                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                                No. 11-12959                ELEVENTH CIRCUIT
                                                             FEBRUARY 29, 2012
                            Non-Argument Calendar
                                                                 JOHN LEY
                          ________________________
                                                                  CLERK

                    D.C. Docket No. 5:10-cv-00152-RS-EMT

JACQUELINE FINN, Estate of James
Peter Rush, as personal representative,

                                                        Plaintiff-Appellant,

                                      versus

BOBBY HADDOCK, as Sheriff of
Washington County and individually,
JONATHAN RACKARD,
FRANK STONE, individually,

                                                        Defendants-Appellees.

                          ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         ________________________
                               (February 29, 2012)

Before MARCUS, MARTIN and COX, Circuit Judges.

PER CURIAM:
      Plaintiff, Jacqueline Finn, as personal representative of the estate of James

Peter Rush, sued two Washington County Florida Sheriff’s Deputies, Jonathan

Rackard and Frank Stone, individually, and the Washington County Sheriff, Bobby

Haddock, individually and in his official capacity, under 42 U.S.C. § 1983 for acting

with deliberate indifference to Rush’s serious medical need. Finn also asserted

against the Sheriff claims for violations of the American with Disabilities Act and the

Rehabilitation Act, as well as several state-law claims. The district court granted

summary judgment to the deputies and the Sheriff on all federal claims. It then

declined to exercise supplemental jurisdiction over the remaining state-law claims.

Finn appeals. We affirm.

      “We review a grant of summary judgment de novo, applying the same legal

standards that bind the district court.” Midrash Sephardi, Inc. v. Town of Surfside,

366 F.3d 1214, 1222–23 (11th Cir. 2004) (citation omitted). We view the facts in the

light most favorable to the non-moving party. Kingsland v. City of Miami, 382 F.3d

1220, 1226 (11th Cir. 2004).

                                      I. FACTS

      In 2008, James Rush was seventy-nine years old and suffered from Chronic

Obstructive Pulmonary Disease (“COPD”). This condition required the use of

oxygen.

                                          2
       One night in January, Rush called 911 fourteen times.1 These calls primarily

consisted of Rush telling the dispatcher that he was unable to find a case of beer and

that he wanted someone to come talk to him. Rush told the dispatcher he feared being

found on the floor in the morning. Rush never mentioned that he had COPD or that

he required oxygen. Rush never requested medical assistance or stated that he had

an emergency.

       After Rush began calling 911, Deputy Rackard went to his home and told him

to stop calling. Rackard believed Rush had been drinking. After Rush made several

more calls, Rackard returned to Rush’s home. He told Rush that if he continued to

dial 911, he could be arrested. Unfortunately, Rush never asked Rackard to take him

to the hospital or suggested that he had a serious medical condition.2

       After Rackard’s second visit, Rush kept making phone calls. Rackard then told

Deputy Stone to arrest Rush. Stone arrived around 6 a.m. He tried to move Rush on

his own, but Rush had difficulty standing up. Stone requested assistance from

another deputy. While he waited, Rush talked constantly with Stone. Stone observed



       1
           Rush also made some direct calls to the Washington County Sheriff's Office.
       2
           Deputy Rackard never entered Rush’s home. Instead, he stood in Rush’s doorway. He
testified in his deposition that he never saw the oxygen tanks in Rush’s home (Dkt. 35-1 at 18–19),
but he did see some empty beer cans (Id. at 10). He also testified that, while he was there, Rush got
up and walked to the wall to point out some photographs. He said that Rush moved as he would
expect a man of his age to move and that Rush’s movements caused him no concern. (Id. at 19.)

                                                 3
several empty beer cans in Rush’s home and two empty 12-pack beer cartons. (Dkt.

35-3 at 13.) Stone did not think Rush was drunk, but he smelled alcohol on his

breath. (Id. at 21–22.) He also observed several oxygen tanks with breathing masks

in another room. Neither Rackard nor Stone saw Rush using an oxygen tank.

      About thirty minutes later, Deputy Gary Smith arrived and helped Stone move

Rush to the patrol car. Rush appeared short of breath and had to stop on his way to

the car. Even so, Rush kept talking to the deputies. After securing Rush in the back

seat, Stone retrieved an oxygen tank from the house and placed it in the trunk of his

car. Rush never asked that the oxygen tank be put in the back seat. The ride to the

jail took about ten minutes.

