                    REVISED November 30, 2011

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

                                                              FILED
                                                          November 18, 2011
                                 No. 11-30082
                                                             Lyle W. Cayce
                                                                  Clerk

ANTHONY BROWN; MONIQUE BROWN, Individually and as the natural
tutors of their minor child, Gavin Joseph Brown,

                                           Plaintiffs–Appellees
v.

RODNEY J. STRAIN, JR.; BRYAN STEINERT

                                           Defendants–Appellants



                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Defendants–Appellants Rodney J. Strain Jr. and Bryan Steinert appeal
the district court’s order denying in part their motion for summary judgment.
Because we lack jurisdiction, we dismiss the appeal.
                             I. BACKGROUND
      Around 10:12 p.m. on February 18, 2008, St. Tammany Parish Deputy
Bryan Steinert stopped a vehicle being driven by Anthony Brown. During the
course of the stop, Steinert searched the vehicle and discovered an empty pill
bottle and a plastic bag containing cocaine residue. Steinert arrested Brown and
                                  No. 11-30082

his two passengers, Billy Smith and Casey Lane, and placed them in the back
of the patrol car. Steinert also placed a digital voice recorder in the patrol car
to record the suspects’ conversation while he called and waited for a wrecker to
tow Brown’s vehicle.
      While in the back of the patrol car, Brown moved his handcuffed hands
from behind his back, took from Lane’s underwear a plastic bag containing
between five and nine grams of cocaine and at least one Soma pill (a prescription
muscle relaxant), and swallowed them. Before leaving the scene, Steinert
noticed that Brown had moved his hands to the front of his body, and he ordered
Brown out of the patrol car to reset the handcuffs behind Brown’s back.
      Around 11:00 p.m., Steinert took the suspects to the nearby sheriff’s annex
in Slidell, Louisiana, where he listened to the audio recording of the suspects’
conversation in the patrol car. From the recording, Steinert learned that one of
the suspects had swallowed something, but claims that he was unable to
determine exactly what was swallowed by whom. Steinert maintains that the
recording, which was somewhat difficult to hear, indicates only that one of the
suspects was told to “swallow it” or “eat it” without identifying exactly what was
to be swallowed. He admits hearing, however, that someone swallowed a Soma
pill. A more thorough search of Lane at the annex revealed three additional pills
hidden in her underwear, but no cocaine. Before leaving the annex, Steinert did
not inquire if any of the suspects had ingested any substance or if any of them
needed medical attention, and none of the suspects offered such information.
      About two hours after arriving at the annex, Steinert left to drive the
suspects to the jail in Covington, Louisiana, about 30 miles away. Exactly what
happened during this drive is disputed.
      Lane asserts that near         the Interstate    12 exit for      Lacombe,
Louisiana—about halfway between the annex and the jail—she told Steinert
that: Brown had swallowed a bag containing about eight grams of cocaine; he


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“was talking funny,” “stuttering and slurring,” “was real pale,” and needed
medical attention; the jail would not admit or treat him if he arrived in a poor
condition; and he needed “to go to the hospital.” Smith asserts that a few miles
before they reached the jail he told Steinert that: Brown was turning white,
shaking badly, and stuttering; the jail would not accept a person who had
something medically wrong with him; Steinert should have an ambulance
waiting at the jail for them; and if Steinert did not go directly to the hospital,
Brown “wasn’t going to make it.” They further assert that Steinert heard their
statements, was able to see Brown shaking in the back seat of the patrol car
through the rearview mirror, and was aware of Brown’s condition before arriving
at the jail, but that Steinert’s only response was to partially “crack[] the
windows” of the patrol car to give Brown some air and say that they would “be
at the jail soon.”
      In contrast, Steinert asserts that he did not hear Lane’s and Smith’s
statements, that he was never told that Brown swallowed a bag of cocaine and
needed medical attention, and that he never became aware of Brown’s condition
until they arrived at the jail and he started helping Brown out of the patrol car.
He claims that the first time he learned that Brown swallowed a bag of cocaine
is when Lane told him such information after they arrived at the jail.
      According to a video recording of the sally-port entrance to the jail, the
patrol car arrived at 1:43 a.m. Steinert opened the rear patrol-car door and
Brown tried to exit. Brown had difficulty balancing himself and Steinert
grabbed hold of him to help steady him. Steinert waved for assistance at 1:44
a.m., and several other jail personnel came to assist. Brown soon collapsed and
lay on the floor from 1:45 a.m. to 1:51 a.m., shaking frequently. An ambulance
was called at some point during this period. Several jail nurses came with a
wheelchair at 1:48 a.m. They checked for Brown’s vital signs but performed no
other medical procedures and left the area several minutes later but before the


