                          UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                          No. 08-1644


HILARIE G. SCARBRO, Administratrix of the Estate of Gary
Eugene Rummer,

              Plaintiff – Appellant,

         v.

NEW HANOVER COUNTY; NEW HANOVER COUNTY SHERIFF’S DEPARTMENT;
NEW HANOVER COUNTY JAIL; SIDNEY A. CAUSEY, Individually and
in his capacity as Sheriff of New Hanover County; J.T.
LEONARD, Individually and in his official capacity as
detective of the New Hanover County Sheriff’s Department; E.
MORTON, Individually and in his official capacity as deputy
of the New Hanover County Sheriff’s Department; B.R. HUDSON,
Individually and in his official capacity as deputy of the
New Hanover Sheriff’s Department; T.L. FUSS, Individually
and in his official capacity as corporal of the New Hanover
County Sheriff’s Department; D.E. KEYES, Individually and in
his official capacity as deputy of the New Hanover County
Sheriff’s Department; MR. HANSEN, Individually and in his
official capacity as deputy of the New Hanover County
Sheriff’s Department; J.P. HATCH, Individually and in his
official capacity as sergeant of the New Hanover County
Sheriff’s Department; M. GRIMES, Individually and in his
official capacity as deputy of the New Hanover County
Sheriff’s Department; MR. WARD, Individually and in his
official capacity as deputy of the New Hanover County
Sheriff’s Department; S. JONES, Individually and in his
official capacity as deputy of the New Hanover County
Sheriff’s Department; W. THOMAS PARKER, Individually and in
his official capacity as chief deputy of the New Hanover
County Sheriff’s Department; CLARENCE A. HAYES, Individually
and in his official capacity as captain of the New Hanover
Sheriff’s Department; ANGELA GOEBEL, Deputy, Individually
and/or in her official capacity; DENNIS KUTROW, Deputy,
Individually and/or in his official capacity; DEPUTY DRAKOW,
Deputy Sheriff, individually and in his official capacity;
DEPUTY FRINK, Deputy      Sheriff,    individually   and    in   his
official capacity,

                 Defendants – Appellees,

           and

SUSAN BARFIELD, R. N., Individually and in her official
capacity; GAYSHERON BELL, Deputy, Individually and in her
official capacity as an employee of the New Hanover County
Health Department; NEW HANOVER COUNTY HEALTH DEPARTMENT;
JANET MCCUMBIE, Individually and in her official capacity as
Personal Health Director of the New Hanover County Health
Department; PENNY RAYNER, FNP, Individually and in her
official capacity; DAVID RICE, Individually and in his
official capacity as Health Director of the New Hanover
County Health Department,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.  Louise W. Flanagan,
Chief District Judge. (7:03-cv-00244-FL)


Argued:   December 1, 2009                   Decided:      April 1, 2010


Before KING and SHEDD, Circuit Judges, and John Preston BAILEY,
Chief United States District Judge for the Northern District of
West Virginia, sitting by designation.


Affirmed in part, reversed in part, and remanded by unpublished
opinion. Judge Shedd wrote the opinion, in which Judge King and
Judge Bailey joined.


John Dwight Hudson, HUDSON & GENTRY, LLC, Myrtle Beach, South
Carolina, for Appellant. James R. Morgan, Jr., WOMBLE, CARLYLE,
SANDRIDGE & RICE, PLLC, Winston-Salem, North Carolina, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.

                                  2
SHEDD, Circuit Judge:

     Hilarie G. Scarbro, Administratrix of the Estate of Gary

Eugene    Rummer,     appeals    the       judgment   entered     in   favor     of    the

defendants on her claims under 42 U.S.C. § 1983 for excessive

force, inadequate medical care, and conspiracy to deprive Rummer

of his constitutional rights.                    For the following reasons, we

affirm    in   part,    but     we    reverse      the   district      court’s    order

granting summary judgment in favor of Defendant Deputy Billy Ray

Hudson on the inadequate medical care claim, and we remand for

further proceedings consistent with this opinion.



                                            I.

                                            A.

     In reviewing the district court’s order granting summary

judgment to the defendants, we view the facts in the light most

favorable to the plaintiff.                Scott v. Harris, 550 U.S. 372, 378

(2007).     Gary Eugene Rummer was arrested and incarcerated for

failure to serve the community service portion of his sentence

for driving under the influence of alcohol.                     A few days after he

was incarcerated, Rummer began having delusions and summoned a

guard. After learning of Rummer’s alcohol addiction, the guard

determined     that    Rummer        was    suffering    from     delirium      tremens

(“DTs”)    caused      by   alcohol        withdrawal     and    moved    him     to    a

safekeeping cell for inmates who have medical or mental health

                                             3
issues or who are disruptive.                   Later that morning, Rummer was

taken to the medical unit where Nurse Barfield examined him and

treated him for DTs.           Rummer was alert, oriented, and walking on

his own.

