     Case: 14-11020      Document: 00513282187         Page: 1    Date Filed: 11/23/2015




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

                                                                                  FILED
                                                                            November 23, 2015
                                      No. 14-11020
                                                                               Lyle W. Cayce
                                                                                    Clerk
ONIE JANE PENA, Individually and as representative of the estate of
George Cornell, Deceased,

                Plaintiff–Appellee,

v.

RONALD GIVENS; ALEXANDER ACHEBE; SHERWIN DE GUZMAN;
RONNIE JOE ANDERSON; KEVIN T. BROWN, M.D.; NANCY
SCHIERDING; VERNELL BROWN,

                Defendants–Appellants.




                   Appeals from the United States District Court
                        for the Northern District of Texas
                                USDC 3:12-CV-439


Before REAVLEY, PRADO, and COSTA, Circuit Judges.
PER CURIAM:*
           This case arises from George Cornell’s tragic death at a state-run
psychiatric emergency room. His representative sued the doctors, nurses, and
technicians who treated him and the hospital supervisors for violations of his
Fourth and Fourteenth Amendment rights. The district court denied the


       * Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 14-11020        Document: 00513282187          Page: 2     Date Filed: 11/23/2015



                                        No. 14-11020
defendants’ motions for summary judgment on the grounds of qualified
immunity. The defendants bring this interlocutory appeal asserting that they
are entitled to such immunity. We reverse.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       In February 2011, Cornell arrived at a fire station and complained that
he was being chased. A fireman called the police, who, upon arrival, handcuffed
Cornell and took him to the Parkland psychiatric emergency room (the “Psych
ER”). Cornell was considered “APOWW, i.e., apprehended by a police officer
without a warrant.” 1 Parkland is a state hospital.
A.     Treatment at Parkland
       Defendants–Appellants Dr. Kevin Brown and Nurse Sherwin De
Guzman were present at Cornell’s intake, during which Dr. Shawn Chambers
took Cornell’s medical history. Cornell told Chambers that he had
“tachycardia.” Cornell stated that “people had stolen his lottery ticket and were
chasing him.” Cornell was admitted to the Psych ER pursuant to Dr. Brown’s
authorization.
       Johnny Roberts, a technician in the Psych ER (a “psych tech”), took
Cornell’s vital signs, which registered as abnormally high. Cornell’s pulse was
124 beats per minute, his blood pressure was 142/105 mm Hg, and his
respirations were 17 breaths per minute. Because Cornell’s pulse and blood
pressure readings were elevated, Roberts tried to take his vital signs again,



       1  Texas law allows a police officer to take a person into custody without a warrant if
“the officer . . . has reason to believe that (A) the person is a person with mental illness; and
(B) because of that mental illness there is a substantial risk of serious harm to the person or
to others unless the person is immediately restrained.” Tex. Health & Safety Code §
573.001(a). The officer must “immediately transport” that person to the nearest appropriate
mental-health facility. Id. § 573.001(d). The mental-health facility may detain that person
“in custody for not longer than 48 hours after the time the person is presented to the facility
unless a written order for protective custody is obtained.” Id. § 573.021(b). Appellees do not
challenge the officers’ grounds for bringing Cornell to Parkland.
                                               2
    Case: 14-11020    Document: 00513282187    Page: 3   Date Filed: 11/23/2015



                                No. 14-11020
but the machine malfunctioned. Though Cornell had been cooperative up to
this point, he became agitated and refused to cooperate when Roberts
attempted to take his vital signs a third time. Parkland staff provided no
further cardiac treatment to Cornell.
      Roberts asked Defendant–Appellant Robert Givens, another psych tech,
for assistance calming Cornell, but Cornell continued to resist and tried to
leave the Psych ER. Roberts informed Dr. Brown of Cornell’s behavior. Givens
put Cornell in either a “basket hold” or “elbow-to-hip containment,” and pushed
him into a seclusion room. The techs held Cornell on a mat on the floor. The
techs’ testimony conflicts as to whether Cornell was held on his side or his
stomach.
      De Guzman arrived and injected Cornell with a mixture of Haldol,
Ativan, and Benadryl to subdue him. Haldol and Benadryl can cause cardiac
arrhythmia and death. The techs continued to hold Cornell down, though
testimony varies as to how long the hold lasted: Givens stated it lasted “a
minute or two,” Roberts said “several minutes,” and De Guzman said “maybe
five minutes.”
      After Givens and Roberts left the room, Cornell became agitated again.
He began yelling, and he ripped up a vinyl tile from the floor and banged it
against the door. A third psych tech, Defendant–Appellant Alexander Achebe,
convinced Cornell to trade the tile for a juice box. The techs began to move
Cornell to a new room because he had ripped up the flooring. As they
approached the second seclusion room, Cornell crushed the juice box and began
physically resisting the techs. They again restrained Cornell and put him on a
mat in the room. Cornell received a second injection of the same medications.
      Again, there is conflicting testimony about how Cornell was held on the
mat. Accepting Pena’s version of the facts, Cornell was held on his stomach for
fifteen minutes after the injection. Psych techs were trained not to hold a
                                        3
     Case: 14-11020   Document: 00513282187      Page: 4   Date Filed: 11/23/2015



