     Case: 19-10280   Document: 00515376992     Page: 1   Date Filed: 04/09/2020




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

                                                                     FILED
                                 No. 19-10280                      April 9, 2020
                                                                  Lyle W. Cayce
                                                                       Clerk
KATHY DYER; ROBERT DYER, Individually and as Representative of the
Estate of Graham Dyer,

             Plaintiffs - Appellants

v.

RICHARD HOUSTON; ALAN GAFFORD; ZACHARY SCOTT; WILLIAM
HEIDELBURG; PAUL POLISH; JOE BAKER,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Northern District of Texas


Before OWEN, Chief Judge, and BARKSDALE and DUNCAN, Circuit Judges.
STUART KYLE DUNCAN, Circuit Judge:
      Plaintiffs Kathy and Robert Dyer (“the Dyers”) appeal the dismissal on
qualified immunity grounds of their deliberate-indifference claims against
paramedics and police officers employed by the City of Mesquite, Texas. The
Dyers’ claims arise out of the death of their 18-year-old son, Graham, from self-
inflicted head trauma while in police custody. We affirm in part, reverse in
part, and remand for further proceedings.
                                       I.
      Graham died after violently bashing his head over 40 times against the
interior of a patrol car while being transported to jail. The Dyers brought
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various claims against the paramedics who initially examined Graham, the
officers who transported him, and the City of Mesquite. Relevant here are the
deliberate-indifference claims against paramedics Paul Polish and Joe Baker
(“Paramedics”) and police officers Alan Gafford, Zachary Scott, and William
Heidelburg (“Officers”). The district court granted the Paramedics’ motion to
dismiss based on qualified immunity. The court later granted the Officers
summary judgment, also based on qualified immunity. Because the dismissals
occurred at different stages, we examine the facts separately as they relate to
the Paramedics and the Officers.
                                      A.
      Regarding the Paramedics, we accept as true the allegations in the
Dyers’ operative complaint. In re Katrina Canal Breaches Litigation, 495 F.3d
191, 205 (5th Cir. 2007). According to the complaint, Polish and Baker arrived
on the scene in the late evening hours of August 13, 2013. There they found
Graham already detained by police officers for exhibiting erratic behavior.
After “learning that [Graham and his friend] had consumed LSD,” one
“paramedic went over to examine Graham.” He summoned the second
paramedic, after which they both “further examine[d] Graham.” Graham “had
sustained a visible and serious head injury.” Moreover, the Paramedics “were
aware that [Graham] had ingested LSD and was incoherent and screaming,”
and “were aware that he was not rational and was in a drug induced psychosis.”
“[B]oth examined [Graham], including his serious head injury.” According to
video evidence referenced by the complaint, after the Paramedics “were
finished looking at Graham,” he was “walked to the police car without
resistance or struggle.” Graham was then driven to jail. The complaint
contains no further allegations about the Paramedics.
     Based on these allegations, the Dyers claim the Paramedics violated
Graham’s Fourteenth Amendment right not to have his serious medical needs

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met with deliberate indifference. See Hare v. City of Corinth, 74 F.3d 633, 639
(5th Cir. 1996) (en banc). They claim Polish and Baker “made no
recommendations for further treatment or medical intervention, including
sedation which would have calmed Graham down and allowed him to comply
with instructions.” They further claim “Polish and Baker also knew of the
substantial risk of serious harm that would result from ignoring the psychosis
of someone who had ingested LSD, yet they did nothing to treat Graham [or]
transport him for treatment.” Finally, they claim “Graham should have been
given a sedative and transported to the emergency room” because the
Paramedics “were aware of facts demonstrating a substantial risk of serious
harm and disregarded the risk by failing to take reasonable measures to treat
Graham.”
                                              B.
       Regarding the Officers, we take the relevant facts from the summary
judgment record, construed in favor of the non-movants. 1 Hanks v. Rogers, 853
F.3d 738, 743 (5th Cir. 2017) (citation omitted). Responding to the late evening
911 call concerning Graham, Officer Gafford first arrived on the scene,
observed Graham’s erratic behavior, and physically restrained him. Officer
Houston arrived next and handcuffed Graham. During this encounter, Graham
was “rolling” and “yelling” while officers tried to calm him down. Officers
Heidelburg, Scott, and Fyall next arrived. The Paramedics then arrived,
examined Graham, and released him to the police. See supra I.B.
       Graham was then placed in Heidelburg’s patrol car. While officers were
trying to secure Graham, he bit Fyall on the finger. Graham was placed in leg
restraints, but his seatbelt was not fastened. Heidelburg then drove off with


