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

                                                                   FILED
                                                             December 12, 2012

                                No. 11-10511                     Lyle W. Cayce
                              consolidated with                       Clerk
                                No. 11-10512


JANIS L. BROWN, Individually, and as Personal Representative of the
Estate of Jason Ray Brown, Deceased; BILLY RAY BROWN,

                                           Plaintiffs-Appellants
v.

DANIEL H. BOLIN, in his Individual and Official Capacity,

                                           Defendant -Appellee

consolidated with 11-10512

JANIS L. BROWN, Individually, and as Personal Representative of the
Estate of Jason Ray Brown, Deceased; BILLY RAY BROWN,

                                           Plaintiffs-Appellants
v.

WICHITA COUNTY, TEXAS,

                                           Defendant - Appellee


                 Appeals from the United States District Court
           for the Northern District of Texas, Wichita Falls Division


Before DAVIS, SMITH and DENNIS, Circuit Judges.
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                          No. 11-10511, cons. with 11-10512

W. EUGENE DAVIS, Circuit Judge:*
       This case arises from the death of 26 year old Jason Ray Brown in the
Wichita County Jail in Texas while he was a pretrial detainee. This is the
second appeal in this case. In the prior appeal, Brown v. Callahan, 623 F.3d 249
(5th Cir. 2010) (Callahan), a panel of this court held that the Wichita County
Sheriff Thomas Callahan was entitled to qualified immunity. Based largely on
that decision, the district court later granted summary judgment for Wichita
County and Dr. Daniel Bolin, the physician in charge of the jail, on the plaintiffs’
federal civil rights claims. The plaintiffs now appeal that judgment, which we
affirm.
                                             I.
       Because the district court decided this case on summary judgment, this
court “must view the facts and the inferences to be drawn from them in the light
most favorable to [the plaintiffs].” Wyatt v. Hunt Plywood Co., Inc., 297 F.3d
405, 409 (5th Cir. 2002); see also Hare v. City of Corinth, Miss., 74 F.3d 633, 636
(5th Cir. 1996)(en banc). Accordingly, the facts below present the summary
judgment evidence most favorable to the plaintiffs.
       On Thursday July 22, 2004 around 3:00 p.m., Brown was arrested and
brought to the Wichita County Jail. Brown told the booking officer at the jail
that he was under the care of a local specialist, Dr. Joseph Dean, for several
serious medical conditions, including autoimmune chronic hepatitis, esophageal
varices (enlarged veins in the lower part of the esophagus), anemia, jaundice,
and splenomegaly (an enlargement of the spleen). Brown was placed in the jail’s
general population. At 4:00 p.m., Brown complained that he felt nauseous and
had vomited a small amount of blood. Nurse Michelle George contacted Brown’s


       *
         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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pharmacist, who gave her Brown’s list of prescribed medications, which were
prescribed to be taken every few hours. The pharmacist also told her that Brown
had not picked up his medications in several months. Nurse George attempted
to reach Brown’s physician, Dr. Dean. George then spoke with her supervisor,
Nurse Rose Ingram, who told her not to order the medications until the patient
was seen by the jail’s medical officer, Dr. Daniel Bolin. Dr. Bolin was under
contract with Wichita County to be the physician in charge of providing medical
care to inmates at the jail, as well as supervising the jail’s nursing staff and
providing written standing orders for the nursing staff.
      The following day, July 23, shortly before midnight, Brown vomited a large
amount of blood. Other inmates contacted officers for help. Corporal Green and
Officer Sours responded. They found a large puddle of blood next to Brown.
Officer Sours described the puddle of blood as covering an area 1 to 1.5 feet in
width and 2 to 2.5 feet in length. Brown told Officer Sours that he had gastric
ulcers, that he took a significant amount of medications each month, and that
he had received 27 units of blood transfusions over the preceding six months.
Corporal Greene called Kaye Krajca, who was a nurse at the jail, and explained
the situation to her. Krajca told him to give Brown a tube of liquid antacid per
“standing orders.”
      Brown took the antacid but soon other inmates alerted the officers that
Brown was complaining that he was in a lot of pain. Officer Sours called Krajca
again and she asked whether anyone actually saw Brown throw up blood. Sours
told her, “Kaye, I had to clean it up.” Krajca told the officers to give Brown a
phenergan suppository for the nausea from Dr. Bolin’s standing orders. Around
2:25 a.m. (now July 24), the officers returned to Brown’s cell to administer the
suppository but found Brown moaning and incoherent. The officers called Krajca
at home again and told her that Brown was incoherent. Krajca advised that she
was en route.

