          United States Court of Appeals
                     For the First Circuit


No. 14-1535

    NORMA IRIS MIRANDA-RIVERA; THE ESTATE OF CHRISTOPHER ROJAS
 MIRANDA; NANCY I. TRINIDAD-TORRES, on behalf of her minor child
                             C.Y.R.T.,

                     Plaintiffs, Appellants,

                      GABRIEL ROJAS-PIRIS,

                           Plaintiff,

                               v.

   PEDRO TOLEDO-DÁVILA, Superintendent, Police of Puerto Rico;
  MIGUEL RODRÍGUEZ-CRESPI, Sergeant; WILLIAM PÉREZ-SOTO, Police
                             Officer,

                     Defendants, Appellees,

   ANIBAL ACEVEDO-VILA, Governor for the Commonwealth of Puerto
 Rico; ROBERTO SÁNCHEZ-RAMOS, Secretary of Justice, Commonwealth
     of Puerto Rico; ORLANDO RIVERA-LUGARDO; JUAN JOSÉ TOLEDO-
 BAYOUTH; JOSÉ TOLEDO-BAYOUTH; FERNANDO TOLEDO-BAYOUTH; PEDRO J.
  TOLEDO-BAYOUTH; JOHN DOE, Police Officer, Toa Baja; INSURANCE
                  COMPANY ABC, INC.; RICHARD ROE,

                           Defendants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Daniel E. Domínguez, U.S. District Judge]
                              Before

                    Barron, Hawkins,* and Lipez,
                          Circuit Judges.



     Pedro R. Vázquez, III, with whom José F. Quetglas Jordan was
on brief for appellant.

     Susana I. Peñagarícano Brown, Assistant Solicitor General,
with whom Margarita L. Mercado-Echegaray, Solicitor General, was
on brief for appellees.



                         February 12, 2016




*   Of the Ninth Circuit, sitting by designation.
             HAWKINS,   Circuit      Judge.         Christopher    Rojas   Miranda

("Rojas") was arrested by Puerto Rico Police Department ("PRPD")

officers for driving under the influence.                   Shortly after they

brought him to the police station, he died in a holding cell.                 His

family members and estate brought suit under 42 U.S.C. § 1983,

alleging that the arresting officers used excessive force against

Rojas and denied him needed medical care.                   The district court

granted summary judgment on these claims on insufficient evidence

and qualified immunity grounds.          We affirm in part and reverse and

remand in part.

                                I.    Background

          A. Facts

             At around 8:20 p.m. on April 10, 2007, PRPD officers

William    Pérez     Ortiz     ("Pérez")      and     Orlando     Rivera   Lugardo

("Rivera")    observed       Rojas   driving    at     a   high   speed,   running

stoplights, and swerving.            They chased him in their patrol car

until he stopped at the side of the road.                   At their direction,

Rojas exited his car and put his hands on the trunk of the car.

Pérez asked Rojas if he was all right and began explaining why

they stopped him.        At first, Rojas did not respond, but then,

keeping his hands on the trunk and looking everywhere, he began

screaming that a car was following him and that someone was trying

to kill him.       As Rojas continued to scream and began using foul


                                       -3-
language, Pérez reached for his handcuffs.               Rojas turned around

abruptly and knocked Rivera's portable radio out of his hands.

            There was then a brief scuffle between Pérez, Rivera,

and Rojas.      All three fell to the ground.           Rojas hit the ground

with his chest or stomach. Pérez cuffed Rojas's hands behind his

back as Rojas was prone on the ground.           He then let Rojas sit up

and Rojas sat calmly for a little while as Rivera radioed for

assistance.      As other officers came on the scene, Rojas again

began screaming in foul language that someone wanted to kill him.

Pérez, Rivera, and a third officer then put Rojas into Pérez's

patrol car.     Rojas tried to put his legs up against the doorframe

so that they could not get him in the car, so they picked up his

legs to get him into the car, secured his seatbelt, and closed the

door.     While inside the car, Rojas continued to scream the same

things.

