     Case: 15-30610   Document: 00513869863    Page: 1   Date Filed: 02/09/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                No. 15-30610                            FILED
                                                                 February 9, 2017
                                                                   Lyle W. Cayce
LARRY DUPREE ALDERSON,                                                  Clerk
                                          Plaintiff–Appellant,
v.

CONCORDIA PARISH CORRECTIONAL FACILITY; WARDEN LANCE
MOORE; GEORGE BYRNES, Chief of Security; SHEILA SPINNER,
Administrative Assistant; CAPTAIN KELLY MOORE; CAPTAIN JACKIE
JOHNSON; DEBRA COWAN, Administrative Assistant; LIEUTENANT
HARVEY BRYANT,
                                     Defendants–Appellees.



                Appeal from the United States District Court
                   for the Western District of Louisiana


Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:
      Appellant Larry Alderson, a pretrial detainee, brought this action under
42 U.S.C. § 1983 against the Concordia Parish Correctional Facility and
several of its department heads and employees. He alleged that the defendants
provided him inadequate security and impermissibly delayed medical care.
Alderson, who represented himself in forma pauperis, amended his complaint
pursuant to the instructions of a magistrate judge. The magistrate judge then
recommended that the complaint be dismissed with prejudice for failure to
state a claim. The district court adopted the magistrate judge’s report and
recommendation over Alderson’s objections. Alderson now appeals in part the
district court’s dismissal of his amended complaint. We AFFIRM in part the
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                                       No. 15-30610
district court’s judgment except as to dismissal of the claims of inadequate
medical care against Lieutenant Harvey Bryant. We REVERSE in part the
district court’s judgment dismissing the claim that Bryant was deliberately
indifferent to Alderson’s need for medications prescribed by the hospital
following an incident in which Alderson was assaulted by Concordia Parish
Correctional Facility inmates. We REMAND for further consideration both of
this claim and of the claim that Bryant impermissibly delayed Alderson’s
initial medical evaluation.
                                               I.
       Alderson alleges that he was brutally attacked in the Concordia Parish
Correctional Facility (CPCF) on the morning of December 22, 2014. 1 The
attack took place in G Dorm, where Alderson, a pretrial detainee, was housed
with Department of Correction (DOC) inmates due to a misclassification by
Chief of Security George Byrnes and Administrative Assistant Sheila Spinner.
Alderson’s assailants were two DOC inmates whom he did not know. They
stabbed him and stomped on him in an attack that lasted at least three to five
minutes. When Alderson raised concerns about his safety and his medical
condition after the attack, Lieutenant Harvey Bryant sent him to lockdown in
a cell with DOC inmates. It was not until after Alderson and his family made
numerous complaints to staff that Bryant returned to the cell, took pictures of
Alderson’s injuries using his own cell phone instead of the investigative camera
used for documenting incidents, and then left Alderson for an hour before
taking him to the hospital.



       1 This statement of facts takes Alderson’s allegations as true and views them in the
light most favorable to the plaintiff. See Green v. Atkinson, 623 F.3d 278, 280 (5th Cir. 2010).
It is drawn from Alderson’s objections to the magistrate judge’s report and recommendations
as well as from Alderson’s amended complaint. See Johnson v. Epps, 479 F. App’x 583, 587–
89 (5th Cir. 2012); Cooper v. Sheriff, Lubbock Cty., Tex., 929 F.2d 1078, 1081–82 (5th Cir.
1991).
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                                       No. 15-30610
       Alderson was prescribed antibiotics and painkillers after being
diagnosed with bruised or broken ribs and multiple puncture wounds to his
face, head, and body. When Alderson asked Bryant for the medications that
he had been prescribed to prevent infection and to alleviate pain, Bryant told
him, “Man up & wait til [sic] medical staff returns from the Christmas
holiday.” 2 Alderson did not receive his medications until January 2, 2015,
which caused him to risk infection and to suffer “a tremendous amount of pain
for over a week.” Alderson’s amended complaint states, “My only injury during
that time was [an] excruciating amount of pain.” Alderson also states that,
since the events described above, he has suffered from mental instability, has
been on psychiatric medications, and has been “in constant fear for my life from
inmates & staff.”
       The magistrate judge recommended that Alderson’s amended complaint
be denied and dismissed with prejudice under 28 U.S.C. §§ 1915(e)(2)(B) and
1915A for failure to state a claim. With respect to Alderson’s claims against
CPCF, the magistrate judge determined that CPCF is not a juridical person
subject to being sued. With respect to Alderson’s claims against the individual
defendants, the magistrate judge determined that Alderson did not specifically
allege any actionable misconduct. The district court adopted the magistrate
judge’s report and recommendation after an independent review of the record,
including Alderson’s objections. However, the district court did not expressly
analyze Alderson’s objections. Alderson now appeals the judgment dismissing
his claims. 3