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      When Krajca arrived at the jail, Brown was largely unresponsive. Krajca
had Brown moved to medical solitary and administered the suppositories.
During a cigarette break, Krajca asked Sours, “Do you know what kind of ass
chewing I would get from Dr. Bolin if I sent him to the hospital in the good
health that he is in?”
      On Saturday, July 24, between 3:12 a.m. and 11:30 p.m., detention officers
allegedly monitored Brown through a slot in the cell door. At approximately
11:30 p.m., Brown was found unresponsive and without a pulse by the two
officers. Krajca advised them to call emergency services. The medical response
team reported that Brown had died quite some time prior to their arrival. The
autopsy report indicates that Brown died from a massive gastrointestinal
hemorrhage.
      The plaintiffs, Brown’s parents, sued Wichita County; the Wichita County
Sheriff; Dr. Bolin; and nurses and officers at the jail. In addition to state law
negligence claims, the plaintiffs brought claims under 42 U.S.C. § 1983, alleging
that the defendants violated Brown’s Fourteenth Amendment right to due
process through their deliberate indifference to his serious medical needs. The
district court denied summary judgment for the County, and denied summary
judgment for Dr. Bolin and the Sheriff, concluding that they were not entitled
to qualified immunity. Sheriff Callahan appealed and this court reversed,
concluding that Sheriff Callahan was entitled to qualified immunity. Callahan,
623 F.3d 249. Callahan disclaimed any opinion on the liability of Dr. Bolin,
“Whether Dr. Bolin, jail nurses, or other staff violated Brown's rights is not
before us; the Browns' case against Dr. Bolin and Nurse Krajca, awaits trial
pending the outcome of this appeal, and we express no opinion on its merits.”
Callahan, 623 F.3d at 253. However, in light of that decision, the County and
Dr. Bolin asked the district court to reconsider its prior orders denying their
motions for summary judgment on the issue of qualified immunity. The court

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granted reconsideration, and relying heavily on Callahan, reversed its prior
orders and granted summary judgment for the County and Dr. Bolin on the
plaintiffs’ § 1983 claims. The plaintiffs timely appealed.
                                        II.
      This court reviews de novo the grant of summary judgment. Callahan,
623 F.3d at 253. “The court shall grant summary 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). The issue
presented in the motions for summary judgment decided by the district court
concerned the defense of qualified immunity asserted by the defendants. As we
stated in Callahan,
      A qualified immunity defense alters the usual summary judgment
      burden of proof. See Michalik v. Hermann, 422 F.3d 252, 262 (5th
      Cir. 2005). Once an official pleads the defense, the burden then
      shifts to the plaintiff, who must rebut the defense by establishing a
      genuine fact issue as to whether the official's allegedly wrongful
      conduct violated clearly established law. Id. The plaintiff bears the
      burden of negating qualified immunity, id., but all inferences are
      drawn in his favor.

      The qualified immunity defense has two prongs: whether an
      official's conduct violated a constitutional right of the plaintiff; and
      whether the right was clearly established at the time of the
      violation. Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009). A
      court may rely on either prong of the defense in its analysis. Id.

      If the defendant's actions violated a clearly established
      constitutional right, the court then asks whether qualified immunity
      is still appropriate because the defendant's actions were "objectively
      reasonable" in light of "law which was clearly established at the
      time of the disputed action." Collins v. Ainsworth, 382 F.3d 529, 537
      (5th Cir. 2004) (citations omitted). Whether an official's conduct was
      objectively reasonable is a question of law for the court, not a matter
      of fact for the jury. Williams v. Bramer, 180 F.3d 699, 703 (5th Cir.
      1999). To be clearly established for purposes of qualified immunity,
      the contours of the right must be sufficiently clear that a reasonable

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        official would understand that what he is doing violates that right.
        Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008). The
        unlawfulness of the defendant's actions must have been readily
        apparent from sufficiently similar situations, but it is not necessary
        that the defendant's exact act have been illegal. Id. at 236-37. An
        official's actions must be judged in light of the circumstances that
        confronted him, without the benefit of hindsight. Graham v. Connor,
        490 U.S. 386, 396-97, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). In
        essence, a plaintiff must allege facts sufficient to demonstrate that
        no reasonable officer could have believed his actions were proper.
        Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994).

Id. at 253.
                                        III.
        As a pretrial detainee, Brown had a clearly established Fourteenth
Amendment right not to be denied medical care as a result of deliberate
indifference. Hare, 74 F.3d at 650. Brown appeals the grant of summary
judgment on the issue of qualified immunity both as to Dr. Bolin and as to
Wichita County.         Determining what standard to apply hinges on whether
Brown’s claims as a pretrial detainee are properly classified as a condition of
confinement or as an episodic act or omission. Id. at 644. A condition of
confinement case occurs when a constitutional attack is made on the “general
conditions, practices, rules, or restrictions of pretrial confinement.” Id.        A
condition is usually the manifestation of an explicit policy or restriction, such as
the number of bunks per cell, mail privileges, disciplinary segregation, etc.
Shephard v. Dallas County, 591 F.3d 445, 452 (5th Cir. 2009), citing Scott v.
Moore, 114 F.3d 51, 53 n.2 (5th Cir. 1997)(en banc). In the absence of an explicit
policy, a plaintiff may prove a condition reflected by an unstated policy
established by evidence of a pattern of acts or omissions “sufficiently extended
or pervasive, or otherwise typical of extended or pervasive misconduct by [jail]
officials to prove an intended condition or practice.” Id., citing Hare, 74 F.3d at
645.

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       More often, however, a plaintiff's claim, properly characterized,
       faults specific jail officials for their acts or omissions because the
       plaintiff cannot establish the existence of an officially sanctioned
       unlawful condition. In these cases, "an actor usually is interposed
       between the detainee and the municipality, such that the detainee
       complains first of a particular act of, or omission by, the actor and
       then points derivatively to a policy, custom, or rule (or lack thereof)
       of the municipality that permitted or caused the act or omission."
       Scott, 114 F.3d at 53.