       1  The summary judgment record consists, in part, of affidavits and depositions of all
officers involved, the police department internal investigation report (based in part on an in-
car video of the incident from Officer Heidelburg’s patrol car), and the autopsy report.
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Graham. Scott and Gafford followed in their own patrol cars. While Heidelburg
was driving, Graham screamed, thrashed violently, and slammed his head
multiple times against the interior of the car. Heidelburg told Graham to stop
hitting his head, but Graham did not comply. Heidelburg testified he pulled
the car over to “[t]ry to stop [Graham] from hitting his head on the cage.” Scott
saw Heidelburg pull the car over and assumed he was doing so because
Graham “was banging his head.” The internal investigation report prepared by
the Mesquite Police Department (based in part on a video recording of the
incident) reported that Graham slammed his head against the “metal cage,
side window and back seat” 19 times before Heidelburg pulled over.
       At that point, Scott stopped to help “prevent [Graham] from banging his
head on the back of the car.” Gafford also pulled over, seeking to help stop
Graham from doing “further harm to himself.” Gafford testified he could
“actually see the car shaking from side to side” as Graham flung himself
around in the back seat. When the car stopped, Graham continued to “scream
and thrash,” and the Officers tased him several times to regain control. 2 After
re-securing Graham, Heidelburg resumed driving toward the jail and Graham
continued to scream and slam his head against the car’s interior. According to
the investigation report, Graham bashed his head another 27 times before they
arrived at jail.
       All three Officers removed Graham from the patrol car and brought him
into the sally port. Graham continued kicking and screaming as jail personnel
tried to secure him. Graham was moved inside the jail, placed in a restraint
chair, and eventually put in a padded cell. No evidence shows Graham caused


       2 The Dyers brought excessive force claims against the Officers based on their use of
tasers to control Graham. Only the excessive force claim against Gafford survived summary
judgment, given evidence that Gafford “tased Graham in the testicles for about eight seconds”
when Graham was restrained by other officers and no longer actively resisting arrest. That
claim has since been settled.
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any further harm to himself once restrained. The Officers each said they had
no recollection of reporting to the jail sergeant the fact that Graham had
slammed his head repeatedly against the interior of the patrol car en route to
jail. The investigation report states only that the jail sergeant was “[i]nformed
by transport officers [Graham] had been medically cleared at the scene.”
      Just over two hours later, the sergeant noticed Graham’s breathing was
labored and summoned paramedics, who arrived at 1:40 a.m. Graham was
transported to a local hospital and died at 11:00 p.m. that evening. Among
other injuries, the autopsy reported extensive blunt force injuries to Graham’s
head and cranial hemorrhaging. The reported cause of death was
craniocerebral trauma.
      Based on a review of a video recording from Heidelburg’s patrol car, the
investigation report found that Graham hit his head on the metal cage, side
window, and back seat of the car approximately 46 times.
                                          II.
      “We review a district court’s ruling on a motion to dismiss de novo,
accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiffs.” Anderson v. Valdez, 845 F.3d 580, 589 (5th
Cir. 2016) (internal quotation marks and citation omitted). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). These standards are the same when a motion to dismiss is based on
qualified immunity. See, e.g., Turner v. Lieutenant Driver, 848 F.3d 678, 684–
85 (5th Cir. 2017) (citations omitted).
      We review a summary judgment de novo, applying the same standards
as the district court. Mason v. Lafayette City-Parish Consol. Gov’t, 806 F.3d
268, 274 (5th Cir. 2015) (citation omitted). “The court shall grant summary

