 Viola TAYLOR, as Administratrix of the Estate of Jimmie Lee Mason, Jr., deceased, Plaintiff-Appellee,

                                                    v.

                     Lonnie ADAMS, James Connick, et al., Defendants-Appellants.

  Viola Taylor, as Administratrix of the Estate of Jimmie Lee Mason, Jr., deceased, Plaintiff-Appellee,

                                                    v.

             Crystal Threadgill, Jack Tillman, Sheriff Jack Tillman, Defendants-Appellants.

                                         Nos. 99-6195, 99-6201.

                                     United States Court of Appeals,

                                            Eleventh Circuit.

                                              Aug. 11, 2000.

Appeals from the United States District Court for the Southern District of Alabama.(No. 97-00778-CV-CB-
M), Charles B. Butler, Jr., Judge.

Before COX and HULL, Circuit Judges, and GEORGE*, District Judge.

        COX, Circuit Judge:

        This is an appeal from the denial of summary judgment, sought on various immunity grounds, to

three firemen and a jail nurse on claims arising from the death of Jimmie Lee Mason, Jr. We reverse.

                                               Background

        On a hot August day in 1995, employees of a Mobile, Alabama drugstore chased Jimmie Lee Mason,

a suspected shoplifter, several blocks before finally apprehending him. They held Mason to the ground until

police arrived. After the police handcuffed the sweaty and heavy-breathing Mason, a crew of three medically

trained Mobile firemen—the defendants Driskell, Connick, and Adams (the "firemedics")—arrived. Each

of the firemedics asked Mason if he was okay or required help and received a negative response; the

firemedics then left the scene without providing treatment.

        A police officer subsequently transported Mason to the Mobile County Jail in the back of a paddy

wagon. After a drive of approximately eleven minutes, the paddy wagon arrived at the jail courtyard. When


   *
    Honorable Lloyd D. George, U.S. District Judge for the District of Nevada, sitting by designation.
police opened the back door of the wagon, they found Mason unconscious, and they could not rouse him

despite shaking his leg, rubbing his chest, and splashing water on his chest. They then summoned the jail's

registered nurse.

        As Nurse Threadgill walked toward the wagon, the police told her about Mason's unconsciousness

and their attempts to wake him. At a distance of about three feet from Mason, Threadgill looked inside the

van and promptly instructed the police to take Mason to the University of South Alabama Medical Center.

The police did so without lights or sirens, and Mason died en route.1

        Viola Taylor, administratrix of Mason's estate, sued a host of public officials involved with the

incident. She alleged, in relevant part, violations of the Cruel and Unusual Punishment Clause, actionable

under 42 U.S.C. § 1983, and supplemental negligence claims under Alabama law. Included in the complaint

were claims against the "Sheriff of Mobile County, Alabama." (R.1-12 at 4.) Despite some ambiguity that

arose at intermediate points during the litigation, counsel for Taylor conceded at oral argument that she sued

the sheriff only in his official capacity; there were no personal claims against Jack Tillman, the sheriff at the

time of Mason's death. In their official capacity, however, Alabama sheriffs operating jails are state officers

protected by Eleventh Amendment immunity. See Marsh v. Butler County, Alabama, 212 F.3d 1318, 1321

(11th Cir.2000). Thus, we affirm summary judgment for the Sheriff of Mobile County on Eleventh

Amendment-immunity grounds. The only remaining defendants who are parties to this appeal, the three

firemedics and Threadgill, seek review of the district court's denial of summary judgment in their favor on

federal- and state-law immunity grounds.

