, and frequently
without the luxury of a second chance, [the plaintiff] must show more than indifference, deliberate or otherwise. The
[plaintiff] must show that officials [acted] maliciously and sadistically for the very purpose of causing harm or . . .
that officials [acted] with a knowing willingness that harm occur.” Farmer, 511 U.S. at 835-36 (editorial marks,
quotation marks, and citations omitted.). This case is not about an excessive-force incident, but an argument could be
mad that the challenged conduct was “made in haste, under pressure, and [] without the luxury of” contemplation or
a reasoned decision. Therefore, under this reasoning, the deliberate-indifference analysis might be inapt.
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Case No. 19-1119, Korthals v. County of Huron


of-circuit district courts carry such authority. See Camreta v. Greene, 563 U.S. 692, 709 n.7

(2011). But even assuming that decisions from such other courts can provide “clearly established

law,” we have explained that, to do so, such “decisions must both [1] point unmistakably to the

unconstitutionality of the conduct complained of and [2] be so clearly foreshadowed by applicable

direct authority as to leave no doubt in the mind of a reasonable [official] that his conduct, if

challenged on constitutional grounds, would be found wanting.” Barber v. Miller, 809 F.3d 840,

846-47 (6th Cir. 2015) (emphasis added). The second noteworthy aspect is that “[c]learly

established law is not defined at a high level of generality but must be particularized to the facts

of the case.” Vanderhoef v. Dixon, 938 F.3d 271, 278 (6th Cir. 2019) (quotation marks omitted).

The Supreme Court has emphasized:

       [T]he legal principle [must] clearly prohibit the offic[ial]’s conduct in the particular
       circumstances before him. The rule’s contours must be so well defined that it is
       clear to a reasonable offic[ial] that his conduct was unlawful in the situation he
       confronted. This requires a high degree of specificity. . . . [C]ourts must not define
       clearly established law at a high level of generality, since doing so avoids the crucial
       question [of] whether the official acted reasonably in the particular circumstances
       that he or she faced. A rule is too general if the unlawfulness of the offic[ial]’s
       conduct does not follow immediately from the conclusion that the rule was firmly
       established.

District of Columbia v. Wesby, 583 U.S. --, 138 S. Ct. 577, 590 (2018) (quotation and editorial

marks omitted). “The dispositive inquiry, undertaken in light of the specific context of the case,

and not as a broad general proposition, is whether the violative nature of particular conduct [wa]s

clearly established.” Sumpter v. Wayne Cty., 868 F.3d 473, 485 (6th Cir. 2017) (quotation and

editorial marks omitted) (quoting Mullenix v. Luna, 577 U.S. --, 136 S. Ct. 305, 308 (2015)).

       As mentioned, the district court relied exclusively on Carroll v. City of Quincy, 441 F.

Supp. 2d 215 (D. Mass. 2006). In Carroll, the officers knew that the arrestee was intoxicated,

“unsteady on his feet[,] and had difficulty walking without assistance,” but they “placed [him] in

a holding area while he waited to be booked,” with “his hands [] handcuffed behind his back.” Id.


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Case No. 19-1119, Korthals v. County of Huron


at 218. When the officers called him out of the cell to be booked, he fell backwards and hit his

head on the floor, suffering injury. Id. The court held that “the decision to place him in a holding

area with his hands cuffed behind his back put him in a situation where there was a substantial risk

of harm,” id. at 221, and it found evidence that the officers were aware of the risk, id. at 222, but

failed to respond reasonably, in “that they took no precautionary measures,” id. at 223, so the court

concluded that a jury could find deliberate indifference. The court also found that, while “it was

the usual practice to put an inebriated arrestee in a cell until such time as the arrestee sobered up

and could be booked . . . , in the majority of such cases, the cuffs would be taken off the arrestee

unless he or she was acting violently.” Id. The court did not opine about any other precautionary

measures. In denying qualified immunity, the Massachusetts district court said that an arrestee’s

right to be protected from a substantial risk of serious harm was clearly established because

“[c]onduct that is deliberately indifferent to an excessive risk to [an arrestee] cannot be objectively

reasonable conduct” and, therefore, “a reasonable officer could not believe that his actions

comported with clearly established law.” Id. In essence then, the court held that deliberate

indifference alone is enough to show that the right was clearly established.

         It is doubtful that this circular reasoning is a correct statement or application of the law,

making it likely that this opinion is simply wrong (and oft ignored for good reason4), but even if

Carroll were correct, it fits only at the “high level of generality” that is clearly improper. See

Vanderhoef, 938 F.3d at 278. While the predicate facts are certainly on point with the present case

(e.g., a drunken and wobbly arrestee, hands cuffed behind his back, left unattended, and fell,

suffering seriously injuring), Carroll did not describe the right with particularity or explain




          4
            Carroll had theretofore been cited a total of 13 times in 13 years and only once for the same substantive
proposition asserted here. See Podgurski v. Dep’t of Corr., No. 13-11751, 2014 WL 4772218, at *7 (D. Mass. Sept.
23, 2014) (quoting Carroll, 441 F. Supp. 2d at 223, as stating: “Conduct that is deliberately indifferent to an excessive
risk to [an inmate] cannot be objectively reasonable conduct.”).
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Case No. 19-1119, Korthals v. County of Huron


precisely how the officers’ actions violated that right. Plainly, the general right is the arrestee’s

right to protection, by reasonable measures, from a recognized substantial risk of serious harm.