      When the deputies arrived at the jail, they placed Rush in a holding cell with

his oxygen tank. No one was specifically assigned to watch Rush. However, the

holding cell was in a high traffic area. An officer was usually within sight of Rush’s

cell, but that officer was sometimes absent for short periods. No one alerted the jail’s

medical staff about Rush’s arrival.

      Within twenty-five minutes, Rush passed out in his cell. Officers responded

quickly, but were unable to revive Rush. He died of a heart attack caused by a lack

of oxygen to the brain. An autopsy later determined that Rush’s blood alcohol

content was .023 at the time of his death.

                                             4
                                 II. DISCUSSION

      Qualified immunity protects government officials sued in their individual

capacities “as long as their conduct violates no clearly established statutory or

constitutional rights of which a reasonable person would have known.” Lee v.

Ferraro, 284 F.3d 1188, 1193–94 (11th Cir. 2002) (quoting Thomas v. Roberts, 261

F.3d 1160, 1170 (11th Cir. 2001) (internal quotations omitted)). To claim qualified

immunity, a defendant must first show that he was performing a discretionary

function. Mercado v. City of Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005) (citation

omitted). In this case, it is undisputed that Deputies Rackard and Stone were

performing discretionary functions. The burden then shifts to the plaintiff to show

that: (1) the defendant violated a constitutional right; and (2) the right was clearly

established at the time of the violation. Id. at 1156 (citation omitted).

      The Fourteenth Amendment prohibits state officials from acting with deliberate

indifference to the serious medical needs of pretrial detainees. See Mann v. Taser

Int’l, Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009); Hamm v. DeKalb Cnty., 774

F.2d 1567, 1572 (11th Cir. 1985). To prevail, a plaintiff “must show: (1) a serious

medical need; (2) the defendants’ deliberate indifference to that need; and (3)

causation between that indifference and the plaintiff’s injury.” Mann, 588 F.3d at

1306–07 (citing Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007)).

                                           5
      We objectively analyze whether a plaintiff has a serious medical need. See

Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000). 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.” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (quoting Hill v.

Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994).

      To show deliberate indifference, a plaintiff must show that an official: (1)

subjectively knew of a risk of serious harm; (2) disregarded that risk; and (3) engaged

in conduct that is more than negligence. See Farrow, 320 F.3d at 1245 (citing

McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)). For an official to

subjectively know of a risk of serious harm, the official “must both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837, 114

S. Ct. 1970, 1979 (1994). Thus, to defeat summary judgment, the record must contain

evidence that an official subjectively knew about the plaintiff’s serious medical

condition. McElligott, 182 F.3d at 1255. Subjective knowledge can be shown

through circumstantial evidence. Id. However, “[p]roof that the defendant should

have perceived the risk, but did not, is insufficient.” Campbell v. Sikes, 169 F.3d

1353, 1364 (11th Cir. 1999) (citation omitted).

                                          6
      This is a tragic case. With the benefit of hindsight, we can say—and Rackard

and Stone concede—that Rush faced a potentially serious medical condition. And,

with the benefit of hindsight, we could speculate about what Rackard and Stone could

have done differently. But we must examine what the deputies knew when they

encountered Rush. See Campbell, 169 F.3d at 1364. If the deputies could not infer

from those facts that Rush faced a serious medical condition, then they could not have

inferred that Rush was in danger, much less have deliberately disregarded that risk

of danger. See Farrow, 320 F.3d at 1245. Additionally, we must consider Rackard

and Stone individually. See Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir.

2008).

      Finn has not shown that the deputies acted with deliberate indifference because

she has not shown that either deputy was “aware of facts from which the inference

could be drawn that a substantial risk of serious harm exist[ed].” Farmer, 511 U.S.

at 837, 114 S. Ct. at 1979. Neither Rackard nor Stone had knowledge that Rush had

COPD or that this condition required constant access to oxygen. Rush never told the

911 dispatcher or the deputies that he required oxygen and never asked anyone for

medical assistance. While Stone saw oxygen tanks in Rush’s home, he never saw

Rush using it, and Rush never asked him for it.




                                          7
       Finn contends that Rush’s need for medical assistance was obvious. She claims

Rush was visibly “gasping for air” when Stone arrived.3 (Dkt. 34 at 5.) But the

uncontested video of Stone’s encounter with Rush refutes Finn’s allegations. In the

video, Rush’s breathing is shallow and frequent. But Rush is able to reposition

himself while sitting. He is able to talk with Stone, and does so for nearly the entire

video. When Deputies Stone and Smith escorted Rush to the patrol car, they stopped

twice to allow Rush to catch his breath. However, the video clearly shows that Rush

continued to talk to the deputies throughout this process. A reasonable person could

conclude that Rush was having difficulty breathing. But his breathing was not so

labored that it would raise immediate concern.