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ambulance arrived. It is undisputed that medical equipment and materials
useful in treating drug overdoses were available, but none of the jail nurses on
duty were qualified to use such equipment and the on-call physician was not
called. Brown was helped to a seated position at 1:51 a.m. and stayed there,
shaking frequently, until 1:56 a.m., when an ambulance and paramedics arrived.
Between 1:45 a.m. and 1:56 a.m., Steinert and other jail personnel stood around
watching Brown but did not perform any medical procedures. The paramedics
checked Brown’s vital signs, placed him on a gurney, and then placed him in the
ambulance at 2:01 a.m.
      The ambulance left the jail and headed for the hospital about three miles
away at 2:09 a.m. While in the ambulance, Brown suffered two heart attacks
and his body temperature rose to 107 degrees.              This caused anoxic
encephalopathy (a shortage of oxygen to the brain) and, ultimately, permanent
brain damage. Brown survived but is totally disabled and is currently being
taken care of by his family, which includes his wife Monique and his minor son
Gavin (collectively with Brown, “Plaintiffs”).
      Plaintiffs filed a civil action in the Eastern District of Louisiana on
February 18, 2009, against St. Tammany Parish Sheriff Rodney Strain and
Deputies Bryan Steinert, Julie Boynton, and Wayne Wicker, each in their
individual and official capacities. They brought claims for: (1) negligence under
Louisiana state law; and (2) deliberate indifference based on the Eighth and
Fourteenth Amendments under 42 U.S.C. § 1983.            Defendants moved for
summary judgment on all claims. On December 13, 2010, the district court
granted the motion for summary judgment in part and denied it in part. The
only three issues to survive summary judgment were the state-law negligence
claim and the § 1983 claims against Steinert in his personal capacity and Strain
in his official capacity. Only the two § 1983 claims are currently before us.



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           II. JURISDICTION AND STANDARD OF REVIEW
      “Although a denial of a defendant’s motion for summary judgment is
ordinarily not immediately appealable, the Supreme Court has held that the
denial of a motion for summary judgment based upon qualified immunity is a
collateral order capable of immediate review.” Kinney v. Weaver, 367 F.3d 337,
346 (5th Cir. 2004) (en banc) (citing Mitchell v. Forsyth, 472 U.S. 511, 530
(1985)). Such an order is only immediately appealable, however, “to the extent
that the district court’s order turns on an issue of law.” Kovacic v. Villarreal,
628 F.3d 209, 211 (5th Cir. 2010).
      “The standard of review that we apply in an interlocutory appeal asserting
qualified immunity differs from the standard employed in most appeals of
summary judgment rulings.”        Kinney, 367 F.3d at 347.       Because “in an
interlocutory appeal we lack the power to review the district court’s decision that
a genuine factual dispute exists[,] . . . [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.” Id. at
348 (citing Behrens v. Pelletier, 516 U.S. 299, 313 (1996)).
                           III. APPLICABLE LAW
A.    Qualified Immunity
      “The doctrine of qualified immunity protects public officials from liability
for civil damages ‘insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.’” Jennings v. Patton, 644 F.3d 297, 300 (5th Cir. 2011) (quoting Pearson
v. Callahan, 555 U.S. 223, 231 (2009)). To determine whether a public official
is entitled to qualified immunity, we inquire: “(1) whether the facts that the
plaintiff has alleged make out a violation of a constitutional right; and (2)
whether the right at issue was ‘clearly established’ at the time of the defendant’s
alleged misconduct.” Id. (citing Pearson, 555 U.S. at 815–16). It is undisputed