                                 No. 14-11020
patient in a prone position for more than a minute, because longer holds can
cause asphyxiation. The techs then left the room.
      A nurse later found Cornell lying in a prone position in the room with his
right arm beneath him and his hand pointed to the ceiling. His hand was
cyanotic, and the nurse could not detect spontaneous respirations. The nurse
called a code blue, and Cornell was transferred to the main emergency room,
where he died. The medical examiner found abrasions on the left side of
Cornell’s forehead. After an investigation into Cornell’s death, the medical
examiner found the cause of death to be undetermined, listing three potential
causes: 1) mechanical compression; 2) underlying cardiac issues; or 3) effects
of the medication he received in the Psych ER.
B.    Supervision at Parkland
      At the time of Cornell’s death, Defendant–Appellant Nancy Schierding
was Parkland’s Director of Nursing for Psychiatric Services. Defendant–
Appellant Nurse Vernell Brown was Unit Manager III for the Psych ER and
was responsible for the Psych ER staff, including nurses and techs. At her
deposition, Schierding recalled other complaints of improper treatment in the
Psych ER. A Centers for Medicare and Medicaid Services (CMS) Report
prepared after Cornell’s death noted that De Guzman’s restraint-and-seclusion
training had lapsed at the time of the incident, as Nurse Brown and Schierding
should have been aware. At the time, Defendant–Appellant Dr. Ronnie
Anderson was the CEO of Parkland.
      In 2008, prior to Cornell’s death, CMS sent a letter to Anderson stating
that Parkland “fail[ed] to provide appropriate medical screening examination
to determine whether an emergency medical condition existed” and that the
“deficiencies [we]re so serious that they constitute an immediate threat to the
health and safety of any individual that comes to [Parkland] with an
emergency medical condition.” The CMS Report generated after Cornell’s
                                       4
     Case: 14-11020   Document: 00513282187     Page: 5    Date Filed: 11/23/2015



                                 No. 14-11020
death detailed ongoing problems, noting that, due to an unusually high
number of complaints, injuries, and deaths, Parkland had been “under near
constant surveillance and investigation” by the Texas Department of State
Health Services and CMS.
C.    Procedural History
      Plaintiff–Appellee Onie Pena, as the representative of Cornell’s estate,
filed a complaint in Texas district court against Parkland and the Defendants–
Appellants, among others. Parkland removed the case to federal court.
Relevant to this appeal, Pena alleges that Givens and Achebe used excessive
force against Cornell in violation of the Fourth Amendment or, in the
alternative, in violation of Cornell’s substantive due process rights. Pena
alleges that De Guzman and Dr. Brown violated Cornell’s right to due process
by denying him medical care for his heart condition. Finally, Pena avers that
Schierding, Anderson, and Nurse Brown (collectively, “the Supervisory
Defendants”) contributed to these constitutional violations by inadequately
supervising the Psych ER.
      The Appellants moved for summary judgment, arguing that they are
entitled to qualified immunity. The district court denied their motions, and
Appellants filed timely notices of interlocutory appeal.
                             II. JURISDICTION
      This Court has jurisdiction over the denial of a motion for summary
judgment based on qualified immunity, but this jurisdiction is severely limited,
“for it extends to such appeals only to the extent that the denial of summary
judgment turns on an issue of law.” Kinney v. Weaver, 367 F.3d 337, 347 (5th
Cir. 2004) (en banc) (alteration and internal quotation marks omitted). Thus,
this Court “can review the materiality of any factual disputes, but not their
genuineness.” Juarez v. Aguilar, 666 F.3d 325, 331 (5th Cir. 2011) (quoting
Kinney, 367 F.3d at 347).
                                       5
     Case: 14-11020   Document: 00513282187     Page: 6   Date Filed: 11/23/2015



