                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0178n.06

                                    Nos. 17-5792 / 17-5793


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

JESSICA        BARBERICK,        Individually,    as )
Administratrix of Estate of Frank Barberick, and as )                         FILED
Mother and Next Friend of L.B., a minor,             )                   Apr 04, 2018
                                                     )              DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                           )
                                                     )
v.                                                   )
                                                     )
                                                               ON APPEAL FROM THE
PAUL HILMER, Florence Fire Department EMT, )
                                                               UNITED STATES DISTRICT
Individually; JOSHUA ELLISON, Florence Fire )
                                                               COURT FOR THE EASTERN
Department EMT, Individually; ROGER ALLEN, )
                                                               DISTRICT OF KENTUCKY
Florence Police Department Lieutenant, Individually, )
                                                     )
                                                                           OPINION
       Defendants,                                   )
                                                     )
BRETT DOVER, Boone County Sheriff’s Office )
Deputy, Individually (No. 17-5792); MIKE )
STEWARD (No. 17-5793),                               )
                                                     )
       Defendants-Appellants.                        )



       BEFORE:        COOK, McKEAGUE, and STRANCH, Circuit Judges.

       PER CURIAM. Frank Barberick died of a drug overdose while in police custody. This

42 U.S.C. § 1983 suit was brought against three law enforcement officers and two Emergency

Medical Technicians (EMTs), alleging that each was deliberately indifferent to Barberick’s

serious medical need. Defendants Officer Mike Steward and Deputy Brett Dover were denied

qualified immunity and bring this appeal. Because the relevant law was not clearly established at

the time of the incident, we REVERSE.
Nos. 17-5792 / 17-5793
Barberick v. Hilmer

       The following facts are taken from Plaintiff’s First Amended Complaint.

       On November 16, 2015, Defendant Dover was dispatched to Frank Barberick’s home in

response to a 911 hang-up call. Dispatch notified Dover that a suicide attempt had occurred at

that address about two weeks prior. When he arrived at the home, Dover tried to determine what

had prompted the aborted 911 call, but Barberick and his mother gave conflicting reports.

Barberick’s mother told Dover that her son had swallowed either one or two handfuls of pills,

that he had previously attempted to commit suicide by drug overdose, and that she believed he

was attempting “the same thing” again. Barberick initially maintained that he had taken only the

prescription dosage of amitriptyline, a central nervous system depressant. He later admitted that

he had taken “maybe two or three” amitriptyline; some time after that, he added that he had also

taken Xanax. Barberick initially denied mixing pills with alcohol but later said that he had drunk

two or three beers. His mother told Dover that Barberick had been drinking vodka.

       In the midst of gathering those conflicting reports, Dover radioed dispatch to relay

Barberick’s mother’s overdose concerns, adding that Barberick appeared “extremely

intoxicated.” Dover asked Barberick to go downstairs for an examination by an EMT, but

Barberick refused. Dover then arrested Barberick on an unrelated outstanding warrant and

handcuffed him.

       At that point, Defendants Paul Hilmer and Joshua Ellison, both EMTs with the Florence

Fire Department, arrived with Defendant Steward. One of the EMTs checked Barberick’s pupils

by shining a flashlight in his eyes for seven seconds, concluded that Barberick had taken “no

narcotics,” and stated that Barberick was drunk. Dover, Steward, and one of the EMTs then

escorted Barberick, who was unable to walk under his own power, downstairs to put him in

Dover’s cruiser. The officers discussed whether the jail would accept Barberick in his condition



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Barberick v. Hilmer

and determined that Steward should be the one to transport Barberick to the Boone County

Detention Center. Due to Barberick’s declining condition, the officers struggled to transfer him

from Dover’s cruiser to Steward’s. A third officer, Lieutenant Roger Allen, laid Barberick

across Steward’s backseat with his feet in the passenger seat, and Steward then drove just over

six miles to the jail. On his way, he heard Barberick “snoozing or snoring” in the backseat.

Upon arrival, Steward and the assisting jail personnel opened the car door and realized Barberick

was unresponsive and not breathing. Efforts by jail personnel and paramedics to resuscitate him

failed. The autopsy listed Barberick’s cause of death as “combined drug intoxication.”

