       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2       Weaver v. Shadoan, et al.                     No. 01-5656
    ELECTRONIC CITATION: 2003 FED App. 0282P (6th Cir.)
                File Name: 03a0282p.06                        Before: SILER and DAUGHTREY, Circuit Judges;
                                                                         ALDRICH, District Judge.*
UNITED STATES COURT OF APPEALS                                                  _________________
              FOR THE SIXTH CIRCUIT                                                  COUNSEL
                _________________
                                                          ARGUED: John C. Duffy, WATSON, HOLLOW &
DIANNA FERGUSON WEAVER , X                                REEVES, Knoxville, Tennessee, for Appellants. Herbert S.
                                   -                      Moncier, LAW OFFICES OF HERBERT S. MONCIER,
individually and as                                       Knoxville, Tennessee, for Appellee. ON BRIEF: John C.
Administratrix of the Estate of -                         Duffy, WATSON, HOLLOW & REEVES, Knoxville,
                                   -   No. 01-5656
Stephen Lamont Weaver,             -                      Tennessee, for Appellants. Herbert S. Moncier, Ursula
             Plaintiff-Appellee, >                        Bailey, LAW OFFICES OF HERBERT S. MONCIER,
                                   ,                      Knoxville, Tennessee, for Appellee.
                                   -
            v.                     -                        SILER, J., delivered the opinion of the court, in which
                                   -                      ALDRICH, D. J., joined. DAUGHTREY, J. (pp. 26-29),
WARREN SHADOAN and                 -                      delivered a separate opinion concurring in part and dissenting
VICTOR OWEN , in their             -                      in part.
                                   -
individual and official
                                   -                                            _________________
capacities as officers of the      -
City of Oliver Springs,            -                                                OPINION
Tennessee Police Department, -                                                  _________________
        Defendants-Appellants. -
                                  N                          SILER, Circuit Judge. Defendants, Officers Warren
                                                          Shadoan and Victor Owen (collectively, the “Officers”),
       Appeal from the United States District Court       appeal the district court’s denial of their motion for summary
    for the Eastern District of Tennessee at Knoxville.   judgment based on qualified immunity on claims brought
     No. 98-00631—James H. Jarvis, District Judge.        pursuant to 42 U.S.C. § 1983. Dianna Ferguson Weaver
                                                          (“Plaintiff”), Administratrix of the Estate of her son, Stephen
               Argued: October 31, 2002                   Lamont Weaver (“Weaver”), filed a civil rights action
                                                          alleging that Weaver was arrested without probable cause,
         Decided and Filed: August 13, 2003               and that the Officers were deliberately indifferent to the
                                                          serious medical needs of Weaver, who died in police custody

                                                              *
                                                               The Honorab le Ann Aldrich, United States District Judge for the
                                                          Northern District of Ohio, sitting by designation.

                            1
No. 01-5656                  Weaver v. Shadoan, et al.      3    4       Weaver v. Shadoan, et al.                        No. 01-5656

after voluntarily ingesting a lethal dose of cocaine and then      Weaver exited his vehicle and met Shadoan at the rear of
repeatedly denying his ingestion of the drugs and refusing       the car. Weaver inquired as to why he was being stopped and
medical treatment. The district court found that questions of    Shadoan indicated it was because of the car’s expired tag.
material fact remained to be determined. After carefully         Weaver responded that his tag was not expired, pointing out
reviewing the record, and drawing all reasonable inferences      that the alleged 7 was in fact a 9. Upon closer examination,
in favor of Plaintiff, we find that Weaver’s Fourth and Eighth   Shadoan confirmed that the tag had not expired. Shadoan
Amendment rights were not violated. Therefore, we                then asked why Weaver and his passenger, William Booker,
REVERSE the ruling by the district court and REMAND for          were at the Futtrell residence. Weaver first stated that he had
the court to grant summary judgment to the Officers in their     picked up Booker from nearby Oak Ridge, Tennessee, had
individual capacities.                                           gone to Clinton, Tennessee, and that the two were now on
                                                                 their way back to Oak Ridge. Shadoan pointed out, however,
                     BACKGROUND                                  that the location of Futtrell’s residence was inconsistent with
                                                                 this story. Weaver then stated that he did not know what
  On October 18, 1997, Shadoan, an officer with over             Booker and he were doing at Futtrell’s residence. During this
fourteen years of police experience, was on patrol in Oliver     questioning, Weaver was allegedly becoming increasingly
Springs, Tennessee, when he observed an unfamiliar vehicle       nervous. Shadoan claims that Weaver was rubbing his hands
at the residence of David Futtrell, an individual who            together, clutching his arms and shuffling his feet. Weaver’s
cooperated with Shadoan during a burglary investigation at       behavior, in conjunction with his responses, raised suspicions
Futtrell’s residence a few months earlier. Shadoan was aware     for Shadoan. According to Shadoan, even though the
that Futtrell was having trouble with some black men.            temporary tag had not expired, he did not consider the traffic
Because Shadoan had just seen Futtrell at the Town and           stop over. It was his view that the temporary tag was not
Country Market, and thus knew that Futtrell was not at home,     lawfully displayed due to the dark tinted windows.
he became suspicious of the unfamiliar vehicle. He then
observed a black man walking out of the front door of              Some time during this questioning, Owen arrived on the
Futtrell’s residence and enter into the vehicle in question.     scene.1 Weaver then left the Officers’ presence and went into
                                                                 the Town and Country Market. During this time, Shadoan
  Shadoan approached the vehicle to get the license plate        questioned Booker, who explained that the reason he was at
number, but the vehicle did not have a license plate. It did,    the Futtrell residence was to collect some money from David
however, have dark tinted windows with a temporary tag           Cooper. Cooper was known by Shadoan to be engaged in the
behind the rear window. Shadoan allegedly had difficulty         distribution of marijuana and cocaine out of his home, which
reading the temporary tag because of the dark window tint.       was located near the Futtrell residence. Booker also provided
Nonetheless, Shadoan thought the temporary tag was expired,      Shadoan with information that was not entirely consistent
bearing the date 10-17-97. The vehicle then turned into and
stopped at the Town and Country Market. Believing that the
tag was expired, that the window tint was too dark, and that
there may have been criminal activity at the Futtrell
                                                                     1
residence, Shadoan drove his cruiser into the Town and                 Owen, also on patrol for the Oliver Springs Police Department,
Country Market and turned on his blue lights behind the          heard Shadoan announce his traffic stop over the police radio and decided
stopped vehicle.                                                 to assist Shadoan. Apparently, it is customary for Oliver Springs police
                                                                 officers to assist one another if not busy.
No. 01-5656                          Weaver v. Shadoan, et al.              5    6       Weaver v. Shadoan, et al.                          No. 01-5656