                                 No. 14-11020
                              III. DISCUSSION
A.    Legal Standard
      This Court “review[s] the district court’s denial of qualified immunity de
novo, accepting all well-pleaded facts as true and viewing them in the light
most favorable to the plaintiff.” Cantrell v. City of Murphy, 666 F.3d 911, 918
(5th Cir. 2012) (quoting Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008)).
Because we “lack the authority to review the district court’s decision that a
genuine factual dispute exists, we do not apply the ordinary summary
judgment standard.” Hogan v. Cunningham, 722 F.3d 725, 731 (5th Cir. 2013).
Instead, we consider “only whether the district court erred in assessing the
legal significance of the conduct that the district court deemed sufficiently
supported for purposes of summary judgment.” Kinney, 367 F.3d at 348. The
burden to establish the inapplicability of qualified immunity is on Pena. See
Cantrell, 666 F.3d at 918.
      We apply “a two-step analysis to determine whether a defendant is
entitled to summary judgment on the basis of qualified immunity.” Id. at 922.
First, “we determine whether, viewing the summary judgment evidence in the
light most favorable to the plaintiff, the defendant violated the plaintiff’s
constitutional rights.” Id. (quoting Freeman v. Gore, 483 F.3d 404, 410 (5th Cir.
2007)). Second, we ask “whether the defendant’s actions were objectively
unreasonable in light of clearly established law at the time of the conduct in
question.” Id. (quoting Freeman, 483 F.3d at 411). We may exercise our
discretion in deciding which of the two prongs to address first. Id.
      For a right to be clearly established under the second prong of qualified
immunity, “[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.”
Kinney, 367 F.3d at 349–50 (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). “This requirement establishes a high bar.” Wyatt v. Fletcher, 718 F.3d
                                       6
     Case: 14-11020   Document: 00513282187      Page: 7   Date Filed: 11/23/2015



                                 No. 14-11020
496, 503 (5th Cir. 2013). To hold that law is clearly established, we must “be
able to point to ‘controlling authority—or a robust consensus of persuasive
authority—that defines the contours of the right in question with a high degree
of particularity.’” Id. (quoting Morgan v. Swanson, 659 F.3d 359, 371–72 (5th
Cir. 2011) (en banc)); cf. City & Cty. of San Francisco v. Sheehan, 135 S. Ct.
1765, 1776 (2015) (“Qualified immunity is no immunity at all if ‘clearly
established’ law can simply be defined as the right to be free from unreasonable
searches and seizures.”). However, a plaintiff need not show that “the very
action in question has been previously held unlawful.” Cantrell, 666 F.3d at
919 (quoting Wernecke v. Garcia, 591 F.3d 386, 393 (5th Cir. 2009)). Rather,
“the unlawfulness need only be readily apparent from relevant precedent in
sufficiently similar situations.” Id. (quoting Brown, 519 F.3d at 236–37).
B.    Givens and Achebe (Excessive Force and Substantive Due
      Process)
      Pena claims that Givens and Achebe (collectively “the psych techs”) used
excessive force against Cornell in violation of the Fourth Amendment. Pena
also maintains that the psych techs violated Cornell’s substantive due process
rights under the Fourteenth Amendment. The district court denied qualified
immunity on the Fourth Amendment claim but did not discuss the Fourteenth
Amendment claim. We address each claim in turn.
      1. Fourth Amendment Excessive Force
      To establish a Fourth Amendment excessive-force claim, “a plaintiff
must first show that she was seized. Next she must show that she suffered (1)
an injury that (2) resulted directly and only from the use of force that was
excessive to the need and (3) the force used was objectively unreasonable.”
Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004) (citation omitted).
      The district court held that Cornell’s Fourth Amendment rights were
clearly established based, explaining that “several courts have found that

