     Case: 17-11095      Document: 00514736728         Page: 1    Date Filed: 11/27/2018




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

                                                                          FILED
                                                                    November 27, 2018
                                      No. 17-11095
                                                                       Lyle W. Cayce
                                                                            Clerk
ROBBY JOE TREVINO, Individually, and as Personal Representatives of the
Estate of Alisha Trevino, and as next friend of A.N., a minor; LAURIE DALE
REED, Individually, and as Personal Representatives of the Estate of Alisha
Trevino, and as next friend of A.N., a minor,

               Plaintiffs - Appellants

v.

JACOB S. HINZ, Fort Worth Police Officer; THOMAS HAUCK, Fort Worth
Police Officer,

               Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:17-CV-227


Before HAYNES, HO, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Alisha Trevino (“Trevino”) died after she surreptitiously ingested
methamphetamine hidden in her pants while sitting in a patrol car during a
traffic stop. Members of Trevino’s family (collectively, “Plaintiffs”) sued several



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 17-11095
Fort Worth police officers involved in the stop in their individual capacities
under 42 U.S.C. § 1983, alleging the officers were deliberately indifferent to
Trevino’s serious medical needs by not calling an ambulance sooner after
observing Trevino’s symptoms. The district court granted the officers’ motions
to dismiss based on qualified immunity. Plaintiffs appeal only as to Officers
Jacob Hinz and Thomas Hauck. We AFFIRM.
                                               I.
       Plaintiffs allege 1 that on April 15, 2015, at approximately 8:07 p.m., Fort
Worth police officers stopped Alfredo Cortez and his girlfriend Alisha Trevino
for an inoperable brake light, after receiving a tip from a confidential
informant that the couple was carrying methamphetamine. Before officers
approached       the    vehicle,    Cortez     saw     Trevino      shove     a   baggie     of
methamphetamine into her pants. None of the officers saw this.
       Officers arrested Cortez based on an outstanding warrant, and they sat
Trevino on the curb. Officer Hauck recognized Trevino from a 2013 arrest in
which methamphetamine was found hidden in her anus, and so he asked
Trevino if she was hiding anything on her person. Trevino denied that she was.
Claiming she was cold, Trevino was allowed to sit unhandcuffed in the back of
a patrol car belonging to Officers D. Koplin and Chris McAnulty. Officer Koplin
monitored her carefully to make sure she did not conceal anything on her
person. At one point, however, he left Trevino unmonitored for a “couple
minutes” while he helped another officer search the vehicle. When that search
revealed a large amount of methamphetamine in a woman’s purse, Officer