with that provided by Weaver. He also presented the Officers                     to be the size of five or six rocks of crack cocaine.4
with false identification.                                                       According to Shadoan, when asked about the lump, Weaver
                                                                                 stated that it was a “wad of paper.” At this point, Shadoan
  Coincidentally, during this questioning, Futtrell came out                     considered Weaver to be under arrest--although he did not
of the Town and Country Market. The Officers asked Futtrell                      state so. Shadoan then asked Weaver to empty his pockets, at
what he knew regarding either Weaver or Booker. Futtrell                         which time Weaver suddenly began running from the scene.
told the Officers that neither Weaver nor Booker had any                         The Officers chased Weaver and, with the help of a bystander,
business being at his residence and that they were probably                      took him into custody. The Oliver Springs Police Department
looking for the Cooper residence to sell cocaine. Futtrell’s                     radio log reflects that the traffic stop of Weaver and Booker
statements, in addition to Weaver’s inability to explain his                     occurred at 4:54 p.m., with the foot pursuit occurring at 4:58
presence at Futtrell’s residence, raised Shadoan’s suspicion                     p.m.
that Weaver was involved in drug activity.2
                                                                                   After handcuffing Weaver, the Officers then checked
  Approximately ten to fifteen minutes into the stop, Shadoan                    Weaver’s pockets but found no drugs. Shadoan asked
asked Weaver for permission to search his automobile and                         Weaver where the drugs were, but Weaver did not respond.
person.3 It appears that Weaver consented to the search.                         As the Officers began walking Weaver back to the cruiser,
According to Shadoan, at this point, Weaver began clenching                      they noticed that Weaver appeared to have something in his
and unclenching his fists and acting very nervous.                               mouth. Neither Officer saw Weaver place anything in his
                                                                                 mouth. Weaver then refused Shadoan’s request to open his
  Shadoan conducted a pat-down search of Weaver and                              mouth. Shadoan tried to get his fingers in Weaver’s mouth,
noticed a lump in one of Weaver’s pockets, which he believed                     while simultaneously telling him not to swallow whatever it
                                                                                 was he had. Weaver then appeared to swallow something.
                                                                                   Weaver was placed in the back of Owen’s cruiser. He was
    2                                                                            reported in custody at 5:10 p.m. After retracing the path of
      Plaintiff asserts that Shadoan had no basis to believe that Fu ttrell
was a reliable inform ant or that Futtrell’s suspicion was reliable. Th is
point is factually inaccurate. The record sh ows that Futtrell had
cooperated with the police in a prior police investigation of a burglary at          4
                                                                                       Plaintiff supplies an affidavit from Fermin De La Torre, a former
his residence, and had cooperated in an investigation of a drive-by              Oliver Springs dispatcher, which states that later on in the evening, after
shooting.                                                                        the entire facts of this case had played out, Grant Lowe, Police Chief of
    3
                                                                                 the Oliver Springs Police Department, stated that “Shadoan could not
      Plaintiff alleges that Booker’s affidavit indicates that Shad oan did      have known what the lump was in W eaver’s poc ket because Officer
not request permission to search W eaver. Booker’s affidavit, however,           Shadoan had no way to tell what was in Mr. W eaver’s pocket.” This
only states that “[a]t no time did I hear either of the officers ask La mon te   conclusory statement, even assuming it was made, does not support an
W eaver to search either Lamonte W eaver or the car.” Therefore, contrary        inference that Shad oan did no t identify rocks of crack coca ine in
to Plaintiff’s position, Booker’s statement does not create a factual            W eaver’s pocket. Chief Lowe was not present at the scene of the Weaver
dispute--it eliminates it. In effect, Booker merely alleges that he has no       arrest. Also, Plaintiff has not directed this court to any evidence that
knowledge of the Officers’ conversation with W eaver regarding consent.          Shadoan made a statement to Chief Lowe indicating he had fabricated his
Thus, Plaintiff has not presented any evidence to refute Shadoan’s               suspicion as to the presence of crack cocaine. Therefore, Chief Lowe
assertions that he received W eaver’s consent to search his person and           cannot possibly kno w what Shad oan felt and what conclusions Shadoan
automobile.                                                                      drew from his pat down of W eaver.
No. 01-5656                         Weaver v. Shadoan, et al.              7    8       Weaver v. Shadoan, et al.                      No. 01-5656

the chase, the Officers discovered a piece of cellophane                        Owen, “[a]t that point he immediately started shaking
wrapper, which they believed contained a residue with the                       violently” as if he was having a “seizure,” and then he became
appearance of crack cocaine. Later lab tests conducted by the                   “slumped over in the seat.” This testimony was later
Tennessee Bureau of Investigation did not identify the                          supported by Booker, who stated in his affidavit that
substance as crack cocaine.                                                     “Lamonte [Weaver] began to get sick and was jerking in the
                                                                                back seat of the police cruiser.” At 6:42 p.m., approximately
   Booker stayed in the car during the chase and capture. He                    one hour and thirty-two minutes after Weaver was in custody,
was charged with public intoxication. Weaver was charged                        Owen requested an ambulance to come to the police station
with evading arrest and drug possession. Both men were                          to examine Weaver. While waiting for the ambulance,
transported in Owen’s cruiser to the Oliver Springs Police                      Shadoan checked on Weaver’s condition. Although Weaver’s
Department, where Weaver was placed in a holding cell.                          eyes were closed and he was not responding to questions, he
There is no evidence to suggest that during the approximately                   had a strong heartbeat and he appeared to be breathing
forty-five minutes to one hour that Weaver was at the station,                  normally.
the Officers noticed any change in Weaver’s condition.
                                                                                   The Emergency Medical Technicians/paramedics arrived at
  According to Police Chief Lowe, an agreement between the                      the Oliver Springs Police Department and examined Weaver.
Oliver Springs Police Department and Morgan County                              One paramedic had twelve years of experience; the other had
required both men to be transported to the Morgan County                        ten years. Although the Officers had not seen Weaver ingest
Jail.5 Therefore, Weaver and Booker were again placed in                        any drugs, Shadoan requested that Weaver be assessed for
Owen’s cruiser for transportation to the Morgan County Jail.                    “possible drug reaction and/or overdose.” It appears that
As Owen began pulling out of the station, Weaver asked what                     neither of the paramedics called to the scene had experience
the Officers were going to do with the piece of cellophane                      with treating someone who had swallowed cocaine. Also,
that had been found at the arrest scene. Owen replied that the                  apparently, there is no paramedic protocol for responding to
evidence would be sent to the lab, and that if the results came                 the situation. Generally, paramedics would not be expected
back positive, charges would likely be filed. According to                      to know how to treat someone who had ingested cocaine other
                                                                                than to contact medical control and perhaps help induce the
                                                                                individual to vomit.6
    5
       Plaintiff asserts, however, that according to an affidavit provided by
James N. Ramsey, District Attorney General for the Seventh Judicial
                                                                                   Despite numerous attempts by paramedics, Weaver refused
District, Weaver and Booker should not have gone to the Morgan Co unty          treatment. When asked if he wanted to go to the hospital,
jail, but instead, should have been transferred to the A nderson C ounty Jail   Weaver responded, “No, I want to go to jail, and I haven’t
and appeared before an Anderson County Magistrate. The district court           taken nothing. Leave me alone.” Weaver also insisted, in
addressed this alleged due process violation and granted summary
judgement to all defendants on the issue. The district court found that
even assuming a due proc ess violation, “there is no proximate cause                6
between the alleged denial of due process and the decedent’s death. Even              The record is absent of physician testimony regarding what
if M r. W eaver had gone to another jail b ut refused to go to the ho spital,   treatment would have been availab le to W eaver had he been willing to
he would no doubt have still died.” The court also found as “speculative”       accept it. Plaintiff’s only medical evidence is from a pharmacist, who
Plaintiff’s claim that W eaver would not have died had he been sent to the      stated that he would expect seizures with a cocaine overdose, and that
Anderson County Jail. This issue is not properly before us during this          common treatment would include a gastric lavage or stomach pump,
interlocutory ap peal. Acco rdingly, we decline to a ddress it.                 which typically must be performed in a hospital emergency room.
No. 01-5656                        Weaver v. Shadoan, et al.            9    10       Weaver v. Shadoan, et al.                           No. 01-5656