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that   the   right   at   issue—to    receive    medical    care   during    pretrial
confinement—was clearly established at the time of Steinert’s alleged
misconduct. See Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996)
(en banc). A pretrial detainee’s right to medical care is violated if “an officer acts
with deliberate indifference to a substantial risk of serious medical harm and
resulting injuries.” Mace v. City of Palestine, 333 F.3d 621, 625 (5th Cir. 2003).
Thus, Steinert would not be entitled to qualified immunity if Plaintiffs had
alleged facts showing that Steinert was deliberately indifferent to the
substantial risk of medical harm Brown faced after ingesting the cocaine.
B.     Plaintiffs’ Constitutional Claims
       “The appropriate standard to apply in analyzing constitutional challenges
brought by pretrial detainees depends on whether the alleged unconstitutional
conduct is a ‘condition of confinement’ or ‘episodic act or omission.’” Tamez v.
Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (quoting Scott v. Moore, 114 F.3d 51,
53 (5th Cir. 1997) (en banc)). This action is properly analyzed as an “episodic act
or omission” case because Plaintiffs allege that Brown’s constitutional rights
were violated by Steinert’s refusal to provide Brown with immediate medical
treatment, which is “a particular act or omission of one or more officials.” Id. at
769–70 (quoting Scott, 114 F.3d at 53) (internal quotation marks omitted). We
apply the “deliberate indifference” standard in episodic act or omission cases.
Id. at 769. Under that standard, Plaintiffs must establish that Steinert “acted
with subjective deliberate indifference to [Brown’s] need for medical care.” Id.
at 770. To show subjective deliberate indifference, Plaintiffs must present
evidence: (1) that Steinert had “subjective knowledge of facts from which an
inference of substantial risk of serious harm could be drawn”; (2) that Steinert
“actually drew that inference”; and (3) that Steinert’s response to the risk
indicates that he “subjectively intended that harm to occur.” Id. (internal
quotation marks omitted).

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                                    IV. DISCUSSION
A.     Plaintiffs’ Claim Against Steinert
       Whenever a “district court denies an official’s motion for summary
judgment predicated upon qualified immunity, the district court can be thought
of as making two distinct determinations, even if only implicitly.” Kinney, 367
F.3d at 346. “First, the district court decides that a certain course of conduct
would, as a matter of law, be objectively unreasonable in light of clearly
established law.” Id. Here, the district court explicitly determined that “[i]f
Steinert had the knowledge that Mr. Brown needed urgent medical care,
then . . . [his] refusal to provide Mr. Brown with medical care would be
objectively unreasonable in light of established law.” Brown v. Strain, No. 2:09-
CV-2813, slip op. at 15 (E.D. La. Dec. 13, 2010). Steinert does not appeal this
determination.
       “Second, the court decides that a genuine issue of fact exists regarding
whether the defendant(s) did, in fact, engage in such conduct.” Kinney, 367 F.3d
at 346. “[W]e lack jurisdiction to review conclusions of the second type on
interlocutory appeal.”1 Id. The district court determined that “[t]he evidence
Plaintiffs provide establishes at least a genuine issue of material fact as to
whether Steinert was aware that Mr. Brown had swallowed a large amount of
cocaine and needed urgent medical care.” Brown, slip op. at 13. Steinert
appealed this determination, which is precisely the type of factual conclusion we
are without jurisdiction to review on interlocutory appeal. See Kinney, 367 F.3d
at 347 (“[W]e have jurisdiction only to decide whether the district court erred in


       1
            Because of this limitation on our appellate jurisdiction, “officials may sometimes be
required to proceed to trial even though the ultimate resolution of th[e] factual disputes may
show that they are entitled to qualified immunity from liability.” Kinney, 367 F.3d at 346 n.8.
While this “‘threatens to undercut’ the policy of affording immunity from
trial, . . . ‘countervailing considerations’ nonetheless support this limitation on interlocutory
jurisdiction.” Id. (citing Johnson v. Johnson, 515 U.S. 304, 317–18 (1995)).