Id.
       We conclude that this case presents an episodic acts complaint. The
specific complaint in this case is that Nurse Krajca, faced with Brown’s critical
medical situation, should have sent Brown to the hospital or at least called Dr.
Bolin for advice. Brown alleges that Krajca’s conduct was a consequence of Dr.
Bolin’s and the County’s policy of: (1) placing inadequately trained vocational
nurses in the position to make critical medical decisions for the inmates without
adequate guidance, training or supervision; and (2) with the knowledge that the
supervising physician intimidated nurses to prevent them from calling him after
hours. However, the claim starts with Nurse Krajca’s determination that
Brown’s medical condition could be handled in the jail by use of the standing
orders for medication without sending him to the hospital. See Scott, 114 F.3d
at 53-54; Sibley v. Lemaire, 184 F.3d 481, 487-88 (5th Cir. 1999).
       The record lacks evidence of a systemic failure of medical care of the type
that we have found to present a unconstitutional condition of confinement. In
Shepherd, the plaintiff indicted the entire jail medical system as a cause of his
stroke. 591 F.3d at 453. The jail had a history of problems “evaluat[ing],
monitoring, and treat[ing] inmates with chronic illness . . . due to poor or non-
existent procedures and understaffing of guards and medical personel.” Id.
Shepherd also presented independent evidence of the deficiencies including
investigative reports from the County and Department of Justice and affidavits


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from employees of the jail and its medical contractor. For example, the jail’s
pharmacist testified that “the administration of medication at the jail was so
inadequate that, according to surveys he conducted, half or more of inmates did
not receive their prescription medications.” Id. at 456.
      Similarly, in Duval v. Dallas County, the plaintiff contracted a severe
infection that was resistant to typical antibiotic treatment. 631 F.3d 203, 206
(5th Cir. 2011). The plaintiff presented evidence that the jail had a “bizarrely
high incidence” of the infection compared to other jails and that the County was
aware of the problem, continued to house inmates in the face of the inadequately
controlled infection, and knew how to control the infection but failed to
implement known measures to eradicate or control the situation. Id. at 208.
This case lacks similar evidence of a systemic failure of emergency medical care
at the Wichita County Jail. We are therefore persuaded that the district court
properly analyzed this case as an episodic acts case.
                                       IV.
      We turn next to the issue of whether the district court properly granted
summary judgment on the issue of qualified immunity in favor of Dr. Bolin. In
order to overcome the qualified immunity defense in an episodic acts case,
Brown must prove that the official “acted or failed to act with deliberate
indifference to the detainee’s needs.” Hare, 74 F.3d at 648. To establish
deliberate indifference, the plaintiff must establish that the official knew of and
disregarded an excessive risk of inmate health or safety. Farmer v. Brennan, 511
U.S. 825, 837 (1994); Hare, 74 F.3d at 648-49 (applying Farmer standard for
convicted inmates in a condition of confinement case to pretrial detainee’s claim
of episodic act). The 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.” Id. Because Dr. Bolin was not directly involved
in the events surrounding Brown’s death and “liability under the doctrine of

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                       No. 11-10511, cons. with 11-10512

respondeat superior is not cognizable in § 1983 actions,” the plaintiffs’ claims
against Dr. Bolin are premised on supervisory liablity. See Cozzo v. Tangipahoa
Parish Council -Pres. Govt., 279 F.3d 273, 286 (5th Cir. 2002).
      An official
      not personally involved in the acts that deprived the plaintiff of [his]
      constitutional rights is liable under section 1983 if: 1) the
      [supervisor] failed to train or supervise the officers involved; 2)
      there is a causal connection between the alleged failure to supervise
      or train and the alleged violation of the plaintiff's rights; and 3) the
      failure to train or supervise constituted deliberate indifference to
      the plaintiff's constitutional rights.

Id., (citing Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 459 (5th Cir. 2001)).
Proof of a single instance of constitutional violations resulting from alleged
inadequate training will not ordinarily support a plaintiff’s claim that lack of
training caused the violation of his constitutional rights. Id. at 286-87. Rather,
a pattern of similar violations is ordinarily required to sustain a plaintiff’s
burden of proof. Id.
      Supervisory liability can also be established without direct participation
in the alleged events “if supervisory officials implement a policy so deficient that
the policy itself is a repudiation of constitutional rights and is the moving force
of the constitutional violation." Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir.
1987)(internal quotations and citations omitted). An official policy is:
      1. A policy statement, ordinance, regulation, or decision that is
      officially adopted and promulgated by the [government entity] . . .
      or by an official to whom the [entity] has delegated policy-making
      authority; or

      2. A persistent, widespread practice of . . . officials or employees,
      which, although not authorized by officially adopted and
      promulgated policy, is so common and well settled as to constitute
      a custom that fairly represents [the entity's] policy.