                                                  Discussion

        The firemedics contend that the district court erred by denying them qualified immunity with respect



   1
    The appellants frame their arguments as challenging only the legal conclusions the district court
reached in denying these defendants immunity. They therefore urge us to "simply take, as given, the facts
that the district court assumed when it denied summary judgment for ... (purely legal) reason[s]."
Johnson v.. Jones, 515 U.S. 304, 319, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238 (1995). Thus, we have
looked no further than the district court's opinion for these background facts as well as other facts of the
case we will later discuss. See Johnson v. Clifton, 74 F.3d 1087, 1091 (11th Cir.1996) (noting this
approach as authorized in Johnson v. Jones ). We refer to these facts as the summary-judgment facts.
to the federal-law claim against them and by denying them both "Good Samaritan" and discretionary-function

immunity with respect to the state-law claims, while Threadgill argues that the district court erred by denying

her qualified immunity. Taylor responds simply that the district court acted correctly in denying summary

judgment. The propriety of summary judgment on each of the immunity defenses is a question of law, which

we review de novo. See Sanders v. Howze, 177 F.3d 1245, 1248 (11th Cir.1999) (qualified immunity); Sheth

v.. Webster, 145 F.3d 1231, 1236-40 (11th Cir.1998); Griesel v. Hamlin, 963 F.2d 338, 341 (11th Cir.1992)

(together addressing state-law immunity doctrines).2

                          Qualified Immunity on the Deliberate-Indifference Claims

        We begin our review of a denial of the qualified immunity by discussing " 'whether the plaintiff has

alleged the deprivation of an actual constitutional right at all,' " Wilson v. Layne, 526 U.S. 603, 119 S.Ct.

1692, 1697, 143 L.Ed.2d 818 (1999) (quoting Conn v. Gabbert, 526 U.S. 286, 119 S.Ct. 1292, 1295, 143

L.Ed.2d 399 (1999)), but we may ultimately decide the propriety of the denial on either of two alternative

bases: first, on our answer to the question whether there is "an underlying constitutional violation," Campbell

v. Sikes, 169 F.3d 1353, 1361 (11th Cir.1999), or second, on our determination whether the law the public

official is alleged to have violated was "clearly established" at the time of incidents giving rise to the suit, id.

See, e.g., Layne, 119 S.Ct. at 1695 (holding defendants entitled to qualified immunity despite their

unconstitutional conduct because of the lack of clearly established, preexisting law governing that conduct).

If either question is properly answered in the negative, then qualified immunity must be granted. Campbell.

169 F.3d at 1361-62. Here, we hold that summary judgment should have been granted to both the firemedics

and Threadgill because they did not violate the Constitution.

         The Eighth Amendment prohibits infliction of "cruel and unusual punishments." U.S. Const. amend.

VIII.3 Stating a claim under the clause thus requires satisfying two minima (from which the case law has


   2
    Taylor also contends that this court lacks appellate jurisdiction over the federal claim under the
collateral-order doctrine. We reject this argument as meritless.
   3
    Mason was a pretrial detainee. As such, his Cruel and Unusual Punishment claims sound properly in
the Fourteenth Amendment right to due process of law rather than in the Eighth Amendment. See
Lancaster v. Monroe County, Alabama, 116 F.3d 1419, 1425 n. 6 (11th Cir.1997) (comparing Bell v.
ultimately derived four requirements): First, there must be, objectively speaking, conduct by public officials

"sufficiently serious" to constitute a cruel or unusual deprivation-one "denying 'the minimal civilized measure

of life's necessities." ' Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991)

(quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)). Second, there

must be a subjective intent by the public officials involved to use the sufficiently serious deprivation in order

to punish. See id. at 300, 111 S.Ct. at 2325 ("The source of the intent requirement is not the predilections of

this Court, but the Eighth Amendment itself, which bans only cruel and unusual punishment. If the pain

inflicted is not formally meted out as punishment by the statute or the sentencing judge, some mental element

must be attributed to the inflicting officer before it can qualify." (emphasis in original)).

         In the context applicable here, denial of medical care, each of these minima has been more

specifically described as encompassing two subsidiary requirements. To show an objectively serious

deprivation, it is necessary to demonstrate, first, an objectively "serious medical need[ ]," Estelle, 429 U.S.

at 104, 97 S.Ct. at 291, one that, if left unattended, "pos[es] a substantial risk of serious harm," Farmer v.

Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994),4 and second, that the response

made by public officials to that need was poor enough to constitute "an unnecessary and wanton infliction

of pain," and not merely accidental inadequacy, "negligen[ce] in diagnosi[s] or treat[ment]," or even

"[m]edical malpractice" actionable under state law, Estelle, 429 U.S. at 105-06, 97 S.Ct. at 291-92 (internal




Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1872 n. 16, 60 L.Ed.2d 447 (1979) (due process
violation), with Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976) (Eighth
Amendment violation)). Nevertheless, his claims—that the firemedics and Threadgill inflicted cruel or
unusual punishment on him through deliberate indifference to his serious medical needs—are analyzed in
identical fashion regardless of whether they arise under the Due Process Clause or the Cruel and Unusual
Punishment Clause. See id. (citing Hamm v. DeKalb County, 774 F.2d 1567, 1573-74 (11th Cir.1985));
Belcher v. City of Foley, Alabama, 30 F.3d 1390, 1396 (11th Cir.1994) (also citing Hamm ). We thus
look to those cases specifying the contours of an Eighth Amendment deliberate-indifference claim to
determine the elements Taylor must satisfy here.
   4
    Neither side here contends that Mason did not have an objectively serious medical need. Our analysis
therefore focuses on the other criteria.
quotation marks omitted).5 Similarly, to show the required subjective intent to punish, a plaintiff must

demonstrate that the public official acted with an attitude of "deliberate indifference," Estelle, 429 U.S. at

105, 97 S.Ct. at 291, which is in turn defined as requiring two separate things: "aware[ness] of facts from

which the inference could be drawn that a substantial risk of serious harm exists[ ] and ... draw[ing of] the

inference," Farmer, 511 U.S. at 837, 114 S.Ct. at 1979. Ultimately, there are thus four requirements: an

objectively serious need, an objectively insufficient response to that need, subjective awareness of facts

signaling the need, and an actual inference of required action from those facts.

        Application to the firemedics—Taylor does not challenge the fact that at some point during their brief

presence on the scene, each of the firemedics asked Mason if he needed or wanted treatment and received a

negative response and that, in total, Mason was asked numerous times if he required medical attention.

Instead, she seeks to focus our attention—as she focused the district court's attention—on two additional

facts: first, that one of the policemen told firemedic Driskell (apparently the leader of the crew) that Mason

was complaining of stomach pain, and of greater importance, that Janet Britton, a bystander who knew Mason

and knew him to have a history of seizures, told the firemedics about that history and about saliva or foam

around his mouth that indicated to her that he was seizing or about to seize at that very moment.

         These facts do not, however, allow Taylor to show a jury punitive intent in the form of deliberate

indifference. Nor do they demonstrate that a jury could find the firemedics' response objectively insufficient

under Estelle. The firemedics did act on whatever knowledge they had of Mason's condition: they tried to

check him out and administer aid. That they questioned him repeatedly regarding his desire for treatment

demonstrates not deliberate indifference, but significant concern about his condition. On the

summary-judgment facts, Mason simply declined treatment.            And there is no indication from the

summary-judgment facts that the firemedics perceived him to do so incoherently or otherwise without the




   5
    A corollary to this requirement for a great deal more than negligence is that a public official who does
act reasonably in response to a serious medical need "cannot be found liable under the Cruel and Unusual
Punishments Clause," Farmer, 511 U.S. at 845, 114 S.Ct. at 1983, "even if the harm ultimately was not
averted," id. at 844, 114 S.Ct. at 1983.
ability to speak for himself.6

        Admittedly, as Taylor also argues, the firemedics' procedures did require taking the vital signs of

seizing patients and calling in paramedics. If the firemedics drew from Britton's statements the inference that

Mason was having a seizure, then they failed to act in accordance with their own protocol. But this

observation, even if true, misses the point twice. First, it fails to consider that Taylor must present evidence

from which a jury could find that the firemedics actually drew the inference that Mason was having a seizure:

the drawing of such an inference from the observations of a layperson bystander is by no means automatic,

and the other facts regarding the exchange between the firemedics and Mason himself do not indicate that

they drew such an inference. Second, failure to follow procedures does not, by itself, rise to the level of

deliberate indifference because doing so is at most a form of negligence.

