                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               FEB 06, 2009
                                No. 08-14017
                                                             THOMAS K. KAHN
                            Non-Argument Calendar
                                                                 CLERK
                          ________________________

                      D. C. Docket No. 04-02636-CV-5-CLS

JULIA HUFF WALKER,

                                                             Plaintiff-Appellant,

                                      versus

HUNTSVILLE, ALABAMA, CITY OF,
CHIEF COMPTON OWENS,
individually and in his Official Capacity
as Chief of Police of the City of
Huntsville, Alabama,
R. ROSSER, ID# 09270,
J. WATKINS, ID# 11916,


                                                          Defendants-Appellees.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                         _________________________

                               (February 6, 2009)
Before BIRCH, CARNES and FAY, Circuit Judges.

PER CURIAM:

      Julia Huff Walker sued the City of Huntsville, its police chief, and police

officers Rhonda Rosser and Jennifer Watkins under 42 U.S.C. § 1983 and an array

of state law causes of action. The district court granted summary judgment to the

defendants on all of Walker’s claims. Walker appeals only the district court’s

rejection of her Fourth Amendment claim against the officers and her Fourteenth

Amendment claims against all of the defendants.

                                          I.

      Walker was driving home from a friend’s house on Sunday, July 28, 2002

when Ronald Sheaffer, who was sitting on his porch, saw her drive into his

neighbor’s yard. Sheaffer saw Walker make a U-turn onto the wrong side of the

street, smash a mailbox, then drive onto a sidewalk and eventually stop in the

middle of an intersection, where she slumped over the wheel. Sheaffer called the

police.

      Officer Watkins arrived at the scene, noticed the fallen mailbox, and saw

that Walker’s car was still in the middle of the intersection, running, and in drive.

Officer Watkins placed Walker’s car in park, then lifted her head from the steering

wheel and asked if she was okay. Walker’s response was unintelligible. Officer

                                          2
Watkins observed that Walker seemed “half asleep and half awake,” her speech

was very slurred, her eyes were bloodshot, and her hair was in disarray. Walker

did not appear to know what was going on and stated that she was in her living

room and that she needed to get dressed. By then Officer Rosser also had arrived

at the scene and witnessed Walker’s condition. All four witnesses— Officers

Watkins and Rosser, Sheaffer, and Sheaffer’s neighbor—testified that they

believed that Walker was drunk or on drugs. Though no one smelled alcohol on

Walker, Officer Watkins found a number of unidentifiable pills in her purse.1

Walker was arrested for DUI under Ala. Code § 32-5A-191(a)(5)2 and for stopping

in the roadway under § 32-5A-137.

       Walker was booked into jail at around 6:00 pm on Sunday evening. She

remained in custody for more than 22 hours. On her arrival at the jail, Walker was

found too “intoxicated” for fingerprinting or medical examination, and she

remained in the booking area of the jail for her entire stay there except for four

hours in court. Overnight on Sunday, Walker was coherent enough to receive the



       1
           Later analysis determined that they were caffeine pills.
       2
          Ala. Code § 32-5A-191 states: (a) A person shall not drive or be in actual physical
control of any vehicle while: . . . (5) Under the influence of any substance which impairs the
mental or physical faculties of such person to a degree which renders him or her incapable of
safely driving.”


                                                   3
jail’s basic medical screening, which consists of a series of questions designed to

elicit the subject’s medical condition. Early Monday morning, she was evidently

seen by a nurse at the jail. Through all of this, it appears that Walker remained too

impaired to enter the general jail population, but not impaired enough, or impaired

for long enough, to cause serious concern to the jail staff.

      On Monday afternoon, Walker’s sons located her at the jail and took her

home. Walker signed her own property release form and refused her sons’

inquiries about medical attention. She remained to some degree incoherent and

suffered from a headache and memory loss. Not until Tuesday afternoon did

Walker’s son insist on taking her to the hospital, where she was initially

considered a non-urgent patient. Hours later, a CT scan revealed a bleeding

aneurysm in her brain. Late that night, Walker was transferred to another hospital,

underwent emergency brain surgery, and survived.

                                         II.

      We review de novo the district court’s grant of summary judgment.

Campbell v. Sikes, 169 F.3d 1353, 1361 (11th Cir. 1999). “We apply the same

legal standards as the district court and view all facts and reasonable inferences in

the light most favorable to the nonmoving party.” Gish v. Thomas, 516 F.3d 952,

954 (11th Cir. 2008).

                                          4
                                        III.

      Walker first contends that Officers Rosser and Watkins arrested her without

probable cause to believe that she had been driving under the influence in

violation of Ala. Code § 32-5A-191. Accordingly, she argues that the officers

violated her Fourth Amendment rights and that the district court erred when it

granted summary judgment to them.

      To establish a violation of the Fourth Amendment, Walker must show that

her arrest was unreasonable. Brower v. County of Inyo, 489 U.S. 593, 599 (1989)

(“Seizure alone is not enough for § 1983 liability; the seizure must be

unreasonable.”) (quotation marks omitted). An arrest is unreasonable if it is not

supported by probable cause. Crosby v. Monroe County, 394 F.3d 1328, 1332

(11th Cir. 2004). “Probable cause is defined in terms of facts and circumstances

sufficient to warrant a prudent man in believing that the suspect had committed or

was committing an offense.” Id. (citing Gerstein v. Pugh, 420 U.S. 103, 111

(1975)).