       Thus, when the facts are view in the light most favorable to Finn, Rackard and

Stone encountered an elderly and confused man who had some difficulty breathing

and whom they believed had been drinking. These facts alone cannot support an

inference that Rush had a serious medical condition. Difficulty breathing does not

indicate a substantial risk of serious harm. It can be the result of years of smoking,

a person’s age, or some other non-life-threatening medical condition.




       3
         There is no video of Deputy Rackard’s encounter with Rush, and our review of the record
has not disclosed what Rush’s breathing looked like when Rackard encountered him.

                                               8
       The presence of oxygen tanks in Rush’s home does not alter this conclusion.

Their presence merely indicated that Rush used oxygen. It did not indicate that he

required oxygen constantly, especially given the fact that the deputies never saw Rush

using oxygen (over the course of a substantial amount of time) and Rush never told

them that he needed it.

      Rush’s confusion could be explained by his age or by his perceived alcohol

consumption. Finn contends the district court improperly concluded that the deputies

believed Rush was drunk when, in fact, they did not. This contention overstates the

district court’s position. The district court noted that, under the circumstances, the

deputies would have focused on alcohol consumption as the likely cause of Rush’s

symptoms rather than oxygen deprivation. Rush frequently referred to a lost case of

beer in his 911 calls. The deputies saw several empty beer cans in Rush’s home, and

Stone saw two empty 12-pack beer cartons in Rush’s kitchen. Though Stone did not

believe Rush was drunk, he smelled alcohol on Rush’s breath.            Under these

circumstances, the deputies could reasonably conclude that Rush’s behavior was

caused by his age, frailty, and alcohol consumption. Conversely, under these




                                          9
circumstances, a reasonable person would not infer that oxygen deprivation was the

real culprit and would soon cause Rush’s death.4

       Finn must also show that the deputies actually drew the inference that a

substantial risk of serious harm existed. See Taylor, 221 F.3d at 1259. Because we

conclude that the deputies were not aware of facts from which to draw this inference,

Finn has not met her burden. In fact, the evidence shows Stone was concerned for

Rush’s safety. When he was unable to move Rush to his patrol car on his own, he

requested assistance from another deputy. He then waited thirty minutes until Deputy

Smith arrived. They braced Rush between them and carefully escorted him to the

patrol car. After they put Rush in the car, Stone, without Rush asking him to do so,

went back inside the house and retrieved one of Rush’s oxygen tanks. He placed it

in his trunk, not to keep it from Rush, but so that Rush would have it when they

arrived at the jail.

       Because Finn cannot show Rackard and Stone acted with deliberate

indifference, the deputies were entitled to summary judgment in their favor. In her

initial brief, Finn does not develop an argument regarding the Sheriff’s liability under




       4
          Because the deputies did not know that Rush needed immediate medical attention, their
failure to notify the jail medical staff upon Rush’s arrival was reasonable. At the very least, this
failure, under these circumstances, was no more than negligent conduct.

                                                10
§ 1983 in either his official or individual capacity. Therefore, Finn has waived any

argument about these claims. See, e.g., Farrow, 320 F.3d at 1242 n.10.

      Finn also challenges the district court’s grant of summary judgment on Rush’s

ADA and Rehabilitation Act claims. Finn alleges that the Sheriff violated the ADA

and the Rehabilitation Act when his personnel (Rackard, Stone, and others) acted

with deliberate indifference to Rush’s serious medical need. Because we find the

deputies would not have known about Rush’s serious medical condition, and because

Finn has produced no evidence that anyone at the jail knew more than the deputies

knew, this argument fails.

      Moreover, failure to provide adequate medical treatment (the substance of

Finn’s claims) does not violate the ADA or Rehabilitation Act. See, e.g., Schiavo ex.

rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir. 2005); Burger v.

Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005); Grzan v. Charter Hosp. of Nw. Ind.,

104 F.3d 116, 121 (7th Cir. 1997); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.

1996). Thus, we affirm the district court’s grant of summary judgment on these

claims.

      Because we affirm the district court’s grant of summary judgment on Finn’s

federal claims, we find no error in the district court’s dismissal without prejudice of

Finn’s state-law claims. 28 U.S.C. § 1367(c)(3).

                                          11
AFFIRMED.




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