       1  We refer to the allegations in Plaintiffs’ first amended complaint. That complaint
incorporates information from a Fort Worth Police Department investigative report, which
Plaintiffs attached to the amended complaint. For purposes of our ruling, we refer only to
information from the investigative report that Plaintiffs made a part of their allegations. See,
e.g., Alexander v. City of Round Rock, 854 F.3d 298, 301 (5th Cir. 2017) (on review of granted
motion to dismiss, considering facts “drawn exclusively” from allegations in complaint).
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Matthew McMeans and Sergeant Sean LaCroix took Trevino to another car for
questioning. Trevino refused to say anything. Officer Hinz then handcuffed
Trevino and seated her in the original patrol car, while Officer Koplin sat in
the front seat and completed paperwork.
      Not long after that, Trevino began showing signs of illness such as dry
heaving, a small amount of vomiting, and shaking. Various officers asked her
whether she had medical issues, had ingested drugs, or wanted an ambulance.
Trevino denied ingesting drugs and did not ask for an ambulance, but she did
claim to be having a seizure. Initially, however, the officers doubted she was
really having seizures—especially given that Trevino was still able to converse
with them—and suspected she was faking illness to avoid jail. For instance,
some 10-15 minutes after Trevino first vomited, Officer Hauck (according to
Plaintiffs’ own allegations) “went to check on Trevino and saw her rocking back
and forth and coughing, but she seemed to be breathing fine and talking with
officers.” Similarly, somewhat later Officer Hinz observed Trevino shaking and
moving her hips up and down, but he could not tell whether these symptoms
were genuine or whether “she was just trying to get out of jail.”
      When it became clear that Trevino was in real distress, Officer Hinz
placed her in the recovery position on her side, noticing the presence of spit or
foam on her mouth. One of the officers called an ambulance at this point,
around 10:30 p.m. The paramedic reported she received a priority three call
(meaning no sirens or lights needed) for a woman with breathing problems.
The ambulance arrived about 15 minutes later. Paramedics put Trevino on a
stretcher, noting she was unresponsive, barely breathing, foaming at the
mouth and nose, had unreactive pupils, and appeared to have had a seizure
because her jaw would not open. The paramedic asked the officers if Trevino
had been left unsupervised so to have an opportunity to ingest drugs, and they
reluctantly confirmed she had been unsupervised at one point. Trevino went
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into cardiac arrest during transport to the hospital. Doctors revived her at the
hospital, but she had brain damage from lack of oxygen and died upon removal
of life support. An autopsy found two baggies of methamphetamine in her
stomach.
      Plaintiffs sued the officers in their individual capacities under 42 U.S.C.
§ 1983 for deliberate indifference to Trevino’s medical needs in violation of the
Fourteenth Amendment. The officers moved to dismiss based on failure to state
a claim and qualified immunity. The district court granted the officers’ motions
to dismiss based on qualified immunity, holding that Plaintiffs’ allegations
failed to show that any officers were deliberately indifferent to Trevino’s
medical needs nor that any officers violated clearly established law at the time
of the incident. Plaintiffs appealed only as to Officers Hauck and Hinz.
                                        II.
      We review de novo a district court’s grant of a motion to dismiss based
on qualified immunity, “accepting all well-pleaded facts as true and viewing
those facts in the light most favorable to the plaintiff.” Stokes v. Gann, 498 F.3d
483, 484 (5th Cir. 2007). Evaluating whether an officer is entitled to qualified
immunity involves a two-step analysis. First, “the burden is on the plaintiff to
show that he pleaded facts showing … that the official violated a statutory or
constitutional right.” Alexander v. City of Round Rock, 854 F.3d 298, 303 (5th
Cir. 2017) (internal quotations and citation omitted). Second, if the plaintiff
makes that showing, we “determine whether the defendants’ actions were
objectively unreasonable in light of the law that was clearly established at the
time of the actions complained of.” Id. We have discretion to base our decision
on either prong. See Pearson v. Callahan, 555 U.S. 223, 236-45 (2009).
      As to the first prong—whether the pled facts show a constitutional
violation—Plaintiffs allege that Officers Hinz and Hauck were deliberately
indifferent to Trevino’s medical needs by failing to timely call an ambulance.
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The Fourteenth Amendment guarantees pretrial detainees a right “not to have
their serious medical needs met with deliberate indifference on the part of the
confining officials.” Thompson v. Upshur Cty., TX, 245 F.3d 447, 457 (5th Cir.
2001) (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). A plaintiff must prove
“(1) that each defendant had subjective knowledge of ‘facts from which an
inference of substantial risk of serious harm could be drawn,’ (2) that each
defendant actually drew that inference; and (3) that each defendant’s response
to the risk indicates that [he] ‘subjectively intended that harm occur.’” Tamez
v. Manthey, 589 F.3d 764, 770 (5th Cir. 2009) (quoting Thompson, 245 F.3d at
458–59).
       We doubt that Plaintiffs have alleged facts giving rise to deliberate
indifference as to Officers Hauck and Hinz. Even read favorably to Plaintiffs,
their allegations may depict negligence on the officers’ part in not initially
realizing the gravity of Trevino’s condition and in not calling an ambulance
sooner. But negligent or even grossly negligent conduct does not rise to the
level of deliberate indifference. Thompson, 245 at 458–59 (citing Hare v. City
of Corinth, Miss., 74 F.3d 633, 645, 649 (5th Cir. 1996) (en banc)).
“Unsuccessful medical treatment, acts of negligence, or medical malpractice do
not constitute deliberate indifference[.]” Gobert v. Caldwell, 463 F.3d 339, 346
(5th Cir. 2006). 2 We need not ultimately decide this question, however,
because—even if deliberate indifference has been alleged and even construing