front of the presence of the Officers, that he had not                       action, or recommended otherwise.8 Unable to force
swallowed any drugs. For instance, one paramedic stated that                 treatment upon Weaver, the paramedics left.
Weaver repeatedly said “‘no,’ ‘no,’ ‘no,’” to being asked if he
had ingested drugs. Booker’s affidavit confirms Weaver’s                       At 7:00 p.m., Owen alone proceeded to transport Weaver
responses.                                                                   and Booker to the jail. At this point, Weaver had been in
                                                                             custody for one hour and fifty minutes. The jail is
  Weaver was assessed separately by both paramedics, who                     approximately twenty to twenty-five minutes from the Oliver
found that there was no need for emergency treatment.                        Springs Police Department.
According to the paramedic report, Weaver was conscious,
alert, and oriented as to person, place and time.7 Despite his                  According to Booker, Weaver began to get sick and throw
apparently good physical condition, the paramedics explained                 up within five minutes of leaving for the jail. Booker asserts
to Weaver that there were serious consequences to                            that although he told Owen at least three times that Weaver
swallowing drugs, including death.                                           needed to be taken to the hospital, Owen ignored his requests
                                                                             and continued to drive. Booker claims that by the time the
  The paramedics then relayed their assessment to the                        cruiser arrived at the jail, Weaver was mumbling, could not
Officers. The paramedics told them that “[i]f you see any                    walk, had to be carried into the jail, and was generally almost
other problems or anything at all, changes, call us back.”                   “out of it.” Two jailers assisted Weaver out of the car and
According to one paramedic, he told the Officers to monitor                  into the jail. Owen, however, declined ambulatory services
Weaver, and immediately contact for help if they noticed any                 for Weaver. Apparently, Owen believed that Weaver was
changes in Weaver. Although the paramedics were informed                     “faking” his illness, a belief that he shared with some of the
that Weaver was going to be transported to the jail, there is no             jailers. Weaver and Booker were then placed into a jail cell.
indication that the paramedics objected to this course of                    Shortly thereafter, Teresa Hamby, the chief jailer and a
                                                                             certified EMT, was paged by Owen, who was then her
                                                                             boyfriend and now her husband.9 According to Hamby, she

                                                                                  8
                                                                                   There is another ambulance service in the small community of
                                                                             W artburg, which is where the jail is located. There is also a medical
                                                                             center located approximately fifteen miles from the Morgan County Jail.
                                                                             Plaintiff points out, however, that at the time of these facts, the jail had
                                                                             been found by a Department of Justice investigation to be unconstitutional
                                                                             due to lack of necessary and ad equate me dical facilities and perso nnel.
    7                                                                        Plaintiff does not allege, though, that the Officers had any knowledge of
      W eaver also had good vital signs. His pupils were equal and
reactive to light. He was not post-dictal, meaning he exhibited no signs     the Department’s finding.
or symptom s of a seizure. He had normal jugular vein distentions,                9
thereby indicating an absence of severe heart abnormalities. He had clear          Plaintiff alleges that the reason (or at least one of the main rea sons)
breath sounds, good skin color and a normal temperature. H e had good        W eaver was transported to the Morgan County Jail was so that Owen
capillary refill, which m eans tha t good/normal b lood chang e was taking   could meet Ham by, his girlfriend. T he record does not sup port this
place. He also had a normal midline trachea, which normally gets             allegation. The record shows, instead, that Oliver Springs police officers
misaligned on severe lung difficulties from trauma. Furthermore, Weaver      were required b y Chief L owe to transp ort arrestees to the M organ Co unty
had mo vement and sensation in all four extremities.                         Jail.
No. 01-5656                   Weaver v. Shadoan, et al.      11    12   Weaver v. Shadoan, et al.                    No. 01-5656

