                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 08-1937


ANGELIC BROWN, Individually and as Personal Representative
of the Estate of Travone L. Bell, decedent; TROJAN BELL,
Individually and as Personal Representative of the Estate
of Travone L. Bell, decedent,

                 Plaintiffs - Appellants,

           v.

OFFICER MIDDLETON, Individually; OFFICER HOLT, Individually;
OFFICER   KRAMITZ,  Individually;   E.  BERNARDI,   Officer,
Individually; DETENTION OFFICER BROWN, Individually; AL
CANNON, Sheriff of Charleston County in his official and
individual capacities,

                 Defendants – Appellees,

           and

OFFICER VALENTINE, Individually; CHARLESTON COUNTY DETENTION
CENTER; CITY OF NORTH CHARLESTON POLICE DEPARTMENT,

                 Defendants.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Margaret B. Seymour, District
Judge. (2:06-cv-02454-MBS)


Argued:   October 27, 2009                   Decided:   January 15, 2010


Before KING, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Anthony J. TRENGA, United States District Judge for the Eastern
District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.


ARGUED: Michele Patrao Forsythe, Michael W. Sautter, QUERY,
SAUTTER, GLISERMAN & PRICE, LLC, Charleston, South Carolina, for
Appellants.    Robin Lilley Jackson, SENN, MCDONALD & LEINBACK,
LLC, Charleston, South Carolina; Gordon Wade Cooper, BUYCK LAW
FIRM, Charleston, South Carolina, for Appellees.       ON BRIEF:
Stephanie   P.   McDonald,  SENN,  MCDONALD  &   LEINBACK,  LLC,
Charleston, South Carolina, for Appellees Officer Middleton,
Individually, Officer Holt, Individually, Officer Kramitz,
Individually, E. Bernardi, Officer, Individually; Darren K.
Sanders, BUYCK & SANDERS, LLC, Mount Pleasant, South Carolina,
for Appellees Detention Officer Brown, Individually, Al Cannon,
Sheriff of Charleston County, in his official and individual
capacities.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

        On February 18, 2005, approximately four and a half hours

after being arrested and while still in custody,                  Travone Bell

(“Bell”), age 16, suddenly collapsed into unconsciousness while

taking a shower at the Charleston County Detention Center (the

“Detention Center”). He received immediate medical attention and

was taken to a nearby hospital. He died approximately ten days

later without ever regaining consciousness. The underlying cause

of his collapse was attributed to acute cocaine intoxication.

        Following their son’s death, Appellants Angelic Brown and

Trojan Bell (“Appellants”), acting individually and as personal

representatives of the Estate of Travone Bell, filed a claim

under 42 U.S.C. § 1983 against the City of North Charleston

Police Department (the “Department”), Al Cannon, the Sheriff of

Charleston County, Officers Tony Middleton, Justin Holt, Alan

Kramitz, Ethan Bernardi, George Valentine, 1 who were involved in

their son’s arrest, and Officer Hans Brown, who processed their

son at the Detention Center (collectively referred to as the

“Appellees”).         Appellants   allege   that   Appellees    violated   their

son’s       federal    constitutional   rights     when   his   urgent   medical


        1
       Although Officer Valentine was named as a defendant in the
District Court and is included among the Appellees, the
Appellants have not pressed their claim against Officer
Valentine on appeal.



                                        3
needs were not attended to following his arrest on February 18,

2005. The District Court entered summary judgment against the

Appellants. Because the evidence does not support a reasonable

inference that Appellees had actual knowledge that Bell was in

need of medical attention before his sudden collapse, we must

affirm.



                                  I. Background

       At approximately 12:30 a.m. on February 18, 2005, Officer

Holt stopped a vehicle driven by Bell for speeding. Bell was

arrested at the scene, handcuffed, and placed in the back of

Officer     Holt’s       police    vehicle.        Officers   Middleton,     Kramitz,

Bernardi, and Schmidt arrived to provide back up and assistance.

