                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0901n.06

                                           No. 12-6511

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

HEATHER MINICK, Individually, and as             )
surviving spouse of Michael Minick,              )                                    FILED
Deceased, and as Co-Administrator of the         )                                Oct 21, 2013
Estate of Michael Minick,                        )                           DEBORAH S. HUNT, Clerk
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
METROPOLITAN GOVERNMENT OF                       )    MIDDLE DISTRICT OF TENNESSEE
NASHVILLE, DAVIDSON COUNTY,                      )
TENNESSEE, et al.,                               )
                                                 )
       Defendants,                               )
                                                 )
and                                              )
                                                 )
MAILENA MASON, Individually and in her           )
official capacity,                               )
                                                 )
       Defendant-Appellant.                      )


       Before: BATCHELDER, Chief Judge; COOK and O’MALLEY, Circuit Judges*


       COOK, Circuit Judge. Plaintiff Heather Minick sued Defendant Mailena Mason, a hospital

unit secretary, and others, for violating her husband’s Fourteenth Amendment rights by failing to

protect him from excessive force that led to his death. Mason appeals the district court’s denial of

qualified immunity. We reverse.



       *
         The Honorable Kathleen M. O’Malley, Circuit Judge for the United States Court of Appeals
for the Federal Circuit, sitting by designation.
No. 12-6511
Minick v. Metro. Gov’t of Nashville, Davidson Cnty., Tenn., et al.


                                                 I.


       “Because this appeal comes to us on a motion to dismiss, we construe the complaint liberally

in the plaintiff[’s] favor and accept all its factual allegations and inferences as true.” Hudson v.

Hudson, 475 F.3d 741, 743 (6th Cir. 2007). A 911 call reported an unknown man walking in the

woods around Nashville, Tennessee. The responding officer identified the suspect as Michael

Minick and discovered that he had an outstanding warrant for failure to appear on a misdemeanor

traffic charge. The officer tased Minick and then took him to Nashville General Hospital, where an

emergency-room physician treated him for severe dehydration and loss of muscle mass. Authorities

then transferred Minick to the hospital’s “lock-up” floor and detained him.


       Later that day, Minick allegedly became combative. Unit Secretary Mailena Mason heard

noise coming from Minick’s room, left her desk to investigate, and met a county deputy outside of

the room who told her “that everything was fine.” Mason returned to her desk. The deputy

overseeing Minick requested back-up assistance from fellow deputies. The deputies entered the

room, closed the door, and attacked Minick. Mason continued to hear a “ruckus.”


       Moments later, Mason told Minick’s nurse that “something was going on with her patient . . .

in his room and his emergency call light had been pulled from the wall.” The nurse rushed to

Minick’s room where she found him unconscious on the floor. Minick died approximately one

month later.




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No. 12-6511
Minick v. Metro. Gov’t of Nashville, Davidson Cnty., Tenn., et al.


       Heather Minick sued Mason, among others,1 under 42 U.S.C. § 1983 for failing to protect

her husband. Mason moved to dismiss for failure to state a claim, arguing alternatively her

entitlement to qualified immunity. The district court denied the motion on both grounds, and Mason

appeals.


                                                 II.


       Though ordinarily we do not review interlocutory orders denying dismissal, “we recognize

an exception to this general rule when a qualified immunity defense is denied,” Hudson, 475 F.3d

at 743, as here, when the district court allowed the Fourteenth Amendment claim to proceed, noting

that qualified immunity would be “appropriately resolved following discovery.” Thus, we may

review this denial on interlocutory appeal.


       Qualified immunity protects government officials performing discretionary functions from

liability when their “conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Morrison v. Bd. of Trs. of Green Twp., 583 F.3d

394, 400 (6th Cir. 2009) (citation and internal quotation marks omitted). More than a defense,

qualified immunity serves as an “entitlement not to stand trial or face the other burdens of

litigation.” Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (internal quotation marks

omitted)). “Unless the plaintiff’s allegations state a claim of violation of clearly established law,


       1
        Minick continues to pursue claims against other defendants, including the deputies who
allegedly beat Michael Minick.

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No. 12-6511
Minick v. Metro. Gov’t of Nashville, Davidson Cnty., Tenn., et al.


a defendant pleading qualified immunity is entitled to dismissal before the commencement of

discovery.” Mitchell, 472 U.S. at 526.


       We review the district court’s denial of qualified immunity de novo asking if Minick’s

allegations, if proved, “would allow a jury to find a violation of a clearly established constitutional

right.” Sutton v. Metro. Gov’t of Nashville & Davidson Cnty., 700 F.3d 865, 871 (6th Cir. 2012).