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                           No. 11-10511, cons. with 11-10512

Cozzo, 279 F.3d. at 289, quoting Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.
1992). Existence of a constitutionally deficient policy cannot be inferred from a
single wrongful act. Thompkins, 828 F.2d at 304.
       Brown’s evidence on summary judgment paints a picture of a system of
medical care for prison inmates and detainees that has serious potential for the
type of harm that befell Brown. Although the County has in place a General
Order for Health Services, it was drafted by the Sheriff and the summary
judgment evidence reflects that neither Dr. Bolin nor Nurse Krajca were aware
of it. The General Order outlines circumstances in which an inmate should be
transported for emergency medical care – including severe loss of blood. Dr.
Bolin’s contract with the County placed him in charge of the medical care for the
inmates and charged him with supervision of the professional activities of the
nurses. However, he did not review the nurses’ decisions that occurred in his
absence and performed no evaluations of the nurses’ performance. The nurses
were the first line providers of health care and Dr. Bolin became involved when
the nurses called him.
       The nurses who were charged with the gatekeeping function between the
inmates and Dr. Bolin or medical care other than what could be provided via the
standing orders were LVNs, licensed vocational nurses. According to the Texas
Occupations Code for Health Profession, V.T.C.A. § 301.002(5), nurses with this
qualification are not trained to diagnose patients or do procedures.1 Rather, they


       1
           The Texas Occupations Code for Health Professions defines Vocational Nursing as
follows:
§ 301.002. Definitions
(5) “Vocational nursing” means a directed scope of nursing practice, including the
performance of an act that requires specialized judgment and skill, the proper
performance of which is based on knowledge and application of the principles of
biological, physical, and social science as acquired by a completed course in an
approved school of vocational nursing. The term does not include acts of medical
diagnosis or the prescription of therapeutic or corrective measures. Vocational

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are qualified to assess a patient’s situation and report on the same. Id.
Accordingly, Brown argues that allowing the LVNs to medicate detainees from
the standing orders required them to perform medical care beyond their
professional training. The summary judgment record also includes evidence that
Dr. Bolin intimidated the nurses when they called him about inmate’s medical
needs.
      Nurse Krajca, who observed Brown’s condition, undoubtedly acted with
deliberate indifference to Brown’s medical needs. However, to find that Dr.
Bolin was deliberately indifferent, there must be evidence from which we can
conclude that Dr. Bolin was aware that the failure to properly train or supervise
the nurses or that his other policies and procedures for medical care at the jail
created a substantial risk of harm to the detainees and then acted with
deliberate indifference to that risk. Hare, 74 F.3d at 650. The deliberate
indifference standard is high. Negligence or even gross negligence is not enough.

nursing involves:

      (A) collecting data and performing focused nursing assessments of the
      health status of an individual;
      (B) participating in the planning of the nursing care needs of an individual;

      (C) participating in the development and modification of the nursing care
      plan;

      (D) participating in health teaching and counseling to promote, attain,
      and maintain the optimum health level of an individual;

      (E) assisting in the evaluation of an individual's response to a nursing
      intervention and the identification of an individual's needs; and

      (F) engaging in other acts that require education and training, as
      prescribed by board rules and policies, commensurate with the nurse's
      experience, continuing education, and demonstrated competency.

V.T.C.A., Occupations Code § 301.002(5). (emphasis added).




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Id. at 645. “[T]he correct legal standard is not whether the jail officer [Dr. Bolin]
‘knew or should have known,’ but whether they had gained actual knowledge of
the substantial risk of [denial of appropriate medical care as a result of current
jail staffing and policies] and responded with deliberate indifference.” Id.
      The record contains no such evidence at the time of Brown’s death. Dr.
Bolin had no knowledge of Brown’s medical problems before he died. The record
contains no evidence of past instances where inmates suffered harm due to
improper nursing assessment, treatment from the standing orders, or failure to
call Dr. Bolin due to fear of reprimand. It also contains no evidence that Dr.
Bolin knew that the system of medical care at the jail, including staffing and
decision making by LVNs, had been assessed as deficient by any reviewing
authority. See Shepherd, 591 F.3d at 453. In fact, the jail passed State
certification. Accordingly, the district court did not err in granting summary
judgment for Dr. Bolin on the issue of qualified immunity.
                                         V.
      For similar reasons, we conclude that the district court did not err in
granting summary judgment for Wichita County on the issue of qualified
immunity. A plaintiff seeking to hold a municipality liable under § 1983 must
put on evidence demonstrating that (1) a policymaker; (2) exercised deliberate
indifference in promulgating an unconstitutional policy; and (3) the
unconstitutional policy was a moving force in the violation of an individual’s
constitutional rights. Piotrowski v. City of Houston, 237 F.3d 567, 578-79 (5th
Cir. 2001). Even if we assume that Dr. Bolin can be a policymaker for purposes
of imputing liability on the County, Brown’s case fails for lack of evidence that
the County exercised deliberate indifference in promulgating an unconstitutional
policy. Id.
        The existence of a constitutional violation and a municipality’s liability
for that violation are two separate issues. Hare, 74 F.3d at 649, n.4.

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        Different versions of the deliberate indifference test govern the two
        inquiries. Our opinion in this case makes clear that to prove an
        underlying constitutional violation in an individual or episodic case,
        a pre-trial detainee must establish that an official acted with
        subjective deliberate indifference. Once the detainee has met this
        burden, she has proved a violation of her rights under the Due
        Process Clause. To succeed in holding a municipality accountable
        for that due process violation, however, the detainee must show that
        the municipal employee’s act resulted from a municipal policy or
        custom adopted or maintained with objective deliberate indifference
        to the detainee’s constitutional rights. See Farmer, 114 S.Ct. at 1981
        (“It would be hard to describe the Canton understanding of
        deliberate indifference, permitting liability to be premised on
        obviousness or constructive notice, as anything but objective.”).