                                        7
    Case: 14-11020     Document: 00513282187     Page: 8   Date Filed: 11/23/2015



                                  No. 14-11020
[police officers] restraining a suspect or patient in a prone position can
constitute excessive force” and that “the technicians were trained not to use
this kind of hold for extended periods of time.” The district court found that the
psych techs’ “restraint of Cornell was not intended to treat his condition but
rather to subdue him and prevent him from leaving the hospital.” Quoting the
Sixth Circuit’s decision in McKenna v. Edgell, 617 F.3d 432, 438–39 (6th Cir.
2010), the district court reasoned: “[E]xposure to liability does not depend
merely on the profession of the government actors.”
      Yet, as noted, before a court can consider whether the forced used was
excessive, “a plaintiff must first show that she was seized.” Flores, 381 F.3d at
396. Qualified immunity thus attaches unless the law is clearly established
that the defendant’s conduct amounted to a seizure. See id. at 400
(determining, before looking to the amount of force used, that “[i]t was clearly
established that stopping a moving car by intentionally shooting it constitutes
a seizure”). Givens and Achebe contend that “it was not clearly established law
that medical personnel who restrain patients while rendering aid have ‘seized’
the patient for Fourth Amendment purposes.”
      This Court has held implicitly that a person taken into custody by police
officers under Texas Health and Safety Code § 573.001 is seized under the
Fourth Amendment. See Cantrell, 666 F.3d at 923 (holding that Texas police
officers who had probable cause to believe the plaintiff that they detained was
a danger to herself were qualifiedly immune). We are, however, unaware of a
case extending Fourth Amendment seizure law to mental-health facilities and
workers that take custody of these individuals pursuant to Texas Health and
Safety Code § 573.021, which authorizes a mental-health facility to
temporarily hold parties brought into custody pursuant to § 573.001.
      Moreover, in Peete v. Metropolitan Government of Nashville & Davidson
County, the Sixth Circuit “f[ound] no case authority holding that paramedics
                                        8
    Case: 14-11020       Document: 00513282187   Page: 9   Date Filed: 11/23/2015



                                  No. 14-11020
answering a 911 emergency request for help engage in a Fourth Amendment
‘seizure’ of the person when restraining the person to render aid.” 486 F.3d
217, 219 (6th Cir. 2007). In that case, paramedics were called to render aid to
an epileptic man experiencing a seizure. Id. at 219–20. The paramedics
restrained the man by “using their bodies to apply weight and pressure to [the
epileptic’s] head, neck, shoulders, arms, torso, and legs in an attempt to
prevent the decedent from moving”; they “tied his hands and ankles behind his
back and continued to apply pressure to [him] while he was in a prone
position.” Id. at 220.
      In its opinion, the Sixth Circuit distinguished Champion v. Outlook
Nashville, Inc., 380 F.3d 893 (6th Cir. 2004), a case on which the district court
here heavily relied. See Peete, 486 F.3d at 221–222. Champion involved a
§ 1983 Fourth Amendment excessive-force claim brought against several police
officers. 380 F.3d at 895–96. That case turned on a custodial arrest by the
police of a severely autistic man who had become violent with his caretaker.
Id. In that case, the plaintiff, Champion, struggled with the officers during the
course of the arrest. Id. at 896–97. Looking at the facts in the light most
favorable to the plaintiff, the court found that the officers remained on top of
Champion even after he stopped resisting “and sprayed him with pepper spray
even after he was immobilized by handcuffs and a hobbling device.” Id. at 901.
Champion, who began vomiting after several minutes of being held down, was
dead upon arrival at the hospital. Id. at 898. The court held that Champion’s
arrest amounted to a clearly established unreasonable seizure under the
Fourth Amendment. Id. at 901–902.
      Importantly, in Peete, the Sixth Circuit found that Champion did not
apply to the paramedics’ conduct because the paramedics “were not acting to
enforce the law, deter, or incarcerate.” 486 F.3d at 222. As the court explained,


                                        9
    Case: 14-11020    Document: 00513282187      Page: 10    Date Filed: 11/23/2015



                                  No. 14-11020
the paramedics “were unlike the police officers in Champion who handcuffed
and shackled the plaintiff in order to arrest and incapacitate him.” Id.
      The Sixth Circuit addressed the applicability of Peete to police officers
rendering medical aid in McKenna v. Edgell, 617 F.3d 432 (6th Cir. 2010).
Officers were the first responders to a 911 call requesting assistance for a man
having a seizure; the officers handcuffed the man, though the reasons for the
restraint were disputed. Id. at 435–36. The officers argued that they were
entitled to qualified immunity based on Peete; the plaintiff countered that Peete
was inapplicable because Peete concerned paramedics. Id. at 438–39. The Sixth
Circuit held that whether the Fourth Amendment applied hinged on “whether
the [officials] acted in a law-enforcement capacity or in an emergency-medical-
response capacity.” Id. at 439–40.
      We hold it was not clearly established that psych techs conduct in this
case amounted to a seizure under the Fourth Amendment. Although whether
the Fourth Amendment applies does not turn solely on whether the
government officials were police officers, see McKenna, 617 F.3d at 438–39, the
Sixth Circuit has held that whether Peete applies should depend on “whether
the [officials] acted in a law-enforcement capacity or in an emergency-medical-
response capacity,” id. at 439. Pena cites no binding authority holding that a
medical professional’s restraint of an individual in an emergency medical
situation constitutes a Fourth Amendment seizure. Champion, relied upon by
both the district court and Pena, involved police officers’ use of force after they
had already seized an individual. Under McKenna, even police officers’ use of
restraint does not implicate the Fourth Amendment if they are acting in an
“emergency-medical-response capacity,” id. at 439–40.
      Pena points to no “controlling authority—or a robust consensus of
persuasive authority,” Wyatt, 718 F.3d at 503 (quoting Morgan, 659 F.3d at
371–72), suggesting that medical personnel “seize” patients when restraining
                                        10
    Case: 14-11020       Document: 00513282187          Page: 11     Date Filed: 11/23/2015