            During this encounter, according to Officers Pérez and

Rivera and a bystander named José Candelaria, Rojas looked nervous,

sweaty, pale, wild-eyed, had veins bulging at his temple, a

purplish tint to his forehead, temples, and cheeks, and blackish

lips.      He   did   not   appear   injured   except    that,   according   to

Candelaria, he had a small cut on his lips.

            When      Sergeant   Miguel   Rodríguez     Crespi   ("Rodríguez")

arrived on the scene, Rojas was already in the squad car, still


                                      -4-
screaming.     After Pérez and Rivera explained the situation to him,

Rodríguez said they should take him to a medical facility.         Rivera

suggested that they take him to the police station instead, since

Rojas might injure people at the medical facility.            Rodríguez

agreed, so Pérez and Rivera took Rojas to the police station in

their patrol car.       Rojas continued to shout incoherently during

the   drive,    which   lasted   a   few   minutes.    Rodríguez    drove

separately.

             Upon arrival at the police station, Rodríguez observed

Pérez and Rivera getting Rojas into the holding cell.       Rojas tried

to put his legs against the doorframe again, and he also started

kicking, although he did not land a kick on either officer.         Once

they managed to get him in the cell, Pérez and Rivera decided to

place him face down on the ground, still cuffed at the wrists

behind his back.    They put tie wraps on his ankles so he could not

open his legs.      While they were restraining him, Pérez did not

observe any injuries or bruises on Rojas's body.          Desk officer

Noelia Quiñones observed that, when he arrived at the police

station, Rojas's face and lips were purple, but he did not appear

to have suffered any blows.      While Rojas was in the cell, Quiñones

did not hear a struggle between him or anyone else.

             As Rojas continued to scream, Pérez and Rivera left him

in the cell and closed the cell door.         Pérez instructed Quiñones


                                     -5-
to call the paramedics, which she did at 9:38 p.m.      After a few

minutes, Rojas continued to speak incoherently, but at a lower

volume.    Pérez could see through the cell window that Rojas stayed

on his stomach on the floor the entire time and that Rojas's

forehead and temple became more and more purple.         Eventually,

Rojas stopped speaking altogether.      Pérez instructed Quiñones to

call again.      When the paramedics arrived at 9:48 p.m., Pérez

hurried out to meet them because he thought Rojas was dead or

dying.    At 9:50 p.m., the paramedics declared that Rojas had no

vital signs.

            Rojas's body was found with blood coming from his mouth;

multiple lacerations, contusions, and abrasions throughout his

body, including on his face, chin, shoulders, wrists, and legs;

subarachnoid hemorrhage in his brain; and other injuries.        The

autopsy report lists the cause of death as bodily trauma and

cocaine intoxication; the manner of death, "accident."

          B. Procedural History

            Plaintiffs filed the operative complaint, the second

amended complaint, on April 9, 2012.1       Plaintiffs alleged that



1 The plaintiffs are Nancy I. Trinidad Torres, on behalf of her
and Rojas's minor son C.Y.R.T., who appears on his own behalf and
on behalf of Rojas's estate; and Rojas's mother Norma Miranda on
her own behalf and on behalf of her minor son, Rojas's brother
J.L.M.


                                  -6-
Defendants,         Officer   Pérez,     Sgt.        Rodríguez,     and     then-PRPD

Superintendent Pedro Toledo-Dávila ("Toledo"),2 violated Rojas's

Fourth and Fourteenth Amendment rights against unreasonable search

and seizure, excessive use of force, and denial of urgent medical

care.   Plaintiffs also alleged a number of Puerto Rican law claims.