       2  Alderson has alleged that Officer King also told him he could not get his medications
until the holidays ended. However, Officer King is not a defendant in this case.
        3 Alderson does not appeal the dismissal of his claims against CPCF. Even assuming

arguendo that his brief could be liberally construed to appeal the dismissal of claims against
CPCF, the district court correctly determined that CPCF is not a juridical person pursuant
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                                       No. 15-30610
                                             II.
       A district court’s dismissal under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A
for failure to state a claim is reviewed de novo under the same standard applied
to dismissals pursuant to Federal Rule of Civil Procedure 12(b)(6). Legate v.
Livingston, 822 F.3d 207, 209–10 (5th Cir. 2016); Ruiz v. United States, 160
F.3d 273, 275 (5th Cir. 1998). Thus, we review the district court’s dismissal
“taking the facts alleged in the complaint as true and viewing them in the light
most favorable to” the plaintiff. Atkinson, 623 F.3d at 280. In doing so, we
construe pro se pleadings liberally. United States v. Riascos, 76 F.3d 93, 95
(5th Cir. 1996). The question before us is whether the facts alleged by the
plaintiff are sufficient to support a reasonable inference that the defendants
are liable under § 1983. See Legate, 822 F.3d at 210.
       Pretrial detainees are protected by the Due Process Clause of the
Fourteenth Amendment. Cupit v. Jones, 835 F.2d 82, 84–85 (5th Cir. 1987).
To succeed in a § 1983 action based on “episodic acts or omissions” in violation
of Fourteenth Amendment rights, a pretrial detainee must show subjective
deliberate indifference by the defendants. Hare v. City of Corinth, 74 F.3d 633,
643 (5th Cir. 1996) (en banc). 4 That is, the plaintiff must show that the official



to Federal Rule of Civil Procedure 17(b) and the Louisiana law that the rule incorporates.
See Jones v. St. Tammany Parish Jail, 4 F. Supp. 2d. 606, 613 (E.D.La. 1998).
        4 The concurring opinion suggests that our en banc court should reconsider Hare in

