     Case: 10-40096     Document: 00511197619          Page: 1    Date Filed: 08/09/2010




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

                                                  FILED
                                                                           August 9, 2010

                                     No. 10-40096                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



ELVA FLORES, as Next Friend for Rosa Flores; ROSA FLORES,

                                                   Plaintiffs - Appellants
v.

MICHAEL JARAMILLO, in his individual capacity; RICHARD MILLER;
ALBERT MARTINEZ,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:08-CV-98


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Rosa Flores filed suit against three law enforcement officers, alleging they
committed constitutional violations resulting in an infringement of civil rights.
See 42 U.S.C. § 1983. The district court granted summary judgment in favor of
the officers, holding them protected from suit by qualified immunity. On appeal,
Flores argues there was evidence meriting jury consideration. We AFFIRM.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 10-40096

      The evidence shows that during the execution of a search warrant in Alice,
Texas, Flores complained of or exhibited some health problems. She alleges that
the officers denied her requests for access to her anti-anxiety medication. About
twenty minutes into the search, officers summoned emergency medical services
(EMS) to treat Flores. EMS responded, treated Flores, and left the scene.
Shortly after EMS left, officers called EMS again. EMS responded again, and
this time transported Flores to the hospital. At some point, Flores had cardiac
arrest and lapsed into a coma. She remains in a coma as of this appeal.
      Based on these events, Flores filed suit in the U.S. District Court for the
Southern District of Texas, alleging that the Defendants displayed deliberate
indifference by delaying access to medical care in violation of the Fourteenth
Amendment. Defendants Jaramillo and Martinez are officers with the Alice
Police Department, and Defendant Miller is a deputy in the Jim Wells County
Sheriff’s Department. The district court found the officers subject to qualified
immunity and granted summary judgment in their favor.
      We review the grant of a motion for summary judgment de novo and apply
the same standards as the district court. Hill v. Carroll County, Miss., 587 F.3d
230, 233 (5th Cir. 2009). Summary judgment is appropriate where the record
shows “that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). In
this determination, we view the disputed facts and inferences in the light most
favorable to the non-moving party. Hill, 587 F.3d at 233.
      To determine whether a government official is entitled to qualified
immunity, we conduct a two-step analysis. Saucier v. Katz, 533 U.S. 194, 201
(2001), overruled in part by Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).
There is no qualified immunity where (1) the defendant violated the plaintiff’s
constitutional rights, and (2) the defendant’s action was “objectively
unreasonable in light of clearly established law at the time of the conduct in

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                                  No. 10-40096

question.” Freeman v. Gore, 483 F.3d 404, 410-11 (5th Cir. 2007) (citation
omitted). We examine the conduct from “the viewpoint of a reasonable official
in light of the information then available to the defendant and the law that was
clearly established at the time of the defendant’s actions.” Id. at 411.
      The officers do not dispute that Flores should be considered a pretrial
detainee at the time of the events in question. The Fourteenth Amendment
provides that government officials may not disregard the “basic human needs”
of pretrial detainees, which include medical care. Hare v. City of Corinth, Miss.,
74 F.3d 633, 639 (5th Cir. 1996) (en banc). An official violates this clearly
established right if actions are taken with deliberate indifference to the
detainee’s serious medical needs. Id. at 647-48. Deliberate indifference is shown
where the official “knew of and disregarded an excessive risk to the inmate’s
health or safety.” Gibbs v. Grimmette, 254 F.3d 545, 549 (5th Cir. 2001).
      Mere negligence is not sufficient to show deliberate indifference to medical
needs. Id. “Rather, the plaintiff must show that the officials refused to treat
him, 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.” Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756
(5th Cir. 2001) (citation and quotation marks omitted). A delay in treatment is
a constitutional violation only where “there has been deliberate indifference
[that] results in substantial harm.” Easter v. Powell, 467 F.3d 459, 463 (5th Cir.
2006) (citation and quotation marks omitted) (alteration in original).
      We cannot conclude that the officers had subjective knowledge that Flores
was in serious medical danger and that they deliberately disregarded that
danger. The officers denied Flores access to medication during the execution of
the warrant, but they also summoned emergency medical personnel once they
were actually aware of the seriousness of her condition. Though the officers’
course of action may even have been negligent, it certainly does not evince a

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“wanton disregard for any serious medical needs.” Domino, 239 F.3d at 756.
Once emergency medical personnel arrived, Flores does not allege that the
officers interfered with her treatment in any way.
      Flores alleges an approximately twenty-minute delay between when she
first complained of health problems and when EMS was called. While a delay
in treatment may support a finding of deliberate indifference, Flores has offered
no evidence from which we can infer that the delay in treatment attributable to
the officers caused substantial harm. See Easter, 467 F.3d at 463. A doctor who
treated Flores testified that a stressful event could cause heart palpitations and
cardiac arrest, and that a drug such as the one Flores was prescribed may reduce
such stress in about fifteen to thirty minutes. However, he was not able to
testify as to whether the delay itself caused Flores any harm.
      Flores has not shown a violation of a clearly established right, and our
qualified immunity analysis ends there. The officers are immune from suit.
      AFFIRMED.




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