              The     district   court     granted        summary       judgment   on

Plaintiffs' various Fourth and Fourteenth Amendment claims.                        It

held that any claims against Defendants in their official capacity

for monetary damages were barred by the Eleventh Amendment.                        On

the merits, it held that Defendants had probable cause to stop

Rojas's car and that no reasonable jury could find that Defendants

used excessive force in transporting and detaining Rojas at the

police station.3        Regarding denial of medical care, it held that

there was insufficient evidence that Defendants were deliberately

indifferent to a serious medical need.                 The court also held that

there   was    insufficient      evidence       to    support     any     supervisory

liability claims against Sgt. Rodríguez or Superintendent Toledo

and that Defendants were entitled to qualified immunity on the




2 Default judgment was entered against Officer Rivera earlier in
the litigation.
3 Plaintiffs concede that there was no excessive force in the
initial arrest, but contend that Defendants used excessive force
in putting Rojas into the patrol car and restraining him in the
holding cell.


                                         -7-
excessive force and medical care claims.                  After dismissing the

federal   claims,   the    district        court        declined   to    exercise

supplemental jurisdiction over the remaining Puerto Rican law

claims and dismissed them without prejudice.

          On   appeal,    Plaintiffs       challenge       only    the   district

court's decisions on the excessive force and denial of medical

care claims and supervisory liability.

                     II.     Standard of Review

           A   district    court's    grant        of    summary    judgment   is

reviewed de novo.   United States ex rel. Jones v. Brigham & Women's

Hosp., 678 F.3d 72, 83 (1st Cir. 2012).                   Summary judgment is

properly granted if the movant can demonstrate that "there is no

genuine dispute as to any material fact and that the movant is

entitled to judgment as a matter of law."               Fed. R. Civ. P. 56(a).

A "genuine" dispute exists when a jury can reasonably interpret

the evidence in the non-movant's favor.            A "material" fact is "one

that might affect the outcome of the suit under the governing law."

Vélez-Rivera v. Agosto-Alicea, 437 F.3d 145, 150 (1st Cir. 2006)

(quoting Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d 746,

748 (1st Cir. 1994)).




                                     -8-
                             III.    Discussion

       A. Excessive Force Claim Against Officer Pérez

            The district court granted summary judgment in favor of

Officer Pérez on Plaintiffs' excessive force claim on insufficient

evidence and qualified immunity grounds.            We reverse and remand

for trial because there appears sufficient evidence for Plaintiffs

to survive summary judgment and because, regardless of whether the

Fourth and Fourteenth Amendment standard applied, a reasonable

officer would have known that it was unconstitutional to apply

force in the way that the officers here appear to have done in

transporting and incarcerating an arrestee, where the arrestee was

already physically restrained and did not pose a great physical

threat to the officers.

                1. Legal Standard for Excessive Force Claims
                   Brought by Arrestees

            As a preliminary matter, we note that the district court

correctly     applied   an    objective     reasonableness    standard    to

Plaintiffs'    excessive     force   claim.       The   Supreme   Court   has

historically reserved the question of whether the Fourth Amendment

standard of objective reasonableness or a Fourteenth Amendment

substantive due process standard requiring a defendant to have a

"sufficiently culpable state of mind," Cottrell v. Caldwell, 85

F.3d 1480, 1491 (11th Cir. 1996), applies to persons who have been

                                      -9-
arrested but who are not yet "pretrial detainees" because they

have not yet gone before a magistrate judge for a probable cause

hearing.    Graham v. Connor, 490 U.S. 386, 395 n.10 (1989); Bell

v. Wolfish, 441 U.S. 520, 536 (1979) (defining a pretrial detainee

as someone who has had a "judicial determination of probable cause

as a prerequisite to [the] extended restraint of [his] liberty

following arrest" (alterations in original)).           At the time of the

district court's decision, other circuits were split over this

question.    Compare     Currie v. Chhabra, 728 F.3d 626, 629 (7th Cir.

2013), Aldini v. Johnson, 609 F.3d 858, 867 (6th Cir. 2010), Wilson

v. Spain, 209 F.3d 713, 715 (8th Cir. 2000), United States v.

