                                                                         [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT            FILED
                             ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                           NOVEMBER 16, 2010
                                  No. 09-15113
                                                               JOHN LEY
                            ________________________
                                                                CLERK

                    D. C. Docket No. 07-00629-CV-J-25-MCR



JOHN EUGENE YOUMANS,

                                                                  Plaintiff-Appellee,

                                      versus


T. A. GAGNON,
#5715, in his official
and individual capacity,

                                                            Defendant-Appellant.


                            ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                (November 16, 2010)
Before EDMONDSON, HILL and ALARCÓN,* Circuit Judges.



PER CURIAM:



       This case is about the defense of qualified immunity in situations involving

delay in medical care for a pretrial detainee.

       Plaintiff-Appellee, a pretrial detainee at the time of these events, was beaten

(an occurrence in which Defendant-Appellant took no part) in connection with

Plaintiff’s arrest on robbery charges. He alleges that later Defendant, by booking

and questioning Plaintiff before seeking medical care for his injuries, was

deliberately indifferent to Plaintiff’s serious medical need in violation of

Fourteenth Amendment rights. He brought suit against Defendant in Defendant’s

individual capacity; Defendant moved for summary judgment on qualified

immunity grounds. The District Court denied the motion; Defendant now appeals.

We reverse the District Court’s decision and conclude that Defendant is entitled to

immunity from this suit.




       *
        Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.

                                                2
                                    I. BACKGROUND



       We view the facts in the light most favorable to Plaintiff.1 See Andujar v.

Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007). In June 2007, two law

enforcement officers attempted to stop Plaintiff John E. Youmans on suspicion of

robbery as he drove away from the scene of the crime. After Plaintiff briefly

pulled over, he drove away. The officers gave chase in their cars, and Plaintiff

pulled over again after about seven minutes; the officers arrested Plaintiff.

Incident to Plaintiff’s arrest, the officers beat him: Plaintiff alleges that one officer

ripped his shirt, leaving portions of his torso exposed, and then pulled him from his

truck by his hair. With Plaintiff’s feet still in the truck and his torso on the ground,

he was kicked and punched. As a result, Plaintiff had visible abrasions on his

head, face, shoulder, elbow, and hand.

       The arresting officers took Plaintiff to the police station for booking, where

Defendant Timothy Gagnon met and interviewed Plaintiff and did some booking

paperwork. The interview is recorded on video complete with sound, including the

time Plaintiff was alone in the interview room while Defendant was out. Plaintiff

confessed to the robbery but gave a false name and birth date. Defendant spent


       1
          For this appeal, we assume these facts. We do not decide today that these assumed facts
are entirely consistent with reality.

                                                3
approximately thirty minutes learning Plaintiff’s true identity. At the end of the

booking process, officers handcuffed Plaintiff to take him to the detention facility;

but then Plaintiff requested to speak to Defendant again. Plaintiff then spent about

seven more minutes in animated discussion with Defendant, attempting to

implicate Plaintiff’s passenger in the robbery. Then Plaintiff was transmitted to a

detention facility.

       Roughly four hours passed between the time that officers arrested and beat

Plaintiff and the time that he received medical care; almost three of those hours

were spent in Defendant’s custody.2 During this three-hour time, Plaintiff never

specifically requested medical treatment. But Plaintiff groaned, exclaimed “ouch”

and “ow,” and appeared to be disoriented at times; he told Defendant that he

thought the officers had “cracked something” in his hand and indicated once to

Defendant that his vision was blurred.3 Plaintiff had several cuts and abrasions on

his head, face, shoulder, elbow, and hand; some blood was visible on Plaintiff.

       2
         The record indicates that officers arrested Plaintiff at approximately 1:03 p.m.; he
arrived at the station around 2:15 p.m.; and the jail nurse saw him at 5:17 p.m.
       3
         Plaintiff spoke to himself at times when Defendant was outside of the room. Much of
this speech is unintelligible to us even when Plaintiff’s counsel has suggested what Plaintiff is
saying. For example, Plaintiff’s brief says Plaintiff—while Defendant was outside the
room—indicated that he thought he had a broken shoulder. (Defendant acknowledged that he
looked at the video monitors in real time when he was outside the interview room). Plaintiff’s
support for this claim is a citation to a point in the video, but the video does not support this
claim: there are just unintelligible utterances. No reasonable jury could find that Plaintiff
indicated to Defendant (through the video) that Plaintiff had a broken shoulder. See Scott v.
Harris, 127 S. Ct. 1769, 1776 (2007).