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judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “A dispute is genuine if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Westfall v. Luna, 903 F.3d
534, 546 (5th Cir. 2018) (internal quotation marks and citation omitted). A fact
“is material if its resolution could affect the outcome of the action.” Sierra Club,
Inc. v. Sandy Creek Energy Associates, L.P., 627 F.3d 134, 134 (5th Cir. 2010)
(citation omitted). “When an officer invokes [qualified immunity], ‘the burden
then shifts to the plaintiff, who must rebut the defense by establishing a
genuine fact [dispute] as to whether the official’s allegedly wrongful conduct
violated clearly established law.’” McCoy v. Alamu, 950 F.3d 226, 230 (5th Cir.
2020) (quoting Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010)). “We still
draw all inferences in the plaintiff’s favor.” Taylor v. Stevens, 946 F.3d 211,
217 (5th Cir. 2019) (citation omitted).
       “The qualified immunity defense has two prongs: whether an official’s
conduct violated a statutory or constitutional right of the plaintiff; and whether
the right was clearly established at the time of the violation.” Brown, 623 F.3d
at 253 (citing Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)). A court may
rest its analysis on either prong. Morgan v. Swanson, 659 F.3d 359, 385 (5th
Cir. 2011) (en banc) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
                                        III.
      We first address whether the district court properly granted the
Paramedics’ motion to dismiss based on qualified immunity. The court relied
on the first prong, finding the amended complaint failed to state a plausible
deliberate-indifference claim against the Paramedics. Specifically, the court
found insufficient the allegations that, because the Paramedics observed
Graham’s “serious head injury” and “LSD-induced behavior,” they should have
provided additional care.

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      The Fourteenth Amendment guarantees pretrial detainees a right “not
to have their serious medical needs met with deliberate indifference on the
part of the confining officials.” Thompson v. Upshur Cty., Tex., 245 F.3d 447,
457 (5th Cir. 2001) (citing, inter alia, Estelle v. Gamble, 429 U.S. 97, 103
(1976)). To succeed on a deliberate-indifference claim, plaintiffs must show
that (1) the official was “aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists,” and (2) the official actually drew
that inference. Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 755 (5th
Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “Deliberate
indifference is an extremely high standard to meet.” Id. at 756.
      We note that some of our cases have posited a third element—that the
official “subjectively intended that harm occur.” See Garza v. City of Donna,
922 F.3d 626, 635 & n.5 (5th Cir. 2019) (citing, inter alia, Tamez v. Manthey,
589 F.3d 764, 770 (5th Cir. 2009)). A panel of our court, however, recently wrote
that it “cannot endorse [this] analysis” because it “depart[s] from controlling
Supreme Court and Fifth Circuit law.” Garza, 922 F.3d at 636 (collecting
decisions). In this case, the district court invoked this additional “subjective
intent” element, but that does not affect our disposition of the motion to
dismiss. As we explain, the allegations against the Paramedics would fail
under the established two-part standard. See id. at 635 (two-part test more
consonant with “the weight of our case law and . . . the Supreme Court
precedent from which our cases flow”); id. at 636 & n.6 (collecting decisions).
The district court’s invocation of the subjective intent element, however, does
affect our disposition of the summary judgment for the Officers. See infra IV.B.
      We agree with the district court that the Dyers’ complaint fails to allege
facts that plausibly show the Paramedics’ deliberate indifference. The thrust
of the complaint is that, after examining Graham and observing his head
injury and drug-induced behavior, the Paramedics should have provided

