                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3450
                        ___________________________

  Elaine Thompson, Individually and as personal representative of the Estate of
                    Johnny Dale Thompson, Jr., deceased

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

  Ulenzen C. King, Individually and as a Former Officer for the Saline County
Detention Center; Stephen Furr, Individually and as a Deputy of the Saline County
                             Sheriff's Department

                     lllllllllllllllllllll Defendants - Appellants
                                      ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                              Submitted: April 9, 2013
                             Filed: September 20, 2013
                                  ____________

Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.
                          ____________

BEAM, Circuit Judge.

       In this interlocutory appeal, Ulenzen C. King and Stephen Furr (collectively,
Appellants), law enforcement officials in Saline County, Arkansas, appeal from the
district court's denial of qualified immunity on summary judgment. We affirm the
denial of qualified immunity to Officer King, reverse as to Officer Furr, and remand
for further proceedings.

I.    BACKGROUND

       On December 18, 2008, Officer Stephen Furr, a deputy sheriff of Saline
County, stopped a vehicle in which Johnny Dale Thompson, Jr., was a passenger.
After discovering Johnny had an outstanding warrant, Officer Furr and another officer
arrested Johnny and placed him in the patrol car. During this encounter, the officers
found an empty Xanax bottle on Johnny. The bottle indicated that the Xanax was
prescribed to Johnny and filled with sixty pills two days prior to his arrest. While en
route to the Saline County Jail, Johnny slept but Officer Furr easily awakened him
when they arrived at the jail. In an affidavit, Officer Furr explained, "Inside the jail
[Johnny] appeared to be slurring slightly so I asked him if he had taken some of his
meds earlier and he said 'yes.' I completed my paperwork and left the jail without
further incident."

       At the jail, Officer Furr left Johnny in the care of jailer Ulenzen King for
booking. Officer King noted that Johnny appeared intoxicated, and Johnny asked for
a chair to sit down. Johnny leaned forward in his chair but did not fall to the floor.
During the booking process, Officer King had to slap the counter to awaken Johnny.
Officer King asked Johnny several medical questions, including if he had ingested
any medication and how much. Johnny informed Officer King that he suffered from
seizures and had taken Dilantin but would not tell Officer King how many pills he
had ingested. Due to Johnny's intoxication level, King wrote, "Too Intox to Sign" on
Johnny's booking sheet. At approximately 7:42 P.M., Johnny was placed in a cell.
At one point, another detainee observed Johnny's intoxicated condition and informed
Officer King that Johnny needed help, but Officer King ignored the warning. At 9:09
P.M., Officer King and another officer entered Johnny's cell and discovered Johnny



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cool to the touch, not breathing, and non-responsive. Johnny was taken to the
hospital and pronounced dead at 9:30 P.M.

       An autopsy report revealed that Johnny died from a multiple drug intoxication.
Among the cocktail of drugs in Johnny's system, the medical examiner's report
indicated that "[h]ydrocodone (a narcotic) was present in [Johnny's] blood at a level
which could be considered elevated to toxic in and of itself." Johnny's blood also
contained methadone, another narcotic, within a therapeutic range. Additionally, the
report revealed that Johnny had alprozolam in his system within a therapeutic range.
Although Johnny had informed Officer King that he had taken Dilantin, the
toxicology report showed no Dilantin in Johnny's system. Ultimately, the medical
examiner classified the death as an accident, hypothesizing that Johnny may have
"mistakenly [taken] one of the medications by mistake, thinking it was Dilantin."

       Johnny's mother, Elaine Thompson, commenced action against Saline County
and several Saline County officers individually, alleging federal constitutional claims
under 42 U.S.C. § 1983 and state law claims under the Arkansas Civil Rights Act and
Arkansas' wrongful death law. The defendants moved for summary judgment,
asserting qualified immunity. The district court concluded that Saline County and
each individually named defendant, except for Officers Furr and King, were entitled
to qualified immunity. Accordingly, the district court granted summary judgment
and dismissed most of Thompson's claims but preserved the federal and state law
claims against Officers Furr and King. Officers Furr and King now appeal, arguing
that the district court erred in concluding they were not entitled to qualified immunity.

II.   DISCUSSION

       Pursuant to the collateral order doctrine, we have jurisdiction to review this
interlocutory appeal only to the extent Appellants' qualified immunity arguments raise
an issue of law. Robbins v. Becker, 715 F.3d 691, 693 (8th Cir. 2013). We review

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de novo the denial of summary judgment on the basis of qualified immunity, viewing
the evidence and drawing all reasonable inferences in the light most favorable to the
non-moving party. Small v. McCrystal, 708 F.3d 997, 1003 (8th Cir. 2013).

