             Case: 16-14710     Date Filed: 06/21/2017   Page: 1 of 11


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-14710
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 4:14-cv-01424-AKK-HGD



BILLY W. REID,

                                                                  Plaintiff-Appellee,

                                     versus

BRIAN STREIT,
Sgt., Deputy with, Jefferson County Sheriff's Office,
WEBBER,
Deputy with Jefferson County Sheriff's Office,

                                                           Defendants-Appellants.

                          ________________________

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

                                  (June 21, 2017)

Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 16-14710       Date Filed: 06/21/2017       Page: 2 of 11


       Billy Reid, proceeding pro se, sued Sergeant Brian Streit and Deputy

Jonathan Webber under 42 U.S.C. § 1983 for deliberate indifference to his serious

medical needs in violation of his Fourteenth Amendment rights. He asserted those

claims against the officers in their official and individual capacities, seeking

declaratory, injunctive, and monetary relief. The officers filed a motion for

summary judgment, raising the doctrines of sovereign and qualified immunity.

The district court denied that motion and the officers now appeal. 1

                                               I.

       On July 30, 2012, at around 8:00 P.M., Streit and Webber arrived at Reid’s

home intending to question him about some allegations his girlfriend had made,

including that Reid had punched a wall with his right hand during an argument,

had held her against her will, had beaten her, and had raped her. 2 Reid was in his

backyard when the officers arrived, and when he heard someone yell at him, he

began running away. Webber chased him, and after Reid ignored his commands to

stop, Webber shot him with a taser gun, causing Reid to fall to the ground. Reid

used his already-injured right hand to help break his fall, which exacerbated the

injury he had sustained by punching the wall a few days earlier. Although Reid

       1
         We have interlocutory appellate jurisdiction over the denial of immunity. See Mitchell
v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817 (1985).
       2
          At the summary judgment stage, we must view the evidence in the light most favorable
to the non-moving party, keeping in mind that “what we state as ‘facts’ in this opinion for
purposes of reviewing the ruling on the summary judgment motion[ ] may not be the actual
facts.” Swint v. City of Wadley, 51 F.3d 988, 992 (11th Cir. 1995).
                                               2
              Case: 16-14710     Date Filed: 06/21/2017   Page: 3 of 11


began complaining about the pain in that hand, the deputies placed him in

handcuffs and transported him to a police substation for questioning.

      Upon their arrival at that substation, Reid continued complaining and

requested medical attention for his hand because it was red, swollen, and causing

intense pain. Webber contacted Streit, who had left the substation to obtain a

search warrant for Reid’s home, and Streit instructed Webber to call the

paramedics. Webber did so and after the paramedics arrived and examined Reid’s

hand, they informed Webber and Reid that the injury was too severe for them to

treat and that Reid should be taken to the hospital immediately. Webber again

called Streit and told him what the paramedics had said, and Streit instructed

Webber not to take Reid to the hospital and to stay at the substation so that Streit

could interview him. Sometime later, Streit arrived back at the substation, ate

dinner, and then interviewed Reid.

      That interview began at 12:31 A.M., about four and a half hours after Reid

was apprehended. Before the interview began Streit told Reid that he would not

receive medical care until he gave a “satisfactory statement.” After completing the

hour-long interview, and after reviewing the evidence found at Reid’s home, Streit

told Reid that he was under arrest. Streit then notified Webber that after the

necessary arrest paperwork was completed, Webber could take Reid to the

hospital. Reid was placed in a holding cell while Streit began that paperwork.


                                          3
              Case: 16-14710    Date Filed: 06/21/2017   Page: 4 of 11


While the accounts differ as to how Reid escaped from that holding cell, he did and

left the substation without permission at around 2:30 A.M, went home, and took

some pain medicine. When he woke up later that day, he went to the emergency

room but was turned away because he could not provide proof of insurance and did

not have the money to pay for treatment.

      Reid was arrested about two weeks later. Following his arrest, he received

medical treatment, was diagnosed with a “[b]oxer’s type fracture” on his right

hand, and eventually received orthopedic surgery to reset the bone and stabilize the

hand with a titanium plate and screws. According to Reid, his hand is now

“permanently impaired.”

                                         II.

      “We review de novo a district court’s denial of summary judgment based on

[the doctrine of] immunity, applying the same legal standards that governed the

district court.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir.

2013); see also Pellitteri v. Prine, 776 F.3d 777, 779 (11th Cir. 2015). “Summary

judgment is appropriate when the record evidence, including depositions, sworn

declarations, and other materials, shows ‘that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.’”

Feliciano, 707 F.3d at 1247 (quoting Fed. R. Civ. P. 56(a)).