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additional care—such as sending Graham to the hospital, accompanying him
to jail, providing “further assessment or monitoring,” or sedating him. At most,
these are allegations that the Paramedics acted with negligence in not taking
further steps to treat Graham after examining him. Our cases have
consistently recognized, however, that “deliberate indifference cannot be
inferred merely from a negligent or even a grossly negligent response to a
substantial risk of serious harm.” Thompson, 245 F.3d at 458–59 (citing Hare,
74 F.3d at 645); see also, e.g., Delaughter v. Woodall, 909 F.3d 130, 136 (5th
Cir. 2018) (clarifying that “mere disagreement with one’s medical treatment is
insufficient to show deliberate indifference”); Gobert v. Caldwell, 463 F.3d 339,
346 (5th Cir. 2006) (explaining that “[u]nsuccessful medical treatment, acts of
negligence, or medical malpractice do not constitute deliberate indifference”)
(citations omitted). For instance, in Stewart v. Murphy, 174 F.3d 530, 533–534
(5th Cir. 1999), we held that a prison physician’s failure, among other things,
to discover earlier the ulcers that led to a prisoner’s death “might constitute
negligence, [but] not the requisite deliberate indifference.” Finally, with
particular salience here, we have long held that “the decision whether to
provide additional treatment ‘is a classic example of a matter for medical
judgment,’” which fails to give rise to a deliberate-indifference claim. Gobert,
463 F.3d at 346 (quoting Domino, 239 F.3d at 756).
      Measured against these standards, we cannot say the complaint
plausibly states a deliberate-indifference claim against the Paramedics. We
therefore affirm the district court’s dismissal of those claims.
                                       IV.
      We next address the district court’s grant of summary judgment to the
Officers based on qualified immunity. On prong one of the qualified immunity
standard, the district court found genuine disputes of material fact as to
whether Officers Heidelburg and Gafford acted with deliberate indifference to

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Graham’s serious medical needs. But, as to Officer Scott, the district court
found the Dyers “failed to present evidence that [he was] aware of facts
indicating a risk of injury and inferred a risk of injury to Graham.” On prong
two, however, the district court concluded all three Officers were entitled to
qualified immunity. Pointing to inconsistency in our court’s deliberate-
indifference standards, the district court reasoned that “there is no clearly
established right in the Fifth Circuit to be free from medical inattention by
officers who do not actually intend to cause harm.” The court therefore granted
summary judgment dismissing the Dyers’ deliberate-indifference claims
against all three Officers.
                                        A.
      Turning first to the district court’s prong one ruling, we agree that the
record discloses genuine disputes of material fact regarding whether Officers
Heidelburg and Gafford acted with deliberate indifference. But we disagree as
to Officer Scott, finding similar fact disputes as to him.
      The district court correctly found a genuine dispute concerning whether
Gafford and Heidelburg were deliberately indifferent to the serious medical
needs of a detainee in their custody. A reasonable trier of fact could find that
those Officers were aware that Graham, in the grip of a drug-induced
psychosis, struck his head violently against the interior of Heidelburg’s patrol
car over 40 times en route to jail and thereby sustained severe head trauma.
Both Officers told Graham to stop hitting his head and Heidelburg even pulled
his patrol car over in an effort to stop him. Gafford acknowledged that, during
his encounter with Graham, he knew “[t]here could be some inherent dangers”
associated with head trauma; Heidelburg testified that what Graham was
doing “certainly could” cause a head injury. Yet the Officers sought no medical
care for Graham when they arrived at the jail. Nor did they alert jail officers
(who had no way of knowing what had happened en route to the jail) of the