Two steps comprise our qualified immunity analysis here. First, Minick must plead a plausible

violation of her husband’s rights. Second, she must show that right was clearly established at the

time of the incident. Id.; Carver v. City of Cincinnati, 474 F.3d 283, 285 (6th Cir. 2007).


       As a threshold matter, Minick, without citing any authority, summarily states that qualified

immunity does not protect Mason because she is not a government official. Yet, as an employee of

Nashville General Hospital, owned and operated by the metropolitan government, Mason benefits

from qualified immunity.      Our precedent extends qualified immunity to persons employed

comparably to Mason. See, e.g., Hearring v. Sliwowski, 712 F.3d 275, 278–82 (6th Cir. 2013)

(school nurse); Farinacci v. City of Garfield Heights, 461 F. App’x 447, 448–50 (6th Cir. 2012) (city

employees); Davis v. Holly, 835 F.2d 1175, 1179–82 (6th Cir. 1987) (state hospital administrators

and supervisors).


       Second, Minick fails to carry her burden of showing that Mason violated a clearly

established constitutional right. See Andrews v. Hickman Cnty., Tenn., 700 F.3d 845, 853 (6th Cir.




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No. 12-6511
Minick v. Metro. Gov’t of Nashville, Davidson Cnty., Tenn., et al.


2012). Hearing a disturbance, Mason: 1) questioned the law enforcement officer present; and 2)

upon receiving his assurance, referred the matter to the patient’s nurse.


       Minick does not explain how this conduct rises to the level of a constitutional violation.

“The relevant, dispositive inquiry in determining whether a right is clearly established is whether

it would be clear to a reasonable [official] that [her] conduct was unlawful in the situation [she]

confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). We ask this question in the specific context

of this case, and not as a general proposition. Carver, 474 F.3d at 287; see also Waeschle v.

Dragovic, 576 F.3d 539, 544 (6th Cir. 2009). Though Minick need not provide a case that

previously found the very same action unlawful, Bell v. Johnson, 308 F.3d 594, 602 (6th Cir. 2002),

ordinarily the plaintiff must point the court to a decision from the Supreme Court, Sixth Circuit, or

other appellate court finding a constitutional violation in analogous circumstances. That is, Minick

must offer the court cases demonstrating that Mason’s conduct falls within the realm where a

reasonable official would realize that her conduct violates a right. Andrews, 700 F.3d at 853;

Waeschle, 576 F.3d at 544. “[I]n the light of preexisting law the unlawfulness must be apparent.”

Andrews, 700 F.3d at 853 (citation omitted).


       Minick cites no law establishing constitutional liability for a hospital unit secretary failing

to protect a patient under another’s care. Minick also fails to provide authority for the proposition

that such an employee has a duty—or even would have been permitted—to intervene in a situation




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No. 12-6511
Minick v. Metro. Gov’t of Nashville, Davidson Cnty., Tenn., et al.


similar to what Mason faced. Minick provides no case, and we know of none, finding a

constitutional violation under similar circumstances. See Carver, 474 F.3d at 287.


       The district court, in holding that the complaint stated a facially plausible constitutional

violation, relied on Durham v. Nu’Man, 97 F.3d 862 (6th Cir. 1996). That case, however, differs

in important ways: the defendant nurse both initiated the encounter that led to the beating of a

patient in her care and also watched security officers attack him. Durham, 97 F.3d at 868. Durham

held summary judgment inappropriate because “precedent holding police officers . . . liable for

failure to intervene was sufficient to place the nurse who caused the conflict on notice that she had

a duty to protect [the] plaintiff while under her charge.” Id. (emphasis added). Minick alleges no

comparable facts. Cf. Davis v. Rennie, 264 F.3d 86, 93, 114 (1st Cir. 2001) (citing Durham, court

held that supervising nurse and mental health workers who restrained patient during an attack had

notice of the clearly established constitutional duty).


       Accepting Minick’s allegations as true, we find that Mason violated no clearly established

right. Because a reasonable official in Mason’s shoes would not know that her response violated

Minick’s clearly established rights, qualified immunity shields Mason from liability. Saucier, 533

U.S. at 202; see also Carver, 474 F.3d at 287 (acknowledging case should be dismissed if complaint

does not state a violation of a clearly established constitutional right); Jackson v. Schultz, 429 F.3d

586, 592 (6th Cir. 2005) (same).




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No. 12-6511
Minick v. Metro. Gov’t of Nashville, Davidson Cnty., Tenn., et al.


                                               III.


       For these reasons, we REVERSE the district court’s judgment denying qualified immunity

to Mason and REMAND for proceedings consistent with this opinion.




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