That is the general right in every inmate-at-risk case. Read closely, Carroll suggests that the

officers violated that general right by leaving the arrestee handcuffed in the holding cell, drunk

and unattended, making the right, as “particularized to the facts of the case,” an arrestee’s right to

be uncuffed when placed in a holding cell, drunk and unattended. That is certainly not the right

Korthals claims in the present case, nor would it appear supportable in the present circumstances,

given that an arrestee’s being uncuffed during transit from the car to booking is different from an

arrestee’s being uncuffed in a confined holding cell. See, e.g., Schack v. City of Taylor, 177 F.

App’x 469, 472-73 (6th Cir. 2006) (placing a highly intoxicated arrestee in a holding cell was not

deliberately indifferent). Regardless, Korthals’s claim is that Deputy Strozeski violated the

general right by walking in front of her (rather than behind or alongside her), failing to watch her

carefully for a trip or stumble, and offering her no physical assistance or support—making the

“particularized” constitutional right the right to be closely guided, intently watched, and physically

supported when walked from the car to booking, drunk and physically wobbly. Nothing in Carroll

suggests the existence of such a constitutional right or that Deputy Strozeski necessarily violated

such a right by failing to undertake those particular precautions. That is, Carroll would not

forewarn Deputy Strozeski that, by walking in front of the drunken, wobbly, and handcuffed

Korthals, without watching or holding onto her, he was necessarily—or even likely—violating the

Constitution. To finish the point, if Deputy Strozeski had undertaken those precautions but

Korthals had fallen anyway, she could have framed the alleged right differently, so as to fit that

different scenario, perhaps as a constitutional right to a wheelchair in those circumstances. This

exemplifies the concern with describing the right at a “high level of generality”; it “avoids the




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Case No. 19-1119, Korthals v. County of Huron


crucial question [of] whether the official acted reasonably in the particular circumstances that he

or she faced.” Wesby, 138 S. Ct. at 590.

       The decisive questions about the Carroll precedent, however, would be (1) whether it

“point[s] unmistakably to the unconstitutionality of” Deputy Strozeski’s conduct, and (2) whether

it was “so clearly foreshadowed by applicable direct authority” that Deputy Strozeski would have

“no doubt” that his conduct was unconstitutional. See Barber, 809 F.3d at 846-47. In short, the

answer to both is no: Carroll does not show unmistakably that Deputy Strozeski’s conduct was

unconstitutional, nor was it “foreshadowed by applicable direct authority.” Therefore, as a district

court case from within another Circuit, Carroll is not clearly established law. Id.

       The district court also cited two Sixth Circuit cases in reference to the Farmer test, which

warrant mention because each of them does state some clearly established right as “particularized

to the facts of th[ose] case[s].” In Richko, 819 F.3d at 915, we said: “The constitutional right at

issue in this case—Horvath’s right to be free from violence at the hands of other inmates—was

clearly established by the Supreme Court in Farmer [].” And in Richmond, 885 F.3d at 948, we

said: “Thus, it was clearly established at the time of Richmond’s incarceration in Wayne County

Jail that neglecting to provide a prisoner with needed medication, intentionally scrubbing her

wound to cause unnecessary pain, and failing implement the prescribed plan of treatment could

constitute a constitutional violation.” Both statements, which define very different particularized

rights, fall equally within the general rule of an inmate’s or arrestee’s right to be protected, by

reasonable measures, from a recognized substantial risk of serious harm. As the Supreme Court

has explained, this level of “specificity” is necessary to make it “clear to a reasonable officer”

whether “his conduct was unlawful in the situation he confronted.” Wesby, 138 S. Ct. at 590.

       Korthals’s contention is that Deputy Strozeski violated her constitutional right to be

protected from a substantial risk of serious harm because he failed to walk behind or alongside

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Case No. 19-1119, Korthals v. County of Huron


her, failed to watch her carefully for a stumble or fall, and failed to hold her or provide physical

support when she attempted to mount the stairs, drunk and physically wobbly. “The dispositive

inquiry . . . is whether the violative nature of [that] particular conduct [wa]s clearly established.”

Sumpter, 868 F.3d at 485. Korthals has pointed us to no clearly established precedent from the

Supreme Court or this Circuit to support that contention, and the cited out-of-circuit district court

case (Carroll) does not qualify as clearly established law. Even if Deputy Strozeski’s failure to

exercise caution when taking the drunken and handcuffed Korthals up the stairs were not merely

negligent, but deliberately indifferent, such that it rose to the level of a constitutional violation, we

cannot conclude that the constitutional impropriety of that particular conduct was clearly

established.