                                                 4
Despite the injuries, Plaintiff had sufficient use of his hands to sign an

acknowledgment of his rights and to open and drink a can of lemonade; while

Defendant was away, Plaintiff also attempted to use the top of the can to unscrew a

panel covering the interview room’s video camera.

        Upon arriving at the detention facility from the police station, the nurse at

the detention facility sent Plaintiff to the hospital. At the hospital, attending

physicians diagnosed him with injuries consistent with blunt trauma: multiple

contusions.4 Plaintiff underwent MRIs, a CT scan, and x-rays. Physicians

prescribed Motrin and Skelaxin (a muscle relaxant) and referred him to a trauma

clinic for follow-up care. Plaintiff has drawn our attention to nothing in the record

about any follow-ups.

        Plaintiff filed suit against Defendant, alleging deliberate indifference to a

serious medical need in violation of Plaintiff’s Fourteenth Amendment rights.5

Defendant moved for summary judgment on qualified immunity grounds. The

District Court denied the motion. Defendant then filed this interlocutory appeal.




        4
         The record indicates that Plaintiff vomited after arriving at the hospital and that he self-
described his pain-intensity level as ten out of ten. Defendant had no knowledge of these facts
while Plaintiff was in Defendant’s custody.
        5
         Plaintiff also filed suit against the arresting officers in their personal capacities for use
of excessive force; the arresting officers are not parties to this appeal.

                                                   5
                                  II. DISCUSSION



A.    Qualified Immunity



      We have jurisdiction over Defendant’s interlocutory appeal under 28 U.S.C.

§ 1291 and the collateral order doctrine. See Bryant v. Jones, 575 F.3d 1281, 1288

n.2 (11th Cir. 2009). We “review de novo a district court’s denial of a motion for

summary judgment on qualified immunity grounds.” Andujar, 486 F.3d at 1202.

      The purpose of the qualified immunity defense is to “protect[] government

officials ‘from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.’” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting

Harlow v. Fitzgerald, 102 S. Ct. 2727, 2738 (1982)). The defense “ensure[s] that

before they are subjected to suit, officers are on notice their conduct is unlawful.”

Saucier v. Katz, 121 S. Ct. 2151, 2158 (2001). “Unless a government agent’s act is

so obviously wrong, in the light of pre-existing law, that only a plainly

incompetent officer or one who was knowingly violating the law would have done

such a thing, the government actor has immunity from suit.” Lassiter v. Ala. A&M

Univ., Bd. of Trs., 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc).



                                           6
       Assessing a claim of qualified immunity involves a two-step process: once a

defendant raises the defense, the plaintiff bears the burden of establishing both that

the defendant committed a constitutional violation and that the law governing the

circumstances was already clearly established at the time of the violation. Pearson,

129 S. Ct. at 815-16. Following the Supreme Court’s decision in Pearson, we are

free to consider these elements in either sequence and to decide the case on the

basis of either element that is not demonstrated. Id. at 818. In the present case, it

seems best to proceed directly to the question of whether the applicable law was

already clearly established when the incident took place.



B.     “Clearly Established” Law



       Whether or not Defendant’s conduct constituted deliberate indifference to a

serious medical need in violation of Plaintiff’s Fourteenth Amendment rights,6 the

law applicable to these circumstances was not already clearly established at the

time of the alleged violation. A judicial precedent with materially identical facts is

not essential for the law to be clearly established, but the preexisting law must

       6
          The Fourteenth Amendment governs claims of medical indifference to the needs of
pretrial detainees while the Eighth Amendment applies to claims of convicted prisoners.
Andujar, 486 F.3d at 1202 n.3. Because the minimum standard for providing medical care to
pretrial detainees is the same as the standard for providing medical care to convicted prisoners
under the Eighth Amendment, see id., we consider as precedents cases decided under either
amendment.