Johnstone, 107 F.3d 200, 206 (3d Cir. 1997), Pierce v. Multnomah

Cty., 76 F.3d 1032, 1042-43 (9th Cir. 1996), Austin v. Hamilton,

945 F.2d 1155, 1160 (10th Cir. 1991), abrogated on other grounds,

Johnson v. Jones, 515 U.S. 304 (1995), and Powell v. Gardner, 891

F.2d 1039, 1043-44 (2d Cir. 1989), with Riley v. Dorton, 115 F.3d

1159, 1162-64, 1166 (4th Cir. 1997), abrogated on other grounds,

Wilkins v. Gaddy, 559 U.S. 34 (2010), Cottrell, 85 F.3d at 1490,

and Brothers v. Klevenhagen, 28 F.3d 452, 455-57 (5th Cir. 1994).

The First Circuit has not yet answered the question, although some

district courts within the First Circuit have applied the majority

rule.      Moreau   v.   Gerardi,   No.    CIV.A.   08-40117-FDS,   2010   WL

4961676, at *11 (D. Mass. Nov. 24, 2010); see also Rivera-García


                                    -10-
v. Román-Carrero, 938 F. Supp. 2d 189, 198-99 (D.P.R. 2013)

(rejecting argument that the Fourteenth Amendment applied from the

moment a suspect was "neutralized" by being handcuffed).

            Since    then,   the     Supreme       Court   has    held     that   the

appropriate      standard    for     a     pretrial     detainee's        Fourteenth

Amendment        excessive       force     claim      is      simply       objective

reasonableness.      Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473-

74 (2015) (holding that a pre-trial detainee need not necessarily

prove the officer's intent to harm or punish, only that, from an

objective viewpoint, the officer's action was "not rationally

related to a legitimate governmental objective or that it [was]

excessive in relation to that purpose.").                     Since Kingsley has

extended the objective reasonableness standard for use of force

from the arrest stage through the probable cause hearing, whether

the Fourth or Fourteenth Amendment standard applies presents less

of a problem in cases like this one than before.

            In    this   case,    the    district     court    "identif[ied]      the

specific    constitutional         right     allegedly        infringed     by    the

challenged application of force," Graham, 490 U.S. at 394, as the

Fourth Amendment's protection against unreasonable seizures.                      The

parties do not challenge that holding, and we have no reason to do

so as the alleged use of excessive force here occurred while

Officers Pérez and Rivera were transporting Rojas to the police


                                         -11-
station and then to a jail cell.     Given these facts, and given the

authority favoring the application of the Fourth Amendment to

similar factual scenarios, we apply the Fourth Amendment standard

to Rojas's excessive force claim.        See Wilson, 209 F.3d at 715-16

(applying the Fourth Amendment to a claim based on force used

against an arrestee just moments after he was first placed in a

holding cell); Johnstone, 107 F.3d at 206-07 (applying the Fourth

Amendment where an officer had allegedly assaulted an arrestee "in

the police station garage, after he had been transported from the

scene" of his initial encounter with the officer); Moreau, 2010 WL

4961676, at *11 (applying the Fourth Amendment where the alleged

excessive force took place after the plaintiff "had just completed

the booking process," "a few hours" after the plaintiff's arrest

began).

                2. Evidence of Excessive Force

            Defendants admit that Pérez and Rivera used physical

force to get Rojas into the patrol car and into the holding cell.

Defendants claim that they only used the level of force necessary

to get Rojas to comply, since Rojas resisted getting into the car

and   holding   cell.    This   version   of     events   is   supported    by

deposition testimony from Officer Pérez, who used force against

Rojas,    and   deposition   testimony    from    Sgt.    Rodríguez   and   a




                                  -12-
declaration from Officer Quiñones, who observed Pérez and Rivera

putting Rojas in the holding cell.

          Plaintiffs present no evidence to contradict Defendants'

account of how Rojas was behaving on the way to the holding cell.

Given the undisputed description of Rojas's behavior, Pérez was

justified in using some level of force to compel Rojas to get into

the patrol car and holding cell.       It is reasonable to expect that

Rojas would have some injuries.             The question is whether the

injuries he actually suffered can support a factual finding that

Pérez used an unreasonable level of force on him.