       During      a    search    of     Bell’s    vehicle,   the     officers    found

several empty plastic baggies in the driver’s side door. There

was   no    evidence      that    these       baggies    previously    contained    any

material. Each officer asked Bell whether he was in possession

of anything illegal, including drugs or guns, and Bell responded

in    the   negative       each    time.      Officers    Bernardi    and   Middleton

noticed that Bell appeared to have an object in his mouth and

removed     from       Bell’s    mouth    a    baggie    containing    an   off   white

substance, which field tested positive for crack-cocaine. The

Appellants contend this baggie had holes in it and that the

crack-cocaine in the baggie was moist from Bell’s saliva at the

                                               4
time it was taken from his mouth, 2 while the Appellees maintain

that Officer Middleton made the holes in the baggie himself in

order     to   field   test   the   substance   inside,   and    the   substance

inside the baggie became moist from the saliva on the baggie’s

exterior during that procedure.

      After removing the baggie from Bell’s mouth, Officers Holt,

Middleton, and Kramitz each asked Bell several times whether he

had swallowed any drugs. Bell denied doing so each time, even

after Officer Kramitz cautioned Bell that if he had swallowed

any drugs, he needed to be treated and that he would not face

any additional charges for narcotics that he had consumed. Bell

was   also     offered   immediate    medical   attention   as    well   as   the

services of an ambulance, but Bell continued to deny swallowing

any drugs or any need for medical attention. Bell did admit to

smoking earlier in the day several marijuana cigars laced with

cocaine, known as “blunts,” but Bell appeared calm, acted in a

normal manner, and carried on friendly conversation with the

officers.




      2
       The evidence offered to support this contention is a
statement in Officer Holt’s supplemental arrest report that
describes the cocaine in the baggie as moist. Officer Holt later
testified, however, that it was the baggie that was moist, and
the contents of the baggie became moist when exposed to the
saliva on the outside after the baggie was removed from Bell’s
mouth.



                                        5
        Because          Bell    was     being       charged    as    an        adult,    he    was

transported to the South Precinct of the North Charleston Police

Department          to    complete      paper    work    and    then       to    the     Detention

Center, where he arrived at 2:48 a.m. At the Detention Center,

Bell        was   taken     to     the    Juvenile       Unit,       where       Officer       Brown

performed a strip search on Bell. Brown was provided with a copy

of   the      incident      report       that    referenced      the       drugs    taken      from

Bell’s mouth. 3 During his processing of Bell, Officer Brown asked

Bell if he had swallowed any drugs. Bell again denied swallowing

drugs, but again admitted having smoked up to five cocaine laced

marijuana         cigars        earlier    in    the    day.     Officer         Brown    checked

Bell’s mouth for any additional hidden drugs, without finding

any. He also observed that Bell was acting calm and compliant,

without the abnormal behavior that is normally associated with

cocaine use.

        After Officer Brown’s search, Bell was taken to the shower

room,       where    he    began       taking    a    shower.    At    approximately           3:53

a.m., a little over an hour after his arrival at the Detention

Center, Bell fell out of the shower stall and suffered a series


        3
       Officer Holt contends that he told Officer Brown, the
processing officer, that a plastic baggie of crack-cocaine had
been removed from Bell’s mouth, and that Bell could be hiding
additional drugs in his mouth, behind his gold teeth. Officer
Brown, however, denies receiving this information from Officer
Holt.



                                                 6
of seizures that rendered him unconscious.                       The officers and

medical    staff     immediately     responded       and    summoned     emergency

medical services that transported Bell to nearby St. Francis

Xavier Hospital emergency room.                In the emergency room, Bell’s

urine tested positive for marijuana and cocaine, although no

blood   tests    were    conducted   to       determine    the   exact   amount    of

drugs in his system. Bell never regained consciousness and died

on March 1, 2005. The cause of death was listed as cerebral

hypoxia due to subacute myocardial infarction secondary to acute

cocaine intoxication.