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possibility that Graham had seriously injured himself. The record instead
reflects that the jail sergeant was “[i]nformed by [the] transport officers [that]
Dyer had been medically cleared at the scene.”
       A reasonable jury could find that Graham’s injuries—from which
Graham would die within roughly 24 hours—were so severe, and their cause
so plainly evident to the Officers, that the Officers acted with deliberate
indifference by failing to seek medical attention, by failing to inform jail
personnel about Graham’s injuries, and by informing jail personnel only that
Graham had been “medically cleared” before arriving at the jail. 3 A reasonable
jury could find otherwise, of course, but the district court correctly concluded
that the Dyers presented enough evidence that the Officers “were aware of a
risk of injury to Graham that they did nothing to alleviate,” allowing the Dyers
to survive summary judgment on prong one. 4
       We disagree, however, with the ruling as to Officer Scott. The district
court found the Dyers “failed to present evidence that [Scott was] aware of facts
indicating a risk of injury and inferred a risk of injury to Graham.” True, Scott’s
affidavit stated he “never observed anything or any action by anyone which
might cause a head injury on the part of [Graham],” nor did he “observe[]
anything to indicate [Graham] might have any serious injury.” But his



       3 See, e.g., Gobert, 463 F.3d at 346 (deliberate indifference shown through evidence
that officials “refused to treat [prisoner], ignored his complaints, intentionally treated him
incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard
for any serious medical needs”) (quoting Domino, 239 F.3d at 756); Nerren v. Livingston Police
Dept., 86 F.3d 469, 473 (5th Cir. 1996) (deliberate indifference shown when detainee’s “face
and chest were marred with abrasions, he was in pain, and he informed the Arresting Officers
that he needed medical attention,” especially because “police had subjective knowledge that
[detainee] had recently been involved in a multiple vehicle injury accident”).
       4 The district court based its prong one analysis on our precedent’s more common
deliberate-indifference test that does not require subjective intent to cause harm. See, e.g.,
Olabisiomotosho v. City of Hous., 185 F.3d 521, 526 (5th Cir. 1999); see also Garza, 922 F.3d
626, 635–36 & nn.5–6 (discussing differing strands of our precedent).
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deposition testimony was quite different. Scott testified he assumed
Heidelburg pulled the patrol car over because Graham “was banging his head.”
Scott also testified he tried “to prevent [Graham] from banging his head on the
back of the car.” Lastly, Scott stated he did not tell the jail sergeant about
Graham slamming his head, nor did he recall hearing anyone else report it.
      In sum, viewing the evidence in the light most favorable to the Dyers, we
conclude there are genuine disputes of material fact as to whether Officer
Scott, like Gafford and Heidelburg, acted with deliberate indifference to
Graham’s serious medical needs. The district court therefore erroneously
granted Scott summary judgment on prong one.
                                       B.
      Turning to prong two of the qualified immunity standard, we ask
whether there are genuine disputes of material fact as to whether “the
unlawfulness of the [Officers’] conduct was ‘clearly established at the time.’”
Rich v. Palko, 920 F.3d 288, 294 (5th Cir.), cert. denied, __ U.S. __, 140 S. Ct.
388 (2019) (quoting District of Columbia v. Wesby, __ U.S. __, 138 S. Ct. 577,
589 (2018)). “To be clearly established, a right must be sufficiently clear that
every reasonable official would have understood that what he is doing violates
that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (cleaned up). While
the Dyers need not identify a case “directly on point,” “existing precedent” must
“place[ ] the statutory or constitutional question beyond debate.” Morgan, 659
F.3d at 372 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). That
precedent, moreover, must “define[ ] the contours of the right in question with
a high degree of particularity.” Id. at 371–72. In sum, “the salient question” we
ask at prong two is whether the state of the law at the time of the incident
“gave [the Officers] fair warning that their alleged treatment of [Graham] was
unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002); accord Morgan, 659