       When an official asserts qualified immunity in response to a § 1983 action, we
conduct a two-pronged analysis: "(1) [whether] the facts, viewed in the light most
favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory
right; and (2) [whether] the right was clearly established at the time of the
deprivation." Jones v. McNeese, 675 F.3d 1158, 1161 (8th Cir. 2012) (alterations in
original). As to prong one of this analysis, Thompson alleged that Appellants
violated Johnny's substantive due process rights because they were deliberately
indifferent to his serious medical needs.

       A plaintiff claiming deliberate indifference must establish objective and
subjective components. McRaven v. Sanders, 577 F.3d 974, 980 (8th Cir. 2009).
"The objective component requires a plaintiff to demonstrate an objectively serious
medical need. The subjective component requires a plaintiff to show that the
defendant actually knew of, but deliberately disregarded, such need." Id. (quotations
and citations omitted). On appeal, Appellants only challenged the district court's
conclusions on the subjective component. Thus, we limit our review to that issue,
solely addressing whether Officers Furr and King actually knew Johnny presented a
serious medical need but deliberately disregarded it.

       "In order to demonstrate that a defendant actually knew of, but deliberately
disregarded, a serious medical need, the plaintiff must establish a mental state akin
to criminal recklessness: disregarding a known risk to the inmate's health." Vaughn
v. Gray, 557 F.3d 904, 908 (8th Cir. 2009) (internal quotation omitted). This onerous
standard requires a showing "more than negligence, more even than gross
negligence," Popoalii v. Correctional Medical Services, 512 F.3d 488, 499 (8th Cir.
2008), but less than "purposefully causing or knowingly bringing about a substantial

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risk of serious harm to the inmate," Schaub v. VonWald, 638 F.3d 905, 914-15 (8th
Cir. 2011).

       Circumstantial evidence may be used to establish the subjective mental state,
and "a factfinder may determine that a defendant was actually aware of a serious
medical need but deliberately disregarded it, from the very fact that the [medical
need] was obvious." Vaughn, 557 F.3d at 908-09 (alteration in original) (internal
quotation omitted). "But '[i]t is not enough merely to find that a reasonable person
would have known [about the risk], or that [the officer] should have known' about the
risk." Krout v. Goemmer, 583 F.3d 557, 567 (8th Cir. 2009) (alterations in original)
(quoting Farmer v. Brennan, 511 U.S. 825, 843 n.8 (1994)). Even acting
unreasonably in response to a known risk is not sufficient to prove deliberate
indifference. Id. However, if a response to a known risk is obviously inadequate, this
may lead to an inference that the officer "recognized the inappropriateness of his
conduct." Id.

      A.     Officer Furr

       After evaluating the evidence in the light most favorable to Thompson, the
district court concluded that genuine issues of material fact remained as to whether
"Officer Furr was subjectively aware of Johnny's need for medical attention and
deliberately disregarded it." To reach this conclusion, the district court emphasized
that Officer Furr knew that Johnny had an empty Xanax bottle that was filled with
sixty pills two days prior and exhibited obvious signs of intoxication. Moreover, the
district court highlighted that Officer Furr had asked Johnny if he had taken some of
his medication, and Johnny answered in the affirmative. Based on these facts, the
district court reasoned, Officer Furr's awareness of the risk could be inferred, and it
remained a question of fact whether Officer Furr's response–doing nothing, according
to the district court–represented deliberate indifference. Officer Furr asserts that the
subjective component of deliberate indifference is not present in this case. We agree.

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       The present case does not require us to enter uncharted territory, as Grayson
v. Ross, 454 F.3d 802 (8th Cir. 2006), has already blazed the trail. In Ross, we
confronted a situation where an arresting officer sought qualified immunity after a
detainee he arrested died due to methamphetamine intoxication and other contributing
conditions. Id. at 808. During the arrest, the detainee acted irrationally, informing
the officer that his vehicle was going to explode, and became combative, which
required the officer to subdue him with a service weapon. Id. at 806. Nevertheless,
"once arrested, [the detainee] sat calmly in the back of the patrol car, followed
directions, answered questions posed, and remained quiet and seated on a bench
inside the jail." Id. at 809. Although the arresting officer likely knew the detainee
was under the influence of methamphetamine, we found the subjective component not
satisfied because "[the arresting officer] was unsure whether [the detainee] was
hallucinating." Id.