          Evidence    of   excessive    force      includes   (1)   photos   of

Rojas's body, (2) the autopsy report's descriptions of his internal

injuries, (3) Dr. Shaker's expert opinion that Rojas's injuries

are consistent with severe bodily trauma to the head and chest,

and (4) the opinion of Lou Reiter, an expert witness on police

practices, that Rojas's injuries resulted from "a use of force

contrary to generally accepted police practices and excessive for

the   circumstances    described       by    the     arresting      officers."

Plaintiffs also emphasize that no one saw any injuries on Rojas's

face at the arrest site (except a small cut to his lip) and yet,

at the time of his death, Rojas had blood coming from his mouth,

multiple abrasions, contusions, and lacerations throughout his




                                   -13-
body, including his face, chin, shoulders, wrists, and legs, and

subarachnoid hemorrhage in his brain.

          Defendants respond with a declaration from the author of

the autopsy report, Dr. Edda L. Rodríguez Morales, who opines that

the injuries on the face were consistent with a fall, not a fist

to the face, and that the subarachnoid hemorrhage in the brain is

associated with cocaine use, not external trauma to the head.   She

clarified that even though she listed both bodily trauma and

cocaine intoxication as causes of death on the autopsy report, she

meant that the cause of death was "corporal trauma as a result of

the cocaine intoxication."

          This record shows a genuine dispute as to whether Officer

Pérez used excessive force when transporting Rojas to the holding

cell.   In their summary judgment briefing and on appeal, the

parties engaged in a battle of the experts regarding whether the

cause of Rojas's death was cocaine-induced stroke or bodily trauma,

but the specific causation is not necessary to determine whether

there was a constitutional violation.      Certainly, if a savage

beating was the sole or primary cause of death, that would be

strong evidence of excessive force.     However, Pérez could still

be liable for using excessive force even if Rojas had not died or

if his death was caused only by cocaine intoxication.   Cf. Wilkins,

559 U.S. at 37 (holding in the Eighth Amendment context that proof


                               -14-
of a significant injury is probative, but not required to succeed

on a convicted prisoner's excessive force claim).

            Here, a jury could look at the photos of Rojas's body,

the autopsy report, eyewitness accounts of Rojas's lack of visible

injuries before the police transported him, Reiter's opinion, and

the autopsy report's listing of bodily trauma as a cause of death

(even though Dr. Rodríguez has seemingly backed away from that

conclusion and even though the autopsy report said the manner of

death was "accident"), and reasonably conclude that the bodily

trauma was the result of Pérez using excessive force against Rojas

while transporting him to the holding cell.4       The evidence could

also easily support the opposite conclusion -- that there was some

other cause for the bodily trauma or that the level of force used

was   not   excessive.   However,   when   the   evidence   supports   a

reasonable inference in the non-movant's favor, there exists a

genuine issue of material fact that precludes summary judgment.

The district court erred in holding otherwise.




4 Dr. Shaker's opinion that Rojas was beaten after he was shackled
at the wrists and ankles and that his death was caused by bodily
trauma is helpful to Plaintiffs' case, but not necessary for
Plaintiffs' claim to survive summary judgment. Thus, we do not
opine on the correctness of the district court's treatment of Dr.
Shaker's report.


                                -15-
              3. Qualified Immunity

           Determining whether a defendant is entitled to qualified

immunity involves two questions: (1) "whether the facts that a

plaintiff has alleged . . . or shown . . . make out a violation of

a constitutional right," Pearson v. Callahan, 555 U.S. 223, 232

(2009) (citations omitted); and (2) "whether the right at issue

was 'clearly established' at the time of defendant's alleged

misconduct," id. (quoting Saucier v. Katz, 533 U.S. 194, 201

(2001)).

           Since   there   is   sufficient    evidence   to   make   out   an

excessive force claim, Pérez is not entitled to qualified immunity

on the first ground.

