     Case: 19-20465      Document: 00515475036    Page: 1   Date Filed: 07/01/2020




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

                                                                           FILED
                                   No. 19-20465                         July 1, 2020
                                                                      Lyle W. Cayce
EBONI NICOLE BALDWIN,                                                      Clerk


            Plaintiff - Appellee

v.

LATOISHA DORSEY,

            Defendant - Appellant


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


Before KING, JONES, and COSTA, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Harris County sheriff’s deputy Latoisha Dorsey appeals a denial of
summary judgment, contending that qualified immunity shields her from
liability based on Eboni Baldwin’s claim under 42 U.S.C. § 1983. Baldwin
maintains that Dorsey was deliberately indifferent to her serious medical
needs resulting from an alleged psychological crisis. Yet Baldwin has failed to
show either that Dorsey’s actions, which led to a three-hour delay in medical
treatment, manifested deliberate indifference or that Dorsey’s conduct was
objectively unreasonable under clearly established law. It follows that Dorsey
is entitled to qualified immunity. We REVERSE and REMAND for entry of
an order of dismissal.
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                                     No. 19-20465
                                   BACKGROUND
        Around midnight on September 27, 2014, a concerned citizen approached
a car stopped at a traffic light in Houston. Finding Baldwin, the driver, awake
but incoherent, he called an ambulance. When emergency personnel arrived,
Baldwin told an emergency medical technician (“EMT”) that she had post-
traumatic stress disorder (“PTSD”) and that she had taken four sleeping pills.
The EMT noticed two pills in Baldwin’s hand and an open water bottle in her
lap.
        Soon afterwards, Deputy Dorsey and other deputies arrived on scene.
Dorsey observed that Baldwin was intermittently unconscious and learned
from the EMT that she had been holding the sleeping pills and an open water
bottle. Although an EMT told Baldwin he would like to take her to the hospital
in an ambulance, she refused that request. Dorsey and other deputies removed
Baldwin from her car and placed her, handcuffed, in the back of a patrol car.
The deputies searched Dorsey’s car, which clearly displayed a disability
placard in the front window. During this time, Baldwin told someone with a
male voice that she had PTSD.
        After the search, Dorsey drove Baldwin to Houston Police Central Intox,
where law enforcement administer intoxication tests. En route, Baldwin, who
was now plainly likely to face charges, told Dorsey that she felt suicidal and
asked to be taken to the hospital. 1 Dorsey refused and proceeded to the testing
facility. On arrival, Dorsey handcuffed Baldwin to a bench in a cell, where
Baldwin stayed for two hours while she waited for a blood draw.
        After the blood draw, Dorsey took Baldwin to Harris County Jail. At
booking, Baldwin repeated her request to go to the hospital because she felt



        Dorsey denies this allegation, but on review of denial of summary judgment, we take
        1