                                       No. 14-11020
them in the course of providing treatment. 2 Therefore, we hold that Pena has
not carried her burden, see Cantrell, 666 F.3d at 918, and that Givens and
Achebe are entitled to qualified immunity on the excessive-force claims.
       2. Substantive Due Process
       The district court did not discuss Pena’s Fourteenth Amendment
substantive due process claim in its order denying qualified immunity. 3
Because Givens and Achebe argued that they were entitled to qualified
immunity on this issue in their motion for summary judgment, we read the
district court’s order as a denial without explanation. Where the district court
denies summary judgment on qualified immunity without explanation, this
Court “review[s] the record to determine what conduct the district court
attributed to [the defendant] in finding that he had violated clearly established
law.” Petta v. Rivera, 143 F.3d 895, 899 (5th Cir. 1998) (per curiam).
       “This circuit held as early as 1981 that ‘[t]he right to be free of state-
occasioned damage to a person’s bodily integrity is protected by the fourteenth
amendment guarantee of due process.’” Doe v. Taylor Indep. Sch. Dist., 15 F.3d
443, 450–51 (5th Cir. 1994) (en banc) (quoting Shillingford v. Holmes, 634 F.2d
263, 265 (5th Cir. 1981)). 4




       2  The district court found that the psych techs’ “restraint of Cornell was not intended
to treat his condition but rather to subdue him and prevent him from leaving the hospital.”
As Givens and Achebe point out, “the only way to ensure Cornell received treatment was if
he stayed in the hospital.” Therefore, although we must accept the court’s finding that the
psych techs held Cornell down to keep him from leaving the hospital, in the context of
psychiatric care, that restraint is for treatment purposes.
        3 This could have been intentional: the district court denied qualified immunity on the

Fourth Amendment claim, and a substantive due process claim is unavailable if an excessive-
force claim is “‘covered by’ the Fourth Amendment.” Cty. of Sacramento v. Lewis, 523 U.S.
833, 843 (1998). If, however, Cornell was not “seized” for Fourth Amendment purposes, then
Pena may raise a substantive due process claim. See id. at 843–44.
        4 Givens and Achebe concede that “it was clearly established as of the date of the

incident that state officials could not engage in conscience-shocking behavior.” We thus focus
on whether the behavior of Givens and Achebe shocks the conscience.
                                             11
    Case: 14-11020     Document: 00513282187      Page: 12    Date Filed: 11/23/2015



                                   No. 14-11020
      “[I]n a due process challenge to executive action, the threshold question
is whether the behavior of the governmental officer is so egregious, so
outrageous, that it may fairly be said to shock the contemporary conscience.”
Lewis, 523 U.S. at 847 n.8. “[T]he constitutional concept of conscience shocking
duplicates no traditional category of common-law fault, but rather points
clearly away from liability, or clearly toward it, only at the ends of the tort
law’s spectrum of culpability.” Id. at 848. The officials’ actions must be “grossly
disproportionate to the need for action under the circumstances and . . .
inspired by malice rather than merely careless or unwise excess of zeal.” Petta,
143 F.3d at 902.
      Pena argues that “the use of life-threatening and prohibited restraints
by Givens and Achebe on Cornell was ‘grossly disproportionate to the need for
action under the circumstances.’” Pena insists that a reasonable factfinder
could infer that Givens and Achebe were inspired by malice because this type
of restraint violated their training. Pena supports her argument with the Sixth
Circuit’s unpublished decision in Davis v. Pickell, 562 F. App’x 387 (6th Cir.
2014).
      In Davis, the Sixth Circuit affirmed a district court’s denial of officers’
motions for summary judgment on qualified immunity. Id. at 387. An arrestee
was removed from a holding cell, “taken to a safety cell with his hands behind
his back, . . . sprayed with mace[,] and slammed to the ground in the hallway.”
Id. at 389. Assuming that the arrestee “was neither threatening nor resisting
the officers,” the court held that “the force they used . . . shocks the conscience.”
Id. at 392.
      As Givens and Achebe point out, Cornell concededly resisted Parkland
staff. Indeed, all of the cases cited by Pena, in both the Fourth and Fourteenth
Amendment contexts, involve the use of force on non-resistant subjects.
Moreover, Pena gives too much weight to the fact that Givens and Achebe
                                         12
     Case: 14-11020   Document: 00513282187     Page: 13   Date Filed: 11/23/2015