           Nor is Officer Pérez entitled to qualified immunity on

the "clearly established" ground.         The district court stated in a

footnote that Defendants may be entitled to qualified immunity

because it was unclear in 2007 which constitutional standard

governed arrestees' excessive force claims in the First Circuit.

We are not persuaded.      The main difference between the Fourth and

Fourteenth Amendment excessive force standards prior to Kingsley

was whether, in retrospect, we inquire into an officer's subjective

mindset.   However, at their core, both the Fourth and Fourteenth

Amendments are concerned with whether an officer's actions depart

from what a reasonable officer would do, and whether those actions


                                   -16-
serve some legitimate governmental purpose.           See Kingsley, 135 S.

Ct. at 2473-74; Graham, 490 U.S. at 397.

             A reasonable officer faced with the question of what to

do with Rojas would have known that using more force than necessary

violated     both   of    those   standards    and   therefore     a    clearly

established constitutional rule to use force in the way that the

officers here appear to have done.            Here, during the entire time

period in which the officers are alleged to have applied excessive

force to Rojas (i.e., from Rojas's arrest to his death in the

holding cell), Rojas was handcuffed and did not pose a great

physical threat to the officers.            The record suggests that Rojas

initially appeared paranoid, screaming incoherently, and that,

while handcuffed, he attempted to resist being transported to the

police   station    and   being   incarcerated.      There   is    sufficient

evidence for a reasonable jury to conclude that the officers used

force that resulted in disproportionately severe injuries to Rojas

--   e.g.,    multiple      lacerations,      contusions,    and       abrasions

throughout his body -- and ultimately in his death.              We therefore

conclude that, regardless of whether the Fourth or Fourteenth

Amendment applied after his arrest, a reasonable officer would

have known that using force in the way that the officers here

appear to have done in the particular factual circumstances that

they encountered violated Rojas's constitutional rights.                     See


                                     -17-
Estate of Booker v. Gomez, 745 F.3d 405, 428-29 (10th Cir. 2014);

Harris v. City of Circleville, 583 F.3d 356, 367 (6th Cir. 2009).

Accordingly, Pérez is not entitled to qualified immunity on the

excessive force claim.

               4. Conclusion

           In sum, the district court erred in granting summary

judgment on the excessive force claim against Officer Pérez, and

we reverse and remand.

         B. Excessive Force Claim Against Sgt. Rodríguez

           Defendants argue that there is insufficient evidence to

show that Sgt. Rodríguez used excessive force against Rojas.             We

agree that there is no evidence that Sgt. Rodríguez ever touched

Rojas.   However, we agree with Plaintiffs that Sgt. Rodríguez can

nevertheless potentially be held liable for his failure to stop

Pérez and Rivera from using excessive force.