        Upon his return to the crowded safekeeping cell, Rummer was

stumbling over the other inmates’ mats and bothering them.                        When

the     other   inmates       complained,       Deputy   Billy    Ray    Hudson    was

ordered to move Rummer to a padded cell.                  Officer Melody Grimes

accompanied Hudson and guarded the door to the safekeeping cell.

        Hudson entered the room in a “bum rush.”                     He approached

Rummer and grabbed Rummer’s arm to handcuff him, but Rummer did

not cooperate.         At that point, Hudson took him to the concrete

floor    head-first         from   a   standing     position.       Other     inmates

recalled Rummer’s head hitting the floor with a thud and then

hearing Rummer give a “horrific” scream.

      After     the    takedown,       Rummer    was   bleeding   from    a     scratch

above his eye.          Because Rummer could not walk on his own, the

guards carried him to a padded cell where he laid moaning on the

cell floor.           A supervising officer then decided to call the

medical unit, and after the medical staff refused to come to the

cell,    Hudson       and   two    other    officers     lifted    Rummer     into   a

wheelchair and transported him to the medical unit.

      Rummer’s        condition    had     drastically     changed      since     Nurse

Barfield first treated him for DTs hours earlier.                         He was no

                                            4
longer lucid or talking coherently, his glasses were broken, and

he had urinated on himself.           When Nurse Barfield asked Hudson if

Rummer had fallen, Hudson responded, “No, he did not fall,” and

failed to inform her of the takedown events. Unaware of Rummer’s

head injury, Nurse Barfield prescribed medication for DTs and

recommended   that     Rummer    be   transferred      to   Central      Prison,   a

larger facility where he could be monitored more closely.

      Rummer was likely unconscious when he was transported to

Central Prison.        When Central Prison staff observed Rummer’s

condition, they immediately sent him to Wake Medical Center.

There,    Rummer’s   CAT       scan   revealed   a     large     acute    subdural

hematoma.     Rummer     was    pronounced   dead      after     an   unsuccessful

operation.    According to Rummer’s physician, the most important

factor in treating this type of injury is the amount of time it

takes for the injured person to receive treatment.

      An autopsy revealed that Rummer died from blunt force head

trauma and that he had also recently sustained a neck fracture

and   a   bruised    right       eyebrow.        His     injuries      and    rapid

deterioration are consistent with his being thrown to the ground

from a standing position and hitting his head.



                                        B.

      After   Rummer’s     death,     Scarbro    filed      an   action      against

various members of the New Hanover County Sheriff’s Department

                                        5
and the New Hanover County Health Department asserting claims of

excessive    force,   inadequate      medical       care,    conspiracy,   and

supervisor     liability   pursuant       to   42    U.S.C.    §   1983,   and

supplemental state law claims of medical negligence and wrongful

death. 1    The district court dismissed Scarbro’s claims against

most of the defendants 2 and eventually granted summary judgment

in favor of the remaining defendants, including Hudson.



                                   II.

     Summary    judgment   is   appropriate     “if    the    pleadings,   the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). We review the district court's order

granting summary judgment de novo. Jennings v. Univ. of North

Carolina, 482 F.3d 686, 694 (4th Cir. 2007) (en banc). 3



     1
        Scarbro later filed another complaint that alleged
essentially identical claims against different parties. These
cases were thereafter consolidated.
     2
       Scarbro subsequently filed a stipulation of dismissal as
to her claims against other Health Department defendants.
     3
        Scarbro raises five issues on appeal, but only two merit
discussion.   The plaintiff’s remaining arguments on appeal are
without merit. As to those issues, we affirm substantially on
the reasoning of the district court. Scarbro v. New Hanover
County, No. 7:03-CV-244-FL(1) (E.D.N.C. May 8, 2008).



                                      6
                                           A.

        First,    Scarbro    argues    that     the   district    court    erred   in

granting Hudson summary judgment on the excessive force claim.

A pretrial detainee’s claim of excessive force is governed by

the Due Process Clause of the Fourteenth Amendment.                          Orem v.

Rephann, 523 F.3d 442, 446 (4th Cir. 2008).                   To succeed on such

a    claim,   the       plaintiff   must   demonstrate     that    the     defendant

“inflicted unnecessary and wanton pain and suffering” upon the

detainee.        Whitley v. Albers, 475 U.S. 312, 320 (1986); Iko v.