                II. Procedural History/Standard of Review

     On August 3, 2006, Appellants filed a complaint against

Appellees in the Court of Common Pleas for Charleston County,

South Carolina, alleging both federal claims under 42 U.S.C. §

1983 and state law claims pursuant to the South Carolina Torts

Claims Act, S.C. Code Ann. §§ 17-78-10, et seq. On September 1,

2006, the Appellees removed the case to federal court. On July

22, 2008, the District Court granted the Appellees’ motion for

summary judgment and remanded the remaining state law claims

after     refusing      to   exercise     supplemental       jurisdiction.        The

Appellants have appealed the District Court’s summary judgment

ruling as to their Section 1983 claims. We review a grant of

summary judgment de novo, viewing the facts in the light most

                                          7
favorable to the non-prevailing party, here, the Appellants. See

Holland v. Washington Homes, Inc., 487 F.3d 208, 213 (4th Cir.

2007).



                                 III. Analysis

        Section 1983, by its own terms, prohibits constitutional

violations under color of state law. In this case, Appellants

claim    that   the   Appellees    violated    their   son’s   constitutional

rights    under    the    Fourteenth   and    Eighth   Amendments    when   they

failed to properly attend to his urgent medical needs following

his arrest.

        Persons within state police custody enjoy the protections

afforded by the Fourteenth and Eighth Amendments, which include

the right to obtain adequate medical care. Martin v. Gentile,

849 F.2d 863, 866 (4th Cir. 1988) (explaining that the denial of

medical care by state officials can give rise to claims under

the Fourteenth Amendment’s due process clause); see also City of

Revene v. Massachusetts Gen. Hosp., 463 U.S. 239, 266 (1983)

(holding    that      pretrial    detainees     have   at    least   the    same

protections       under    the    Fourteenth     Amendment     as    post-trial

detainees have under the Eighth Amendment); Belcher v. Oliver,

898 F.2d 32, 34 (4th Cir. 1990) (“[T]he Fourteenth Amendment

right of pretrial detainees, like the Eighth Amendment right of

convicted prisoners, requires that government officials not be

                                        8
deliberately indifferent to any serious medical needs of the

detainee."); Mitchell v. Aluisi, 872 F.2d 577, 581 (4th Cir.

1989) (“A violation of the Eighth Amendment standard . . . may

be    used,     however,         to    determine           a    due     process    violation.”)

(citing    Whisenant         v.       Yuam,      739     F.2d     160,    163    n.4    (4th    Cir.

1984)).

       “[O]nly     the      unnecessary             and       wanton     infliction       of    pain

implicates      the    Eighth          Amendment"          and    a     prison    official      must

therefore have a “sufficiently culpable state of mind.” Wilson

v. Seiter, 501 U.S. 294, 298, 302-303 (1991). Failure to provide

adequate      medical       care      to     a    detained       individual       rises    to    the

level of a constitutional violation when there is “deliberate

indifference”         to    an     individual’s               serious    medical       needs.    See

Estelle    v.    Gamble,          429        U.S.       97,     105    (1976)     (“[D]eliberate

indifference to serious medical needs of prisoners constitutes

the ‘unnecessary and wanton infliction of pain,’ proscribed by

the Eighth Amendment.”) (quoting Gregg v. Georgia, 428 U.S. 153,

173 (1976)). In order to establish “deliberate indifference,”

the    Appellants          must       show       that     the    arresting       or    processing

officers were “aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists,” and also

that the officers “must also [have drawn] the inference.” Farmer

v.    Brennan,    511       U.S.       825,       837     (1994)       (defining       “deliberate

indifference”).

                                                    9
       In summary, in order to establish liability under Section

1983 based on a claim of inadequate medical care, Appellants

must show the officers had actual knowledge that Bell had an

urgent medical need because of a known risk. Conduct that is

merely negligent, or even reckless, is insufficient. Farmer, 511

U.S.       at   537   (rejecting   the   notion   that   that   the   common   law

definition of “reckless” in civil cases meets the deliberate

indifference standard). 4           For these reasons, “[i]f an officer

fails to act in the face of an obvious risk of which he should

have known, but did not, the officer has not violated the Eighth

or Fourteenth Amendments.” Watkins v. City of Battle Creek, 273

F.3d 682, 686 (6th Cir. 2001) (citing Farmer, 511 U.S. at 837-

838).