light of the Supreme Court’s opinion in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015).
Because the Fifth Circuit has continued to rely on Hare and to apply a subjective standard
post-Kingsley, this panel is bound by our rule of orderliness. See Estate of Henson v. Wichita
Cty., 795 F.3d 456 (5th Cir. 2015); see also Hyatt v. Thomas, 843 F.3d 172 (5th Cir. 2016);
Zimmerman v. Cutler, 657 F. App’x 340 (5th Cir. 2016). Moreover, the Ninth Circuit is the
only circuit to have extended Kingsley’s objective standard to failure-to-protect claims. See
Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). Even if Kingsley did require us
to adopt a new standard for failure-to-protect claims, this would not change the outcome of
the case because Alderson has not stated a failure-to-protect claim by alleging that any
specific defendant made an intentional decision with respect to the conditions of his
confinement, that a reasonable officer in the circumstances would have appreciated the high
degree of risk involved, and that any defendant failed to take reasonably available measures
                                              4
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                                    No. 15-30610
knew of and disregarded a substantial risk of serious harm. Domino v. Tex.
Dep’t of Criminal Justice, 239 F.3d 752, 755 (5th Cir. 2001). “Actions and
decisions by officials that are merely inept, erroneous, ineffective, or negligent
do not amount to deliberate indifference.” Alton v. Tex. A & M Univ., 168 F.3d
196, 201 (5th Cir. 1999). To reach the level of deliberate indifference, official
conduct must be “wanton,” which is defined to mean “reckless.” Johnson v.
Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). Under § 1983, officials are not
vicariously liable for the conduct of those under their supervision. Mouille v.
City of Live Oak, 977 F.2d 924, 929 (5th Cir. 1992). Supervisory officials are
accountable for their own acts of deliberate indifference and for implementing
unconstitutional policies that causally result in injury to the plaintiff. Id.
                                          A.
      The district court correctly dismissed Alderson’s failure-to-protect claims
against Chief of Security George Byrnes, Administrative Assistant Sheila
Spinner, Warden Lance Moore, Captain Kelly Moore, and Captain Jackie
Johnson. When the state deprives an individual of the freedom to act on his
own behalf, the Fourteenth Amendment imposes on the state a duty to protect
that individual. Hare, 74 F.3d at 639. “The confinement of pretrial detainees
indiscriminately with convicted persons is unconstitutional unless such a
practice is reasonably related to the institution’s interest in maintaining jail
security or physical facilities do not permit their separation.”              Jones v.
Diamond, 636 F.2d 1364, 1374 (5th Cir. 1981).
      Even assuming that Alderson should not have been housed with DOC
detainees as he alleges, we nevertheless hold that Alderson has failed to state
a claim against Byrnes and Spinner for misclassifying him. To state a claim


to abate the risks associated with housing pre-trial detainees and DOC inmates together.
See id. at 1071 (listing elements of a failure-to-protect claim pursuant to extension of
Kingsley).
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                                       No. 15-30610
against Byrnes and Spinner, Alderson must allege that their misclassification
of him was due to deliberate indifference. That is, he must allege that they
knew of and disregarded a substantial risk of serious harm. See Domino, 239
F.3d at 755. Alderson alleged, “[T]his institution was informed that there was
concerns for my safety.” He explained that, although he did not personally
make his safety concerns known to anyone at CPCF prior to the attack, his
transfer to the facility was prompted by recognition that he faced special
danger due to the nature of the charges on which he was arrested. Alderson’s
allegation that CPCF had knowledge of his danger is not a sufficient allegation
that any specific defendant had knowledge of a substantial risk of serious harm
to Alderson based upon his classification. Because he has not alleged that
Byrnes and Spinner had knowledge of such a risk, Alderson has not linked
their alleged misclassification to deliberate indifference toward that risk.
Accordingly, Alderson has failed to state a claim based on their
misclassification. 5
       Alderson has similarly failed to state a claim for supervisory liability
against Byrnes, Spinner, Lance Moore, Kelly Moore, and Johnson. To hold any
of these defendants liable as supervisory officials under § 1983, Alderson must
allege either that they participated in acts that caused constitutional
deprivation or that they implemented unconstitutional policies causally
related to his injuries. See Mouille, 977 F.2d at 929. It is unclear whether
Alderson seeks to rely on participation in acts that caused constitutional