Id.
        In Scott v. Moore, 114 F.3d 51, 54 (5th Cir. 1997), this court analyzed
whether the city’s failure to adopt a policy of additional staffing to prevent
sexual abuse of female detainees amounted to objective deliberate indifference
as follows;
        First, there is no showing that the city had actual knowledge that
        its staffing policy created a substantial risk of harm to female
        detainees. To the contrary, the city had followed the same staffing
        procedures since the late 1970's without any incident and had
        received no complaint of sexual assault by a jailer prior to this
        incident.
Id. Further the jailers underwent a background investigation, medical exam
and polygraph test which revealed no cause for concern. The specific jailer in
question had served for four years as a commissioned police officer without
incident and had been trained by experienced jailers in the official policies of the
jail. See also Snyder v. Trepagnier, 142 F.3d 791, 799 (5th Cir. 1998)(No
evidence showing that the city was aware of the supposedly high stress levels in
the New Orleans Police Department or knowledge that the absence of a stress




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management program was likely to endanger the constitutional rights of its
citizens.)
      As stated above, the record contains no evidence of failure of the system
of medical care at the Wichita County Jail that would indicate that the County
was deliberately indifferent in maintaining that policy.       Accordingly, we
conclude that the district court did not err in granting summary judgment on the
issue of qualified immunity in favor of the County.
                                      VI.
      Although we reach these conclusions based on the facts available to Dr.
Bolin and the County at the time of Brown’s incarceration, this holding is not
approval of the medical care provided by Dr. Bolin or the Wichita County Jail.
As pointed out by the plaintiffs, there have been two documented cases of
improper assessment by the nursing staff at the jail since Brown’s death which
could be viewed as evidence that the nurses do not have the proper training to
recognize critical medical situations. These incidents may be sufficient to put
the Sheriff, Dr. Bolin and the County on notice that their present policies may
be likely to endanger the constitutional rights of the inmates in the Wichita
County Jail. However, based on the record in this case, we affirm the judgment
of the district court granting qualified immunity to these defendants.
AFFIRMED.




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DENNIS, Circuit Judge, concurring in part and dissenting in part.
       I agree with the majority’s holding that Wichita County cannot be held
liable as a municipality under 28 U.S.C. § 1983 for the death of Jason Ray
Brown. Actions by those with final authority for making a decision in the
municipality constitute an official policy of the municipality for purposes of §
1983.1 For the reasons given below, I believe that the alleged facts concerning
Dr. Bolin’s actions present a submissible case of his liability for Brown’s death.
However, Dr. Bolin is a contract employee of the County, not a final
decisionmaker of the County, and as such his actions would not give rise to
liability on the part of the County.2 Sheriff Callahan is a final decisionmaker of
the Wichita County Jail,3 and this panel is bound by the panel’s decision in
Brown v. Callahan, 623 F.3d 249, 252 (5th Cir. 2010) (Brown I) that Sheriff
Callahan was entitled to qualified immunity. I continue to disagree with the
holding in Brown I.4 However, I agree with the majority’s implicit premise in
this case that we are bound by the panel’s holding in Brown I that Sheriff
Callahan lacked the requisite knowledge or notice to satisfy supervisory liability;
therefore, I agree that the County cannot be held liable for Sheriff Callahan’s
decisionmaking with regard to medical care administered in this case.                           I
therefore concur in the majority’s holding as to Wichita County.


       1
           E.g., Pembaur v. City of Cincinnati, 475 U.S. 469 (1986).
       2
         Cf. Mandel v. Doe, 888 F.2d 783, 794 (11th Cir. 1989) (holding that a physician’s
assistant was the “sole and final policymaker with respect to medical affairs at [a] . . . prison”
where “the County had entered into a Memorandum of Understanding with the health
department and had established a policy that medical care for inmates at the . . . prison would
be provided by [the] physician’s assistant” and where he was “authorized to function without
any supervision or review at all”).
       3
           See Turner v. Upton Cnty., 915 F.2d 133, 136 (5th Cir. 1990).
       4
           See id. at 359 (Dennis, J., dissenting).

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      However, I respectfully dissent from the majority’s decision to immunize
Dr. Bolin for his own role in the death of Jason Ray Brown. The majority holds
that, although Nurse Krajca was deliberately indifferent to Brown’s obviously
exigent medical circumstances, Dr. Bolin should not be held liable because there
was insufficient evidence that he knew his policy of nighttime inaccessibility for
medical advice or authorization of emergency hospitalization would cause
substantial risk of harm to prisoners due to their inadequate medical treatment
at the jail. In my view, a jury could reasonably find that Dr. Bolin had a practice
of intimidating nurses to prevent them from calling him or sending inmates to
the hospital when they became dangerously ill; and that as a medical doctor, Dr.
Bolin must have known that the effect of his conduct would be to endanger the
lives of those detainees, but was deliberately indifferent to that risk. I would
therefore reverse the judgment of the trial court and remand the case to allow
a jury to decide whether Dr. Bolin should be held responsible for Brown’s death.
      In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court recognized
that the Eighth Amendment requires the government to provide medical care to
inmates because the failure to do so “may actually produce physical ‘torture or
a lingering death’” or unnecessary “pain and suffering.” Id. at 103 (citation
omitted). We have held that the Fourteenth Amendment confers the same right
to pretrial detainees, who have a well-established constitutional right to be free
from pain, suffering, and death due to the denial of adequate medical care while
they are incarcerated. Hare v. City of Corinth, 74 F.3d 633, 649 (5th Cir. 1996).
      A prison official may be held liable for his or her policy affecting pretrial
detainees that deprives them of basic human needs, including adequate medical
care, if the official knew of a substantial risk of harm to detainees but responded
with deliberate indifference to that risk. Id. In such a situation, the official’s
“policy itself is a repudiation of constitutional rights and is the moving force of
the constitutional violation.” Cozzo v. Tangipahoa Parish Council-President