        Application to Threadgill—In Taylor's view, two aspects of Threadgill's conduct indicate deliberate

indifference. First, Threadgill never examined Mason at all; she simply observed him from a distance of

three feet and sent the paddy wagon to the hospital.7 Second, according to the testimony of the police officer

who drove the paddy wagon, Threadgill made comments indicating that she did not view it as part of her duty

to help Mason, and made those comments in such a casual manner that the officer did not perceive any

necessity to hurry to the hospital. Specifically, the summary-judgment facts include a quote from the officer

in which Threadgill made "comments about bringing folks in that needs [sic] to go to the hospital and this

and that, it's not her duty to, I guess, treat them or whatever." (R.3-120 at 5 n.8 (quoting Depo. of Officer

Harvey).) Threadgill, on the other hand, contends that her comments were merely manifestations of her

desire to follow written jail policy requiring incoming unconscious detainees to be "referred immediately for



   6
    The summary-judgment facts do indicate that Mason later responded incoherently when asked by one
of the police officers for his social security number. But this took place after the firemedics departed.
   7
    Taylor's expert observed that it is " 'inconceivable that ... a registered nurse ... never touched [Mason]
and ... didn't give him first aid and did not call an ambulance after realizing that Mason was unconscious."
' (R.3-122 at 7 (quoting Depo. of Dr. Pfortmiller) (omissions in original).) Taylor's expert also testified
that given the cause of Mason's death, "acute pulmonary edema, with subsequent acute respiratory
failure," (R.3-122 at 6), Mason's death "could have been prevented if first aid had been administered and
an ambulance had been called" at the jail, (R.3-122 at 7).
emergency care." (R.3-122 at 6 (quoting Br. of Plaintiff at 10).)8

         We begin and end our analysis by asking whether Threadgill's actions—regardless of her mental

state—were so objectively inadequate that they satisfy Estelle 's high standard. We conclude that they were

not. As Taylor's expert testified, a jury might very well find that Threadgill's course of action violated

professional standards applicable to her as a registered nurse. But that observation can only serve as a starting

point for analysis that requires much more than negligence or malpractice. Whatever her motivation, it is

clear that Threadgill did order that some medical care be provided to Mason: She sent him to the hospital.

And on the summary-judgment facts, she did so in compliance with jail policy. Our task is to determine

whether a jury could find this choice—made in lieu of conducting an examination at the scene and awaiting

an ambulance—to be sufficiently worse than negligent.

        As Taylor argues, treatment "so cursory as to amount to no treatment at all" rises to this level. Ancata

v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir.1985). So too does the delay of treatment for

obviously serious conditions where "it is apparent that delay would detrimentally exacerbate the medical

problem," the delay does seriously exacerbate the medical problem, and the delay is medically unjustified.

Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1187, 1187-89 (11th Cir.1994). These

principles were, however, developed in contexts involving much longer time frames than the incident at issue

here, and with those longer time frames, greater periods for reflection upon a course of action. See Lancaster,

116 F.3d at 1420-23 (detailing a sequence of failures leading to death over the course of a long night of

incarceration); Hill, 40 F.3d at 1187 n. 21 (collecting and describing cases). Determining where to draw the

line between the constitutional and the unconstitutional in a split-second, emergency choice between two


   8
    As quoted in the summary-judgment facts, that policy was:

                 Written and defined procedures requires receiving screening to be performed by
                 health-trained or qualified health care personnel on all inmates ... immediately upon their
                 arrival at the jail. Persons who are unconscious, semi-conscious, bleeding, mental,
                 unstable or otherwise urgently in need of medical attention are referred immediately for
                 emergency care. If they are referred to a community hospital, their admission or return to
                 the jail is predicated upon written medical clearance.