       5 In affirming the district court’s dismissal, we do not rely on the district court’s
observation that “the housing of convicted inmates with pretrial detainees is not per se
unconstitutional.” Housing pretrial detainees with DOC inmates is a violation of their rights
“unless such a practice is reasonably related to the institution’s interest in maintaining jail
security or physical facilities do not permit their separation.” Diamond, 636 F.2d at 1374.
Alderson has alleged a violation of the rule against housing pretrial detainees with DOC
inmates, and nothing suggests that an exception to the rule applies.
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                                 No. 15-30610
deprivation, implementation of unconstitutional policies, or both.             We
recognize that a plaintiff may plead these theories in the alternative and,
accordingly, consider both possibilities. See Estate of Henson, 795 F.3d 456.
However, Alderson has not stated a claim under either theory of liability
because he has not identified any specific defendant as responsible for a
specific act that caused constitutional deprivation or for a specific
unconstitutional policy causally related to his injuries.
      Alderson named the supervisory officials as defendants and alleged
generally that they failed in their responsibilities as department heads and
individuals otherwise positioned to ensure that he was correctly housed, to
ensure that surveillance and security checks were adequate, to check inmates’
backgrounds, and to provide inmates transferred to CPCF for security reasons
a safe and secure environment. Alderson made these allegations against the
supervisory officials as a group, despite the magistrate judge’s instruction to
“state what each defendant did.” He also alleged that his attack was monitored
by two cameras, implying that “the officers assigned to these cameras” should
have seen and stopped the attack. However, he did not identify the officers or
allege that any of the supervisory officials were responsible for monitoring the
cameras. Thus, Alderson failed to allege any particular defendant’s personal
involvement in conduct that caused constitutional deprivation.
      Nor has Alderson sufficiently alleged that any of the defendants
implemented an unconstitutional policy causally related to his injury. He has
alleged that DOC inmates and pretrial detainees wear different uniforms and
that DOC inmates housed with pretrial detainees were ordered to change
uniforms during a prison inspection, potentially suggesting that prison officials
were consciously implementing and concealing a policy or practice of housing
DOC inmates with pretrial detainees. On the other hand, the same incident
could also be evidence that supervisory officials at the prison had
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                                      No. 15-30610
communicated that inmates and detainees should be housed separately and
that other prison staff were trying to conceal their violation of this policy.
Alderson’s allegations do not show that an unconstitutional policy existed or
that any particular defendants implemented the policy if it did exist. Thus,
Alderson has not stated a failure-to-protect claim, and the district court’s
dismissal should be affirmed.
                                            B.
       The district court properly dismissed Alderson’s claims of inadequate
medical care against Administrative Assistant Sheila Spinner, Warden Lance
Moore, and Head Nurse Debra Cowan.                   However, it failed to consider
Alderson’s claim that Lieutenant Harvey Bryant impermissibly delayed the
initial medical evaluation and improperly dismissed Alderson’s claim that
Bryant failed to assist him in filling his prescription. To establish liability
based on a delay in medical treatment, a plaintiff must show deliberate
indifference to serious medical needs that resulted in substantial harm. Easter
v. Powell, 467 F.3d 459, 464 (5th Cir. 2006). A plaintiff can show deliberate
indifference by showing that an official “refused to treat him, ignored his
complaints, intentionally treated him incorrectly, or engaged in any similar
conduct that would clearly evince a wanton disregard for any serious medical
needs.” Id. The pain suffered during a delay in treatment can constitute a
substantial harm and form the basis for an award of damages. Id. at 464–65.
       The district court determined that Alderson failed to allege facts
supporting an inference of deliberate indifference by any of the defendants. 6




       6 In determining that Alderson had not alleged deliberate indifference, the district
court noted, “[Alderson] was informed that he would not be able to get the prescription
immediately because of the Christmas Holiday, not because of wanton, reckless, or causeless
actions by the defendants.” However, the district court did not cite any authority, nor have
we found any authority, suggesting that the occurrence of the Christmas holiday obviates the
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                                       No. 15-30610
Alderson alleges that Bryant delayed his medical treatment in two ways. First,
Alderson alleges that Bryant delayed his medical treatment by placing him in
lockdown upon learning of his condition, waiting until numerous complaints
had been made by Alderson and his family before taking further action, and
then leaving Alderson for another hour before taking him to the hospital. This
is an allegation that Bryant’s initial response to Alderson’s medical needs was
to refuse treatment and ignore his complaints, which constitutes deliberate
indifference.     Second, Alderson alleges that Bryant further delayed his
treatment when he responded to Alderson’s request for his prescription
medications by telling him to “[m]an up,” ignoring Alderson’s complaints and
evincing wanton disregard for his serious medical needs. These allegations, if
true, could support an inference of deliberate indifference on the part of
Bryant. See id. at 464. 7
       The district court concluded that, even if Alderson alleged deliberate
indifference, he failed to allege facts supporting an inference that he suffered
substantial harm because he did not allege “a life-long handicap or permanent
loss.” However, Fifth Circuit precedent does not limit substantial harm to life-
long handicap or permanent loss. 8 Rather, our precedent allows recovery for
pain suffered during a delay in treatment caused by deliberate indifference.
Id. Alderson has alleged that he suffered a “tremendous amount of pain”