       In assessing whether these officers had the required level

of awareness necessary to establish “deliberate indifference” to

Bell’s urgent medical needs, the Court must consider, based on

the summary judgment record, whether Bell’s need for medical

attention was both “apparent and serious.” Grayson v. Reed, 195

F.2d. 692, 695 (4th Cir. 1999). A medical need is “serious” if


       4
       The District Court remanded Appellants’ claims under the
South Carolina Torts Claims Act, S.C. Code Ann. §§ 15-78-10, et
seq. The Act waives the state’s immunity for losses “proximately
caused by a tort of the State,” id. at 15-78-50, and is not
subject to the “deliberate indifference” standard applied to
claims under Section 1983.



                                          10
it is one that has been “diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay person would

easily recognize the necessity for a doctor's attention.” Iko v.

Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (quoting Henderon v.

Sheahan, 196 F.3d 839, 846 (7th Cir. 1999)).

                                              A.

     Looking at the facts in the light most favorable to the

Appellants, the evidence offered to support Appellants’ claim

does not support the inference that the arresting officers knew

that Bell was in need of urgent medical attention as a result of

cocaine consumption. It is undisputed that the Officers did not

see Bell ingest any cocaine and Bell did not have any tell-tale

signs    in   or    around      his   mouth    of   cocaine      ingestion     when    the

baggie was removed. Even if the substance inside the baggie were

moist following its extraction from Bell’s mouth, there was no

indication,        from    residue     on     the   outside      of    the    baggie   or

otherwise,     that       the    baggie     had     lost   any    of    its    contents.

Importantly, Bell repeatedly and consistently denied swallowing

any drugs, while admitting to drug use earlier in the day. 5

During the several hours that he was under police observation

after his arrest, but before his collapse, Bell acted normally

     5
        Appellants do not contend that the officers were
“deliberately indifferent” based on their knowledge of his
smoking the cocaine laced marijuana.



                                              11
throughout his interactions with the officers without showing

any    of        the     behavioral         symptoms    associated        with      cocaine

ingestion.         While        the       arresting    officers      were        rightfully

concerned        that     Bell      may    have   swallowed     drugs,     there     is   no

evidence from which a fact finder could infer that they in fact

knew that Bell had consumed cocaine or that Bell evidenced the

need for medical attention.

       The Appellants claim that the evidence is sufficient to

make the required showing for the purposes of surviving summary

judgment         when     one    considers        Bell’s      age   and     the     special

protections            that   South       Carolina     law    provides      to     juvenile

detainees, but which Bell allegedly did not receive. 6                              Whether

Bell was properly treated as a juvenile under South Carolina law

does       not    affect      the     constitutional         standard     by     which    the

Appellees’ conduct is to be judged; and Appellants still must

show, even if Bell is considered a juvenile for the purposes of




       6
        Specifically, Appellants allege that the Detention
Center’s own procedures prohibit juveniles from being admitted
to the Detention Center if there is any doubt about their
medical condition. Appellants also contend that under S.C. Code
§ 63-19-810(B), Officer Holt was required to inform an
authorized representative of the State Department of Juvenile
Justice of Bell’s arrest and location, and that Bell’s parents
were required to be notified that he was in custody under S.C.
Code § 63-19-810(A), which also places any child under the age
of seventeen within the jurisdiction of the South Carolina
Family Court.



                                               12
their constitutional claims, that the officers were deliberately

indifferent to a known need for urgent medical attention.

     The facts presented to the District Court, when viewed in

the light most favorable to the Appellants, do not create a

triable issue of fact concerning whether the arresting officers

in fact knew that Bell was in need of urgent medical attention.

For these reasons, the evidence did not sufficiently support the

claim that the arresting officers violated Bell’s constitutional

rights. 7

                                    B.