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                             No. 11-10511 c/w No. 11-10512

Gov’t, 279 F.3d 273, 289 (5th Cir. 2002) (quotation marks omitted). To prevail,
a § 1983 “claimant need not show that a prison official acted or failed to act
believing that harm actually would befall an inmate; it is enough that the official
acted or failed to act despite his knowledge of a substantial risk of serious harm.”
Farmer v. Brennan, 511 U.S. 825, 842 (1994). “[I]t does not matter whether . .
. a prisoner faces an excessive risk of [harm] for reasons personal to him or
because all prisoners in his situation face such a risk.” Id. at 843. We do “not
require a prisoner seeking a remedy for unsafe conditions to await a tragic event
such as an actual assault,” or, as here, a death, “ before obtaining relief.” Id. at
845 (citation, quotation marks and alterations omitted).
       “Whether a prison official had the requisite knowledge of a substantial risk
is a question of fact subject to demonstration in the usual ways, including
inference from circumstantial evidence, and a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that the risk was
obvious.” Id. at 842 (citations omitted); see also, e.g., Gates v. Cook, 376 F.3d
323, 333 (5th Cir. 2004) (same).5 In other words, “a trier of fact may infer


       5
          See also, e.g., Nelson v. Corr. Med. Services, 583 F.3d 522, 530 & n.5 (8th Cir. 2009)
(forcing female inmate to give birth with both of her legs shackled involved obvious medical
risks) (citing Farmer, 511 U.S. at 842); Vaughn v. Gray, 557 F.3d 904, 909-10 (8th Cir. 2009)
(holding that prison officials were not entitled to qualified immunity because it was obvious
that a moderately obese and mentally unstable inmate who had consumed shampoo and begun
vomiting was at risk for a heart attack, which created a question of fact for the jury) (citing
Farmer, 511 U.S. at 842); Bozeman v. Orum, 422 F.3d 1265, 1272-73 (11th Cir. 2005) (delay
in administering or seeking medical assistance for an inmate who appeared to have
asphyxiated involved obvious risk to the inmate’s health) (citing Farmer, 511 U.S. at 842);
Lolli v. County of Orange, 351 F.3d 410, 420-21 (9th Cir. 2003) (holding that prison officials
were not entitled to qualified immunity because it was obvious that a pretrial detainee
suffering from diabetes needed food, and that therefore a jury could find that the officials
“inferred from this information that [the plaintiff] was at serious risk of harm if he did not
receive the food”) (citing Farmer, 511 U.S. at 842); LeMarbe v. Wisneski, 266 F.3d 429, 436-38
(6th Cir. 2001) (holding a prison physician was not entitled to qualified immunity for his
inadequate treatment of an inmate’s serious abdominal condition because he “failed to take
the action that his training indicated was necessary” and “the risk of harm . . . was extreme
and obvious to anyone with a medical education and to most lay people” such that “a factfinder
may conclude that [he] knew of a substantial risk from the very fact that the risk was

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                             No. 11-10511 c/w No. 11-10512

knowledge from the obvious[.]” Farmer, 511 U.S. at 844; see also id. (citing
Wayne R. LaFave & Austin W. Scott, Jr., 1 Substantive Criminal Law § 3.7, at
335 (1986) (“[I]f the risk is obvious, so that a reasonable man would realize it, we
might well infer that [the defendant] did in fact realize it; but the inference
cannot be conclusive, for we know that people are not always conscious of what
reasonable people would be conscious of.”)). For instance, a defendant could “not
escape liability if the evidence showed that he . . . refused to verify underlying
facts that he strongly suspected to be true, or declined to confirm inferences of
risk that he strongly suspected to exist[,] . . . [as] when a prison official knows
that some diseases are communicable and that a single needle is being used to
administer flu shots to prisoners but refuses to listen to a subordinate who he
strongly suspects will attempt to explain the associated risk of transmitting
disease[.]” Farmer, 511 U.S. at 843 n.8. Knowledge is thus a question for the
jury. See id. at 843 & n.8.
       The plaintiffs have alleged that Dr. Bolin implemented a policy
discouraging nurses from permitting access to necessary life-saving medical
treatment to seriously ill pretrial detainees. There is concrete, specific evidence
in the record that Dr. Bolin maintained such a policy, creating dangerous
conditions for critically ill inmates in the jail. Two former jail nurses attested
that Dr. Bolin discouraged them from calling him for advice at nighttime, and
they described two incidents in which they consulted Dr. Bolin about an inmate’s
medical condition and were instructed not to send the patient to the emergency
room for treatment. When the nurses did so anyway, it led to a confrontation
with Dr. Bolin in which they attested that they felt bullied and intimidated. The
nurses attested that they witnessed Dr. Bolin’s similar intimidation and


obvious”) (quoting Farmer, 511 U.S. at 842); Oxendine v. Kaplan, 241 F.3d 1272, 1278-79 (10th
Cir. 2001) (holding that the failure to refer an inmate to a specialist after he showed signs of
necrosis following a surgical procedure posed an obvious health risk).

