     Case: 18-30968   Document: 00515116918     Page: 1   Date Filed: 09/13/2019




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

                                                                        FILED
                                 No. 18-30968                   September 13, 2019
                                                                   Lyle W. Cayce
                                                                        Clerk
PAUL A. CLEVELAND; PARIS LEBLANC; MINDY CAPELLO,

             Plaintiffs-Appellees,

v.

LILLIAN BELL,

             Defendant-Appellant.



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


Before SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.
ANDREW S. OLDHAM, Circuit Judge:
      Paul Cleveland’s survivors sued a prison nurse named Lillian Bell under
42 U.S.C. § 1983 for allegedly violating his Fourteenth Amendment rights.
The district court denied qualified immunity to Nurse Bell. We reverse.
                                      I.
      Paul Cleveland was seventy-two years old when he was detained at the
East Baton Rouge Parish Prison on September 19, 2014. Upon entering the
Prison, Cleveland completed a health assessment.            According to the
assessment, Cleveland had a host of health problems, including diabetes, high
blood pressure, rheumatoid arthritis, and peripheral artery disease. During
his two months at the Prison, Cleveland received medication for his conditions
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and had numerous visits with medical staff regarding a variety of health
issues.
      On the morning of November 10th, Cleveland received emergency
medical treatment after he became dizzy and nauseated in the bathroom and
fainted. Nurse Ebony White checked his vital signs, treated him for a cut on
the back of his head, and put him on a list to see the next available doctor. In
the late afternoon, Cleveland said he was “going to pass out.” Nurse White
visited Cleveland, and Cleveland said he felt dizzy when sitting up or walking
long distances. Cleveland demanded to go to the hospital for evaluation and
said he wanted “pain medication to knock him out.” He reported no chest pains
or shortness of breath. Nurse White told Cleveland that he did not exhibit any
signs of acute distress, so he would not be sent to the emergency room. Instead,
Cleveland would be placed on the list to see the next available doctor for further
evaluation.
      The nurses brought Cleveland back to the “medical tank,” where patients
with health issues are kept for observation by medical staff. Nurse White
wrote in her notes that Cleveland was “very argumentative” while he was in
the medical tank and was banging on the windows. Cleveland was eventually
moved from the medical tank to a single cell.
      On November 11th, at around 5:54 p.m., Nurse Bell went with Officer
Richard Camp to Cleveland’s cell to give him his medication. Cleveland was
lying in bed, and Nurse Bell told him to get a cup of water so he could take his
pills. Cleveland said that he was too weak to get up. Nurse Bell told Cleveland
“to stop playing and come get your medication . . . there is nothing wrong with
you.” But Cleveland said that he couldn’t get up. Nurse Bell left and said she
would come back after completing her “pill call” with the other inmates.
      Around 8:42 p.m., Nurse Bell returned and asked Officer Camp how
Cleveland was doing. Camp said he “seems to be sleeping” but had been
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                                  No. 18-30968
turning around in his bed and occasionally hit the wall with his fist. Nurse
Bell said “okay” and returned to the medical department.           Her notes in
Cleveland’s medical chart indicate that she completed a high-priority
“[l]ockdown/trusty sick call” at 11:53 p.m. But to Officer Camp’s knowledge,
Nurse Bell did not visit Cleveland again to give him his medicine.
      At around 2:32 a.m. on November 12th, Officer Camp saw that Cleveland
had defecated on himself and his mattress.        Officer Camp called Officers
Jasmyn Cage and Larry Turner to supervise the cleanup of Cleveland and his
cell. The officers told Cleveland to “get up off the floor and come to the bars to
be handcuffed so that his cell could be cleaned out.” But Cleveland continued
to lie on the floor and said that he was “tired.” The officers entered Cleveland’s
cell, removed his dirty mattress and jumpsuit, and allowed staff to clean his
cell. Cleveland received a clean jumpsuit, but he declined a chance to use the
shower.
      During the cleanup, Officer Cage called Nurse Bell. Officer Cage told
her that Cleveland was lying “on the floor and talking about [how] he was tired
and he couldn’t get up.” Nurse Bell said she thought he was “faking” and was
“trying to get back in the infirmary.”
      After the call, Officer Camp continued to make his rounds in the Prison.
According to his written report, every time he passed by Cleveland’s cell,
Cleveland “would rollover [sic] or move.” If he did not see Cleveland move, he
would talk to Cleveland.      Officer Camp didn’t hold a conversation with
Cleveland but would call his name and make sure “he either moved or every
now and then . . . would answer.” Officer Camp paid “extra attention to Mr.
Cleveland because of what had occurred.” A deputy had advised Officer Camp
to keep an eye on Cleveland because Cleveland had just come back from the
medical department.