           "An officer may be held liable not only for his personal

use of excessive force, but also for his failure to intervene in

appropriate   circumstances    to    protect     an    arrestee   from   the

excessive use of force by his fellow officers."            Wilson v. Town

of Mendon, 294 F.3d 1, 6 (1st Cir. 2002).             Here, Sgt. Rodríguez

cannot be held liable for any force used against Rojas at the

arrest site because he arrived too late to prevent it, as Rojas

was already in the patrol car.             Gaudreault v. Municipality of


                                    -18-
Salem, 923 F.2d 203, 207 n.3 (1st Cir. 1990) (rejecting failure-

to-intervene liability where the attack lasted only a few seconds

and the other officers at the scene had no realistic opportunity

to stop the officer-assailant).       However, he can potentially be

liable for any excessive force he observed Pérez and Rivera using

against Rojas after he arrived at the police station.          Since there

is a genuine issue of material fact as to whether Pérez and Rivera

used excessive force at the police station, there is also a genuine

issue of material fact as to whether Rodríguez -- who admittedly

watched Pérez and Rivera use force to get Rojas inside the prison

cell -- failed to intervene.     Accordingly, we reverse and remand.5

       C. Denial of Medical Care Claims Against Pérez and
          Rodríguez

          The   district     court    granted   summary    judgment      on

Plaintiffs'   denial   of   medical   care   claim   because    there   was



5 We acknowledge Defendants' argument that the complaint does not
allege facts supporting a failure-to-intervene theory and that
this Circuit has previously held that pleading excessive force
does not give a defendant fair notice of a failure-to-intervene
claim. See Calvi v. Knox Cty., 470 F.3d 422, 431 (1st Cir. 2006).
However, in this particular case, Defendants are not prejudiced by
the discrepancy between the allegations in the complaint and what
the evidence showed at the end of discovery, because the universe
of facts surrounding Sgt. Rodríguez's failure to intervene is the
same as the universe of facts surrounding Officer Pérez’s use of
force. We are further persuaded by the fact that complaints can
be amended as late as trial to conform to the evidence, Fed. R.
Civ. P. 15(b)(1), and there would have been good cause to do so
here.


                                 -19-
insufficient evidence of Defendants' deliberate indifference to a

serious medical need.     The district court held that Defendants

were entitled to qualified immunity on this claim for the same

reason.    We disagree and reverse and remand.

               1. Legal Standard

            Fourteenth Amendment substantive due process requires

the government to provide medical care to persons who are injured

while being apprehended by the police.         City of Revere v. Mass.

Gen. Hosp., 463 U.S. 239, 244 (1983).          "The boundaries of this

duty have not been plotted exactly; however, it is clear that they

extend at least as far as the protection that the Eighth Amendment

gives to a convicted prisoner."           Gaudreault, 923 F.2d at 208.

Government officials violate the Eighth Amendment if they display

"deliberate indifference" to a prisoner's "serious medical needs."

Id.   A "serious medical need" "is one that has been diagnosed by

a physician as mandating treatment, or one that is so obvious that

even a lay person would easily recognize the necessity for a

doctor's   attention."    Id.      Deliberate    indifference   requires

(1) that "the official . . . be aware of facts from which the

inference could be drawn that a substantial risk of serious harm

exists," and (2) that he draw that inference.       Farmer v. Brennan,

511 U.S. 825, 837 (1994).       A factfinder can conclude that a

government official was aware of a substantial risk of serious


                                   -20-
harm based on the fact that the risk was obvious.                  Id. at 842.

However,    there    is   no   deliberate     indifference   if   an    official

responds reasonably to the risk.             Id. at 844-45; see also Coscia

v. Town of Pembroke, 659 F.3d 37, 39 (1st Cir. 2011) (deliberate

indifference can consist of "a conscious failure to provide medical

services where they would be reasonably appropriate").                  Where it

is shown that an officer was deliberately indifferent to a serious

medical need of a pretrial detainee, no further mens rea of the

officer -- whether intent or motivation -- is necessary to state

a substantive due process claim.         See Cty. of Sacramento v. Lewis,

523 U.S. 833, 849 (1998) (observing that deliberate indifference

is "egregious enough" to satisfy the "conscience shocking" element

required of substantive due process claims, where the officer

exhibits deliberate indifference to the medical needs of a pretrial

detainee) (citing City of Revere, 463 U.S. at 244).

                2. Evidence of Constitutional Violation

            Here, there is some evidence that, while he was being

arrested,   Rojas     was   sweaty,   nervous,    delusional,     and    yelling

incoherently.       The arresting officers observed that Rojas's face

was extremely pale and purplish around the forehead and temple

area, his eyes were bulging, and his lips were black.                   Based on

these physical symptoms, a jury could reasonably find that Rojas

did not appear to be dangerously drunk or high.                   On the other


                                      -21-
hand, a rational jury could also conclude that Rojas's need for

medical attention was so obvious that even a layperson would have

easily recognized it.       The district court erred by relying solely

on eyewitness Candelaria's observation that Rojas's only injury

was a small cut on the lips in finding no genuine issue as to

whether Rojas had a serious medical need.