Shreve, 535 F.3d 225, 239 (4th Cir. 2008).                     This determination

turns on whether the force was applied “in a good faith effort

to    maintain          or   restore      discipline     or      maliciously       and

sadistically for the very purpose of causing harm.”                         Whitley,

475 U.S. at 320-21 (internal quotation marks omitted); Wilkins

v. Gaddy, ___ U.S. ____, 130 S.Ct. 1175 (2010) (describing this

as the “core judicial inquiry”).                Moreover, we must accord due

deference to an officer’s efforts to restrain a detainee when

faced     with      a    dynamic    and    potentially        violent     situation;

otherwise, “we would give encouragement to insubordination in an

environment which is already volatile enough.” Grayson v. Peed,

195 F.3d 692, 697 (4th Cir. 1999).

        To the extent that there are differences in the witnesses’

testimony     regarding       how   the    takedown    occurred,     there    is   no

evidence suggesting that Hudson applied force in a malicious,

                                           7
wanton, or sadistic manner.            When Hudson grabbed Rummer’s arm to

handcuff him, Rummer did not cooperate; Hudson then took Rummer

to the floor, which was covered by mats, and handcuffed him.

During    the   takedown,     the     mats       covering        the    floor       apparently

shifted,    allowing       Rummer’s    head           to   hit    the       concrete    floor.

However,     this     is    not    evidence           that       Hudson’s      purpose       was

malicious,      sadistic    or    wanton.         Therefore,           we    find    that    the

evidence fails to establish that Hudson used excessive force in

subduing Rummer.           Accordingly, we affirm the district court’s

order granting summary judgment to Hudson as to Scarbro’s claim

of excessive force.

                                         B.

     Scarbro      also     argues     that       the       district     court        erred   in

granting Hudson summary judgment as to her inadequate medical

care claim.         She challenges the district court’s finding that

there is no genuine issue of material fact as to whether Hudson

subjectively knew of Rummer’s serious medical need. 4

     Scarbro      bears     the   burden         of    establishing           that    Hudson’s

conduct    constituted       a    constitutional             violation.              Henry   v.

Purnell, 501 F.3d 374, 377 n.2 (4th Cir. 2007).                             The rights of a


     4
       The district court also stated that Hudson is entitled to
qualified immunity but, because it found no constitutional
violation, it did not fully analyze Hudson’s claim of qualified
immunity.



                                             8
pretrial detainee complaining of inadequate medical care under

the Fourteenth Amendment “are at least as great as the Eighth

Amendment protections available to a convicted prisoner.” City

of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983).

To prevail on a claim of inadequate medical care, Scarbro must

produce evidence of acts or omissions sufficiently harmful to

constitute       deliberate       indifference       to     the    inmate’s    serious

medical needs.         Estelle v. Gamble, 429 U.S. 97, 106 (1976).

      First, Scarbro must show that the injury was objectively

serious.     Farmer v. Brennan, 511 U.S. 825, 834 (1994).                         Then,

she must show that Hudson subjectively knew of Rummer’s serious

medical need.          Id. at 834-35.             A factfinder may infer that a

prison official knew of a substantial risk of harm from the fact

that the risk was obvious, id. at 842, or from the fact that the

inmate’s need for medical attention was “‘so obvious that even a

lay person would easily recognize the necessity for a doctor's

attention.’”       Iko, 535 F.3d at 241 (citation omitted).                   Finally,

Scarbro must show that Hudson acted with deliberate indifference

to Rummer’s serious medical need.                 Farmer, 511 U.S. at 835.           An

officer    can    be    held    liable      for    deliberate      indifference     only

where “the official knows of and disregards an excessive risk to

inmate health or safety.”               Id. at 837; see Parrish ex rel. Lee

v.   Cleveland,        372    F.3d   294,    303    (4th    Cir.    2004)     (citation

omitted)     (“[T]he         evidence    must      show    that    the   official    in

                                             9
question      subjectively        recognized        that      his    actions        were

‘inappropriate in light of that risk.’”).

      Turning to the facts at hand, we must first decide whether

Rummer suffered from an objectively serious medical condition.

Viewed in the light most favorable to Scarbro, Rummer hit the

concrete floor head-first, screamed out in excruciating pain,

and was bleeding above his eye.                Rummer’s glasses were broken,

he had urinated on himself, he was unable to speak coherently,

and he was unable to walk.                In view of this evidence, it is

clear that Rummer had an objectively serious medical need after

the takedown.