                                           4
               Case: 16-14710       Date Filed: 06/21/2017      Page: 5 of 11


                                              A.

       The officers first contend that Reid lacks standing to pursue his equitable

claims against them in their official capacities.3 Standing “is a threshold

jurisdictional question which must be addressed prior to and independent of the

merits of a party’s claims.” AT&T Mobility, LLC v. NASCAR, 494 F.3d 1356,

1359 (11th Cir. 2007) (quotation marks omitted). And although the officers did

not clearly raise this standing argument in the district court, the question of a

party’s standing “is not subject to waiver” and we have “an independent obligation

to examine [our] own jurisdiction.” Bischoff v. Osceola Cty., 222 F.3d 874, 877–

78 (11th Cir. 2000) (quotation marks omitted). As is the case here, “when standing

is questioned for the first time by an appellate court, standing must affirmatively

appear in the record.” Region 8 Forest Service Timber Purchasers Council v.

Alcock, 993 F.2d 800, 806 (11th Cir. 1993) (quotation marks omitted).

       The injunctive and declaratory relief Reid seeks is forward-looking, and as a

prospective remedy it “will provide no relief for an injury that is, and likely will

remain, entirely in the past.” Church v. City of Huntsville, 30 F.3d 1332, 1337

(11th Cir. 1994) (quotation marks omitted). As a result, to establish standing to

seek injunctive and declaratory relief, Reid must demonstrate “a sufficient

       3
           They also contend that they are entitled to sovereign immunity from Reid’s official
capacity claims for monetary damages. Reid does not dispute that contention. The district court
did err in denying the officers summary judgment on Reid’s official capacity claims seeking
monetary relief. See Carr v. City of Florence, 916 F.2d 1521, 1525–27 (11th Cir. 1990).
                                               5
               Case: 16-14710      Date Filed: 06/21/2017   Page: 6 of 11


likelihood that he will be affected by the allegedly unlawful conduct in the future.”

Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1283 (11th Cir.

2001); see Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1346 (11th

Cir. 1999).

       The record evidence does not show any likelihood that Reid will again

encounter and be injured by Streit or Webber’s deliberate indifference to his

serious medical needs. And there is no indication that, were we to remand for the

district court to develop the record further as to standing, Reid would be able

submit additional evidence to demonstrate otherwise. As a result, Reid lacks

standing to pursue his equitable claims for injunctive and declaratory relief against

the officers in their official capacities.

                                             B.

       As to Reid’s claims for monetary relief against Streit and Webber in their

individual capacities, the officers contend that they are entitled to qualified

immunity. The doctrine of qualified immunity “allow[s] government officials to

carry out their discretionary duties without the fear of personal liability or

harassing litigation, protecting from suit all but the plainly incompetent or one who

is knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th

Cir. 2002) (quotation marks and citation omitted).




                                             6
              Case: 16-14710     Date Filed: 06/21/2017    Page: 7 of 11


      To obtain qualified immunity, Streit and Webber first must show that they

were acting within their discretionary duty. Mobley v. Palm Beach Cty. Sheriff

Dep’t, 783 F.3d 1347, 1352 (11th Cir. 2015). The parties agree that they were. To

overcome qualified immunity, Reid must show (1) that the officers violated his

constitutional rights and (2) that “the law clearly established those rights at the

time of the alleged misconduct.” Id. at 1352–53 (quotation marks omitted).

      We first address whether a reasonable jury could find that the officers acted

with deliberate indifference to Reid’s serious medical needs in violation of his

Fourteenth Amendment due process rights. A plaintiff bringing a deliberate

indifference to a serious medical need claim must show: “(1) a serious medical

need; (2) the defendants’ deliberate indifference to that need; and (3) causation

between that indifference and the plaintiff’s injury.” Mann v. Taser Intern., Inc.,

588 F.3d 1291, 1306–07 (11th Cir. 2009). Further, “[w]hen [officers] ignore

without explanation a . . . serious medical condition that is known or obvious to

them, the trier or fact may infer deliberate indifference.” Brown v. Hughes, 894

F.2d 1533, 1538 (11th Cir. 1990).

      The officers do not dispute that Reid’s broken hand was a serious medical

need. They instead dispute whether they had any duty to provide medical

treatment for an injury sustained before they took Reid into custody and, if they




                                           7
              Case: 16-14710     Date Filed: 06/21/2017    Page: 8 of 11


did, whether they were deliberately indifferent to that need and whether that

indifference caused Reid’s injury.