        Deputy Strozeski is entitled to qualified immunity on this claim. Consequently, we

REVERSE the portion of the district court’s order in which it denied Deputy Strozeski’s claim of

qualified immunity and REMAND for entry of judgment consistent with this opinion.

        The district court denied Huron County’s motion for summary judgment because Korthals

had “raised a genuine issue of material fact regarding Huron County’s liability.” Korthals, 2019

WL 176722, at *4. Huron County attempts to appeal that decision, but such a routine denial of a

motion for summary judgment is not an appealable final order under 28 U.S.C. § 1291. Nor can

Huron County establish “pendent appellate jurisdiction,” which requires that the challenge be

“inextricably intertwined” with the collateral (qualified-immunity) analysis properly before us; “in

other words, only when the appellate resolution of the collateral appeal necessarily resolves the

pendent claim as well.” Hopper v. Plummer, 887 F.3d 744, 760-61 (6th Cir. 2018) (quotation

marks omitted).     Our resolution of Deputy Strozeski’s qualified-immunity appeal does not

necessarily resolve the municipal liability claim against Huron County. Therefore, we lack

jurisdiction and must DISMISS Huron County’s interlocutory appeal.

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Case No. 19-1119, Korthals v. County of Huron


       HELENE N. WHITE, Circuit Judge, concurring. I write separately because, although

I agree that we must reverse as to Deputy Strozeski, I am not in complete agreement with the

majority opinion.

       The majority suggests in footnote 3 that Farmer’s deliberate indifference standard may not

apply in this case in light of the Supreme Court’s recognition of a more demanding

malicious/sadistic/willing-harm test in Eighth Amendment excessive force claims against prison

officials whose decisions “are typically made in haste, under pressure, and frequently without the

luxury of a second chance.” Farmer v Brennan, 511 U.S. 825, 835-36 (1994) (quotations and

citations omitted). I do not agree that Deputy Strozeski’s situation is comparable to that of a prison

official acting in haste and under pressure. Deputy Strozeski was under no immediate pressure

and had hours to consider the appropriate means of escorting Korthals into the booking area.

       As to the question of qualified immunity, I agree that Deputy Strozeski’s conduct, while

surely negligent, likely did not rise to the level of conscious disregard of a substantial risk of

serious harm. And I agree that even assuming it did, Korthals has not shown that Strozeski’s

actions violated her clearly established constitutional rights. I do not agree, however, with my

colleagues’ characterization of Korthals’s asserted constitutional right as a “right to be closely

guided, intently watched, and physically supported when walked from the car to booking, drunk

and physically wobbly,” (Maj. Op. at 6.), because precedent does not require a plaintiff to define

her constitutional right so exactly. Although “[a] plaintiff can meet [her] burden . . . by presenting

caselaw ‘with a fact pattern similar enough to have given “fair and clear warning to officers” about

what the law requires,’ [t]hat case ‘need not be on all fours’ with the instant fact pattern to form

the basis of a clearly established right.” Vanderhoef v. Dixon, 938 F.3d 271, 278 (6th Cir. 2019)

(quoting Hopper v. Plummer, 887 F.3d 744, 755 (6th Cir. 2018)). “And ‘an action’s unlawfulness

can be “clearly established” from direct holdings, from specific examples describing certain

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Case No. 19-1119, Korthals v. County of Huron


conduct as prohibited or from the general reasoning that a court employs.” Id. at 279 (quoting

Baynes v. Cleland, 799 F.3d 600, 612 (6th Cir. 2015)) (emphasis added). Thus, Korthals could

have met her burden by relying on case law establishing the right of intoxicated detainees to be

free from conditions similar—though not identical—to those surrounding her own fall and injury.

       That said, Korthals has not identified such precedent. Only one case from this court,

Schack v. City of Taylor, involved facts similar to those here—facts describing conditions of

confinement that increased the risk that an intoxicated detainee would be injured in a fall. 177 F.

App’x 469 (6th Cir. 2006). In Schack, the plaintiff was arrested while drunk and placed in a

concrete detoxification cell. Id. at 472. When the plaintiff stood up, he fell to the concrete floor

and sustained serious injuries. Id. We found no constitutional violation, concluding that although

leaving an intoxicated person sitting in a cell while awaiting booking may increase the risk of harm

due to falling, it does not create a substantial risk of serious harm. Id. at 472-73. We did not

speculate regarding what, if any, additional conditions of confinement would have elevated the

risk to the plaintiff to a level that would violate contemporary standards of decency. See id. Thus,

Schack did not establish law that would have given Strozeski clear notice that his actions violated

the Fourteenth Amendment. And, for the reasons stated in the majority opinion, Carroll v. City of

Quincy, 441 F. Supp. 2d 215 (D. Mass. 2006), provides inadequate support for Korthals’s claim.




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