             Case: 19-11913    Date Filed: 12/05/2019   Page: 1 of 15


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-11913
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 6:17-cv-01423-GAP-LRH


WILLINE BRYANT and MAX
GRACIA SR., as co-personal
Representatives of the Estate of
Max Gracia, Jr., II,

                                                  Plaintiffs-Appellees,

versus


ROBERT J. BUCK, III,
KAREN CLAIRMONT,

                                              Defendants-Appellants.
                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                               (December 5, 2019)

Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Max Gracia Jr., II, sustained wounds from dog bites during his arrest on

August 6, 2015. Four days later, he died in his jail cell at Orange County Corrections

from septic shock, which resulted from his wounds becoming infected. The personal

representatives of his estate sued various jail officials under 42 U.S.C. § 1983,

alleging that they were deliberately indifferent to Mr. Gracia’s serious medical

needs. The district court denied the summary judgment motions of two of the

defendants, Dr. Robert J. Buck, III and Registered Nurse Karen Clairmont,

concluding that qualified immunity did not shield them from liability. We now

review Dr. Buck’s and Nurse Clairmont’s interlocutory appeal from that order. For

the following reasons, we affirm in part and reverse in part. Dr. Buck was entitled

to summary judgment based on qualified immunity, but Nurse Clairmont was not.

                                             I

       The relevant facts at the summary judgment stage are as follows.1

       On August 6, 2015, Mr. Gracia incurred dog bite wounds to his legs and hands

from a police canine during his arrest. He was taken to Orlando Regional Medical

Center for treatment. Following his discharge from the hospital, he was admitted to

the infirmary at Orange County Corrections.




1
 On summary judgment, we view the facts in the light most favorable to the non-moving party.
See McCullough v. Antolini, 559 F.3d 1201, 1202 (11th Cir. 2009).
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          Dr. Buck, a licensed physician and the Medical Director of Orange County

Corrections, admitted Mr. Gracia. As Mr. Gracia had sustained multiple dog bites,

had a history of seizures, and was HIV positive, Dr. Buck ordered daily dressing

changes, antibiotics, anti-seizure medication, and pain medications. Dr. Buck also

noted that his staff should inquire about Mr. Gracia’s use of Atripla, an HIV

medication, and that he should possibly restart it. After this initial intake, Dr. Buck

did not see or inquire about Mr. Gracia again.

          Over the next two days, nurses continued to monitor Mr. Gracia. They

recorded that his wounds were reddened with scant, serosanguineous drainage.

          On the morning of August 9, 2015, Mr. Gracia complained of weakness and

dizziness. The nurse on duty took his vitals and recorded a “dramatically abnormal”

pulse and an “elevated respiratory rate,” though his temperature, blood pressure, and

oxygen saturation were normal. See D.E. 95-1 at 39–40. Believing Mr. Gracia was

dehydrated from vomiting the day before, the nurse ordered him to increase his

fluids.

          That evening, when Nurse Clairmont reported to the infirmary for her shift,

the nurse who was on duty during the day informed her that she had taken Mr.

Gracia’s vitals and his pulse and respiratory rate were elevated. She also informed

Nurse Clairmont that he had complained about dizziness and weakness.




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      At around 9:00 p.m., Nurse Clairmont went to Mr. Gracia’s cell to give him

his evening medications. She wrote a progress note stating:

      9:00 p.m. Patient observed twisting himself and moaning loudly on bed
      during med pass when asked by staff to sit up for his pm meds. Patient
      cried, “I can’t do it,” and proceeded to slide his body onto the floor near
      the foot of his bed. Patient refused all assistance and refused all care
      from nursing staff. Patient’s dressings on . . . [his] calf and upper left
      thigh are noted to be heavily soiled with dried, bloody, drainage upon
      assessment. Will encourage patient to allow wound care. Will continue
      to monitor.

D.E. 85-7.

      Nurse Clairmont testified in her deposition that she did not change Mr.

Gracia’s dressings at this time because “[h]e was refusing care.” D.E. 85-1 at 80.

She further testified that based on her assessment of Mr. Gracia during this

encounter, she determined that it was not necessary to take his vital signs. There is

no evidence that she made any assessment of Mr. Gracia at this time beyond her

visual observations of his dressings and his demeanor.

      Nurse Clairmont believed Mr. Gracia to be “faking or exaggerating his

medical condition.” D.E. 95-1 at 179. As a result, he was issued a disciplinary report.

      To continue observing Mr. Gracia, Nurse Clairmont had him moved to a

camera-monitored cell in the infirmary at around 11:16 p.m. From the time that he

was transferred, until 5:15 a.m., Nurse Clairmont did not visit Mr. Gracia.