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      At 4:05 a.m. on November 12th, Officer Camp passed out food to inmates.
As he gave the inmates their trays, he made sure they were awake. When
Officer Camp went to Cleveland’s cell, he noticed Cleveland was unresponsive.
He had seen Cleveland just five or ten minutes earlier. Cleveland had no pulse,
and attempts to resuscitate him proved unsuccessful.
      Cleveland’s survivors sued a bevy of medical professionals and law-
enforcement officers under 42 U.S.C. § 1983 and various other provisions of
law. The district court granted summary judgment to all defendants except
Nurse Bell. It refused to grant Nurse Bell qualified immunity from a claim
alleging deliberate indifference to Cleveland’s medical needs.       Nurse Bell
timely appealed.
                                       II.
      “Qualified immunity is an immunity from suit rather than a mere
defense to liability.” Pearson v. Callahan, 555 U.S. 223, 237 (2009) (quotation
omitted). “[I]t protects all but the plainly incompetent or those who knowingly
violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quotation
omitted). “[O]nce properly raised by the defendant, the plaintiff has the burden
to negate the assertion of qualified immunity.” King v. Handorf, 821 F.3d 650,
653 (5th Cir. 2016) (quotation omitted).
      To negate qualified immunity, the plaintiff must make two showings.
First, the plaintiff must show the defendant violated his constitutional rights.
Pearson, 555 U.S. at 232. Second, the plaintiff must show the asserted right
was clearly established at the time of the alleged misconduct. Ibid. If the
plaintiff fails at either step, the federal court can grant qualified immunity by
addressing either step or both of them. See id. at 236; Morrow v. Meachum,
917 F.3d 870, 874 (5th Cir. 2019).
      The Supreme Court has said the Eighth Amendment prohibits
“deliberate indifference” to a prisoner’s medical needs. Farmer v. Brennan, 511
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U.S. 825, 834–47 (1994). And we’ve held the same rule applies to pretrial
detainees like Cleveland under the Fourteenth Amendment. Hare v. City of
Corinth, 74 F.3d 633, 648–49 (5th Cir. 1996) (en banc).
      To establish a constitutional violation, a plaintiff must show that the
defendant: (1) was “aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists”; (2) subjectively “dr[e]w the
inference” that the risk existed; and (3) disregarded the risk. Farmer, 511 U.S.
at 837. In describing the second element, the Supreme Court has emphasized
that a “prison official cannot be found liable” unless she “knows of ” an excessive
risk to inmate health or safety. Ibid. A failure to act “unaccompanied by
knowledge of a significant risk of harm” is insufficient to establish a
constitutional violation. Id. at 837–38. It is not enough to identify a significant
risk that the official “should have perceived but did not.” Id. at 838.
      In this case, the district court failed to provide any analysis of why it
denied qualified immunity to Nurse Bell. Instead, it gave a one-sentence
conclusory statement:     “Taking the facts in the light most favorable to
Plaintiffs permits a conclusion that, on the night before and morning of
Cleveland’s death, she acted with deliberate indifference to Cleveland’s
welfare.” Cleveland v. Gautreaux, 2018 WL 3966269, at *16 (M.D. La. Aug. 17,
2018). The court did not identify which facts showed that Nurse Bell: (1) was
aware of information that could lead to the inference that Cleveland was
experiencing a life-threatening medical emergency; (2) drew the inference and
was subjectively aware of how serious the situation was; and (3) disregarded
Cleveland’s life-threatening medical emergency, despite appreciating its
existence.
      When the district court fails to identify which facts it relied on, we must
review the entire record to determine “what facts the district court, in the light
most favorable to the nonmoving party, likely assumed.” Johnson v. Jones,
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515 U.S. 304, 319 (1995).       We then review de novo the district court’s
application of the law to those facts. Hare, 135 F.3d at 325.
      Having reviewed the record, we find no evidence that on November 11th
or 12th, Nurse Bell subjectively “dr[e]w the inference” that Cleveland was