                                                 7
make it obvious that the defendant’s acts violated the plaintiff’s rights in the

specific set of circumstances at issue.7 See Evans v. Stephens, 407 F.3d 1272,

1282 (11th Cir. 2005) (en banc).

       In deciding about qualified immunity, we are considering what an

objectively reasonable official must have known at the pertinent time and place;

that is, we are examining “‘whether it would be clear to a reasonable officer that

his conduct was unlawful in the situation [the defendant officer] confronted.’”

Brosseau v. Haugen, 125 S. Ct. 596, 599 (2004) (emphasis added) (quoting

Saucier, 121 S. Ct. at 2156); see also Pace v. Capobianco, 283 F.3d 1275, 1282

(11th Cir. 2002). “This inquiry, it is vital to note, must be undertaken in light of the

specific context of the case, not as a broad general proposition . . . .” Saucier, 121

S. Ct. at 2156.

       The Supreme Court has warned against allowing plaintiffs to convert the

rule of qualified immunity into “a rule of virtually unqualified liability simply by

alleging violation of extremely abstract rights.” Anderson v. Creighton, 107 S. Ct.

3034, 3038-39 (1987). More than a general legal proposition—for example, to act



       7
          Very occasionally, qualified immunity can be denied where the plaintiff establishes that
the defendant’s conduct so obviously violated federal law that the defendant must have known
the acts violated federal law even in the absence of preexisting caselaw addressing materially
similar facts. See, e.g., Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926-27 (11th Cir.
2000).

                                                8
reasonably—is usually required; if a plaintiff relies on a general rule, it must be

obvious that the general rule applies to the specific situation in question. See

Brosseau, 125 S. Ct. at 599 (noting that general tests may be sufficient to establish

law clearly in “an obvious case”). Minor variations between cases may prove

critical. See Marsh v. Butler Cnty, Ala., 268 F.3d 1014, 1032 (11th Cir. 2001) (en

banc).

         Thus, evaluating the “objective legal reasonableness” of an officer’s acts

requires examining whether the right at issue was clearly established in a

“particularized” and “relevant” way. Anderson, 107 S. Ct. at 3039. The

unlawfulness of a given act must be made truly obvious, rather than simply

implied, by the preexisting law. See id.

         With this understanding about the necessity of clear law being tied to the

specific factual context, we turn to the issue in this case. To prevail on a claim of

deliberate indifference to serious medical need in violation of the Fourteenth

Amendment, a plaintiff must show: “(1) a serious medical need; (2) the

defendant[’s] deliberate indifference to that need; and (3) causation between that

indifference and the plaintiff’s injury.” Mann v. Taser Int’l, Inc., 588 F.3d 1291,

1306-07 (11th Cir. 2009).

         “A serious medical need is ‘one that has been diagnosed by a physician as



                                            9
mandating treatment or one that is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.’” Id. at 1307 (quoting Hill v.

Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)).8 In general,

serious medical needs are those “requiring immediate medical attention.” See Hill,

40 F.3d at 1190.

       To prove “deliberate indifference” to a serious medical need, a plaintiff must

show “‘(1) subjective knowledge of a risk of serious harm; (2) disregard of that

risk; (3) by conduct that is more than [gross] negligence.’” Townsend v. Jefferson

Cnty., 601 F.3d 1152, 1158 (11th Cir. 2010) (quoting Bozeman v. Orum, 422 F.3d

1265, 1272 (11th Cir. 2005)). We conclude that neither the “serious medical need”

nor the “deliberate indifference” element was established with such clarity in June

2007 that an objectively reasonable police officer in Defendant’s place would have

been on advance notice that Defendant’s acts in this case would certainly violate

the Constitution.

       The best response to a serious medical need is not required by federal law in

these cases. Judicial decisions addressing deliberate indifference to a serious


       8
          Serious medical need might alternatively be established where the condition worsens
due to a delay. See Mann, 588 F.3d at 1307. Here, because Plaintiff does not contend further
injury from the delay in treatment, the proper test is whether a lay person would easily recognize
the need as serious. In addition, that a medical need might be recognizable by a trained medical
professional, such as a nurse, is not enough. Instead, the need for immediate medical assistance
must have been apparent to the untrained eye of a layperson. See id. at 1307-08.