      At 5:15 a.m., an officer called Nurse Clairmont to Mr. Gracia’s cell and

notified her that Mr. Gracia was not breathing. He was rushed to the emergency
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department and pronounced dead within the hour. An autopsy confirmed that Mr.

Gracia’s cause of death was “septic shock as a result of infected dog bite wounds.”

D.E. 95-1 at 180.

                                                II

       The personal representatives of Mr. Gracia’s estate sued Dr. Buck, Nurse

Clairmont, Orange County, and three other nurses. They alleged that the defendants

were deliberately indifferent to his serious medical needs in violation of the United

States Constitution.2

       Dr. Buck and Nurse Clairmont each filed separate motions for summary

judgment based on qualified immunity. Two of the other defendants, Elsa Galloza-

Gonzalez and Lynn Marie Harter, joined Dr. Buck’s motion for summary judgment.

The plaintiffs did not oppose, and the district court granted, summary judgment in

favor of Nurse Gonazelz and Nurse Harter. The parties stipulated to dismiss

Maryanne Evans after she filed for personal bankruptcy.

       The district court denied Dr. Buck’s and Nurse Clairmont’s requests for

summary judgment. The district court explained that a reasonable jury could find

Dr. Buck deliberately indifferent as a medical provider because he “examined an




2
  The district court dismissed the claim against Orange County because it did not have a policy
that caused Mr. Gracia’s injury and the plaintiffs did not plausibly allege a widespread pattern of
deliberate indifference.


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HIV positive patent with a severe dog-bite wound and deliberately declined to play

any active role in his subsequent treatment.” D.E. 103 at 9–10. It further determined

that a jury could find Dr. Buck liable as a supervisor based on his “policies and

customs,” noting that the infirmary was extremely understaffed and nurses often

treated patients, rather than doctors. D.E. 103 at 10–11. As to Nurse Clairmont, the

district court concluded that a reasonable jury could find that she was deliberately

indifferent by ignoring Mr. Gracia’s apparently serious medical condition based on

her unfounded belief that he was malingering.

      Dr. Buck and Nurse Clairmont filed this interlocutory appeal. A denial of

summary judgment based on the determination that a government official is not

entitled to qualified immunity for alleged constitutional deprivations is immediately

appealable. See Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985).

                                           III

      We review de novo a district court’s denial of a summary judgment motion

based on qualified immunity and resolve all issues of fact in favor of the plaintiffs.

See McCullough v. Antolini, 559 F.3d 1201, 1202 (11th Cir. 2009). Summary

judgment is appropriate if the evidence before the court demonstrates that “there is

no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a).




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       When a government official asserts a qualified immunity defense, he bears the

initial burden of showing that “he was acting within his discretionary authority.”

Glasscox v. City of Argo, 903 F.3d 1207, 1213 (11th Cir. 2018) (citation and internal

quotation marks omitted). Once he makes this showing, the burden shifts to the

plaintiff to show that: “(1) the defendant violated a constitutional right, and (2) this

right was clearly established at the time of the alleged violation.” Id. (quoting

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004)).

Here, it is undisputed that Dr. Buck and Nurse Clairmont were acting within their

discretionary authority, so we begin our analysis at the second step.

       The plaintiffs contend that Dr. Buck and Nurse Clairmont violated Mr.

Gracia’s constitutional rights by being deliberately indifferent to his serious medical

needs, in violation of the Fourteenth Amendment. To establish a deliberate-

indifference claim, they must demonstrate: (1) that Mr. Gracia had a serious medical

need; (2) that the defendants were deliberately indifferent to that need; and (3) that

the defendants caused Mr. Gracia’s injury. See Taylor v. Hughes, 920 F.3d 729, 733

(11th Cir. 2019).3




3
 As a pretrial detainee, Mr. Gracia’s deliberate indifference claim is governed by the Fourteenth
Amendment, rather than the Eighth Amendment. See Dang v. Sheriff, Seminole Cty. Fla., 871
F.3d 1272, 1279 (11th Cir. 2017). His claims, nevertheless, are evaluated under the same standard
as a prisoner’s deliberate indifference claim under the Eighth Amendment. See id.
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                                          IV

      We analyze whether the district court correctly denied summary judgment for

Dr. Buck and Nurse Clairmont in turn.

                                          A

      Deliberate indifference has three components: “(1) subjective knowledge of a

risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere

negligence.” Lane v. Philbin, 835 F.3d 1302, 1308 (11th Cir. 2016) (citation and

internal quotation marks omitted). The plaintiffs cannot demonstrate that Dr. Buck

was deliberately indifferent to Mr. Gracia’s medical needs, as his treating physician

or as a supervisor.