obligation of correctional facilities’ employees to provide prescription medication for over a
week when they have knowledge that the medication needs to be administered as prescribed.
       7 Alderson has not alleged that Moore, Spinner, or Cowan engaged in any acts that

delayed his medical treatment. Thus, dismissal of the claims against these defendants was
correct.
       8 The only Fifth Circuit decision cited by the district court in this regard is Wesson v.

Oglesby, 910 F.2d 278 (5th Cir. 1990), in which we held that a “minor delay” in obtaining
medical treatment for a prisoner who had swollen wrists and some bleeding did not constitute
deliberate indifference to serious medical needs. Id. at 284. In another case, we held that a
four-hour delay in treatment could provide grounds for § 1983 liability. Easter, 467 F.3d at
461.
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                                       No. 15-30610
during the delay in obtaining pain medications and risked a greater likelihood
of infection during the delay in obtaining antibiotics. As discussed above,
Alderson has alleged that Bryant was deliberately indifferent in failing to
make an effort to help him obtain the medications he needed because of his
bruised or broken ribs and risk of infection. These allegations are sufficient to
allege that Bryant’s deliberate indifference in delaying medical treatment
caused Alderson to suffer substantial harm. See id. 9
                                             C.
       Although the district court correctly dismissed Alderson’s failure-to-
protect claims and Alderson’s medically related claims against Administrative
Assistant Sheila Spinner, Warden Lance Moore, and Head Nurse Debra
Cowan, the dismissal should have been without prejudice.                        “When the
dismissal of a pro se complaint is appropriate, it should generally be done
without prejudice in order to allow the plaintiff an opportunity to file an
amended complaint.” Rodriguez v. United States, 66 F.3d 95, 97 (5th Cir.
1995); see also Moawad v. Childs, 673 F.2d 850, 851 (5th Cir. 1982). However,
a district court may dismiss with prejudice if the plaintiff has been given
adequate opportunity to cure the inadequacies in his pleading or if the
pleadings “demonstrate that the plaintiff has pleaded his best case.” Jacquez
v. Procunier, 801 F.2d 789, 792–93 (5th Cir. 1986) (affirming dismissal with
prejudice for failure to state a claim when plaintiff did not file a supplemental
complaint but did file an extensive response to the defendants’ motion to
dismiss, alleging facts that suggested negligence but not deliberate



       9We note that it is not clear at this preliminary stage whether Bryant actually had
authority to call in medical staff to fill the prescription or had other means of assisting
Alderson to get the prescription filled. Nevertheless, construing Alderson’s pro se pleadings
under “less stringent standards than formal pleadings drafted by lawyers,” we hold that
Alderson has pleaded a plausible claim of Bryant’s liability. See, e.g., Stone v. La. Dep’t of
Revenue, 590 F. App’x 332, 339 (5th Cir. 2014).
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                                        No. 15-30610
indifference in a § 1983 action); see also Brewster v. Dretke, 587 F.3d 764, 768
(5th Cir. 2009) (affirming dismissal with prejudice of § 1983 action brought by
an inmate proceeding pro se and in forma pauperis who had no opportunity to
amend his complaint but who was given a questionnaire to bring his claims
into focus because inmate did not “allege what facts he would include in an
amended complaint”).            “The principal vehicles which have evolved for
remedying inadequacy in prisoner pleadings are the Spears hearing and a
questionnaire to bring into focus the factual and legal bases of prisoners’
claims.” Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
       Here, the district court did not conduct a Spears hearing or give Alderson
a questionnaire, and we are not persuaded that his opportunity to amend his
complaint was adequate or that he has necessarily pleaded his best case. 10
Alderson’s amended complaint suggests that he understood the magistrate
judge’s instruction as a direction not to plead his claims against CPCF and that
he did not appreciate the specificity with which he must plead the grounds for
each individual defendants’ liability. 11            With the benefit of more specific
allegations, Alderson may be able to state a claim. Because it is not clear that
Alderson amended his complaint with a sufficient understanding of the
inadequacies in his original pleading or that he has pleaded his best case, the
general rule that dismissal should be without prejudice applies. See Rodriguez,
66 F.3d at 97.