                                 No. 14-11020
violated their training by holding Cornell in a prone position for an extended
period of time. The Supreme Court has stated that, even in the context of a
Fourth Amendment excessive-force claim, “if an officer acts contrary to her
training, . . . that does not itself negate qualified immunity where it would
otherwise be warranted.” Sheehan, 135 S. Ct. at 1777. Though Givens and
Achebe’s behavior is concerning, no reasonable jury could conclude that it was
“grossly disproportionate to the need for action under the circumstances and
[was] inspired by malice rather than merely careless or unwise excess of zeal.”
Petta, 143 F.3d at 902; see also Lewis, 523 U.S. at 848. Thus, we hold that
Givens and Achebe are entitled to qualified immunity on both the Fourth and
Fourteenth Amendment claims.
C.     De Guzman and Dr. Brown (Denial of Medical Care)
       De Guzman and Dr. Brown appeal the district court’s denial of their
motion for summary judgment on qualified immunity regarding Pena’s claim
that they violated Cornell’s due process rights under the Fourteenth
Amendment by denying him adequate medical care for his heart condition.
       The Supreme Court has recognized “that the Due Process Clauses
generally confer no affirmative right to governmental aid.” DeShaney v.
Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989). “The Court [has],
however, recognize[d] an exception where in ‘certain limited circumstances the
Constitution imposes upon the State affirmative duties of care and protection
with respect to particular individuals.’” Cantrell, 666 F.3d at 920 (quoting
DeShaney, 489 U.S. at 198). “[A] state may create a ‘special relationship’ with
a particular citizen, requiring the state to protect him from harm, ‘when the
State takes a person into its custody and holds him there against his will.’” Doe
ex rel. Magee v. Covington Cty. Sch. Dist., 675 F.3d 849, 856 (5th Cir. 2012) (en
banc) (quoting DeShaney, 489 U.S. at 199–200).


                                       13
    Case: 14-11020       Document: 00513282187         Page: 14     Date Filed: 11/23/2015



                                      No. 14-11020
       The Supreme Court has recognized a special relationship for
incarcerated and involuntarily committed individuals, and the Fifth Circuit
has “extended the special relationship exception to the placement of children
in foster care.” Covington Cty., 675 F.3d at 856 (citing Griffith v. Johnston, 899
F.2d 1427, 1439 (5th Cir. 1990)). The rationale behind the special-relationship
exception is that:
       when the State by the affirmative exercise of its power so restrains
       an individual’s liberty that it renders him unable to care for
       himself, and at the same time fails to provide for his basic human
       needs—e.g., food, clothing, shelter, medical care, and reasonable
       safety—it transgresses the substantive limits on state action set
       by the Eighth Amendment and the Due Process Clause.

DeShaney, 489 U.S. at 200. This Court “has followed [DeShaney’s] language
strictly and ha[s] held consistently that only when the state, by its affirmative
exercise of power, has custody over an individual involuntarily or against his
will does a ‘special relationship’ exist between the individual and the state.”
Walton v. Alexander, 44 F.3d 1297, 1303 (5th Cir. 1995) (en banc) (emphasis in
original).
       Though the proper standard to apply to the denial of medical care to
mental patients is unclear, 5 “courts applying . . . the ‘special relationship’


       5 In Youngberg v. Romeo, decided before DeShaney, the Court concluded that “liability
may be imposed only when the decision by the [mental-health] professional is such a
substantial departure from accepted professional judgment, practice, or standards as to
demonstrate that the person actually did not base the decision on such a judgment.” 457 U.S.
307, 323 (1982). This standard “flowed from the premise that ‘[p]ersons who have been
involuntarily committed are entitled to more considerate treatment and conditions of
confinement than criminals whose conditions of confinement are designed to punish.’” Hare
v. City of Corinth, Miss., 74 F.3d 633, 647 (5th Cir. 1996) (en banc) (quoting Youngberg, 457
U.S. at 321–22). But in DeShaney, the Court “called into question the constitutional
significance of this premise.” Id. In DeShaney, the Court “did not address whether
involuntarily confined mental incompetents and convicted inmates shared the same
constitutional rights to medical care and safety.” Id. This Court observed that:
       [s]ince DeShaney suggested that both groups enjoyed the same rights,
       however, either the Youngberg standard or the deliberate indifference
                                             14
    Case: 14-11020       Document: 00513282187          Page: 15     Date Filed: 11/23/2015