        (R.3-122 at 6 (quoting Br. of Plaintiff at 10).)
options of the sort made here is a distinct task. Taking up this task, we conclude that Threadgill's choice was

not, under emergency circumstances demanding an immediate decision, "an unnecessary and wanton

infliction" of physical suffering. Estelle, 429 U.S. at 105, 97 S.Ct. at 292 (internal quotation marks omitted).

Moreover, that Threadgill made her decision in compliance with written policies is significant: Even if that

compliance was medically unreasonable (presumably, because the policies were themselves unreasonable or

too undetailed to offer guidance in such a difficult situation), the existence of the policies and their dictates

militates against concluding that Threadgill's actions were wanton. Thus, on the summary-judgment facts,

we cannot conclude that Threadgill violated the Constitution.

                  Discretionary-Function Immunity on the State-Law Negligence Claims

         The district court denied the firemedics discretionary-function immunity, because it thought that the

immunity applies to municipal officers only if a statute so states and, as it correctly observed, there is no such

statute covering firemen. The firemedics concede that they are not covered by a statutory form of the

immunity, but argue that they are protected by a common-law variety. Although the case law addressing

Alabama's discretionary-function-immunity doctrine is muddled, we conclude that it does, as the firemedics

contend, extend to them a common-law form of discretionary-function immunity.9

        Confusion regarding the application of discretionary-function immunity to municipal officers in

Alabama arises from significant ambiguity in the seminal case regarding whether discretionary-function



   9
    Because the denial of state-law immunities presents questions regarding application of the
collateral-order doctrine very similar to those raised by Taylor regarding federal qualified immunity, we
question sua sponte, see, e.g., University of South Ala. v. American Tobacco Co., 168 F.3d 405, 410 (11th
Cir.1999), the propriety of our jurisdiction over the appeal as to discretionary-function immunity, See
Sheth v. Webster, 145 F.3d 1231, 1236-38 (11th Cir.1998). Discretionary-function immunity arising
under Alabama law is, like qualified immunity arising under federal law, immunity from suit. See Sheth,
145 F.3d at 1237-38 (citing Marnon v. City of Dothan, 677 So.2d 755, 761 (Ala.Civ.App.1995); Ex Parte
City of Birmingham, 624 So.2d 1018, 1021 (Ala.1993); Phillips v. Thomas, 555 So.2d 81, 86
(Ala.1989)). Therefore, the same principles of federal law governing an appeal of the denial of qualified
immunity at the summary judgment stage also govern an appeal of the denial of Alabama
discretionary-function immunity at the same stage. See id. at 1236-38. Because the firemedics appeal
both the denial of discretionary-function immunity and the denial of qualified immunity from the same
procedural posture and under the identical assumption regarding the validity of the district court's
summary-judgment facts, we have jurisdiction to review the former just as we have jurisdiction to review
the latter.
immunity applies to all "public officers" as the Restatement (Second) of Torts § 895D, a provision adopted

as Alabama law, contemplates, or only to state officers arguably under the cloak of the sovereign immunity

provision of the Alabama Constitution. In Phillips v. Thomas, 555 So.2d 81, 83 (Ala.1989), a case in which

the defendants were state employees, the court apparently viewed discretionary-function immunity as one of

two forms of immunity potentially available to state officials (the other being absolute immunity) under the

Alabama Constitution of 1901, Article I, § 14. Along the way, however, it also noted that Alabama has

adopted, in toto, the language of § 895D of the Restatement, see id. at 84 (quoting Restatement (Second) of

Torts § 895D (1977)) (citing Barnes v. Dale, 530 So.2d 770, 783 (Ala.1988); DeStafney v. University of

Alabama, 413 So.2d 391, 393 (Ala.1982)). A natural reading of the case (and the reading apparently

underpinning the district court's opinion) might be that it holds § 895D to be the standard by which immunity

for state officers arising under the Alabama Constitution is to be applied in an individual case. This reading

also comports with the observation made in Sheth regarding why it was necessary for the Alabama legislature

to pass a statute expressly extending discretionary-function immunity to municipal police officers. See Sheth,

145 F.3d at 1236 (observing, in dicta, that Ala.Code § 6-5-338, which grants discretionary-function immunity

to "peace officer[s] ... employed ... by ... a county or municipality" but not to other municipal officers, was

enacted in apparent recognition of the fact that "certain state police officers are entitled to absolute immunity

as constitutional officers and that other state police officers are entitled to discretionary function immunity,

but that county and municipal police officers arguably had no immunity").