       Similar to our holding in Ross, the Fourth Circuit, too, has granted qualified
immunity to an arresting officer in circumstances not unlike those Officer Furr faced.
See Grayson v. Peed, 195 F.3d 692 (4th Cir. 1999). In Peed, an officer arrived at a
scene involving a detainee "acting crazy." Id. at 694. After searching the detainee,
the officer discovered a canister containing marijuana and a canister containing a
substance believed to be PCP. Id. The officer placed the detainee under arrest and
transported him to a detention facility. Id. While sitting in a cell at the detention
facility, the detainee became unconscious and eventually died. Id. at 694-95. In a
subsequent § 1983 action against the arresting officer, the mother of the decedent
claimed that the officer's decision to transport the detainee to the detention facility
instead of a hospital constituted deliberate indifference. Id. at 695. The Fourth
Circuit disagreed, concluding that no objective evidence informed the officer that the
detainee had a serious medical need. Id. As the court explained, "at the time of their
encounter, [the detainee] exhibited to [the arresting officer] no visible external
injuries. He did not have trouble breathing. He was not bleeding, was not vomiting



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or choking, and was not having a seizure. Furthermore, [the detainee] was conscious,
at least somewhat responsive, and able to answer questions." Id.

       We see very little difference in the encounter between Officer Furr and Johnny,
and the encounters illustrated in Ross and Peed. Here, Johnny presented no external
injuries and nothing indicates his breathing was abnormal. Johnny was conscious
during the initial encounter, answered Officer Furr's questions, and followed
instructions. Although Johnny exhibited signs of intoxication by falling asleep in the
patrol car and slightly slurring his words, Officer Furr easily awakened him and "[h]is
symptoms hardly distinguish him from the multitude of drug and alcohol abusers the
police deal with everyday." Peed,195 F.3d at 696. Our precedent does not permit the
presumption of actual knowledge based upon such minor symptoms of intoxication.
See, e.g., Ross, 454 F.3d at 809 (finding no subjective knowledge where officer
knew detainee was likely under influence of methamphetamine but was unsure if
detainee was hallucinating); cf., e.g., McRaven, 577 F.3d at 981 (denying qualified
immunity where "officers knew the cocktail of drugs taken by [detainee], and the drug
intoxication evaluation showed a severely intoxicated detainee"). And, as Ross and
Peed make clear, an officer does not lose the protections of qualified immunity
merely because he does not react to all symptoms that accompany intoxication.
Therefore, in light of Johnny's relatively innocuous behavior, we do not make much
of the fact that Officer Furr discovered an empty Xanax pill bottle coupled with
Johnny's indication that he had taken "a little" of his medication. See Ross, 454 F.3d
at 810 (finding no deliberate indifference where detainee's behavior "did not suggest
a high degree of intoxication"); Peed, 195 F.3d at 696 (finding no deliberate
indifference where detainee "was found in possession of drugs while acting
irrationally and slurring his speech").

     Accordingly, within the confines of the circumstances Officer Furr
encountered, we conclude he did not have subjective knowledge that Johnny required



                                         -7-
medical attention. It follows from this conclusion that Officer Furr was not
deliberately indifferent to Johnny's medical needs and is, therefore, entitled to
qualified immunity.1

      B.     Officer King

       The district court determined that Officer King was not entitled to qualified
immunity because the evidence revealed Officer King recognized that Johnny was
intoxicated on prescription medication but failed to respond to Johnny's medical
needs. Officer King asserts that the subjective component of deliberate indifference
is not satisfied because Officer King did not know of Johnny's serious medical need.
Like Officer Furr, Officer King believes Ross supports a grant of qualified immunity
in his case. We disagree.

        Although we have concluded that Ross entitles Officer Furr to qualified
immunity, Ross does not compel the same conclusion for Officer King. Indeed, in
Ross, the booking officer dealt with a detainee who was a "calm, non-combative
person sitting on a bench answering questions." 454 F.3d at 810. This description
lies in stark contrast to Johnny, who passed out in the booking area, nearly fell out of
his seat, was unable to sign his name, and, according to plaintiff's version of the facts,
"couldn't even answer questions that Officer King was asking him." In sum, Johnny
presented a noticeably more intoxicated condition during his encounter with Officer
King than the detainee in Ross. Therefore, distinguishing Ross, we turn to the
specific circumstances Officer King confronted.