      Officer Watkins argues that she had probable cause to arrest Walker for

DUI. Witnesses told Officer Watkins that Walker had been driving in people’s

yards and that she had hit a mailbox, and the damaged mailbox was at the scene

for all to see. Officer Watkins found Walker “half-asleep, half-awake”—

                                         5
essentially passed out at the wheel in the middle of the road; her eyes were

bloodshot, her speech was slurred and unintelligible; she was disoriented and did

not know where she was. Additionally, though no one smelled alcohol, Walker’s

purse contained pills of an unknown kind. The pills were later found to be

caffeine, and Walker turned out to be suffering from bleeding in her brain and not

from the influence of drugs, but the facts Officer Watkins observed were enough

to supply probable cause. See Qian v. Kautz, 168 F.3d 949, 954 (7th Cir. 1999)

(“easily” finding probable cause to arrest a driver for DUI where the officer

observed a slumped, unkempt, unsteady man with slurred speech who had been in

a one-car accident and whom the officer did not know was suffering from a

subdural hematoma).

       Accordingly, the district court’s grant of summary judgment to Officers

Watkins and Rosser on Walker’s Fourth Amendment claim was proper.3




                                               IV.



       3
         Because no constitutional right was violated, we need not further discuss the officers’
qualified immunity defense. Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If no constitutional
right would have been violated were the allegations established, there is no necessity for further
inquiries concerning qualified immunity.”).

                                                 6
      Walker also contends that all of the defendants violated her Fourteenth

Amendment rights by acting with deliberate indifference to her serious medical

condition while she was in custody. “To prevail, [a] Plaintiff must prove both [1]

an objectively serious medical need and [2] that a Defendant acted with deliberate

indifference to that need.” Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir.

2008).

      First, “[i]n our circuit, a serious medical need is considered one that has

been diagnosed by a physician as mandating treatment or one that is so obvious

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

attention.” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (quotation

marks and citation omitted). Whether Walker possessed an “objectively serious

medical need” while in police custody depends on whether physician’s diagnoses

that occur only later qualify, or if not, on whether Walker’s suspiciously lengthy

“intoxication” should have been “easily recognized” as requiring a doctor’s

attention. Regardless of whether Walker can satisfy the test for “objectively

serious medical need,” however, she cannot demonstrate deliberate indifference.

      To establish “deliberate indifference” to her serious medical need, Walker

must demonstrate that a defendant had “(1) subjective knowledge of a risk of

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

                                          7
negligence.” Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005); Burnette,

533 F.3d at 1330. Deliberate indifference is a subjective test, and requires a

plaintiff to demonstrate that a defendant knew of her condition or of serious

medical risk. Burnette, 533 F.3d at 1331 (“No liability arises under the

Constitution for an official's failure to alleviate a significant risk that he should

have perceived but did not.”) (quotation marks omitted); Carr v. Tatangelo, 338

F.3d 1259, 1275 (11th Cir. 2003) (finding no deliberate indifference where police

officers actually shot a suspect but were unaware that he had been hit).

      Walker has produced no evidence that officers Rosser or Watkins, or police

chief Owens, or anyone at the Huntsville jail knew that she had a serious medical

condition. In fact, no one at all was aware of it until her CT scan; even the nurse

at the hospital’s emergency room triage considered her a non-urgent patient and

kept her waiting more than an hour. The fact is that Walker’s symptoms were

easily confused with the effects of drugs or alcohol. A lot of people made that

mistake, and even if it was negligent of the officers or the jailers not to provide

Walker with more intensive medical care, mistakenly failing to identify a brain

aneurysm is not deliberate indifference. Because Walker has entirely failed to

produce evidence for an essential element of her Fourteenth Amendment claim—

that a defendant was aware of a serious medical condition and deliberately ignored

                                            8
it— summary judgment against her was proper. See Celotex, 477 U.S. 318, 323

(1986) (there can “be no genuine issue as to any material fact . . .[where there is] a

complete failure of proof concerning an essential element of the nonmoving

party’s case.”).4

                                               V.

       Finally, Walker appears to make a claim against police Chief Owens and the

City of Huntsville for enacting police policies that resulted in deliberate

indifference to constitutional rights.5 See Cottone v. Jenne, 326 F.3d 1352, 1360

(11th Cir. 2003). These claims fail because we have found that there is no

underlying constitutional violation. Beshers v. Harrison, 495 F.3d 1260, 1274

(11th Cir. 2007) (“We need not address the Appellant's claims of municipal or

supervisory liability since we conclude no constitutional violation occurred.”);

Vineyard v. County of Murray, 990 F.2d 1207, 1211 (11th Cir. 1993) (“Only when

it is clear that a violation of specific rights has occurred can the question of § 1983



       4
           Therefore we need not, and do not, reach the issue of whether Walker has demonstrated
that her lack of medical care while in police custody actually caused her any injury or worsened
her aneurysm or its effects. Nor do we need to reach the officers’ qualified immunity defense.
Saucier, 533 U.S. at 201.
       5
         Walker’s claims against Chief Owens and the City of Huntsville are sketchy, hardly
argued, and difficult to define. The details of those claims are unimportant, however, because in
any event they are doomed by Walker’s failure to avoid summary judgment on the alleged
underlying constitutional violations.

                                                9
municipal liability for the injury arise.”); see also Campbell v. Sikes, 169 F.3d

1353, 1374 (11th Cir. 1999) (stating that a claim for supervisory liability fails

where there is no underlying constitutional violation).

          In sum, Walker nearly died of a brain aneurysm. No one— not Officers

Watkins or Rosser, not the two witnesses to her car accident, not the Huntsville

jailers, not Walker’s own two sons, and not even an ER nurse performing triage—

was able to distinguish her symptoms from some form of intoxication or to

recognize them as requiring immediate medical attention. Walker endured an

unfortunate series of events, but we can find no violation of her constitutional

rights.

          AFFIRMED.




                                          10