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F.3d at 372 (“The sine qua non of the clearly-established inquiry is ‘fair
warning.’”) (citing Hope, 536 U.S. at 741).
      The district court’s prong two analysis was legally erroneous. Instead of
asking whether controlling authority placed the unconstitutionality of the
Officers’ alleged conduct “beyond debate,” Morgan, 659 F.3d at 372, the court
instead found that our deliberate-indifference case law was too muddled even
to attempt the inquiry. Specifically, the district court pointed to “confusion” in
our cases over whether deliberate indifference requires proof of an officer’s
“actual intent to cause harm in medical-inattention claims.” The court
therefore concluded that “there is no clearly established right in the Fifth
Circuit to be free from medical inattention by officers who do not actually
intend to cause harm.”
      We disagree with the district court’s prong two analysis. Admittedly, the
district court was correct that our deliberate-indifference cases are not a
paradigm of consistency. As discussed supra, a panel of our court recently
observed that, whereas many of our decisions hew to the traditional deliberate-
indifference standard from Farmer v. Brennan, 511 U.S. 825 (1994), others
appear to add the element that the officer “subjectively intended that harm
occur.” See generally Garza, 922 F.3d at 626, 634–36 & nn. 5–6; compare
Delaughter, 909 F.3d at 136 (deliberate indifference present “only if [official]
knows that inmates face a substantial risk of serious harm and disregards that
risk by failing to take reasonable measures to abate it”) (citing Farmer, 511
U.S. at 847), with Tamez, 589 F.3d at 764, 770 (deliberate indifference also
requires showing official “subjectively intended that harm occur”) (citing
Thompson, 245 F.3d at 458–59). Contrary to the district court’s reasoning,
however, this apparent tension in our cases does not ipso facto “doom[ ]” the
Dyers’ deliberate-indifference claim. To the contrary, the district court was still
required to analyze whether the Officers’ alleged conduct contravened clearly

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established law as set by the controlling precedents of this court and the
Supreme Court.
      Reviewing the record de novo, we conclude a reasonable jury could find
the Officers’ conduct contravened clearly established law. In Thompson v.
Upshur County, Texas, our court confronted a deliberate-indifference claim
after a detainee, Thompson, died in jail from a seizure brought on by delirium
tremens (“DTs”). 245 F.3d at 452–54. We found genuine disputes of material
fact as to the jail sergeant, Whorton, who was aware that Thompson had
elevated blood-alcohol content, was “hallucinating,” and “was injuring himself
in his cell.” Id. at 452, 463. In particular, Whorton knew Thompson had
“beg[u]n to collide with objects in his cell, sometimes falling and striking his
head against the window, floor or concrete bench.” Id. at 454. Whorton provided
some care to Thompson—she placed him in a straitjacket (but not an available
helmet), had extra mattresses placed in his cell, dressed his head wound, and
even claimed to seek advice from a hospital, id. at 453–54, 463—but when
Whorton’s shift ended, she instructed her colleagues not to summon medical
help without contacting her and only if Thompson was “dying.” Id. at 454.
Seven hours later, Thompson died from a seizure brought on by DTs. Id. We
found a jury question as to whether Whorton’s behavior was objectively
unreasonable, given “[c]learly established law forbids a significantly
exacerbating delay or a denial of medical care to a detainee suffering from
DTs.” Id. at 463. Any reasonable jailer, we explained, “would have recognized
the constitutional obligation to summon medical assistance well before
Thompson died,” and also would not have instructed subordinates not to get
help unless Thompson “was on the verge of death.” Id. at 464.
      Thompson defines clearly established law in sufficient detail to have
notified the Officers that their actions were unconstitutional. See, e.g., Morgan,
659 F.3d at 372 (controlling precedent must define pertinent right “with a high

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degree of particularity”). Similar to the jail sergeant in Thompson, here the
Officers had custody of a delusional detainee who was severely harming
himself, and yet—despite being aware of the detainee’s dire condition—they
did nothing to secure medical help. Arguably, this situation presents a clearer
case of deliberate indifference than Thompson. There, although providing
Thompson some care, the jailer recklessly misjudged the severity of
Thompson’s condition that led to the seizure that caused his death. 245 F.3d
at 453–54, 463–64. Here, the Officers actually witnessed Graham violently
slamming his head against the patrol car over and over again, inflicting the
cerebral trauma that would kill him within about a day’s time. 5 And yet,
instead of seeking medical assistance, the Officers deposited Graham at the
jail, told jailers nothing about what Graham had done to himself en route, and
informed the jail sergeant only that Graham “had been medically cleared at
the scene.” In sum, Thompson gave officers “fair warning,” Morgan, 659 F.3d
at 372, that their behavior was deliberately indifferent to Graham’s serious
medical needs. 6
       Compare this case with our decision in Wagner v. Bay City, Texas, 227
F.3d 316 (5th Cir. 2000). There, officers pepper sprayed the plaintiff, cuffed