                                      No. 14-11020
exception to the DeShaney rule . . . have generally required plaintiffs to
demonstrate . . . that the defendant state official at a minimum acted with
deliberate indifference toward the plaintiff.” McClendon v. City of Columbia,
305 F.3d 314, 326 (5th Cir. 2002) (en banc) (per curiam) (emphasis in original).
      “To act with deliberate indifference, a state actor must ‘know [ ] of and
disregard[ ] an excessive risk to [the victim’s] health or safety.” Id. at 326 n.8
(alterations in original) (quoting Ewolski v. City of Brunswick, 287 F.3d 492,
513 (6th Cir. 2002)); see also Farmer v. Brennan, 511 U.S. 825, 837 (1994)
(“[T]he 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.”). “[A]ctual knowledge is critical to the inquiry. A state actor’s
failure to alleviate ‘a significant risk that he should have perceived but did
not[]’ . . . does not rise to the level of deliberate indifference.” McClendon, 305
F.3d at 326 n.8 (quoting Farmer, 511 U.S. at 837). “A serious medical need is
one for which treatment has been recommended or for which the need is so
apparent that even laymen would recognize that care is required.” Gobert v.
Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006).
      The district court found a fact issue as to whether De Guzman and Dr.
Brown “knew that Cornell suffered from a heart condition but nevertheless
failed to provide adequate medical care” in violation of Cornell’s Fourteenth
Amendment right to medical care. Assuming without deciding that clearly
established law creates a special relationship between the state and mentally


      standard must give way to achieve the requisite equivalence in constitutional
      rights. The Court thus has cast doubt on the vitality of Youngberg by
      confirming that a deliberate indifference standard is the appropriate measure
      of constitutional liability for a prison official’s failure to provide a convicted
      inmate with basic human needs.
Id. Ultimately, this Court in Hare declined to answer the question with regard to
involuntarily committed individuals, but it adopted a deliberate indifference standard for
pretrial detainees. Id.
                                             15
    Case: 14-11020    Document: 00513282187     Page: 16   Date Filed: 11/23/2015



                                 No. 14-11020
ill individuals held involuntarily prior to formal commitment proceedings, we
hold that Pena has not raised a genuine dispute of material fact as to whether
De Guzman and Dr. Brown violated Cornell’s constitutional rights.
      In Domino v. Texas Department of Criminal Justice, this Court reversed
the denial of summary judgment on qualified immunity grounds to a prison
psychologist after an inmate committed suicide. 239 F.3d 752, 756 (5th Cir.
2001). The inmate, who had a history of psychiatric issues, visited the
defendant–psychiatrist two hours prior to hanging himself. Id. at 753. The
inmate “asked for sleeping pills,” which he was denied, “and expressed
apprehension about his upcoming transfer from administrative segregation to
the general prison population.” Id. The inmate then stated “I can be suicidal”
and banged his head on the table so loudly that the guards outside the office
could hear. Id. at 753, 755. The psychiatrist had the inmate returned to his cell
after their five-minute meeting, and the inmate committed suicide two-and-a-
half hours later. Id. at 753.
      This Court reversed the district court’s denial of summary judgment
because the record “would not permit a reasonable jury to conclude that [the
psychiatrist] knew that Domino was a serious suicide risk.” Id. at 756. We
noted that “suicide is inherently difficult for anyone to predict,” and that
“[d]eliberate indifference is an extremely high standard to meet.” Id. Moreover,
the psychiatrist “produced evidence that [the inmate] had been a difficult, often
uncooperative patient and concluded that [the inmate] was threatening suicide
to obtain secondary gain.” Id.
      Domino establishes a high bar for deliberate indifference in this context,
and the facts in this case do not reach that bar. Accepting the facts that the
district court found to support the denial of qualified immunity as we must—
that Dr. Brown and De Guzman knew of Cornell’s heart condition and did not
provide further care—the undisputed facts show that Cornell resisted the
                                       16
     Case: 14-11020    Document: 00513282187       Page: 17    Date Filed: 11/23/2015