the non-movant’s allegations to be true.
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                                 No. 19-20465
suicidal, and a jail nurse was called over. The nurse called in a doctor, who
determined that the jail would not accept Baldwin until she had been cleared
by a hospital. Dorsey then took Baldwin to the hospital, where Baldwin’s
screening and treatment lasted less than an hour. Medical records from the
visit include a struck-through notation that Baldwin was having suicidal
thoughts.   Those records also note that Baldwin “appear[ed] in no acute
distress” and was “alert,” “pleasant,” “cooperative,” and “calm.”      After the
hospital visit, Dorsey returned Baldwin to jail. Sometime later, Baldwin was
released, her criminal charges were dropped, and her arrest records were
expunged.
      In response to this incident, Baldwin filed a pro se lawsuit against Dorsey
and others under 42 U.S.C. § 1983, asserting that their actions violated the
Fourth and Fourteenth Amendments. Baldwin alleged that her psychiatric
condition had deteriorated since the incident and she required hospitalization
to treat her exacerbated PTSD symptoms.          She also alleged that she “re-
experienc[ed]” the trauma of the incident and, as a result, now feared police,
traveling, and taking prescription medication.
      The defendants moved to dismiss for failure to state a claim. The district
court dismissed all claims except Baldwin’s deliberate-indifference claim
against Dorsey and granted Baldwin’s motion for appointed counsel. Dorsey
then asserted qualified immunity and moved for summary judgment on
Baldwin’s remaining claim. The court heard argument, denied the motion
from the bench, and issued a written opinion stating that fact issues remained
as to whether a constitutional violation occurred and whether Dorsey was
entitled to qualified immunity. Dorsey timely appealed.
                         STANDARD OF REVIEW
     To start, we must address a jurisdictional challenge. Baldwin maintains
that “Dorsey’s arguments on appeal challenge only the district court’s
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                                      No. 19-20465
determination that there remain genuine disputed facts.” While the denial of
a summary judgment motion based on qualified immunity is immediately
appealable, this court’s jurisdiction extends only to “the district court’s legal
analysis of qualified immunity,” Jason v. Tanner, 938 F.3d 191, 194 (5th Cir.
2019), not to the sufficiency of the evidence. Plainly, Dorsey has asserted
qualified immunity as a matter of law. A large portion of her brief is dedicated
to discussing cases suggesting that her response to Baldwin did not amount to
objectively unreasonable behavior in light of clearly established law. Dorsey
alludes to fact issues, but the introduction to her brief states that “[w]hen
considering a qualified immunity defense, the Court must decide . . . whether
facts alleged, taken in the light most favorable to the plaintiff” violated a
constitutional right. We have jurisdiction over the issues raised. 2
       Turning to the merits, “[o]nce a government official asserts [qualified
immunity], the burden shifts to the plaintiff to ‘rebut the defense by
establishing that the official’s allegedly wrongful conduct violated clearly
established law and that genuine issues of material fact exist regarding the
reasonableness of the official’s conduct.’” Bourne v. Gunnels, 921 F.3d 484, 490
(5th Cir. 2019) (quoting Gates v. Tex. Dep’t of Prot’ve & Reg’y Servs., 537 F.3d
404, 419 (5th Cir. 2008)).         “Where, as here, the district court finds that
genuinely disputed, material fact issues preclude a qualified immunity
determination, this court can review only their materiality, not their
genuineness.” Manis v. Lawson, 585 F.3d 839, 842 (5th Cir. 2009).                       Yet,
“[w]hether there are material issues of fact is reviewed de novo.” Id. at 843
(citing Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009)).


       2 Although Dorsey disputes the timing of Baldwin’s “outcry” to her for hospital
treatment, she concedes, as she must, Baldwin’s assertion of timing for purposes of qualified
immunity. Dorsey also concedes that Baldwin received no suicide evaluation for several
hours after her arrest, but she does not and need not concede that she consequently “did
nothing” to prevent Baldwin from killing herself.
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                                No. 19-20465
Further, “[t]he plaintiff’s factual assertions are taken as true to determine
whether they are legally sufficient to defeat the defendant’s motion for
summary judgment.” Id. (citing Freeman v. Gore, 483 F.3d 404, 410 (5th Cir.
2007)).
                               DISCUSSION
      Baldwin must establish material fact issues on two points to survive
summary judgment based on qualified immunity. Cleveland v. Bell, 938 F.3d
672, 675–76 (5th Cir. 2019). She must adduce facts to show that Dorsey
violated her constitutional rights, and she must show that “the asserted right
was clearly established at the time of the alleged misconduct.” Id. A court may
consider either condition first, and if either condition does not obtain, then
Dorsey is immune. Morgan v. Swanson, 659 F.3d 359, 385 (5th Cir. 2011) (en
banc).
         To be more precise, the Fourteenth Amendment protects pretrial
detainees’ right to medical care and to “protection from known suicidal
tendencies.” Garza v. City of Donna, 922 F.3d 626, 632 (5th Cir. 2019); Hare
v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (en banc). A government
official violates a Fourteenth Amendment right when the official acts with
deliberate indifference to a detainee’s serious medical needs.       To prove
deliberate indifference, Baldwin must show that Dorsey was “aware of facts
from which the inference could be drawn that a substantial risk of serious
harm exists,” that Dorsey actually “dr[e]w the inference,” and that Dorsey
“disregard[ed] that risk by failing to take reasonable measures to abate it.”
Hyatt v. Thomas, 843 F.3d 172, 177 (5th Cir. 2016) (quoting Farmer v.
Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979 (1994)); Arenas v. Calhoun,
922 F.3d 616, 620 (5th Cir. 2019) (quoting Gobert v. Caldwell, 463 F.3d 339,
346 (5th Cir. 2006)). Finally, Baldwin must show that “substantial harm”