      As to the officers’ first contention — that they had no duty to provide

medical care for an injury sustained before they took Reid into custody — they

base that argument on their version of the facts, which is that Reid’s fall during his

capture did not worsen his pre-existing injury. Taking the facts, as we must, in the

light most favorable to Reid, a jury could infer that his fall after being shot with the

taser further injured his hand. The Fourteenth Amendment “require[s] the

responsible government or governmental agency to provide medical care to [those]

who have been injured while being apprehended by the police.” Revere v. Mass.

Gen. Hosp., 463 U.S. 239, 244, 103 S. Ct. 2949, 2983 (1983). As a result, Streit

and Webber had a duty not to act with deliberate indifference to Reid’s hand

injury.

      As to the officers’ second contention — that even if they had a duty to treat

Reid’s hand injury they did not act with deliberate indifference — the deliberate

indifference element of Reid’s claims requires: “(1) subjective knowledge of a risk

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

negligence.” McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999).

      The officers had subjective knowledge of a risk of serious harm. Reid

consistently complained about the pain he was experiencing, and paramedics told


                                           8
              Case: 16-14710     Date Filed: 06/21/2017   Page: 9 of 11


Webber (who in turn told Streit) that Reid’s hand was broken and that he should be

taken immediately to a hospital. And the evidence shows that the officers

disregarded that risk by keeping Reid at the substation. Indeed, they waited four

and a half hours after he arrived to interview him and told him that he would not be

taken to the hospital until he provided a “satisfactory statement.”

      By delaying taking Reid to the hospital, Streit and Webber acted

intentionally, not negligently. They knew that Reid’s hand was seriously injured,

and DVD footage of Streit’s interview of Reid shows Reid bent over at his waist

cradling his right hand with his left hand. Not only that but during the interview

Reid more than once told Streit that he was in immense pain.

      While “[t]he tolerable length of delay in providing medical attention

depends on the nature of the medical need and the reason for the delay,” Harris v.

Coweta Cty., 21 F.3d 388, 393–94 (11th Cir. 1994), the evidence does not show

that the officers had a good reason to delay taking Reid to the hospital. Streit’s

affidavit explains that, during the four and a half hour period between taking Reid

to the substation and interviewing him, Streit was procuring and executing a search

warrant of Reid’s home. But there is no evidence explaining what Webber was

doing while waiting for Streit to interview Reid. And the officers have provided

no reason why Webber could not have taken Reid to the hospital while Streit




                                          9
               Case: 16-14710      Date Filed: 06/21/2017       Page: 10 of 11


searched Reid’s home. 4 As a result, the delay in treating Reid was at best

unexplained, and “an unexplained delay of hours in treating a serious injury states

a prima facie case of deliberate indifference.” Brown, 894 F.2d at 1538; see

also Harris, 21 F.3d 394 (“A few hours’ delay in receiving medical care for

emergency needs such as broken bones . . . may constitute deliberate

indifference.”).

       Streit and Webber also contend that Reid cannot show that their deliberate

indifference caused his injury. While there is no evidence showing that the

officers’ delay caused the need for Reid’s surgery, a jury could find from the

evidence that Reid suffered from extreme pain that night in the substation and the

officers did nothing to alleviate it. “Our cases . . . have recognized that [officers]

may violate the [Constitution]’s commands by failing to treat an inmate’s pain”

and letting him needlessly suffer. McElligott, 182 F.3d at 1257. Even if the

officers’ delay in treating Reid’s hand did not cause the need for Reid’s hand

surgery, a reasonable jury could find that the delay caused him unnecessary pain.

As a result, a genuine issue exists as to whether the officers acted with deliberate

indifference to Reid’s serious medical needs in violation of his Fourteenth

Amendment rights.

       4
          Although Streit may have had an explanation for why he personally could not have
taken Reid to the hospital — he was busy searching Reid’s home — he was aware that Reid
needed to go to the hospital. And he specifically instructed Webber not to take Reid to the
hospital and instead to wait for Streit to return so that he could interview Reid.
                                              10
             Case: 16-14710    Date Filed: 06/21/2017   Page: 11 of 11


      Streit and Webber concede the law is clear that the Constitution requires

“the responsible government or governmental agency to provide medical care to

persons . . . who have been injured while being apprehended by the police.” City

of Revere, 463 U.S. at 244, 103 S. Ct. at 2983. And at the time of the violation the

law was clearly established that an “unexplained delay of hours in treating a

serious injury states a prima facie case of deliberate indifference.” Brown, 894

F.2d at 1538. And, again, there is nothing in the record to explain why Webber

could not have taken Reid to the hospital. Based on the facts as we must take them

at this summary judgment stage of the proceedings, Streit and Webber are not

entitled to qualified immunity, and the district court properly denied them

summary judgment on Reid’s claims against them in their individual capacities.

      AFFIRMED IN PART; REVERSED AND REMANDED IN PART.




                                         11