       2 See also, e.g., Hartzog v. Hackett, 711 F. App’x 235 (5th Cir. 2018) (unpublished)
(holding that while “the facts presented could support a conclusion that the Deputies were
negligent in their treatment of [a detainee]” when they did not seek medical attention for
him, their “action, or inaction, d[id] not rise to the very high standard required to indicate
deliberate indifference”); Stewart v. Murphy, 174 F.3d 530 (5th Cir. 1999) (holding that a
prison physician’s failure to transfer an inmate to another facility for physical therapy for his
bedsores (from which he later died), failure to read the nurses’ notes indicating that inmate
had an infection, and failure to give the inmate antibiotics, “might constitute negligence, not
the requisite deliberate indifference”).
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                                 No. 17-11095
the facts in the light most favorable to the Plaintiffs—as explained below
Plaintiffs fail to show the officers’ conduct was objectively unreasonable. See,
e.g., Pearson, 555 U.S. at 238-39 (courts may pretermit first prong “[w]hen
qualified immunity is asserted at the pleading stage, [because] the precise
factual basis for the plaintiff’s claim or claims may be hard to identify”)
(citations omitted) (brackets added).
      As to the second prong, Plaintiffs must show that Officer Hauck’s and
Officer Hinz’ conduct was objectively unreasonable in light of clearly
established law. “To be clearly established, a right must be sufficiently clear
‘that every reasonable official would have understood that what he is doing
violates that right.’” Reichle v. Howards, 566 U.S. 658, 664 (2012) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987) (brackets omitted)). While
plaintiffs need not identify a case “directly on point,” nonetheless “‘existing
precedent must have placed the statutory or constitutional question beyond
debate.’” Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (en banc)
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) (emphasis in original).
The critical consideration is “fair warning”: the specific right must have been
“defined with sufficient clarity to enable a reasonable official to assess the
lawfulness of his conduct.’” Morgan, 659 F.3d at 372 (internal quotes and
citations omitted). Therefore, plaintiffs must identify “controlling authority—
or a robust consensus of persuasive authority—that defines the contours of the
right in question with a high degree of particularity.” Morgan, 659 F.3d at 371-
72 (citing al-Kidd, 563 U.S. at 742) (internal quotes omitted). Plaintiffs have
not met this burden for two reasons.
      First, Plaintiffs identify no Supreme Court or Fifth Circuit case that
would have notified Officer Hauck or Officer Hinz that their conduct clearly
constituted deliberate indifference. “That alone dooms [their] case here.” Vann
v. City of Southaven, Miss., 884 F.3d 307, 310 (5th Cir. 2018) (citing Cass v.
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City of Abilene, 814 F.3d 721, 732-33 (5th Cir. 2016)). Instead, they cite only a
handful of Eighth Circuit decisions. But even assuming a few decisions from
one sister circuit could constitute a “robust consensus of persuasive authority”
clearly establishing a specific legal principle, the decisions Plaintiffs cite fail to
do so. 3 Cf. Morgan, 659 F.3d at 382 & n.101 (indicating that one analogous
decision from the Seventh Circuit “is far from the robust consensus of
persuasive authority needed to clearly establish the law”) (internal quotes and
citation omitted).
       Second, our own cases suggest, contrary to Plaintiffs’ position, that an
officer’s failure to immediately recognize ambiguous symptoms as a medical
emergency does not amount to deliberate indifference. For instance, in Tamez
v. Manthey, 589 F.3d 764, unbeknownst to detectives an arrestee had, before
his arrest, swallowed a baggie of cocaine that later burst. Despite the facts that