                                                10
medical need, like decisions in the Fourth Amendment search-and-seizure realm,

are very fact specific. At a high level of generality, certain aspects of the law have

been established: lengthy delays are often inexcusable, see Harris v. Coweta Cnty.,

21 F.3d 388, 394 (11th Cir. 1994) (stating delay of several weeks in treating

painful and worsening hand condition was deliberate indifference); shorter delays

may also constitute a constitutional violation if injuries are sufficiently serious, see

Bozeman, 422 F.3d at 1273 (delaying medical treatment for fourteen minutes was

deliberate indifference where the plaintiff was not breathing during that time); and

the reason for the delay must weigh in the inquiry, see id. But specific cases of

deliberate indifference are complicated: the threshold of deliberate indifference is

connected to combinations of diverse interdependent factual elements. And for the

present case, it was not already clearly established as a matter of law in June 2007

that a four-hour delay for injuries of this kind violated the Fourteenth Amendment.

       In fact, earlier cases considering injuries of similar consequence concluded

that delays of roughly comparable length were acceptable for constitutional

purposes.9 For instance, in Andujar, a dog bit the plaintiff as he fled from police in

1999, leaving puncture wounds in the front and back of his thigh that impaired his



       9
          While material differences exist between the facts of the present case and the facts of
earlier cases cited here, the earlier cases are sufficiently similar to help to render the law
applicable to the circumstances of this case unclear to an objectively reasonable officer.

                                                 11
ability to walk. 486 F.3d at 1201-03. The defendant paramedics applied a

temporary bandage to stop the bleeding long enough for the plaintiff to be booked

at the police station, but the plaintiff did not receive the stitches he needed until

two hours after the bite. Id. at 1203-04. In that case, we concluded that the

plaintiff’s medical condition was not urgent and that the “short delay” of two hours

was permissible to allow the police sufficient time to book the plaintiff. Id. at

1204.

        In Hill, we concluded that a delay of four hours in seeking treatment for

stomach pain, vomiting blood, and blood in the plaintiff’s underwear did not

constitute deliberate indifference where the delay was due to the official’s need to

finish feeding the rest of the inmates. 40 F.3d at 1190-92.

        In addition, this Circuit -- before 2007 and with seeming agreement -- had

cited other Circuits’ cases that say that longer delays for similar injuries did not

constitute deliberate indifference to a serious medical need.10 When decisional law


        10
           See, e.g., Kane v. Hargis, 987 F.2d 1005, 1008-09 (4th Cir. 1993) (cited in Hill, 40
F.3d at 1190) (concluding that a four-hour delay in seeking medical treatment for “cracked teeth,
a cut nose, and a bruised face” was not a constitutional violation where there was “no indication
these injuries required immediate medical treatment”); Gaudreault v. Salem, 923 F.2d 203, 207-
08 (1st Cir. 1990) (cited in Hill, 40 F.3d at 1188 n.24) (concluding that a ten-hour delay in
providing treatment for “multiple bruises[] to the forehead, left and right orbits of his eyes, nasal
area, left ribs, right flank and left shoulder, . . . a corneal abrasion and an abrasion on the upper
back” and “‘massive swelling’ in the head” did not constitute deliberate indifference); Martin v.
Gentile, 849 F.2d 863, 871 (4th Cir. 1988) (cited in Hill, 40 F.3d at 1188 n.22) (concluding that a
fourteen-hour delay in treatment for cuts, bruises, and a quarter-inch piece of glass embedded in
the palm did not constitute deliberate indifference).