       5 This case is thus quite different from cases where officers had no reason to suspect
a detainee’s underlying medical condition. See, e.g., Tamez, 589 F.3d at 770–71 (no evidence
of deliberate indifference where pupil dilation could “mean a lot of things” and therefore did
not alert officers that detainee had ingested an open cocaine baggy); Simmons v. City of
Columbus, 425 F. App’x 282, 283–84 (5th Cir. 2011) (unpublished) (officers entitled to
qualified immunity because they were unaware the detainee was suffering from subdural
hematoma, or “invisible brain bleed”); Arshad ex rel. Arshad v. Congemi, 2009 WL 585633,
at *7–*8 (5th Cir. 2009) (unpublished) (officers entitled to qualified immunity for failure to
seek medical attention for heart condition unknown to them, especially because detainee was
breathing, walking and talking in normal manner).
       6  It makes no difference that Thompson also found the sergeant acted unreasonably
by telling subordinates to get help only if Thompson was “on the verge of death.” 245 F.3d at
464. Here, again, the Officers’ actions arguably manifested equal, if not greater, indifference.
A reasonable jury could find the Officers misstated the severity of Graham’s condition by
telling the sergeant only that Graham had been “medically cleared” at the scene.
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him, and placed him on his chest in the back of the patrol car. Id. at 319.
Instead of taking the plaintiff to the hospital to flush out the pepper spray, the
officers drove him to jail. Id. There, they discovered the plaintiff had stopped
breathing and attempted CPR; the plaintiff later died at the hospital. Id. at
318–19. We concluded the officers were entitled to qualified immunity against
a deliberate-indifference claim. Id. at 324–25. Among other reasons, we
explained that the officers heard the plaintiff moaning during the trip to jail
(indicating he was still breathing), and that, when the officers realized he had
stopped breathing in jail, they “immediately began CPR.” Id. at 325. Further,
the suggestion that the officers take the plaintiff to the hospital was “based
solely on a need to decontaminate the effects of the pepper spray,” and there
was no evidence “that the delay in the decontamination caused [the plaintiff]
to stop breathing.” Id. Thus, we concluded there was no evidence that the
officers “had knowledge that [the plaintiff] was in need of any other immediate
medical attention.” Id.
      By contrast, in this case a reasonable jury could find that (1) Graham
violently bashed his head against the interior of Officer Heidelburg’s patrol car
over 40 times while en route to jail; (2) Officers Heidelburg, Gafford, and Scott
were fully aware of Graham’s actions and of their serious danger; (3) the
Officers sought no medical attention for Graham; and (4) upon arriving at jail,
the Officers failed to inform jail officials what Graham had done to himself,
telling them only that Graham had been “medically cleared” at the scene. From
this evidence, a reasonable jury could conclude that the Officers “were either
aware or should have been aware, because it was so obvious, of an unjustifiably
high risk to [Graham’s] health,” did nothing to seek medical attention, and
even misstated the severity of Graham’s condition to those who could have
sought help. Tamez, 589 F.3d at 770 (cleaned up) (discussing Thompson).
                                       V.

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   Case: 19-10280    Document: 00515376992    Page: 16   Date Filed: 04/09/2020


                               No. 19-10280

      For the foregoing reasons, we AFFIRM the district court’s order
dismissing the deliberate-indifference claims against the Paramedics. We
REVERSE the summary judgment dismissing the deliberate-indifference
claims against the Officers, and REMAND for further proceedings consistent
with this opinion.
      AFFIRMED in part; REVERSED and REMANDED in part.




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