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                          No. 11-10511 c/w No. 11-10512

mistreatment of other nurses on the jail staff. Nurse Krajca, who oversaw Jason
Brown’s treatment, attested that she did not send Brown to the emergency room
because she did not want an “ass-chewing” from the doctor. Specifically, after
Nurse Krajca ordered Brown transferred to a medical solitary cell, she stated to
a detention officer during a cigarette break: “Do you know what kind of ass-
chewing I would get from Dr. Bolin if I sent [Brown] to the hospital in the good
health that he is in?’”
      Thus, the plaintiffs introduced evidence indicating that Dr. Bolin’s well-
known policy of unavailability for consultations at night, coupled with his strong
disapproval of emergency hospitalization of prisoners without his assent, created
a dilemma for the nurses and caused Nurse Krajca to deny Brown necessary,
life-saving medical treatment. The plaintiffs therefore introduced evidence that
Dr. Bolin’s policy violated Brown’s constitutional right to emergency medical
care. Accordingly, there are genuine disputes as to material facts, viz., whether
Dr. Bolin by his policy knowingly created a risk of serious harm or death to
prisoners, was deliberately indifferent to that risk, and thereby caused Nurse
Krajca’s failure to secure for Brown the emergency medical attention that he
obviously needed. In my view, a reasonable jury could find that Dr. Bolin had
such a policy that created an undue risk to inmates’ health and safety, that he
was deliberately indifferent to that risk, and that the policy deprived Brown of
his constitutional rights and led to Brown’s death.
      I disagree with the majority’s conclusion that there was insufficient
evidence that Dr. Bolin knew his policy of nighttime inaccessibility would cause
substantial risk of harm to prisoners due to their inadequate medical treatment
at the jail. The plaintiffs presented evidence that Dr. Bolin’s actions endangered
all inmates and that such a risk was obvious. The majority impermissibly erects
a bar to the plaintiffs’ ability to demonstrate Dr. Bolin’s knowledge “in the usual



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                         No. 11-10511 c/w No. 11-10512

ways, including inference from circumstantial evidence [and] . . . the obvious.”
Id. at 842-44.
      Dr. Bolin was a trained medical doctor. A jury could reasonably find that
this substantial risk of harm to prisoners was obvious to Dr. Bolin. He took no
steps to mitigate or otherwise prevent the serious harm that awaited inmates
when they were not sent to the emergency room for their critical conditions, even
though the risk was brought to his attention by the nurses on his staff.
Moreover, Dr. Bolin knew that the nurses at the county jail were not equipped
or qualified to administer emergency treatment on their own; even worse, Dr.
Bolin had openly adopted a policy of refusing to respond to the nurses’ requests
for advice and assistance.      Dr. Bolin’s knowledge may be established by
reference to circumstantial evidence and inferences from the concrete evidence
of Dr. Bolin’s behavior and its effect. Like a prison official who “knows that some
diseases are communicable and that a single needle is being used to administer
flu shots to prisoners[,]” id. at 843 n.8, Dr. Bolin, a medical doctor, was faced
with the obvious risk of inadequate care for serious medical emergencies that
would arise and in fact proceeded to deliberately disregard that risk despite the
nurses’ protestations. Under those conditions, the inmates were virtually
certain to be denied proper medical treatment for their life-threatening
conditions. A reasonable jury could find that such actions created an obvious
risk of danger to the inmates in the jail’s care.
      Other circuits have permitted suits to go forward against prison
supervisors for their own policies of deliberate indifference to inmates’ safety and
medical needs when the officials’ alleged conduct created an obvious risk. For
example, in McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999), an inmate with
a history of stomach problems began suffering from severe abdominal pain and
vomiting while incarcerated; it was later determined that the inmate was
suffering from colon cancer. Id. at 1251-52. Based on telephone calls to the

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                         No. 11-10511 c/w No. 11-10512

supervising physician and standing orders, the nurses at the prison placed the
inmate on a liquid diet and gave him Pepto-Bismol, Tylenol, and anti-gas
medication to treat his increasingly severe symptoms. Id. at 1251-54. The
supervising physician saw him infrequently in the course of several months and
did not proscribe stronger medication or order further exams, despite the
inmate’s worsening symptoms. Id. The Court of Appeals held that the nurses
were deliberately indifferent to the inmate’s medical needs because he was
obviously in pain and in need of a more efficacious course of treatment. Id. at
1256-58. The court also held that the physician was deliberately indifferent
notwithstanding the fact that the physician claimed that he did not have the
requisite knowledge of the inmate’s condition. Id. at 1257-58. The physician
was aware that the inmate was in considerable pain even though he saw him
infrequently, and, importantly, the long delays between visits themselves caused
the inmate unnecessary suffering. Id. As the court explained, the inmate “often
had to wait in great pain in order even to be seen by [the doctor]. A jury could
find that these delays evidence the defendants’ deliberate indifference.” Id. at
1258. The court further observed, in response to the physician’s “suggest[ion]
that these delays occurred because of decisions by the nursing staff,” that the
physician “set up the system in which the nursing staff responds, without review
by [the doctor], to requests to see him. . . . [A]n official does not insulate his
potential liability for deliberately indifferent actions by instituting a policy of
indifference.” Id. at 1258 n.7 (quotation marks omitted).
      Similarly, in Clark-Murphy v. Foreback, 439 F.3d 280 (6th Cir. 2006), an
inmate died of dehydration in his cell during an intense psychotic episode lasting
several days; jail officials filled out a psychiatric referral form but did not
actively follow up on the request for psychiatric help or ensure that the inmate
was capable of remaining fed and hydrated during the episode. Id. at 282-83.
The Sixth Circuit held that there was a triable issue of fact as to the liability of