                                   No. 14-11020
officers when they tried to provide care. We cannot say that a reasonable jury
could conclude that the failure to treat a heart condition after a patient refuses
care and begins attacking staff amounts to deliberate indifference. Thus, we
reverse the district court’s denial of qualified immunity to De Guzman and Dr.
Brown.
D.     Anderson, Nurse Brown, and Schierding (Supervisory Liability)
       Anderson, Nurse Brown, and Schierding (the “Supervisory Appellants”)
appeal the district court’s denial of qualified immunity on Pena’s § 1983
supervisory-liability claim. This Court has held supervisors “liable for
constitutional   violations    committed      by   subordinate    employees     when
supervisors act, or fail to act, with deliberate indifference to violations of others’
constitutional rights committed by their subordinates.” Aterberry v. Nocona
Gen. Hosp., 430 F.3d 245, 255 (5th Cir. 2005) (emphasis in original). The
Supervisory Appellants argue the Supreme Court’s opinion in Ashcroft v. Iqbal,
556 U.S. 662 (2009) put the continued viability of § 1983 supervisory liability
in question, and, therefore, they could not have violated clearly established
law.
       The district court separately considered whether supervisory liability
remains clearly established after Iqbal. In light of its conclusions that the law
clearly established the constitutional rights allegedly violated by the various
subordinates, the district court’s decision to address the impact of Iqbal on
§ 1983 supervisory liability was sound. But we have answered these
underlying constitutional questions differently than the district court. As a




                                         17
    Case: 14-11020       Document: 00513282187          Page: 18     Date Filed: 11/23/2015



                                       No. 14-11020
result, we need not pronounce the fate of § 1983 supervisory liability post-
Iqbal. 6
       Supervisory liability requires a constitutional violation by a subordinate.
See Aterberry, 430 F.3d at 255. As explained above, the evidence in this case
would not support a jury finding that Dr. Brown and De Guzman violated
Cornell’s due process rights by denying him adequate medical treatment for
his heart condition. With no underlying violation for denial of medical care, the
Supervisory Defendants cannot be liable under § 1983 for any supervisory
deficiencies regarding the medical care provided to Parkland’s mental patients.
This is equally true in the context of the underlying substantive due process
claim against the psych techs.
       We resolved the psych techs’ qualified immunity challenge based on a
different part of the qualified immunity standard: the lack of clarity on
whether physical restraint in the context of mental-health treatment is a
seizure. Of course, this does not answer whether a constitutional violation did
or did not occur. It simply answers whether the psych techs can be made to
account for it. But the unsettled nature of the law in this area likewise entitles
the Supervisory Appellants to qualified immunity. In Doe v. Taylor
Independent School District, we explained that supervisors are entitled to
qualified immunity unless both the underlying constitutional right and the
supervisors’ duty with respect to that right were clearly established. 15 F.3d
at 454; see also Poe v. Leonard, 282 F.3d 123, 134 (2d Cir. 2002) (“We conclude
that [plaintiff] must show that both laws were clearly established to lay the



       6Although the particular facts of this case do not require us to address the Supervisory
Appellants’ Iqbal argument, we note the many cases in the years since Iqbal in which we
have continued to apply our rigorous pre-Iqbal standards for supervisory liability. See, e.g.,
Brauner v. Coody, 793 F.3d 493, 500–01 (5th Cir. 2015); Pierce v. Hearne Indep. Sch. Dist.,
600 Fed. App’x 194, 199 (5th Cir. 2015); Whitley v. Hanna, 726 F.3d 631, 639–41 (5th Cir.
2014); Walker v. Upshaw, 515 F. App’x 334, 339 (5th Cir. 2013).
                                             18
   Case: 14-11020    Document: 00513282187     Page: 19   Date Filed: 11/23/2015



                                No. 14-11020
predicate for demonstrating that [the supervisor] lacked qualified immunity:
the law violated by [the subordinate] and the supervisory liability doctrine
under which she wishes to hold [the supervisor] accountable.”); Camilo-Robles
v. Hoyos, 151 F.3d 1, 6 (1st Cir. 1998) (“[F]or a supervisor to be liable there
must be a bifurcated “clearly established” inquiry—one branch probing the
underlying violation, and the other probing the supervisor's potential
liability.”). Put simply, if the law did not put the psych techs on notice that
their actions would be judged under the Fourth Amendment, then it cannot
have put the Supervisory Appellants on notice that they had a duty to ensure
their subordinates were respecting patients’ Fourth Amendment rights.
                             IV. CONCLUSION
      For the foregoing reasons, we REVERSE the district court’s denial of
qualified immunity and RENDER summary judgment for the appellants.




                                      19