looked at Weaver and noticed that his chest was rising and         Civ. P. 56(c). “[T]he mere existence of some alleged factual
falling and thus believed that Weaver was breathing.               dispute between the parties will not defeat an otherwise
                                                                   properly supported motion for summary judgment . . . .”
   Booker estimates that Weaver was in the jail cell for fifteen   Anderson, 477 U.S. at 247-48 (emphasis in original).
to twenty minutes before anyone checked on him. The record
log indicates that it was approximately 7:39 p.m. when Owen          Mixed questions of law and fact are reviewed de novo.
requested the jailers to summon another ambulance for              Williams v. Mehra, 186 F.3d 685, 689 (1999) (en banc). A
Weaver. This request was thirty-nine minutes after Weaver          district court’s findings of ultimate facts, based upon the
had first refused treatment from the paramedics at the Oliver      application of legal principles to subsidiary facts, are also
Springs Police Department. The ambulance arrived thirteen          subject to de novo review. Id.
minutes later, by which time Weaver had lost consciousness
and was not breathing. Upon arrival, the paramedics began to                             JURISDICTION
administer CPR on Weaver. Weaver was then transported to
the Roane Medical Center, approximately fifteen miles from            In a separate motion, Plaintiff has moved this court to
the Morgan County Jail, where he was pronounced dead. An           dismiss the Officers’ interlocutory appeal for lack of
autopsy performed on Weaver indicated that the cause of            jurisdiction. Plaintiff argues that the district court’s
death was ingestion of a lethal amount of cocaine.                 memorandum opinion establishes the existence of genuine
                                                                   issues of material fact. The district court found that “there is
   Plaintiff sued Shadoan and Owen in their individual and         a question of material fact with respect to whether the officers
official capacities under 42 U.S.C. § 1983 and state law. At       had probable cause to arrest Mr. Weaver for [possession of
issue in this appeal are Plaintiff’s claims that Weaver was        cocaine or evading a lawful arrest].” With regard to the
arrested without probable cause and that the Officers were         Eighth Amendment claim of deliberate indifference, the
deliberately indifferent to Weaver’s serious medical needs.        district court found that “[q]uestions of material fact remain
The district court denied summary judgment to the Officers         to be determined with respect to whether, under the
on Plaintiff’s Fourth and Eighth Amendment claims.                 circumstances, those two defendants showed deliberate
                                                                   indifference to their prisoner’s serious medical needs by
                STANDARD OF REVIEW                                 failing to take further steps to insure his safety and whether
                                                                   that failure may have been a proximate cause of the prisoner’s
   We review a district court’s grant of summary judgment de       death.” On appeal, however, the Officers have asked us to
novo. Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d       assume as true Plaintiff’s version of any disputed facts.
174, 178 (6th Cir. 1996). In deciding a summary judgment           Because we accept Plaintiff’s version of any disputed
motion, we cannot weigh the evidence, judge the credibility        subsidiary facts, we hold that jurisdiction is proper pursuant
of witnesses, or determine the truth of the matter asserted.       to 28 U.S.C. § 1291.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
We must, however, view the evidence and draw all                      Under 28 U.S.C. § 1291 we have jurisdiction to hear an
“justifiable inferences” in the light most favorable to the non-   appeal only from a district court’s “final decision.” The
movant. Id. Summary judgment is appropriate where “there           Supreme Court has held that “a district court’s denial of a
is no genuine issue as to any material fact and . . . the moving   claim of qualified immunity, to the extent that it turns on an
party is entitled to a judgment as a matter of law.” Fed. R.       issue of law, is an appealable ‘final decision’ within the
No. 01-5656                   Weaver v. Shadoan, et al.      13    14   Weaver v. Shadoan, et al.                    No. 01-5656

meaning of . . . § 1291 notwithstanding the absence of a final     U.S.C. § 1291. We, therefore, have jurisdiction to decide this
judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).          case on the merits.
It is well recognized that a defendant’s “right to appeal the
denial of qualified immunity does not turn on the phrasing of                               ANALYSIS
the district court’s order.” Christophel v. Kukulinsky, 61 F.3d
479, 485 (6th Cir. 1995). Therefore, “regardless of the               The doctrine of qualified immunity shields public officials
district court’s reasons for denying qualified immunity, we        acting within the scope of their official duties from civil
may exercise jurisdiction over the appeal . . . to the extent it   liability. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
raises questions of law.” Dickerson v. McClellan, 101 F.3d         Qualified immunity is “an immunity from suit rather than a
1151, 1157 (6th Cir. 1996).                                        mere defense to liability; and like an absolute immunity, it is
                                                                   effectively lost if a case is erroneously permitted to go to
   As we have explained in our en banc decision in Williams,       trial.” Mitchell, 472 U.S. at 526 (emphasis in original). The
there is a distinction between an ultimate fact and a subsidiary   Supreme Court has emphasized that questions of qualified
or basic fact. 186 F.3d at 690. An ultimate fact is a mixed        immunity should be resolved “at the earliest possible stage in
issue of law and fact. Id. Mixed questions are treated as legal    the litigation.” Saucier v. Katz, 533 U.S. 194, 201 (2001)
questions, not factual questions. Id. Questions concerning a       (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per
defendant’s conduct or the existence or non-existence of           curiam)). The Supreme Court has recently set forth a two-
certain evidence are questions of subsidiary or basic facts. Id.   prong test that must be applied to a qualified immunity
In this case, examples of questions of basic facts would           analysis. Id.
include: Was Weaver’s temporary license plate placed behind
his vehicle’s tinted rear window? Did the Officers know that         The first prong is a threshold question, namely: “Taken in
Weaver had ingested cocaine? Did Weaver deny having                the light most favorable to the party asserting the injury, do
ingested cocaine? Was Weaver offered the opportunity to            the facts alleged show the officer’s conduct violated a
receive treatment? Dispute as to these material basic facts        constitutional right?” Id. If the answer is in the negative,
would divest this court of interlocutory appellate jurisdiction.   then the inquiry ends. If a violation could be established, the
For purposes of this appeal, however, the Officers have not        second prong requires an examination of whether “the right
disputed the Plaintiff’s version of the basic facts.               was clearly established” at the time of the events at issue. Id.
                                                                   In order for a right to be clearly established, the “[t]he
  The questions at issue in this case, namely, whether certain     contours of the right must be sufficiently clear that a
facts gave rise to probable cause for an arrest, and whether the   reasonable official would understand that what he is doing
Officers’ specific actions, as alleged by the Plaintiff, could     violates that right.” Id. at 202. The inquiry “must be
constitute deliberate indifference, are mixed questions of law     undertaken in light of the specific context of the case, not as
and fact. Therefore, because the subsidiary facts are not in       a broad general proposition.” Id. at 201. As the Court
dispute for purposes of this appeal, this court’s “decision        explained, “[t]he relevant dispositive inquiry in determining
turns on a question of law: whether the alleged facts,             whether a right is clearly established is whether it would be
admitted for this purpose, show a violation of clearly             clear to a reasonable officer that his conduct was unlawful in
established law.” Id. Seen in this light, the district court’s     the situation he confronted.” Id. at 202.
denial of qualified immunity is a final order as required by 28
No. 01-5656                    Weaver v. Shadoan, et al.      15    16   Weaver v. Shadoan, et al.                    No. 01-5656