experiencing a life-threatening medical emergency. Farmer, 511 U.S. at 837.
The record contains statements from Nurse Bell indicating that she thought
there was nothing wrong with Cleveland and believed he was faking illness.
But nothing suggests that these statements reflected anything other than her
sincere opinion at the time. Even if we construe her statements in the light
most favorable to Plaintiffs, they are insufficient to establish that Nurse Bell
knew how serious the situation was. The Supreme Court has made clear that
actual knowledge is an essential element of Plaintiffs’ burden, as mere
negligence cannot establish a constitutional violation. Id. at 835–38. Given
the lack of evidence about Nurse Bell’s subjective awareness of a substantial
risk of serious harm to Cleveland, Plaintiffs cannot show a constitutional
violation at step one of the qualified-immunity analysis.
      Plaintiffs have also failed to show a potential violation of clearly
established law at step two. The Supreme Court has repeatedly told us “not to
define clearly established law at a high level of generality.” Mullenix v. Luna,
136 S. Ct. 305, 308 (2015) (per curiam) (quotation omitted). The dispositive
question in this step of the qualified-immunity analysis is “whether the
violative nature of particular conduct is clearly established.” Ibid. (quoting al-
Kidd, 563 U.S. at 742). Cases that are “too factually distinct to speak clearly
to the specific circumstances here” are not enough to deny qualified immunity.
Id. at 312.
      The district court relied on two of our decisions for the applicable clearly
established law. See Cleveland, 2018 WL 3966269, at *16 (citing McCormick
v. Stalder, 105 F.3d 1059 (5th Cir. 1997), and Fielder v. Bosshard, 590 F.2d
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105 (5th Cir. 1979)). We assume without deciding that our precedent could, in
an appropriate case, clearly establish the law. See, e.g., Taylor v. Barkes, 135
S. Ct. 2042, 2045 (2015) (per curiam) (summarily reversing the Third Circuit
for relying on circuit precedent to deny qualified immunity, but “[a]ssuming
for the sake of argument that a right can be ‘clearly established’ by circuit
precedent despite disagreement in the courts of appeals”). Even so, McCormick
does not fit the bill. That case held that the plaintiff ’s constitutional claim
regarding tuberculosis treatment was “properly dismissed as frivolous.”
McCormick, 105 F.3d at 1062. McCormick does not clearly establish anything.
      And this case is much different from Fielder. While in jail, Fielder began
to experience hallucinations, behave erratically, and shake physically. Fielder,
590 F.2d at 108. Ten hours after these symptoms began, he said: “Help me. I
need a doctor.” Ibid. Jail staff never brought him to a medical professional,
and he was found dead in his cell at 7 a.m. the next day. Ibid. Here, by
contrast, Cleveland received emergency medical attention two days before he
died. The decision not to hospitalize him after he fainted on November 10th
was based on a different nurse’s medical judgment after she examined
Cleveland. Nurse Bell’s involvement began only on November 11th. That
night, she tried to give Cleveland his medication, but he refused it. A few hours
later, she returned to check up on Cleveland but decided not to visit him after
being told that he seemed to be sleeping. As we noted in Fielder, there “is a
vast difference between an earnest, albeit unsuccessful attempt to care for a
prisoner” and deliberate indifference. Ibid. Fielder’s very different facts could
not put Nurse Bell on “fair notice” that she was acting unconstitutionally.
Mullenix, 136 S. Ct. at 314 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).
      Our Court has previously held that a “record of extensive medical
treatment spanning the final two and one half months” of an inmate’s
incarceration—combined with “the lack of evidence to establish the necessary
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culpable intent”—was sufficient for qualified immunity. Gobert v. Caldwell,
463 F.3d 339, 351–52 (5th Cir. 2006). Cleveland’s case is closer to Gobert than
to Fielder. Nurse Bell is therefore entitled to qualified immunity.
                                 *     *      *
      The district court’s denial of summary judgment to Nurse Bell is
REVERSED.




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