       3  At most, the cited Eighth Circuit cases (which construe the Eighth Amendment)
establish the proposition that law enforcement officials show deliberate indifference by
intentionally delaying medical treatment of an inmate whom they know suffers from a
specific condition (like heart disease) and who is exhibiting symptoms of that condition. See,
e.g., Gordon ex rel. Gordon v. Frank, 454 F.3d 858, 862-63 (8th Cir. 2006) (fact issues
precluded qualified immunity on deliberate indifference claim where inmate was on high
observation for medical problems, told officers he had heart disease, complained of chest pain
and difficulty breathing, and repeatedly asked for medical help); Plemmons v. Roberts, 439
F.3d 818, 824 (8th Cir. 2006) (same, where inmate told officer he had heart disease, exhibited
classic heart attack symptoms, and asked for an ambulance). But those sister circuit
decisions—even assuming they could clearly establish law in our circuit—do not clearly
establish the proposition that officials facing a detainee’s ambiguous medical symptoms in
the situation presented here (i.e., where a detainee has surreptitiously ingested drugs) show
deliberate indifference by delaying calling an ambulance until the gravity of the symptoms
becomes clearer. Indeed, one of Plaintiffs’ cited cases, Ruark v. Drury, 21 F.3d 213, 216-17
(8th Cir. 1994), supports the proposition that, where an inmate exhibits ambiguous
symptoms of medical distress (like difficulty waking and labored breathing), officials’ 20-
minute delay in calling an ambulance did not constitute “wanton” behavior for Eighth
Amendment purposes when the inmate later died of a drug overdose en route to the hospital.
Furthermore, Plaintiffs’ Eighth Circuit cases also recognize the proposition that officials
retain qualified immunity even if they reasonably misunderstand facts and “‘assess the
legality of [their] conduct based on that misunderstanding.’” Gordon, 454 F.3d at 864 (quoting
Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)) (and collecting cases).
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the detectives observed Tamez had maximally dilated pupils and that a nurse
suggested Tamez needed medical treatment before going to jail, detectives did
not seek immediate medical help. Affirming summary judgment for the
detectives, we explained that “[b]ecause pupil dilation can mean ‘a lot of
things,’” it did not show that detectives “were aware of an unjustifiably high
risk to Tamez’s health, nor … show that the risk to Tamez’s health was so
obvious that they should have inferred such a risk.” Id. at 771. Similarly, in
Estate of Allison v. Wansley, 524 F. App’x 963 (5th Cir. 2013) (unpublished),
we held that officers’ actions were objectively reasonable where they knew a
woman in custody (who later died of ethanol poisoning) “was very intoxicated,
had taken prescription drugs not in accordance with directions, and had
attempted to commit suicide using pills a year earlier” but nonetheless allowed
her to “sleep it off” while checking on her periodically. Id. at 972. The woman
was unsteady, slurred her speech, and told officers she had abused prescription
drugs. Yet the officers believed her symptoms were consistent with intoxication
and did not believe she was having a medical emergency. Id.
      In light of decisions like Tamez and Estate of Allison—and given the lack
of any controlling authority clearly pointing the other way—we cannot say that
Officer Hauck and Officer Hinz acted in an objectively unreasonable manner
by not calling an ambulance earlier. Plaintiffs’ own allegations show that
Trevino’s symptoms were initially ambiguous, and that Officers Hauck and
Hinz were therefore not unreasonable in believing she did not require
immediate medical attention. Trevino vomited, had several shaking episodes,
and told the officers she was sick. None of these symptoms clearly indicated
Trevino was undergoing an emergency necessitating immediate medical
attention. As the district court noted, “[a]s a matter of common sense, vomiting
does not always indicate medical distress in the sense that it requires
immediate medical attention.” Trevino v. City of Fort Worth, No. 4:17-CV-227-
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A, 2017 WL 3704511, at *5 (N.D. Tex. Aug. 25, 2017). Similarly, although
shaking episodes can signify a seizure, Officers Hauck and Hinz believed that
since Trevino continued conversing with officers, she was not having a seizure.
Furthermore, neither officer had any way of knowing that Trevino had
ingested drugs while in the patrol car (Trevino had done this surreptitiously,
of course) nor that she had even had the opportunity to do so (the allegations
do not reflect that Hauck or Hinz knew that Trevino had been unsupervised
for a short time in the patrol car). The officers were therefore justified in
questioning, at least initially, whether Trevino’s symptoms were genuine.
When it became apparent Trevino needed medical attention, an ambulance
was called.
      In sum, even viewing the allegations most favorably to the Plaintiffs as
we must, we conclude that the officers’ conduct was not objectively
unreasonable in light of clearly established law and that the district court
therefore correctly dismissed Plaintiffs’ deliberate indifference claims against
them on the basis of qualified immunity.
      AFFIRMED.




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