1.   Fourth Amendment Claim                                            The existence of reasonable suspicion must be viewed in
                                                                    the “totality of the circumstances.” United States v. Erwin,
   The district court concluded that because the Officers did       155 F.3d 818, 822 (6th Cir. 1998) (en banc), cert denied, 525
not find any cocaine after Weaver was captured following his        U.S. 1123 (1999). This means that a court “must determine
attempted escape, probable cause to arrest did not exist. The       whether the individual factors, taken as a whole, give rise to
district court also concluded that, irrespective of Shadoan’s       reasonable suspicion, even if each individual factor is entirely
subjective belief regarding Weaver’s arrest, objectively,           consistent with innocent behavior when examined
Weaver was not aware that he was under arrest at the time           separately.” United States v. Smith, 263 F.3d 571, 588 (6th
that he fled from the Officers, and, therefore, probable cause      Cir. 2001). Moreover, it is well-settled that the legality of a
did not exist to arrest him for evading a lawful arrest. The        traffic stop is not dependent upon an officer’s subjective
Officers argue that Weaver’s Fourth Amendment rights were           intentions. Whren v. United States, 517 U.S. 806, 813 (1996).
not violated because the traffic stop was supported by
reasonable suspicion, and information developed during the             In the instant case, it is clear that Shadoan had reasonable
course of the stop provided probable cause to support an            suspicion to stop Weaver. The record clearly indicates that
arrest. We find that although the Officers lacked probable          Shadoan believed that Weaver’s registration was either
cause to arrest Weaver for evading arrest, the Officers had         invalid or improperly displayed behind darkly tinted
probable cause to arrest Weaver for drug possession.                windows, violations of Tennessee’s vehicle registration and
Accordingly, Weaver’s Fourth Amendment rights were not              window tinting laws. T.C.A. §§ 55-4-110, 55-9-107(a).
violated.                                                           Shadoan, therefore, was justified in conducting an ordinary
                                                                    traffic stop of Weaver’s automobile.
  Police officers may briefly stop an individual for
investigation if they have reasonable suspicion that the person        Once the “purpose of the traffic stop is completed, a
has committed a crime. Houston v. Clark County Sheriff              motorist cannot be further detained unless something that
Deputy John Does 1-5, 174 F.3d 809, 813 (6th Cir. 1999).            occurred during the stop caused the officer to have a
An ordinary traffic stop is more “akin to an investigative          reasonable and articulable suspicion that criminal activity was
detention rather than a custodial arrest.” United States v. Hill,   afoot.” Hill, 195 F.3d at 264. The Supreme Court has
195 F.3d 258, 264 (6th Cir. 1999), cert. denied, 528 U.S.           recognized that “nervous, evasive behavior is a pertinent
1176 (2000). Reasonable suspicion is “more than an ill-             factor in determining reasonable suspicion.” Illinois v.
defined hunch; it must be based upon a particularized and           Wardlow, 528 U.S. 119, 124 (2000). See also United States
objective basis for suspecting the particular person . . . of       v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995) (explaining that
criminal activity.” Houston, 174 F.3d at 813 (alterations in        “nervousness is generally included as one of several grounds
original) (internal quotations and citation omitted). It requires   for finding reasonable suspicion”). Lying about travel plans
“‘specific and articulable facts which, taken together with         can also form a basis for reasonable suspicion. Hill, 195 F.3d
rational inferences from those facts, reasonably warrant’ an        at 272. An officer’s doubt regarding expressed travel plans or
investigatory stop.” Id. (quoting Terry v. Ohio, 392 U.S. 1,        the purpose of a trip can also be bolstered by a passenger’s
21 (1968)). Moreover, reasonable suspicion “can arise from          inconsistent statements. Id.; United States v. Johnson, 58
evidence that is less reliable than what might be required to       F.3d 356, 357-58 (8th Cir.), cert. denied, 516 U.S. 936
show probable cause.” Id.                                           (1995).
No. 01-5656                   Weaver v. Shadoan, et al.      17    18   Weaver v. Shadoan, et al.                    No. 01-5656

   In the instant case, the record clearly shows that Shadoan,     five minutes or even an hour was reasonable). Second,
and later, Owen, had reasonable suspicion to continue to           Weaver was free to leave the presence of the officers to enter
detain Weaver after Shadoan determined that Weaver’s car           into the Town and Country Market. See California v.
tag was not expired. The following factors support a finding       Beheler, 463 U.S. 1121, 1121 (1977) (per curiam) (holding
of reasonable suspicion: (i) Shadoan’s observation that            that a person is not in custody if “the suspect is not placed
Weaver’s automobile was at Futtrell’s residence at a time          under arrest, voluntarily comes to the police station, and is
when Shadoan knew Futtrell was not home; (ii) an awareness         allowed to leave unhindered by police after a brief
that Futtrell’s residence had been burglarized, and that he was    interview”); cf. Houston, 174 F.3d at 815 (finding that when
having trouble with some black men; (iii) Shadoan’s                officer safety is at issue, handcuffs and detention in a cruiser
observation of a black man leaving Futtrell’s residence and        do not exceed the bounds of a Terry stop). Given these
entering into an unfamiliar vehicle; (iv) Weaver’s inability to    undisputed facts, Weaver’s detention prior to the search of his
explain his presence at Futtrell’s residence; (v) Weaver’s         person did not amount to an arrest or an otherwise unlawful
alleged travel plans, which were inconsistent with his current     detention.
location; (vi) Futtrell’s corroboration that Weaver and Booker
had no reason to be at his home; (vii) Futtrell’s suggestion          In the chronology of events, next came Shadoan’s search of
that Weaver and Booker were probably looking for the               Weaver. The district court concluded that Weaver was not
Cooper residence to sell cocaine; and (viii) Weaver’s              yet under arrest at the point that Shadoan allegedly felt the
nervousness and demeanor. When viewed in the totality of           contours of crack cocaine in Weaver’s pocket. Although
circumstances, the Officers were justified in detaining Weaver     Shadoan may have believed that Weaver was under arrest, the
and Booker to continue to conduct an investigative stop.           district court found that Shadoan did not convey this to
                                                                   Weaver. Then, the district court reasoned that Weaver could
   An investigative Terry stop may ripen into a de facto arrest    not properly be charged with evading a lawful arrest when he
through the passage of time or the use of force. Houston, 174      fled from the police. The Officers themselves do not dispute
F.3d at 814. When this occurs, a suspect’s continued               this logic. In fact, they insist that Weaver was not under
detention must be based upon probable cause. Id. Although          arrest at the time of the search. Therefore, as there is no
a bright-line test has not been formulated to distinguish          dispute that Weaver was not under arrest at any time prior to
between an investigative stop and a de facto arrest, “the          his flight, the Officers lacked probable cause to arrest Weaver
length and manner of an investigative stop should be               for evading a lawful arrest. However, they had probable
reasonably related to the basis for the initial intrusion.” Id.    cause to arrest Weaver for possession of cocaine.
In the present case, it is clear that Weaver’s detention did not
ripen into a de facto arrest. First, the duration of the             We have held that “[a] law enforcement officer does not
investigative detention from the moment of the initial stop        violate the Fourth Amendment merely by approaching an
until Weaver fled on foot lasted four minutes according to the     individual, even when there is no reasonable suspicion that a
police log and approximately ten to fifteen minutes by             crime has been committed, and . . . request[s] for consent to
Booker’s estimate. See, e.g., United States v. Wellman, 185        search the individual’s vehicle.” Erwin, 155 F.3d at 823.
F.3d 651, 656-57 (6th Cir. 1999) (finding that a fifteen to        Before an officer turns his back on a suspect, an officer may,
twenty minute traffic stop was a lawful detention); Houston,       during a lawful Terry stop, conduct a limited pat-down search
174 F.3d at 815 (finding that in certain circumstances, such as    for concealed weapons if the officer reasonably believes that
when officer safety is a serious concern, a detention of thirty-   a suspect may be dangerous. See United States v. Walker,
No. 01-5656                   Weaver v. Shadoan, et al.     19    20    Weaver v. Shadoan, et al.                    No. 01-5656