       10   We recognize that a district court is not required to use a Spears hearing or a Watson
questionnaire prior to dismissal. See Green v. McKaskle, 788 F.2d 1116, 1120–21 (5th Cir.
1986).
         11 The magistrate judge’s instructions directed, in relevant part, that Alderson should

“provide the names of the individuals whom he believes violated his constitutional rights,
and . . . state what each defendant did in violation of his rights.” Alderson’s amended
complaint provides the names of the individuals he believes violated his rights and states
what the defendants did in violation of his rights, although it fails to state what the
defendants did with adequate specificity, as discussed above.
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                                     III.
     For the reasons stated above, we AFFIRM the district court’s dismissal
of all claims except those against Lieutenant Harvey Bryant. We REVERSE
the district court’s dismissal of the claim that Bryant impermissibly delayed
the filling of Alderson’s prescription and REMAND for further consideration
both of this claim and of the previously unconsidered claim that Bryant
impermissibly delayed Alderson’s initial medical evaluation.
     AFFIRMED IN PART; REVERSED IN PART.




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                                           No. 15-30610
JAMES E. GRAVES, JR., Circuit Judge, specially concurring in part: 1
      I write separately because the Supreme Court’s decision in Kingsley v.
Hendrickson, 135 S.Ct. 2466 (2015), appears to call into question this court’s
holding in Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996). In Kingsley,
which was an excessive force case, the Supreme Court indeed said: "Whether
that standard might suffice for liability in the case of an alleged mistreatment
of a pretrial detainee need not be decided here; for the officers do not dispute
that they acted purposefully or knowingly with respect to the force they used
against Kingsley." Kingsley, 135 S.Ct. at 2472. However, that appears to be
an acknowledgment that, even in such a case, there is no established subjective
standard as the majority determined in Hare. Also, the analysis in Kingsley
appears to support the conclusion that an objective standard would apply in a
failure-to-protect case. See id. at 2472-2476.
      Additionally, the Supreme Court said:
      We acknowledge that our view that an objective standard is
      appropriate in the context of excessive force claims brought by
      pretrial detainees pursuant to the Fourteenth Amendment may
      raise questions about the use of a subjective standard in the
      context of excessive force claims brought by convicted prisoners.
      We are not confronted with such a claim, however, so we need not
      address that issue today.

Id. at 2476. This indicates that there are still different standards for pretrial
detainees and DOC inmates, contrary to at least some of the language in Hare,
74 F.3d at 650, and that, if the standards were to be commingled, it would be
toward an objective standard as to both on at least some claims.
      Further, the Ninth Circuit granted en banc rehearing in Castro v. County
of Los Angeles, 833 F.3d 1060 (9th Cir. 2016), after a partially dissenting panel
judge wrote separately to point out that Kingsley “calls into question our


      1   I dissent as to footnote four.
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precedent on the appropriate state-of-mind inquiry in failure-to-protect claims
brought by pretrial detainees.” 2 The en banc court concluded that Kingsley
applies to failure-to-protect claims and that an objective standard is
appropriate. Castro, 833 F.3d at 1068-1073.
      In Estate of Henson v. Wichita County, 795 F.3d 456 (5th Cir. 2014),
decided just one month after Kingsley, this court did not address any
application of Kingsley. Likewise, the two subsequent cases also cited by the
majority did not address or distinguish Kingsley. 3 Because I read Kingsley as
the Ninth Circuit did and would revisit the deliberate indifference standard, I
write separately.




      2 Castro v. County of Los Angeles, 797 F.3d 654, 677 (9th Cir. 2015).
      3 Hyatt v. Thomas, 843 F.3d 172 (5th Cir. 2016), and Zimmerman v. Cutler, 657
F.App’x 340 (5th Cir. 2016).
                                        14