       Barberick’s widow sued Dover, Steward, Allen, and both EMTs for deliberate

indifference to Barberick’s serious medical need. The district court granted Allen’s motion to

dismiss, but denied motions by Dover, Steward, and the EMTs. Dover and Steward appeal,

contending that they should be granted qualified immunity because they were entitled to rely on

the EMTs’ assessment that no medical treatment was necessary.

       “When a defendant appeals the denial of a motion to dismiss based on qualified

immunity, we review de novo whether the complaint alleges violation of a clearly established

constitutional right. No heightened pleading requirement applies.” Heyne v. Metro. Nashville

Pub. Sch., 655 F.3d 556, 562 (6th Cir. 2011) (citations omitted). The complaint, read in the light

most favorable to the plaintiff, must plausibly allege that (1) the defendants’ acts violated a

constitutional right that (2) was clearly established at the time the acts were committed. Id. at

562–63. Courts may address either prong first, depending on the circumstances in the particular

case. Pearson v. Callahan, 555 U.S. 223, 236 (2009). In the instant case, we look first to

whether the constitutional right was clearly established.




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Nos. 17-5792 / 17-5793
Barberick v. Hilmer

       “For a right to be clearly established, the contours of the right must be sufficiently clear

that a reasonable official would understand that what he is doing violates that right.” Holzemer

v. City of Memphis, 621 F.3d 512, 527 (6th Cir. 2010) (quoting Leonard v. Robinson, 477 F.3d

347, 355 (6th Cir. 2007)). “We do not require a case directly on point, but existing precedent

must have placed the statutory or constitutional question beyond debate.” Mullenix v. Luna, 136

S. Ct. 305, 308 (2015) (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011)). The necessary,

existing precedent can be in the form of a case of “controlling authority or a robust consensus of

cases of persuasive authority.” Latits v. Phillips, 878 F.3d 541, 552 (6th Cir. 2017) (quoting

Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014)).         As the Supreme Court has recently

emphasized, “‘clearly established law’ should not be defined ‘at a high level of generality.’”

White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (quoting Ashcroft, 563 U.S. at 742). To

the contrary, “the clearly established law must be ‘particularized’ to the facts of the case.” Id.

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “[G]eneral statements of the law are

not inherently incapable of giving fair and clear warning to officers, but in the light of pre-

existing law the unlawfulness must be apparent.” Id. (internal quotation marks and citations

omitted).

       On this prong of the qualified immunity test, Plaintiff argues that three of our cases

clearly establish that an officer in Dover’s or Steward’s situation may be deliberately indifferent

if he blindly relies on a medical opinion: Phillips v. Roane County, 534 F.3d 531 (6th Cir. 2008),

Border v. Trumbull County Board of Commissioners, 414 F. App’x 831 (6th Cir. 2011), and

Smith v. County of Lenawee, 505 F. App’x 526 (6th Cir. 2012). We consider each case in turn.

       In Phillips, we affirmed the denial of qualified immunity to corrections officers who were

aware of a detainee’s life-threatening symptoms (including collapses into unconsciousness, chest



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Nos. 17-5792 / 17-5793
Barberick v. Hilmer

pain, numbness, dizziness, and vomiting) over a period of two weeks, but did not call for

transportation to the hospital. 534 F.3d at 536–37. Phillips had been examined by a doctor

during the first week, but the doctor’s examination lasted only six minutes, and in the second

week, he did not follow up to confirm that an ordered urinalysis had been completed. Id. at 536.

Phillips then died of untreated diabetes. Id. at 536–37. The opinion does not address whether

the officers were entitled to rely on the doctor’s treatment of Phillips. Rather, we “f[ou]nd

persuasive the correctional officers’ disregard of prison protocols” that required the officers to

transport an inmate who complained of chest pain to an emergency room. Id. at 541. No

violation of protocols has been alleged in this case, nor did Barberick exhibit comparably serious

symptoms over an extended period of time subsequent to his medical examination. Thus,

Phillips is factually distinguishable and cannot be deemed to have put Defendants Dover and

Steward on notice that their reliance on the EMT’s assessment was unlawful.