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concluding as a matter of law that officials are not entitled to qualified immunity
on a given set of facts.” (emphasis added)).
      Steinert disagrees with the district court about what inferences a jury
could appropriately draw from the district court’s factual findings.2 He points
to Brown’s, Lane’s, and Smith’s various lies and deceptions during the course of
their interactions with Steinert prior to the drive to the jail, and to Steinert’s
assertions of what he was aware of and when, as reasons why the district court
erred in finding the alleged facts could support a finding of deliberate
indifference. Steinert’s arguments, however, are directed at the credibility of the
witnesses and the truth of the facts alleged; they are not directed at whether the
facts, taken as true, could legally support an inference of deliberate indifference
by Steinert during the drive to the jail. Steinert gives no persuasive reason why
Plaintiffs’ allegations that he was aware that Brown had overdosed on cocaine
and needed immediate medical treatment are legally insufficient to either
support their claim or defeat his qualified immunity defense, which are analyzed
using the same deliberate indifference standard. See Tamez, 589 F.3d at 771


      2
         In its order denying summary judgment on this issue, the district court made the
following findings:
       First, Steinert had initiated Mr. Brown’s arrest based on the discovery of an
       empty bag of cocaine. Second, Steinert was aware that Mr. Brown had moved
       his hands to his front for some reason. Third, the recording Steinert listened to
       at the Slidell Complex suggested that one of the three arrestees had swallowed
       something. Fourth, Plaintiffs submit that they actually told Steinert that Mr.
       Brown had swallowed a quarter-ounce of cocaine and needed immediate medical
       attention. Fifth, Plaintiffs have produced numerous depositions that indicate
       that Sheriff Strain’s deputies knew that the Covington jail would refuse medical
       treatment of arrestees that had pre-existing illnesses or injuries. Finally, the
       video of the Covington jail shows quite clearly that Mr. Brown was already in
       a medical emergency upon arrival at the sally port, so it is unlikely that he was
       not exhibiting some symptoms of overdose during the ride to the jail. Based on
       this evidence a rational jury could conclude that Steinert had drawn the
       inference that Mr. Brown needed to be taken to the hospital and that he
       intended on denying Mr. Brown the care he required by continuing to the jail,
       where Mr. Brown would not receive treatment.
Brown, slip op. at 13–14.

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(stating that had the defendant officials been told to take the plaintiff to the
hospital and failed to do so, “the case would be different”).        Accordingly,
Steinert’s appeal is dismissed for lack of jurisdiction.
B.    Plaintiffs’ Claim Against Strain
      For different reasons, we lack jurisdiction to review the district court’s
order with respect to Plaintiffs’ claim against Strain. Because Strain is being
sued in his official capacity as St. Tammany Parish Sheriff, the suit against him
is “in essence” a suit against a municipality. See Woodard v. Andrus, 419 F.3d
348, 352 (5th Cir. 2005) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690
n.55 (1978)). “Municipal governments may not raise immunity defenses on
interlocutory appeal.” Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d 388, 392
(5th Cir. 2000).
      Acknowledging this jurisdictional hurdle, Strain urges us to exercise
“pendent appellate jurisdiction” over the district court’s order with respect to
Plaintiffs’ claim against him. “[I]n rare and unique circumstances where a final
appealable order is ‘inextricably intertwined’ with an unappealable order or
where review of the unappealable order is necessary to ensure meaningful
review of the appealable order,” we may exercise pendent appellate jurisdiction.
Byrum v. Landreth, 566 F.3d 442, 449–50 (5th Cir. 2009) (quoting Thornton v.
GM, 136 F.3d 450, 453 (5th Cir. 1998)). Because we lack jurisdiction over
Steinert’s appeal, however, there is no appealable order to which Strain’s appeal
can be pendent. Accordingly, it too is dismissed for lack of jurisdiction
                                CONCLUSION
      Appellants’ appeal is DISMISSED for lack of jurisdiction.




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