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                                   No. 19-20465
resulted from Dorsey’s alleged deliberately indifferent conduct. Mendoza v.
Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993).
      The second prong of the qualified immunity analysis asks whether the
detainee’s right to treatment for serious medical needs was “clearly
established” such that every “reasonable official would understand that what
[she] is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640,
107 S. Ct. 3034, 3039 (1987). This inquiry “must be undertaken in light of the
specific context of the [particular] case, not as a broad general proposition . . . .”
Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001). Although
qualified immunity does not require a case in point, “existing precedent must
have placed the statutory or constitutional question beyond debate.” Kisela v.
Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting White v. Pauly, 137 S. Ct. 548,
551 (2017)).
      In this case, the district court purported to find “a substantial risk of
serious harm”—namely, “a significant risk of suicide”—in the fact that
Baldwin “was either on the brink of a suicide attempt via prescription overdose
or had already overdosed on sleeping pills.” The court found genuine disputes
as to whether the significant risk existed and whether Dorsey actually inferred
a substantial risk of suicide. Further, the court found it “unreasonable” that
the “Defendant [took] no action for almost three hours after learning of
Plaintiff’s suicidal ideations and possible overdose just hours earlier,”
“refus[ing] to treat [Plaintiff], and ignor[ing] [her] complaints” (internal
citations omitted).    Finally, the court accepted as “substantial” Baldwin’s
allegations of psychological and other harm resulting from Dorsey’s alleged
conduct. Based on these alleged facts, and the court’s view that “Defendant’s
total failure for three hours to take any measures to address Plaintiff’s risk of
suicide is a violation of clearly established law,” the court denied Dorsey’s
motion for summary judgment.
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                                       No. 19-20465
        We are constrained to disagree with the court’s conclusions on both the
constitutional violation and the question of clearly established law.
       First, as a matter of law, the record does not support an inference that
while in Dorsey’s custody Baldwin faced a substantial risk of suicide. Second,
as a matter of law, Dorsey’s conduct did not amount to “inaction” in response
to Baldwin’s outcry for psychological assistance. We assume that when she
was found, Baldwin “was either on the brink of a suicide attempt via
prescription overdose or had already overdosed on sleeping pills,” but that fact
is not germane to the risk that, once in Dorsey’s custody, she would commit
suicide by overdose. 3 It is undisputed that Baldwin was monitored from the
moment she was found at the intersection until she was handcuffed, and she
was handcuffed until she went to the hospital. Because of this, a reasonable
jury could infer that Baldwin would have liked to have taken more sleeping
pills, but no factfinder could reasonably infer a substantial risk that Baldwin
actually could take more pills. Accordingly, Baldwin did not face a substantial
risk of suicide by overdose while in Dorsey’s custody.
       Baldwin suggests that there was a substantial risk that she would
commit suicide by other means. But even if Dorsey inferred a substantial risk
that Baldwin would commit suicide by means other than overdose, still,
Dorsey’s conduct—e.g., handcuffing Baldwin in the patrol car and handcuffing
her to a bench by one hand at the Intox facility—were reasonable measures to
(and did in fact) abate that risk. On this record, no reasonable jury could



       3  Baldwin does not argue that her alleged overdose itself endangered her physical
health. Indeed, at oral argument, Baldwin’s counsel explicitly stated that it has “not been
our position” that Baldwin “was in imminent danger of death by overdose.” In any event, the
risk of serious harm resulting from past action in this case is nothing like the risk in Dyer v.
Houston, for example. In that case, this court affirmed that a jury could plausibly infer a
substantial risk that serious harm would result from an 18-year-old, “in the grip of a drug-
induced psychosis, str[iking] his head violently against the interior of [a] patrol car over 40
times en route to the jail.” 955 F.3d 501, 508 (5th Cir. 2020).
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                                     No. 19-20465
determine that Dorsey was deliberately indifferent to protecting Baldwin
against self-harm or suicide.
      As still another alternative, Baldwin suggests that Dorsey was
deliberately indifferent to her serious medical need for treatment of a
psychological crisis. For Baldwin to have a claim on this ground, the record
would have to support that Baldwin faced a substantial risk of serious
psychological harm, that Dorsey inferred or knew as much, 4 that Dorsey failed
to take reasonable measures to abate the risk, and that substantial harm
resulted from that failure. Assuming the first two elements are debatable, we
will consider whether Dorsey took reasonable measures to abate a substantial
risk of serious psychological harm.
      The central fact relied on by the district court is that Dorsey “t[ook] no
action for almost three hours after learning of Plaintiff’s suicidal ideations and
possible overdose just hours earlier.” Yet it is undisputed that Dorsey took
Baldwin to a nurse within three hours and to the hospital for suicide evaluation
within four hours. Three hours’ delay in directly responding to a medical need,
at least on the facts alleged here, is not the same as never taking responsive
action at all. Moreover, the reason for delay in this case—to gather information
about Baldwin’s level of intoxication—is a legitimate governmental objective.
Cf. Rhyne v. Henderson County, 973 F.2d 386, 391 (5th Cir. 1992) (Pre-trial
detainees “must be provided with ‘reasonable medical care, unless the failure
to supply it is reasonably related to a legitimate government objective.’”
(quoting Cupit v. Jones, 835 F.2d 82, 85 (5th Cir. 1987))); Grayson v. Peel,
195 F.3d 692, 696 (4th Cir. 1999) (recognizing that allowing a constitutional
claim in this area for police conduct that does not rise to the level of deliberate