       In Border, we affirmed the denial of qualified immunity to a booking officer who was

likely aware that a detainee was under the influence of drugs but failed to seek satisfactory

medical care for him. 414 F. App’x at 839–40. The booking officer asked an unlicensed

medical assistant to treat a minor cut on Border’s head, but the officer never mentioned to the

assistant his suspicion concerning drugs, and the assistant performed no medical examination of

Border aside from cleaning and bandaging his head. Id. at 839. The officer therefore potentially

violated jail policies and procedures, which required an officer to contact medical personnel for

evaluation and treatment in any case involving suspected intoxication or drug overdose. Id. at

836. We held that the officer’s referral of Border to an unlicensed medical assistant did not

relieve the officer of potential liability because he had failed to alert the assistant to his suspicion

that Border had ingested drugs. Id. at 839. We therefore affirmed the denial of qualified



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Nos. 17-5792 / 17-5793
Barberick v. Hilmer

immunity because the evidence could potentially support a finding that the officer was aware of

facts from which the inference could be drawn that there was substantial risk of serious harm and

that the officer ignored that risk. Id. Unlike the detainee in Border, Barberick was examined by

a licensed EMT—an examination which Defendant Dover facilitated—for the specific purpose

of determining if he was drunk or using drugs. After the EMT concluded that Barberick was

drunk and did not need medical treatment, Defendants took action in reliance on this assessment.

Nothing in Border can be said to have given them fair and clear warning that it was unlawful to

do so. Thus, Border also does not help Plaintiff meet the clearly-established-law requirement.

       In Smith, we affirmed the denial of qualified immunity as to certain corrections officers

who had been present during and immediately before a pretrial detainee’s alcohol-related death,

but reversed the denial as to other officers. 505 F. App’x at 529. The detainee’s alcohol

withdrawal symptoms—including agitation, hallucinations, and delusional and violent

behavior—worsened over the course of the weekend she was in jail until, on Sunday evening, an

officer moved her to a padded observation cell and called the jail doctor. Id. at 530. The doctor

replied that Smith, who had been prescribed Librium upon arrival at the jail on Friday night, was

“on good medicine” and that a nurse would examine her the next day. Id. at 529–30. Smith died

the next morning from a delirium tremens–induced seizure. Id. at 529. We determined that the

officers who were present before and during the call to the doctor, and for the rest of Sunday

night, were not deliberately indifferent to Smith’s medical need because they were aware of the

doctor’s opinion and followed the proper protocols. Id. at 533–34, 536. As to the three officers

who were present the morning Smith died, we held that qualified immunity was appropriate for

the rookie who, on her very first day of work, failed to detect the severity of the problem during

the thirty minutes she observed Smith. Id. at 535–36. We reached the opposite conclusion with



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Barberick v. Hilmer

regard to the shift commander who “encountered Smith in her last hour, at a time when she was

unresponsive and sweating profusely,” but did nothing. Id. at 534–35. We likewise affirmed the

denial of qualified immunity to the officer with fourteen years’ experience as an EMT who was

charged with monitoring Smith during her final hours but, in violation of jail policy requiring

monitoring every fifteen minutes, failed to check on Smith during a critical forty-minute period.

Id. at 536–37.

       Smith simply affirms that an officer who seeks out the opinion of a doctor is generally

entitled to rely on a reasonably specific medical opinion for a reasonable period of time after it is

issued, absent circumstances such as the onset of new and alarming symptoms or a violation of

policy. Smith would therefore not have put Dover and Steward on notice that they were violating

Barberick’s constitutional rights. See Holzemer, 621 F.3d at 527.

       Each of the cited cases involved circumstances such as a violation of protocol, the onset

of new symptoms, or the passage of time. Plaintiff has not identified controlling authority that

would make clear to an officer in Dover’s or Steward’s position that, absent such circumstances,

failure to seek out further medical assistance immediately after receiving an EMT evaluation

could constitute deliberate indifference. The law governing the asserted constitutional violation

was therefore not clearly established, and we REVERSE the district court’s decision denying

qualified immunity to Defendants Dover and Steward. The case is REMANDED to the district

court with instructions to dismiss the claims against Defendants Dover and Steward.




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