      We    now     consider    whether     Hudson      subjectively       recognized

Rummer’s     serious    medical     need.       After      taking    Rummer    to   the

floor,     Hudson    observed    that     Rummer’s    condition      had     seriously

deteriorated.        Because the substantial risk of harm to Rummer

was so obvious, a jury could infer that Hudson knew that Rummer

had   a    serious    medical    need.      See     Farmer,    511    U.S.    at    842.

Therefore,     the    district    court     erred     in   finding    that    Scarbro

failed to provide sufficient evidence to show that Hudson knew

that Rummer was at serious risk of head injury.

          Finally, we turn to whether Hudson acted with deliberate

indifference        toward     Rummer’s     serious     medical      need.         Nurse

Barfield specifically asked Hudson if Rummer had fallen, and

Hudson told her that he had not.               Further, Hudson did not inform

                                          10
her how Rummer sustained his injuries or that he had used force

against Rummer.             Nurse Barfield’s question should have alerted

Hudson to the importance of her knowing whether Rummer sustained

any physical impact, whether or not his fall was caused by use

of force.          Nurse Barfield explained that if she had known about

the takedown, she would have treated Rummer for a head injury

(rather than for DTs) and immediately sent him to the Emergency

Room.         Evidence         of    Hudson’s       misrepresentation        of     critical

medical information requested by medical personnel is sufficient

to   raise     a    reasonable         inference     that    he   recognized      that     his

response was inappropriate in light of Rummer’s serious medical

need.     See Parrish ex rel. Lee, 372 F.3d at 303.                          Therefore, we

conclude that Scarbro provided sufficient evidence to raise a

genuine       issue       of   material       fact    as    to    whether     Hudson      was

deliberately indifferent to Rummer’s serious medical need.

      Having determined that there is sufficient evidence of a

constitutional            violation      as    to    the    inadequate       medical      care

claim,    we       must    now      consider    whether      Hudson     is    entitled      to

qualified immunity.              See Pearson v. Callahan, 555 U.S. ____, 129

S.Ct. 808, 815-16 (2009).                 Qualified immunity is resolved using

a two-prong analysis: whether the plaintiff provided sufficient

facts to make out a constitutional violation and whether the

right    at    issue       was      clearly    established        at   the   time    of   the

alleged violation.               Id.    Having found that Scarbro has met her

                                               11
burden as to the first prong, we must now determine whether

Hudson’s          alleged       misconduct          “violate[d]        clearly          established

statutory or constitutional rights of which a reasonable person

would have known.”                   Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).       Hudson bears the burden proving that the right at issue

here was not clearly established.                        Henry, 501 F.3d at 378.

       A     right        is     clearly        established           where        it    has     been

specifically            identified        so   “as       to   leave    no     doubt       that    the

challenged action was unconstitutional.”                            Swanson v. Powers, 937

F.2d 965, 969 (4th Cir. 1991).                           “This is not to say that an

official action is protected by qualified immunity unless the

very action in question has previously been held unlawful; but

it    is     to    say        that   in    the      light      of   pre-existing           law    the

unlawfulness must be apparent.”                          Hope v. Pelzer, 536 U.S. 730,

739    (2002)        (internal        quotation          marks      omitted).            Thus,    in

determining whether a right was clearly established, the key

issue is “whether it would be clear to a reasonable officer that

the    conduct          was    unlawful        in    the      situation       he    confronted.”

Saucier, 533 U.S. at 194-95.

       We     have       denied      qualified           immunity      to     an    officer       who

transferred custody of a detainee to another officer without

informing         the    officer      that       the     detainee      was    suicidal.          See

Gordon, 971 F.2d at 1096-97.                     The misconduct in the instant case

is    even    more       egregious        than      that      in    Gordon     because         Hudson

                                                    12
misrepresented     critical       medical      information           that      was

specifically asked for by medical personnel, and a reasonable

inference from this inquiry is that the requested information

was   necessary   to   properly   treat     Rummer’s      injuries.         Unlike

Gordon, where the officer failed to offer information, Hudson

affirmatively misrepresented relevant medical information.                      No

reasonable   officer   could   have    believed,     in     light    of   clearly

established law, that such a misrepresentation was lawful under

these   circumstances.      Therefore,      Hudson     is   not     entitled    to

qualified immunity.



                                   III.

      For the foregoing reasons, we affirm in part, reverse in

part, and remand for further proceedings consistent with this

opinion.

                                                            AFFIRMED IN PART,
                                                            REVERSED IN PART,
                                                                 AND REMANDED




                                      13