            With regard to the deliberate indifference prong, a

rational jury could conclude based on Rojas's appearance and

symptoms and Sgt. Rodríguez's suggestion that they take Rojas to

a medical facility that a substantial risk of serious harm was

obvious and that the Defendants were aware of and disregarded that

risk.    It is true that Sgt. Rodríguez let Officer Rivera persuade

him that they should take Rojas to the police station instead,

which can be interpreted as a good-faith reassessment of the level

of risk.    But, a jury could also reasonably infer that, in their

concern for others' safety, the police took an unreasonable gamble

with Rojas's welfare.       No matter how good the officers' intentions

may have been, they may still be liable under the deliberate

indifference standard if they recognized a serious risk to Rojas's

health   and   chose   to   prioritize    others'   safety   over   seeking

immediate medical attention for Rojas.         See Cty. of Sacramento,

523 U.S. at 849.       Because the evidence supports a reasonable




                                   -22-
conclusion in Plaintiffs' favor, the district court erred in

granting summary judgment.

                   3. Qualified Immunity

             Because there is sufficient evidence to survive summary

judgment, Defendants are not entitled to qualified immunity on the

ground of insufficient evidence of a constitutional violation.

Nor are they entitled to qualified immunity based on the "clearly

established" prong either because the law on denial of medical

care has long been clear in the First Circuit.               See Gaudreault,

923 F.2d at 208; see also City of Revere, 436 U.S. at 244.              Thus,

Defendants are not entitled to qualified immunity on the denial of

medical care claim.

                   4. Conclusion

             In sum, the district court erred in granting summary

judgment on the denial of medical care claims against Pérez and

Rodríguez.

       D. Claims Against Superintendent Toledo

             The    district   court    granted   summary   judgment   on   any

supervisory        liability   claims     against   Superintendent     Toledo

because, not only did Plaintiffs fail to adequately plead facts

about Toledo's conduct, but they also failed to bring forth

evidence supporting the barebones allegations that he acted with

"reckless or callous" indifference to Rojas's rights.


                                       -23-
             We agree with the district court that Plaintiffs did not

adequately plead facts going to Superintendent Toledo's liability.

The only facts alleged in the complaint describe "Defendants"

arresting and beating Rojas.         It alleges no facts describing

Toledo's conduct besides the conclusory allegation that he and

other supervisors "ratified" their subordinates' actions with

"reckless    or   callous   indifference"   to   Rojas's   rights.    The

complaint fails to allege any facts about PRPD's training, citizen

complaint investigation, use of force tracking, or disciplinary

practices.

             Plaintiffs may not "raise new and unadvertised theories

of liability for the first time in opposition to a motion for

summary judgment," Calvi v. Knox Cty., 470 F.3d 422, 431 (1st Cir.

2006).   Allowing a plaintiff to proceed on new, unpled theories

after the close of discovery would prejudice defendants, who would

have focused their discovery efforts on the theories actually pled.

Martinez v. Petrenko, 792 F.3d 173, 179-80 (1st Cir. 2015).          Thus,

Plaintiffs' attempt to argue for the first time in opposition to

Defendants' motion for summary judgment that Toledo failed to train

and supervise his officers was properly rejected by the district

court, and we affirm.




                                  -24-
                              IV.     Conclusion

           For the above reasons, we reverse and remand for trial

Plaintiffs' claims against Pérez and Rodríguez, but affirm the

district court's grant of summary judgment on Plaintiffs' claims

against Toledo.      In addition, we instruct the district court to

reinstate the Puerto Rican law claims that it dismissed in its

summary   judgment   order.         See   Fernández-Salicrup   v.   Figueroa-

Sancha, 790 F.3d 312, 328 (1st Cir. 2015) ("If the dismissal of

the linchpin federal claim proves to have been improvident . . .

the   state-law   claims      routinely      are   reinstated."     (internal

quotation marks and citations omitted)).

           AFFIRMED IN PART; REVERSED AND REMANDED IN PART. Each

party shall bear its own costs on appeal.




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