                                           1

      Dr. Buck only treated Mr. Gracia on August 6, 2015, when he admitted him

to the Orange County Corrections infirmary. Even the plaintiffs’ expert, Dr. Thomas

D. Fowlkes, testified in his deposition that he did not believe Dr. Buck breached the

standard of care in his treatment of Mr. Gracia during this initial intake.

      The district court concluded that Dr. Buck’s failure to take further action after

the initial intake constituted deliberate indifference, relying on our decision in

Taylor, 920 F.3d at 734. In Taylor, a pretrial detainee died from internal bleeding

after he was kept in a jail holding cell overnight. See id. at 731. The jail guards

were not entitled to qualified immunity because even though they knew the inmate


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had been in a car crash that day, they ignored him crying out in pain for several

hours. See id. at 734.

      Unlike the situation in Taylor, Dr. Buck did not ignore Mr. Gracia while

knowing that he was at risk of serious harm. Instead, at a time when Mr. Gracia

appeared to be stable, Dr. Buck had his full-time medical staff take over his care.

There is no evidence that delegating follow-up visits to nurses rather than doctors

was negligent, let alone more than “mere negligence.” See Lane, 835 F.3d at 1308.

See also Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272, 1280 (11th Cir. 2017)

(“[M]edical treatment violates the Constitution only when it is ‘so grossly

incompetent, inadequate, or excessive as to shock the conscience or to be intolerable

to fundamental fairness.’”) (citation omitted). Indeed, Dr. Fowlkes testified that he

did not believe there “was any requirement for [Dr. Buck] to physically return to see

Mr. Gracia at any point before his death[.]” D.E. 95-1 at 24. On this record, Dr.

Buck’s treatment of Mr. Garcia was not deliberately indifferent to his medical needs.

                                           2

      The district court also denied Dr. Buck qualified immunity because there

“remain[ed] material questions of fact as to whether, as a supervisor, [Dr.] Buck’s

policies and customs resulted in deliberate indifference.”           D.E. 103 at 10.

Specifically, the district court concluded that Dr. Buck could be liable based on two

of the infirmary’s policies or customs: (a) the treatment policy made little distinction


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between nurses and doctors; and (b) the infirmary was severely understaffed. See

id. at 10–11.

       The district court’s analysis seems to conflate the municipal liability claim

that was initially pled against Orange County with the supervisory liability claim

pled against Dr. Buck. The plaintiffs initially alleged that Orange County’s policies

and practices—including its failure to properly fund, train, and staff the Orange

County Corrections infirmary—resulted in deliberate indifference. That claim was

dismissed because the plaintiffs did not plausibly allege that such policies or customs

existed. The supervisory liability claim against Dr. Buck, in contrast, asserted that

he failed to properly supervise Mr. Gracia’s treatment and care. 4

       A supervisor cannot be liable under § 1983 based on vicarious liability or

respondeat superior. See Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).

But a supervisor may be liable if he “personally participates in the alleged

unconstitutional conduct or when there is a causal connection between the actions

of a supervising official and the alleged constitutional deprivation.” Id.

       Dr. Buck did not personally participate in the unconstitutional conduct, as

discussed above.         The plaintiffs assert, however, that Dr. Buck caused the



4
 Even if the claim against Dr. Buck were based on the policies or practices identified by the district
court, the plaintiffs could not show that such policies caused Mr. Gracia’s death. The plaintiffs do
not allege that Mr. Gracia died because nurses were incapable of properly treating him or because
of understaffing. Instead, as discussed below, they claim that Nurse Clairmont was monitoring
Mr. Gracia but failed to treat him because she believed he was malingering.
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constitutional violation by failing to adequately train his nursing staff in recognizing

the onset of sepsis. He may be liable for failure to train if he had “actual or

constructive notice that a particular omission in the[ ] training program cause[d] [his]

employees to violate citizens’ constitutional rights,” and “armed with that

knowledge,” chose to retain the training program. See Keith v. DeKalb Cty., Ga.,

749 F.3d 1034, 1052 (11th Cir. 2014) (citation and internal quotation marks

omitted). Actual or constructive notice may be established by showing a pattern of

similar constitutional violations by untrained employees. See id. at 1053.

      There is no evidence that, prior to this incident, Dr. Buck had reason to believe

the nurses on his staff lacked adequate training to recognize sepsis. Although the

plaintiffs alleged that there had been other incidents of deliberate indifference by

medical staff at Orange County Corrections, none of them involved sepsis.

Accordingly, Dr. Buck cannot be liable for failure to train. See id. See also Cottone,

326 F.3d at 1361–62 (holding that the plaintiffs could not state a claim against the

supervisors for failing to train or supervise officers because there were no allegations

that the defendants knew about the officers’ unconstitutional conduct so they were

not on notice of the need to correct or stop it).