            With   respect   to   Officer   Brown,   who   processed   and

searched Bell at the Detention Center several hours after his

vehicle was initially stopped, it is uncontested that Officer

Brown searched Bell’s mouth for drugs without finding anything

and asked Bell if he had swallowed any drugs, which Bell again

denied. He also observed that Bell was acting normally, without

showing the signs or symptoms of cocaine ingestion. When Bell

collapsed while taking a shower, Officer Brown acted immediately

to provide him with medical attention.




     7
       As Appellants did not raise the issue on appeal, we will
not address the District Court’s finding that the level of force
used by the arresting officers to retrieve the baggie from
Bell’s mouth did not violate Bell’s Fourth Amendment rights.



                                    13
       Even assuming for purposes of summary judgment that Officer

Brown knew that a baggie of crack-cocaine had been retrieved

from Bell’s mouth and that Officer Holt had specifically told

him to search Bell’s mouth, the evidence remains insufficient to

support the inference that Officer Brown knew that Bell was in

need of urgent medical attention. Accordingly, the evidence is

insufficient to create a triable issue of fact as to whether

Officer Brown was “deliberatively indifferent.”

                                            C.

       Appellants base their claim against Al Cannon, the Sheriff

of    Charleston      County,    not   on    his    actual   involvement     in   the

arrest     or   processing      of   Bell,   but    rather    on   his   supervisory

responsibilities. Under Section 1983, a supervisory official may

be held liable in his personal capacity in certain circumstances

for   constitutional      injuries      inflicted      by    his   subordinates    if

those actions were premised on a recognition that supervisory

indifference or tacit approval of the misconduct could cause the

constitutional injury. Shaw v. Stroud, 13 F.3d 791, 798 (4th

Cir. 1994). In this case, however, since we have found that none

of the officers violated Bell’s constitutional rights, there is

no    basis     for   Sheriff    Cannon’s        liability   under    any   theory. 8


       8
       The District Court also correctly concluded that Sheriff
Cannon cannot be held liable under Section 1983 in his official
capacity. See Will v. Michigan Dept. of State Police, 491 U.S.
(Continued)
                                            14
Likewise,     because    we    have   found          that    none   of    the    officers

violated Bell’s constitutional rights, there is no basis for the

Appellants’ claim against the Department itself.

                                           D.

       The District Court was also correct in concluding that the

officers      were     entitled       to     qualified          immunity        for    any

constitutional        violation       they       may        have    committed.        When

government     officers      are   performing         a     discretionary       function,

they    are   entitled    to   a   defense      of     qualified     immunity     unless

their    conduct     clearly    violates        an    established        constitutional

right that the officer reasonably would have known to exist.

Harlow v. Fitzgerald, 457 U.S. 800 (1983) (granting qualified

immunity in the Section 1983 context). Whether or not a police

officer is entitled to qualified immunity is a question of law

for the court, and when there are no relevant disputed material

facts, a court should rule on the qualified immunity issue at

the summary judgment stage. Willingham v. Crooke, 412 F.3d 553,

558    (4th   Cir.   2005)     (“Ordinarily,          the    question     of    qualified




58, 71 (1989) (“We hold that neither a state nor its officials
acting in their official capacities are ‘persons’ under §
1983.”); see also Gulledge v. Smart, 691 F. Supp. 947 (D.S.C.
1988) aff’d 878 F.2d 379 (4th Cir. 1989) (holding that, in South
Carolina, sheriffs and deputies are state officials).



                                           15
immunity     should       be   decided    at    the   summary      judgment    stage.”)

(citing Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003)).

     In     this    case,      as   discussed    above,     none    of   the   officers

violated      any    of     Bell’s    constitutional        rights.      Without     any

evidence demonstrating the officers had knowledge that Bell was

in   urgent      need     of    medical    care,      the   officers     cannot      have

violated     a     clearly     established      constitutional        right    and    are

entitled to qualified immunity.



                                       IV. Conclusion

      For    the     above     reasons,    we    affirm     the    judgment     of   the

District Court.

                                                                               AFFIRMED




                                           16