                                                 12
is required for prior notice, the law can be clearly established by decisions of the

U.S. Supreme Court, Eleventh Circuit, or the highest court of the state where the

case arose. See Jenkins ex rel. Hall v. Talladega City Bd. of Educ., 115 F.3d 821,

826 n.4 (11th Cir. 1997). But in the absence of controlling precedent, cases

decided outside this Circuit can buttress our view that the applicable law was not

already clearly established. We must not hold police officers to a higher standard

of legal knowledge than that displayed by the federal courts in reasonable and

reasoned decisions; where “judges thus disagree on a constitutional question, it is

unfair to subject police to money damages for picking the losing side of the

controversy.” Wilson v. Layne, 119 S. Ct. 1692, 1701 (1999); see also Barts v.

Joyner, 865 F.2d 1187, 1193 (11th Cir. 1989) (“We cannot realistically expect that

reasonable police officers know more than reasonable judges about the law.”). For

background, see Marsh, 268 F.3d at 1039-40. In the present case, that this Court

had cited cases of longer delays for similar injuries further confirms for us that an

objectively reasonable police officer in Defendant’s place would not have known

that Defendant’s conduct would violate Plaintiff’s constitutional rights.

      Cases cited by Plaintiff are too different from this case to make the law

applicable to the circumstances of this case clearly established in June 2007. For

example, Plaintiff cites Aldridge v. Montgomery, 753 F.2d 970 (11th Cir. 1985),



                                          13
where we denied qualified immunity to a defendant who delayed treatment of a

serious bleeding cut for approximately two and a half hours. 753 F.2d at 972-73.

Critical to our decision in that case was that the plaintiff’s cut bled continuously

during that time, causing blood to pool on the plaintiff’s clothing and the floor; and

the cut ultimately required six stitches. Id.

       Nothing in the record in the present case shows that Plaintiff’s cuts bled

while in Defendant’s custody; he ultimately did not require stitches. Significant,

sustained bleeding requiring later stitches is a far greater indicator of a need for

urgent medical care than the mere presence of cuts and bruises as in the present

case.11 See Hill, 40 F.3d at 1189 (“[Plaintiff] has not contended that there was

continued bleeding that would signify an urgent or emergency situation. . . .”).

This factual variance is the kind of variation between cases that makes a critical

difference in determining whether the applicable law was already clearly

established at the time the occurrence underlying this case arose. We cannot say

       11
           Also, we note that the delay in Aldridge was due to officers “waiting for a detective to
tell them what to do.” 753 F.2d at 972. This reason for delay differs from the facts of this case,
where the delay occurred due to the need to interview and to book Plaintiff. Earlier cases
establish that the reason for a delay matters: a good reason may justify a delay. See, e.g.,
Andujar, 486 F.3d at 1204 (stating that a delay to book the plaintiff was reasonable). In the
present case, that the delay in treatment extended no longer than the time to interview and book
Plaintiff is undisputed; and Plaintiff does not contend that the period for interviewing and
booking was, in itself, excessive. The delay was also extended by Plaintiff’s acts of giving a
false name and then attempting to implicate his passenger. Under earlier cases, a reasonable law
enforcement officer could consider getting Plaintiff properly identified and determining if he
acted alone to be valid reasons justifying some delay in treatment, given the injuries seemingly
involved here.

                                                14
that Aldridge would provide an objective police officer with adequate advance

notice that the conduct at issue in this case would violate Plaintiff’s constitutional

rights.



                                     III. CONCLUSION



          We conclude that it is not -- and most important, was not in June 2007 --

clear from the preexisting law that all objectively reasonable policemen would

have known that a four-hour delay for booking and interviewing a person with

injuries of the kind asserted here is a constitutional violation.12 In reaching this

conclusion, we stress that “[g]overnment officials are not required to err on the side

of caution.” Marsh, 268 F.3d at 1030 n.8. The District Court erred in deciding that

Defendant was not entitled to the defense of qualified immunity.

          REVERSED and REMANDED.




          12
           We also note that Plaintiff did not request medical care. A person is not required to
request medical care to prevail on a claim of deliberate indifference to a serious medical need.
But in this situation, where Plaintiff engaged in conversation on different topics, Plaintiff’s
failure to request medical care supports our determination that objectively reasonable law
enforcement officers -- held to the standard of a layperson, rather than a trained medical
professional -- would not be on notice that Plaintiff needed immediate medical care.

                                                15