      Because the plaintiffs failed to show that Dr. Buck violated the constitution,

we do not reach the “clearly established law” prong of the qualified immunity




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analysis. See Cottone, 326 F.3d at 1362. Dr. Buck is entitled to qualified immunity

and the district court erred in denying his motion for summary judgment.

                                           B

      In evaluating whether Nurse Clairmont was entitled to qualified immunity,

the district court correctly decided the threshold inquiry—that the plaintiffs made a

sufficient showing that she violated Mr. Gracia’s constitutional rights. But the

district court failed to reach the next step of the analysis: determining whether the

right was clearly established. As we explain, it was.

      First, viewing the evidence in the light most favorable to the plaintiffs, as we

must, the record supports that Nurse Clairmont was deliberately indifferent to Mr.

Gracia’s serious medical needs. When she started her shift on August 9, 2015, she

knew that Mr. Gracia had recently sustained dog bites, that his pulse and respiratory

rate were elevated, and that he had complained about dizziness and weakness. Her

own progress notes reflect that later that evening she saw him “twisting himself and

moaning loudly on the bed,” crying “I can’t do it,” and sliding his body onto the

floor near the foot of his bed. See D.E. 85-7. Yet, other than ordering that he be

moved to a camera-monitored cell, she did not take any action. She did not change

his dressings, perform an assessment, or check his vitals, despite the infirmary’s

policy requiring nurses to take patients’ vital signs once per shift.




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      Nurse Clairmont argues that she did not have subjective knowledge of the risk

of sepsis because (a) she mistakenly believed Mr. Gracia was malingering, and (b)

she did not know that he was at risk of septic shock specifically. A reasonable jury

could find that she was aware of his serious medical needs—despite her contention

that she believed he was faking—because there was ample evidence that he was

suffering, and she did not even perform an assessment to verify if he was

malingering. See Taylor, 920 F.3d at 734 (holding that guards could not willfully

disregard evidence that the inmate required medical assistance based on the

Trooper’s statement that he was “just drunk”). Nor did Nurse Clairmont need to

know specifically that Mr. Gracia was at risk of sepsis to have knowledge of his

medical needs.     See id. (explaining that officers can be liable for deliberate

indifference even if they do not know a detainee’s “specific medical condition”).

See also McElligott v. Foley, 182 F.3d 1248, 1256 (11th Cir. 1999) (holding that a

jury could infer that the prison medical staff were aware of a substantial risk of harm

to the inmate, even though they did not know he had cancer, because they were aware

he was in pain).

      Nurse Clairmont also contends that her care was not “grossly incompetent”

because she continued to monitor Mr. Gracia. She relies on Dang v. Sheriff,

Seminole County, Florida, 871 F.3d at 1282, for support. She compares her conduct

to that of one of the nurses in Dang, who also incorrectly believed that an inmate’s


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behavior was voluntary. See id. There, however, the nurse assessed the inmate,

“noting that his vitals were normal and his pupils were equal and reactive to light,”

despite her mistaken belief of malingering. See id. Here, in contrast, Nurse

Clairmont performed no such assessment, letting Mr. Gracia suffer for hours as his

condition deteriorated. A jury could find that monitoring him—without doing any

medical assessment whatsoever or checking his vitals—amounted to no care at all.

See McElligott, 182 F.3d at 1257 (holding that a reasonably jury could find prison

medical staff deliberately indifferent because they knew the extent of the inmate’s

pain but did nothing to treat him or respond to the deterioration of his condition).

The situation might be different had Nurse Clairmont done some sort of a check or

assessment. But that is not what happened.

      Second, Nurse Clairmont’s failure to treat Mr. Gracia violated his clearly

established constitutional rights. At the time of Mr. Gracia’s incarceration, “it was

clearly established that knowledge of the need for medical care and intentional

refusal to provide that care constituted deliberate indifference.” See Harris v.

Coweta Cty., 21 F.3d 388, 393 (11th Cir. 1994). See also McElligott, 182 F.3d at

1257 (“Our cases . . . have recognized that prison officials may violate the Eighth

Amendment’s commands by failing to treat an inmate’s pain.”). The record reflects

that from at least around 9:00 p.m., until around 5:15 a.m. (about 8 hours), Nurse

Clairmont knew that Mr. Gracia—who had sustained dog bites—was crying out in


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pain and lying on the floor, but she failed to take any action to assess or treat him.

Accordingly, the district court correctly concluded that Nurse Clairmont is not

entitled to qualified immunity and properly denied her motion for summary

judgment.

                                          V

      We reverse the district court’s denial of summary judgment for Dr. Buck, but

we affirm the denial of summary judgment for Nurse Clairmont. We remand for

further proceedings consistent with this opinion.

      AFFIRMED IN PART, REVERSED IN PART, and REMANDED.




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