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                             No. 11-10511 c/w No. 11-10512

eleven of the defendants involved, including several officers, nurses, a
psychologist who saw the inmate, and a supervisor who did not respond to an
email regarding the need for a psychiatric referral. Id. The court held that the
various officials were not entitled to qualified immunity because “for
summary-judgment purposes, [the] . . . defendants could have perceived a
substantial risk of serious harm to [the plaintiff].                 Whether in fact they
perceived, inferred or disregarded that risk is an issue for trial. ‘Whether a
prison official had the requisite knowledge of a substantial risk is a question of
fact subject to demonstration in the usual ways, and a factfinder may conclude
that a prison official knew of a substantial risk from the very fact that the risk
was obvious.’” Id. (alteration omitted) (quoting Farmer, 511 U.S. at 842).6
       The majority’s judgment that Dr. Bolin did not know or appreciate the
likely consequences of his alleged policy discouraging nurses from administering
proper treatment to inmates is contrary to the Supreme Court’s pronouncement
in Farmer that a jury must decide questions of deliberate indifference when a
risk of harm to inmates is obvious, and it sets us apart from other courts that
have confronted similar situations. Similar to the situation in the Wichita
County Jail, the jail physician in McElligott set up a system by which the nurses
had too much discretion to deny care and in which the physician would rarely
treat the inmates himself although only the physician had the authority to



       6
          See also, e.g., Thomas v. Bryant, 614 F.3d 1288, 1313-16 (11th Cir. 2010) (denying
qualified immunity to jail officials in a suit challenging the officials’ policy of indiscriminate
use of chemical agents against inmates where the officials “‘turned a blind eye’ to [the
plaintiff’s] mental health needs and the obvious danger that the use of chemical agents
presented to his psychological well-being [because] [t]urning a blind eye to such obvious
danger provides ample support for the finding of the requisite recklessness”) (citing Farmer,
511 U.S. at 842); Calderon-Ortiz v. LaBoy-Alvarado, 300 F.3d 60, 66 (1st Cir. 2002) (in a
prison sexual assault case, denying qualified immunity to prison officials who “followed a
practice of not enforcing policies of the . . . Administration of Correction of Puerto Rico to
ensure that weak, vulnerable inmates are housed separately from stronger, dangerous
inmates”) (alterations omitted).

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                              No. 11-10511 c/w No. 11-10512

prescribe more serious medications and treatments. See McElligott, 182 F.3d at
1258 & n.7. Thus, although the physician in McElligott actually saw the patient,
though infrequently, that was not determinative in the Eleventh Circuit’s view.
See id. at 1258 & n.7. Rather, the physician was not entitled to qualified
immunity because he “set up the system in which the nursing staff responds,
without review by [the doctor], to requests to see him” and for that reason could
“not insulate his potential liability for deliberately indifferent actions by
instituting a policy of indifference.” Id. (quotation marks omitted).7 Likewise,
in Clark-Murphy, the Sixth Circuit denied summary judgment to a jail
psychologist and supervisor who did not respond to an email requesting care for
the inmate because a jury could reasonably find that those jail officials were
deliberately indifferent based on circumstantial evidence or the fact that the risk
their conduct posed to the inmate’s health was “‘obvious.’” 439 F.3d at 282-83
(quoting Farmer, 511 U.S. at 842).
       Here, as in the foregoing cases, the plaintiffs have submitted sufficient
evidence that would allow a jury to reasonably conclude that Dr. Bolin’s alleged
policy of nurse intimidation posed an obvious risk to the inmates at the Wichita
County Jail. The majority impermissibly imposes a barrier to the plaintiffs’
ability to demonstrate Dr. Bolin’s knowledge “in the usual ways,” based on
inference from circumstantial evidence and the obvious nature of the risk.
Farmer, 511 U.S. at 842-44. Dr. Bolin should not be permitted to “turn[] a blind
eye” to inmates’ medical needs8 or to “insulate [himself] . . . by instituting a
policy of indifference.”9


       7
        See also Farmer, 511 U.S. at 843 (“[I]t does not matter whether . . . a prisoner faces
an excessive risk of [harm] for reasons personal to him or because all prisoners in his situation
face such a risk.”).
       8
           Thomas, 614 F.3d at 1316.
       9
           McElligott, 182 F.3d at 1258 & n.7.

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                            No. 11-10511 c/w No. 11-10512

       The circumstances surrounding Brown’s death are disturbing, but
unfortunately they are not unique. Since Brown’s death, at least two other
detainees, including Chelsea Bowden and Wilbert Henson, have suffered
extremely serious medical mistreatment in the Wichita County Jail, resulting
in Bowden’s life-threatening illness and Henson’s death.10 Because there are
genuine disputes as to material issues of fact, as well as permissible inferences
and ambiguities that must be resolved in the nonmovant’s favor, Dr. Bolin was
not entitled to summary judgment on the record presented.




       10
         See Estate of Henson v. Callahan, 440 F. App’x 352 (5th Cir. 2011); Estate of Henson
v. Krajca, 440 F. App’x 341 (2011); Brown v. Wichita Cnty., No. 7:05-CV-108-O, 2011 WL
1562567 (N.D. Tex. Apr. 26, 2011).

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