181 F.3d 774, 778 (6th Cir.), cert. denied, 528 U.S. 980          2.   Eighth Amendment Claim
(1999). “If a police officer lawfully pats down a suspect’s
outer clothing and feels an object whose contour or mass             The Eighth Amendment does not apply to pretrial
makes its identity immediately apparent, there has been no        detainees. Roberts v. City of Troy, 773 F.2d 720, 723 (6th
invasion of the suspect’s privacy beyond that already             Cir. 1985). The Fourteenth Amendment’s Due Process
authorized by the officer’s search for weapons . . . .”           Clause, however, affords pretrial detainees a right to adequate
Minnesota v. Dickerson, 508 U.S. 366, 375 (1993).                 medical treatment that is analogous to the Eighth Amendment
Moreover, “if the object is contraband, its warrantless seizure   rights of prisoners. Id. In the context of medical care for
would be justified by the same practical considerations that      prisoners and detainees, it is well established that “deliberate
inhere in the plain-view context.” Id. at 375-76. Thus in         indifference to a prisoner’s [or detainee’s] serious illness or
Walker, when a pat-down search indicated that a person had        injury states a cause of action under § 1983. Estelle v.
crack cocaine concealed under his pants, a subsequent strip       Gamble, 429 U.S. 97, 105 (1976).
search was lawful. 181 F.3d at 778-79. Walker is highly
analogous to the facts of this case.                                 The Supreme Court has equated deliberate indifference
                                                                  with “criminal recklessness.” Farmer v. Brennan, 511 U.S.
   In the instant case, Shadoan conducted a pat-down of           825, 837 (1994). That is, a defendant must know of and
Weaver. During his pat-down, Shadoan felt something that          disregard a substantial risk of serious harm. Id. The inquiry
led him to believe was crack cocaine. When Shadoan asked          is subjective: “[T]he official must both be aware of facts
Weaver to empty his pockets, Weaver fled. The Supreme             from which the inference could be drawn that a substantial
Court has recognized that headlong flight from police             risk of serious harm exists, and he must also draw the
presence is the consummate act of evasion and suggestive of       inference.” Id. It is insufficient for a plaintiff to allege that
wrongdoing. See Wardlow, 528 U.S. at 124 (stating that            there existed a danger that an officer should have been aware
“[h]eadlong flight--wherever it occurs--is the consummate act     of. Id. at 838. Deliberate indifference is something more
of evasion: It is not necessarily indicative of wrongdoing, but   than negligence. Id. at 835. Also, “prison officials who
it is certainly suggestive of such”); see also United States v.   actually knew of a substantial risk to inmate health or safety
Dotson, 49 F.3d 227, 231 (6th Cir.), cert. denied, 516 U.S.       may be found free from liability if they responded reasonably
848 (1995) (finding that a defendant’s efforts to flee, coupled   to the risk, even if the harm ultimately was not averted.” Id.
with a detective’s reasonable suspicion of defendant’s            at 844.
involvement in wrongdoing, established probable cause to
arrest). Therefore, Shadoan’s discovery of what appeared to          Very recently, a panel of this court decided a case squarely
be crack cocaine during the lawful Terry stop, coupled with       on point with the facts and issues presented by Plaintiff’s
Weaver’s headlong flight from the scene, established              Eighth Amendment claim. See Watkins v. City of Battle
probable cause for Weaver’s arrest. Accordingly, the Officers     Creek, 273 F.3d 682 (6th Cir. 2002). In Watkins, officers
did not violate Weaver’s Fourth Amendment rights. Because         executed a search warrant at the apartment of a suspected
Plaintiff did not satisfy the first prong of the qualified        mid-level drug dealer. Upon entry, they found the suspect
immunity analysis, we need not address whether the right was      exiting a walk-in closet. Inside the closet was a torn plastic
clearly established. The district court is thereby reversed on    bag with white crumbs sprinkled around it and nearby was a
the issue of qualified immunity on the Fourth Amendment           larger piece of white substance, which was later identified as
claim.                                                            crack cocaine. Officers saw the subject licking his lips and a
No. 01-5656                          Weaver v. Shadoan, et al.           21     22    Weaver v. Shadoan, et al.                     No. 01-5656

pink foamy drool coming from his mouth. The officers also                       686. Because the officers did not see the suspect ingest any
observed a white speck near his mouth. The officers,                            cocaine, the court found that there was insufficient evidence
however, did not see the suspect place drugs into his mouth.                    to lead a rational trier of fact to conclude that the officers or
The officers warned the suspect that he could die if he had                     jailers knew the suspect needed medical attention for drug
swallowed cocaine and they offered to take him to the                           ingestion. Id. The situation did “not involve an incapacitated
hospital.     The suspect, however, repeatedly denied                           detainee or one who asked for but was refused medical
swallowing any drugs and refused medical treatment. The                         treatment.” Id. We found no fault in the officers’ “not
officers failed to inform the jailers or their supervisors of                   forcing medical treatment on [the suspect] in the face of his
what they observed and of their suspicion that the suspect                      repeated denials and plausible explanations.”                 Id.
may have swallowed cocaine. Once at the jail, the suspect                       Consequently, there was no Eighth Amendment violation.
complained of an upset stomach and appeared to be
intoxicated. The suspect was again offered medical                                In the instant case, the Officers did not see, or otherwise
treatment, which he continued to reject. At no time while he                    have knowledge, that Weaver ingested cocaine. It is also
was conscious did the officers or jailers summon paramedics                     undisputed that Weaver repeatedly denied swallowing any
to examine the individual. Later, the suspect was found dead                    drugs. When Weaver appeared to become ill, the Officers
in his cell.                                                                    immediately summoned the paramedics. The paramedics
                                                                                were requested approximately one hour and thirty-two
  Based on these facts, this court found that it was not enough                 minutes after Weaver was placed in custody. Plaintiff does
for the plaintiff to demonstrate that the police officers should                not dispute Shadoan’s assertions that while waiting for the
have known that the suspect had ingested cocaine.10 Id. at                      ambulance, he checked Weaver’s heartbeat and breathing,
                                                                                both of which appeared normal--and an indication that
                                                                                Shadoan was concerned for Weaver’s health.               The
    10
       The dissent noted that the “only” possible means for destroying the
                                                                                paramedics’ report clearly indicates that Weaver did not
drugs under the circumstances was for the suspect to ingest the drugs           exhibit any symptoms of drug ingestion. It is also undisputed
while in the closet. 273 F.3d at 688 (Moore, J., dissenting). The facts of      that Weaver refused to be taken to a hospital. Given these
Watkins clearly present a closer case for an E ighth Amendment violation        facts, it can hardly be said that the Officers acted with
than the facts of the instant case. In Watkins, stronger facts suggested that   deliberate indifference.
the suspect had ingested cocaine. Also, in Watkins, the officers and jailers
never summ oned the p aram edics to assess the susp ect while he was still
conscious. The officers simply took the suspect’s denials of ingesting
                                                                                  Plaintiff’s contention that the Officers “believed” or
drugs at face value. In the instant case, the arrest of Weaver took place       “should have known” that Weaver had swallowed drugs does
outside, after he had fled from the police and was out of sight for several     not give rise to a deliberate indifference claim. It is equally
second s. The most logical means for Weaver to have discarded the drugs         plausible that the Officers “believed” that Weaver had tossed
would have been for Weaver to toss the drugs on the ground as he was            out the drugs as he fled from the police. When dealing with
fleeing. W hen the Officers retraced the path o f Weaver’s attemp ted
escape, they found a cellophane wrapper with a drug-like residue, which
they believed belonged to W eaver. Although it is unclear whether the
wrapper belonged to W eaver, their recovery of the wrapper supports an
inference that the Officers believed that Weaver had discarded the drugs
along with the wrapper. Also, there is no evidence to suggest that the          ingestion. Moreo ver, unlike the officers in Watkins, the Officers
Officers observed a white substance in the area of W eaver’s mouth.             summoned paramedics to examine Weaver, who was cleared for
W eaver also exhibited no signs--such as a pink ish frothy drool--of drug       transportation.
No. 01-5656                         Weaver v. Shadoan, et al.           23     24     Weaver v. Shadoan, et al.                              No. 01-5656