      4The district court points out that Dorsey had “taken classes in Suicide Prevention,
Inmates with Mental Illness, and Crisis Intervention Training.”
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                                  No. 19-20465
indifference would result in the “startling” requirement that “officers take all
criminal suspects under the influence of drugs or alcohol to hospital emergency
rooms rather than detention centers”). Consequently, this theory of liability
also fails because the undisputed facts do not amount to a violation of
constitutional rights.
      In addition to the failure of her constitutional-violation theories, Baldwin
has not shown that “the asserted right was clearly established at the time of
the alleged misconduct,” Bell, 938 F.3d at 676. As the district court stated,
“the question is whether, assuming that Defendant learned of Plaintiff’s
suicidal ideations around 1:35 AM, Defendant had fair notice that she was
required to take measures to address Plaintiff’s expressed suicidal thoughts
sometime sooner than three hours later.” In particular, because Dorsey clearly
kept Baldwin safe from self-harm, the question is whether Dorsey had fair
notice that she was required to provide professional medical care within three
hours. We hold that no such fair notice was available.
      The district court held to the contrary but identified no case that clearly
answers its question. Instead, it cited, first, Brown v. Strain, in which the
defendant waived the issue whether his conduct was objectively unreasonable
in light of clearly established law, 663 F.3d 245, 249–51 (5th Cir. 2011). The
court cited two cases where, we held, there was no deliberate indifference and
one case in which this court, under the pre-Twombly standard, reversed a
Rule 12(b)(6) dismissal of a possible deliberate-indifference claim. See Domino
v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 755–56 (5th Cir. 2001); Rhyne,
973 F.2d at 392–94 (5th Cir. 1992); Partridge v. Two Unknown Police Officers,
791 F.2d 1182, 1189 (5th Cir. 1986). None of these cases is apposite.
      The district court acknowledged that in Hare v. City of Corinth this court
stated, “[W]e cannot say that the law is clearly established with any clarity as
to what . . . measures [jailers must take to prevent inmate suicides once they
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                                     No. 19-20465
know of the suicide risk].” 135 F.3d 320, 329 (5th Cir. 1998) (emphasis added)
(quoting Rellergert v. Cape Girardeau County, 924 F.2d 794, 797 (8th Cir.
1991)). Hare thus fails to clearly establish the objective unreasonableness of
Dorsey’s conduct. Certainly, nothing in Hare clearly establishes that to inform
a nurse of a detainee’s suicidal ideations after three hours’ delay (during which
time the detainee was tested for intoxication, remained handcuffed, and was
deprived of the only means of suicide to which she had, apparently, resorted)
is objectively unreasonable. See id.
       Baldwin takes one more shot at showing that clearly established law
gave notice to officers that failing to take her to the hospital within three hours
of a report of suicidal ideations would constitute deliberate indifference. She
points to Easter v. Powell, in which a nurse “offered no treatment options”—
ever—to a prisoner who had suffered severe chest pain for twenty minutes and
“ha[d] a history of serious heart problems,” including chest pain and vomiting
two days earlier. 467 F.3d 459, 465, 461 (5th Cir. 2006) (emphasis added). 5
      Because Baldwin fails to establish a triable material issue concerning a
violation of a constitutional right or law clearly establishing that Dorsey’s
alleged conduct was objectively unreasonable, we conclude that Dorsey is
entitled to qualified immunity.
                                   CONCLUSION
      The judgment of the district court is REVERSED, the case
REMANDED for entry of DISMISSAL.




      5 Easter might clearly establish the unreasonableness of the conduct toward the drug-
tripping, self-harming arrestee in Dyer, where officers never sought medical attention,
955 F.3d at 508, but it is inapposite to a three-hour delay during which the prisoner was
prevented from self-harm.
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