        Nevertheless, in light of subsequent decisions by Alabama courts, we must conclude that this reading

is wrong. At least four times, Alabama appeals courts have held § 895D immunity applicable to municipal

officers. See Roden v. Wright, 646 So.2d 605, 609-11 (Ala.1994) (holding that plaintiff suing a county

commissioner was collaterally estopped from denying the commissioner's § 895D immunity because all of

the issues necessary to resolving that immunity were already litigated in a federal suit involving an issue of

qualified immunity); Ex parte City of Birmingham, 624 So.2d 1018, 1021 (Ala.1993) (applying the immunity

to various city officials); Crowe v. City of Athens, 733 So.2d 447, 449, 451 (Ala.Civ.App.1999) (applying
the immunity to a city officer and observing that "[n]either party has provided authority, and we are aware

of none, for the proposition that the operation of § 895D as an affirmative defense with respect to state

officials differs from its operation as to municipal officials"); Marnon v. City of Dothan, 677 So.2d 755, 761

(Ala.Civ.App.1995) (applying the immunity to city commissioners). See also Crouch v. Whatley, 900

F.Supp. 1567, 1571-73 (M.D.Ala.1995) (treating § 6-5-338 and common-law § 895D immunities as

independent doctrines, both available to a municipal police officer); Williams v. Crook, 741 So.2d 1074,

1076-78 (Ala.1999) (denying a municipal police officer immunity under § 6-5-338, but also recognizing in

dicta that "public officials, including municipal employees" have access to the immunity recognized in

Phillips ). Alabama's discretionary-function immunity doctrine thus applies to the municipal firemen in this

case, and we must consider whether they have, on the summary-judgment facts, satisfied its requirements.

        The firemedics are entitled to discretionary-function immunity if, on the summary-judgment facts,

their acts at the scene were discretionary and Taylor has not presented evidence sufficient to create a jury

question regarding whether they "acted in bad faith, [or] with malice or willfulness." Sheth, 145 F.3d at 1239

(citing Wright v. Wynn, 682 So.2d 1, 2 (Ala.1996)). For the same reason we found the firemedics entitled

to qualified immunity from the federal claims against them, we also conclude that Taylor could not show a

jury that they acted with the mental state necessary to preclude discretionary-function immunity. Thus, we

have only to ask whether their acts were discretionary where discretionary acts are defined as " 'those ... as

to which there is no hard and fast rule as to the course of conduct that one must or must not take and those

acts requiring exercise in judgment and choice and involving what is just and proper under the circumstances

.' " Id. (quoting Wright, 682 So.2d at 2).        As we noted in our qualified-immunity analysis, the

summary-judgment facts indicate that department procedure for a seizing patient required taking vital signs

and calling for paramedics. But in the face of Mason's having repeatedly refused treatment, no reasonable

jury could conclude that the procedure provided a "hard and fast rule" for handling the situation; this was

clearly an instance in which the firemedics had to exercise "judgment and choice," and they are therefore
entitled to discretionary-function immunity.10

                                                   Conclusion

           For the foregoing reasons, we reverse the district court's denial of qualified immunity and

discretionary-function immunity to the firemedics and denial of qualified immunity to Threadgill.11

           REVERSED and REMANDED.12




   10
     Because the firemedics are entitled to discretionary-function immunity, we need not decide whether
the district court erred when it decided that the firemen, because they were on duty, were not entitled to
the "Good Samaritan" immunity conferred by Ala.Code § 6-5-339 (Michie 1993), or whether we even
have jurisdiction to consider the question.
   11
        Appellant's motion for certification of unresolved state-law questions is DENIED.
   12
        The City of Mobile remains a defendant in this case but is not a party to this appeal.