medical care for detainees, negligence does not state a cause                  scene. Owen’s fear that Weaver could feign illness and then
of action under § 1983.                                                        flee again is not deliberate indifference. Further, the fact that
                                                                               Owen believed that Weaver was faking his illness does not
   Shadoan’s last dealings with Weaver was at the Oliver                       support an inference that Owen acted with deliberate
Springs Police Station when the paramedics were first                          indifference. To the contrary, Owen’s “faking” statements
summoned to assess Weaver. When Shadoan last saw                               suggest that he did not draw an inference or have the
Weaver, Weaver was alive and did not show any signs of                         subjective belief that Weaver was in a substantial risk of
illness. Based on these undisputed facts, and our decision in                  serious harm.12 Finally, Owen’s request for a second
Watkins, we reverse the district court’s denial of qualified                   ambulance for Weaver thirty-nine minutes after the first team
immunity for Officer Shadoan on Plaintiff’s Eighth                             of paramedics had finished examining him suggests that
Amendment claim.                                                               Owen was concerned for Weaver’s health. Although Owen
                                                                               could have called an ambulance earlier in the process, he did
   With regard to Owen, Plaintiff asserts that Owen exhibited                  request that Chief Jailer Hamby, a certified EMT, check on
deliberate indifference toward Weaver when during his                          Weaver. In short, we find that Owen did not know and
transportation of Weaver to the jail, he failed to call the                    disregard a substantial risk of serious harm to Weaver.
paramedics a second time, and failed to turn back when                         Accordingly, we hold that Owen did not violate Weaver’s
Weaver began falling over and throwing up. Plaintiff also                      Eighth Amendment rights. Because Weaver’s constitutional
asserts that Owen acted with deliberate indifference when he                   rights were not violated, it is unnecessary to address whether
told the jailers that he believed Weaver was “faking.” We                      the right was clearly established. The district court is
disagree.
   When the paramedics were first called to the police station
                                                                               suspected) that Weaver consumed d rugs. To this, the dissent apparently
Weaver went from exhibiting seizure-like symptoms to being                     conced es, “[w]hen Weaver became ill, the officers immediately
alert, oriented, coherent, and medically cleared for                           summoned the paramedics, indicating that they did indeed suspect that he
transportation to jail. Based on this first episode, it would not              had swallowed the drugs.” (Emphasis added ). W ithout more, the mere
be unreasonable for Owen to discount the significance of                       suspicion of a risk of harm is insufficient as a matter o f law to give rise to
Weaver’s second set of symptoms during his transportation to                   liability for deliberate indifference.
the jail.11 Also, earlier, Weaver had fled on foot at the arrest                    12
                                                                                       The dissent rejects that Owen had a belief that Weaver was
                                                                               “faking” his illness. In the dissent’s view, if Owen “truly believed
    11
                                                                               W eaver was ‘faking,’ he could have called ahead so that paramedics
        The dissent’s analysis is premised on an assumption that Owen had      would be waiting for him, called an ambulance as soon as he arrived at
knowledge that Weaver ingested drug s. According to the dissent,               the jail, or returned to the police department and sought medical
“Owen’s failure to seek prompt medical assistance or advic e when              assistance there.” W e believe the opposite is true. U nder normal
W eaver’s condition deteriorated constitutes deliberate indifference           circum stances, one w ho truly b elieves that an ind ividual is faking illness
because it was an unreasonable response to a known risk of serious harm.”      will not go through the trouble of summoning help for the perceived
(Emphasis added). Ho wever, the dissent points to nothing, and we have         actor. For instance, common experience teaches that a parent who
been unable to find anything, that supports such an inference of               believes that her child is feigning illness to avo id school will not rush the
knowledge. In fact, earlier in its analysis, the dissent acknowledges that     child to the emergency room. Thus, based on the facts of this case, and
“[t]he record reveals that neither officer saw nor otherwise had knowledge     without record evidenc e to the contra ry, Owen’s failure to retake steps to
that Weaver had ingested coca ine.” (E mph asis added ). At best, the record   aid W eaver supp orts only the inference that he did not draw the subjective
supp orts an inference that Owen should have known (i.e., that he              belief that Weaver was in need of medical assistance.
No. 01-5656                Weaver v. Shadoan, et al.   25    26   Weaver v. Shadoan, et al.                   No. 01-5656