      1
        In addition to the § 1983 claim against Officer Furr, Thompson asserted claims
under Arkansas state law. None of the state law claims are at issue in this appeal, and
we leave for the district court to address those remaining claims against Officer Furr
in the first instance on remand.



                                           -8-
       The district court properly highlighted the relevant facts: Officer King had to
slam his hand on the counter to keep Johnny from passing out and was well-aware
that Johnny exhibited a heightened intoxicated state, even writing "Too Intox To
Sign" on Johnny's booking sheet.2 Further, in the incident report, Officer King
admitted that he believed Johnny's intoxication stemmed from prescription seizure
medication but could not confirm how much medication Johnny ingested. Not only
did Johnny have noticeable symptoms of severe intoxication while Officer King
booked him, a fellow detainee, Bobby Harrison, also later warned Officer King that
Johnny needed help after Johnny's body slid down the window of his jail cell.3
According to Harrison, anyone witnessing Johnny's condition at the jail would have
recognized he needed medical attention. Officer King did nothing in response. When
these circumstances are viewed in combination, we think a reasonable jury could find



      2
        According to Officer King, because Johnny was able to provide information
that allowed Officer King to complete the medical portion of the booking
sheet–including an emergency contact's address–he could not have known Johnny
posed a serious medical risk. Although Johnny's ability to answer questions is
certainly a factor to consider in the analysis, see Ross, 454 F.3d at 809, we must look
at a totality of the circumstances, not a single fact.
      3
        At oral argument, Officer King's counsel attempted to explain away Harrison's
affidavit, urging this court to put little stock in it because other facts in the record
contradicted it. Of course, on summary judgment, when the parties offer conflicting
facts, we adopt the nonmovant's version of the facts unless that version is "blatantly
contradicted by the record, so that no reasonable jury could believe it." Scott v.
Harris, 550 U.S. 372, 380 (2007). Harrison's affidavit is not "blatantly contradicted
by the record" so as to render it unbelievable. Cf., e.g., id. at 379-81 (refusing to
adopt plaintiff's version of facts when contradicted by video evidence); Wallingford
v. Olson, 592 F.3d 888, 892-93 (8th Cir. 2010) (same). Accordingly, we continue to
view the evidence in the light most favorable to Thompson–including Harrison's
affidavit.



                                          -9-
Officer King had subjective knowledge of a serious medical need and deliberately
disregarded that need.

       Because we have concluded that a jury question exists as to whether Officer
King violated Johnny's constitutional rights, we now move to the second prong of the
qualified immunity analysis: "[whether] the right was clearly established at the time
of the deprivation." Jones, 675 F.3d at 1161 (alteration in original). "In determining
whether a right is clearly established, we ask whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted."4 El-
Ghazzawy v. Berthiaume, 636 F.3d 452, 459 (8th Cir. 2011) (quotation omitted).
This question requires us to examine precedent to determine if the law "provided fair
warning the officer's conduct was unconstitutional." Id. (internal quotation omitted).

        The Supreme Court has declared that it is unconstitutional for prison officials
to act deliberately indifferent to an inmate's serious medical needs. Estelle v. Gamble,
429 U.S. 97, 104-05 (1976). And, we have recognized that a reasonable officer
would know that it is unlawful to delay medical treatment for a detainee exhibiting
obvious signs of medical distress. Gordon v. Frank, 454 F.3d 858, 863 (8th Cir.
2006). Given this precedent, a reasonable officer would have known that a


      4
       Under the second prong of the qualified immunity analysis, the district court
seems to have concluded that a jury question existed as to whether a reasonable
officer in Officer King's position would have believed his conduct was lawful.
Although a jury is to decide predicate facts, the ultimate question of qualified
immunity is one for the court. Littrell v. Franklin, 388 F.3d 578, 584-85 (8th Cir.
2004). That is, the court must determine objective legal reasonableness and "whether
the facts alleged . . . support a claim of violation of clearly established law." Id. at
585 (alteration in original) (quotation omitted). Thus, we make this legal
determination based upon summary judgment facts viewed in the light most favorable
to Thompson. See Scott, 550 U.S. at 381 n.8.



                                         -10-
constitutional violation occurs by deliberately disregarding Johnny's serious medical
needs in the circumstances Officer King confronted. Therefore, because the
constitutional right was clearly established, the district court properly denied Officer
King qualified immunity.

III.   CONCLUSION

      For the forgoing reasons, we reverse the district court's qualified immunity
determination as to Officer Furr, affirm the district court's determination as to Officer
King, and remand for further proceedings.
                       ______________________________




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