therefore reversed on the issue of qualified immunity with    _____________________________________________
regard to Weaver’s Eighth Amendment claim.
                                                              CONCURRING IN PART, DISSENTING IN PART
                     CONCLUSION                               _____________________________________________
  Weaver’s Fourth and Eighth Amendment rights were not          MARTHA CRAIG DAUGHTREY, Circuit Judge,
violated. Therefore, we REVERSE the ruling by the district   concurring in part and dissenting in part. Because I agree that
court and REMAND for the court to grant summary              Officer Shadoan should have been granted qualified immunity
judgment to the Officers in their individual capacities.     in this case, I would reverse the district court’s decision on
                                                             that issue. However, I cannot agree with the majority’s
                                                             conclusion that Stephen Lamont Weaver’s constitutional
                                                             rights were not violated, and I would therefore affirm the
                                                             district court’s judgment with regard to Officer Owen.
                                                               The record reveals that neither officer saw nor otherwise
                                                             had knowledge that Weaver had ingested cocaine. It is also
                                                             undisputed that Weaver repeatedly denied swallowing any
                                                             drugs. However, when Weaver became ill, the officers
                                                             immediately summoned the paramedics, indicating that they
                                                             did indeed suspect that he had swallowed the drugs. Officer
                                                             Shadoan conceded that while waiting for the ambulance, he
                                                             checked Weaver’s heartbeat and breathing – another
                                                             indication that Shadoan was concerned about Weaver’s
                                                             condition.
                                                                The record further reveals that Officer Shadoan’s last
                                                             dealings with Weaver were at the Oliver Springs Police
                                                             Department after paramedics had been summoned to evaluate
                                                             Weaver’s medical condition. When Shadoan last saw
                                                             Weaver, Weaver was alive and did not show any signs of
                                                             illness. Based on these undisputed facts, I would reverse the
                                                             district court’s denial of qualified immunity for Officer
                                                             Shadoan on the plaintiff’s Fourteenth Amendment claim.
                                                               Officer Owen’s actions require a different analysis,
                                                             however, because he alone transported Weaver to the Morgan
                                                             County Jail in Wartburg, some distance from Oliver Springs.
                                                             Taking the plaintiff’s allegations as true, it appears that
                                                             Weaver began to get sick and throw up within five minutes of
No. 01-5656                         Weaver v. Shadoan, et al.           27     28       Weaver v. Shadoan, et al.                          No. 01-5656

leaving the police station in Oliver Springs. Despite having                      Furthermore, there can be no question that such “deliberate
just been told by the paramedics, “If you see any other                        indifference to [Weaver’s] serious medical needs” was a
problems or anything at all changes, call us back,” Owen                       violation of his constitutional right to be free from cruel and
continued on the 20-25 minute drive to Wartburg. He could                      unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104-05
have, but did not, call ahead for medical assistance; he could                 (1976). While this right is often expressed as a matter of
have, but did not, return the short distance to the Oliver                     Eighth Amendment jurisprudence, the protection it affords is
Springs police department; he could have, but did not, drive                   not limited to those who are incarcerated after conviction, but
Weaver directly to an area hospital. As a result, by the time                  also applies pursuant to the Fourteenth Amendment to pre-
they arrived at the Morgan County Jail, Weaver was in such                     trial detainees. See DeShaney v. Winnebago County Dep’t. of
distress that he had to be carried from the car. Still, Owen did               Soc. Servs., 489 U.S. 189, 198 n.5 (1989); Roberts v. City of
not request medical assistance for Weaver for another 15                       Troy, 773 F.2d 720, 723 (6th Cir. 1985). Moreover, in this
minutes or more. Instead, he requested that one of the jailers,                case, the requirement that the right must have been clearly
a certified EMT who was then his girlfriend and was later his                  established in a particularized sense has also been satisfied.
wife, check on Weaver. She did so only by looking through                      See Fitzke v. Shappell, 468 F.2d 1072, 1076 (6th Cir. 1972)
the cell bars to see whether he was breathing. Owen did not                    (“where the circumstances are clearly sufficient to indicate the
call paramedics again for some 40 or 45 minutes after Weaver                   need of medical attention for injury or illness [to one who is
had first been seen by the paramedics in Oliver Springs.                       incarcerated], the denial of such aid constitutes the
                                                                               deprivation of constitutional due process”) (citations
  Owen’s failure to seek prompt medical assistance or advice                   omitted).2
when Weaver’s condition deteriorated constitutes deliberate
indifference because it was an unreasonable response to a                        The fact that Weaver initially refused medical treatment
known risk of serious harm. Owen asserts that he believed                      does not alter this analysis. In Scharfenberger v. Wingo, 542
Weaver was “faking” his illness, but surely police officers are                F.3d 328, 330 (6th Cir. 1976), we held that “a prisoner’s
not free to substitute their own judgment for that of medical
professionals when there is already reason to believe that
there is cause for concern.1                                                   medical assistance for Weaver without creating an undue flight risk, yet
                                                                               Owen pursued none of them .

    1                                                                               2
       It simply is not reasonable to believe that W eaver could be “faking”          Fitzke was arrested following an automobile accident and was
these symptoms in an attempt at escape despite the fact that he had tried      incarcerated in the local ja il. He was held from about 1:30 a.m. until 6:30
to flee the police earlier at the arrest scene. Police officers may in some    p.m. the same day -- a period of about 17 hours -- before he received
situations reasonab ly deduce that a p risoner is feigning symptoms and        requested medical treatment. During that time he suffered from a serious
wait to provide medical assistance until they have brought the priso ner to    brain injury and complained of pain and numbness in various parts of his
a secure location. That is not the case here. In re sponse to W eaver’s        bod y. 468 F.2d at 1074-7 5. Fitzke alleged that the delay in receiving
physical distress, Owen did not simply make an initial decision not to seek    medical treatment increased the severity of his b rain da mage. Id. This
imme diate medical assistance, but instead deliberately ignored medical        court found that there was precedent for Fitzke’s claim that his treatment
advice that he ha d already been given regarding W eaver. Add itionally,       constituted a cause of action under 42 U.S.C. § 1983, holding that “under
if he truly believed We aver was “faking,” he could have called ahead so       exceptional circum stances the failure to provide o r perm it access to
that paramedics would be waiting for him, called an ambulance as soon          medical care may give rise to a violation of one’s Fourteenth Amendment
as he arrived at the jail, or returned to the police department and sought     rights [since] such refusal could well result in the deprivation of life
medical assistance there. Any of these actions would have secured              itself.” Id. at 1076 (internal quotation marks and citations omitted).
No. 01-5656                   Weaver v. Shadoan, et al.      29

custodians cannot lawfully deny . . . adequate medical care
even in instances of deliberate self injury.” The right, then,
does not turn on whether the incarcerated individual
affirmatively seeks medical treatment but, rather, on the
officers’ awareness that medical treatment is necessary.
Hence, in Rich v. City of Mayfield Heights, 955 F.2d 1092,
1096-97 (6th Cir. 1992), we explicitly found that an
incarcerated individual did not have a clearly established right
“to be screened correctly for suicidal tendencies and . . . to
have steps taken which would have prevented suicide,” but
we reiterated our prior holding that detainees do have a
clearly established right “to adequate medical care . . . where
the circumstances are clearly sufficient to indicate the need of
medical attention for injury or illness.” Id. at 1096 (quoting
Fitzke, 468 F.2d at 1076).
  The officers here, and Officer Owen in particular, were on
notice that if Weaver developed additional symptoms, they
should notify medical authorities immediately. In failing to
do so, Officer Owen forfeited his right to the qualified
immunity to which he would otherwise be entitled. I
therefore conclude that the district court was correct in
denying qualified immunity to Officer Owen on Weaver’s
Fourteenth Amendment claim and would affirm that portion
of the district court’s judgment.
