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                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 17-14016
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 3:13-cv-00737-TJC-MCR


MOZELLE THOMAS, et al.,

                                                            Plaintiffs-Appellants,

                                     versus

CITY OF JACKSONVILLE, et al.,

                                                           Defendants-Appellees.
                         ________________________

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

                                (April 23, 2018)

Before MARCUS, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM:


      Plaintiffs Mozelle Thomas and Jalynne Santiago appeal from the district

court’s order granting Defendants’ summary judgment motion on qualified-
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immunity grounds. Even viewing the facts in the light most favorable to Plaintiffs,

we conclude that no genuine dispute of material fact exists. We affirm.

                                              I

        In July 2010, officers of the Jacksonville Sheriff’s Office arrested Javon

Thomas for assault and interference with custody of a minor child. Thomas

received a physical examination upon his arrival and booking at the Jacksonville

Pretrial Detention Facility, during which he expressly denied having any history of

seizures.1

        At approximately 7:00 a.m. the following morning, July 30, Corrections

Officer (“CO”) Randy Avery was concluding his patrol duties when “[he] was

called back by CO Williams, who informed [him] that there was a medical

emergency where an inmate was possibly having a seizure . . . .” Avery followed

Williams’ direction to the cell in which the potential medical emergency was

taking place, and, upon entering the cell, “saw inmate Javon Thomas sitting on the

top bunk,” “sweating profusely” with “mucous coming out of his nose and saliva

coming out of his mouth.” Avery conveyed to Williams that a medical emergency

was taking place, and at 7:07 a.m. the officers issued a “Signal 17” medical distress

call.



1
  Thomas’ mother, Karan Thomas, would later inform Jacksonville Sheriff’s Office detectives
that Javon had “had seizures in the past,” the last of which occurred “about (1) year ago.”

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      Multiple COs and medical personnel responded to the Signal 17, reporting to

Thomas’ cell in order to assist CO Avery. The responders found Thomas “sitting

up on [the] top bunk, awake, but not following directions. [The] [o]fficers

attempted to have [Thomas] come down off [the] bunk, but [he] became more

aggressive. After [Thomas] was taken down off of [the] bunk, [he] jerked away

and laid down on [the] bottom bunk on [his] stomach.” Nurse Michelle Singleton

then “attempted to obtain [Thomas’] [vital signs],” at which point Thomas

“became extremely aggressive and combative,” requiring the help of several

officers to ensure “[Thomas’] own safety, [the officers’] safety, and [the safety] of

medical personnel.” Multiple responding officers described Thomas as agitated

and combative, flailing his arms and kicking at the responders—at one point even

attempting to bite an officer. Nurse Singleton determined that Thomas was neither

seizing at the time nor “postictal” (i.e., in a state indicating that he had just suffered

a seizure) and speculated that “[p]ossible toxic ingestion” may have caused his

erratic behavior.

      The officers “ultimately decided that Thomas should be placed in a four-

point restraint, meaning a physical restraint with both his hands and ankles cuffed

and a chain connecting the two sets of cuffs.” Once they restrained Thomas, the

officers transported him via stretcher to the detention center’s health clinic, where

“Dr. Joshi ordered Nurse Singleton to administer to Thomas a shot of Zyprexa,” a

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drug often used as an “emergency treatment order for a person who is psychotic or

acting psychotic.” Shortly after receiving the shot, Thomas suffered a grand mal

seizure and died while being transported to the nearest hospital. According to the

Medical Examiner’s Office, “[Thomas’] cause of death was ruled a seizure

disorder of unknown etiology and the manner of death was ruled natural.”

      Plaintiffs Mozelle Thomas and Jalynne Santiago—personal representatives

of Thomas’ estate—filed their original complaint in the United States District

Court for the Middle District of Florida. Following a series of motions and

amendments, Plaintiffs eventually filed their fourth (and final) amended complaint

in which they alleged several state-law violations as well as violations of Thomas’

Fourth, Fifth, Eighth, and Fourteenth Amendment rights under a “deliberate

indifference” theory—all against the City of Jacksonville (the “City”), Sheriff John

Rutherford, and various COs and medical personnel in their individual capacities.

Defendants moved for summary judgement following discovery, which the District

Court granted. Plaintiffs timely appealed to this Court.

                                         II

      We review de novo a district court’s summary-judgment order based on

qualified immunity, “applying the same legal standards as the district court.”

Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). A district court

properly grants summary judgment when “the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Id. (citing Fed. R. Civ. P. 56(c)). “As

this Court has repeatedly stressed, the facts, as accepted at the summary judgment

stage of the proceedings, may not be the actual facts of the case. Nevertheless, for

summary judgment purposes, our analysis must begin with a description of the

facts in the light most favorable to the plaintiff.” Lee v. Ferraro, 284 F.3d 1188,

1190 (11th Cir. 2002) (internal quotation marks, citations omitted).

      Taking the facts in the light most favorable to Plaintiffs does not, however,

require that we presume the existence of a dispute that must go to trial; “the issue

of fact must be ‘genuine,’” which means that “[w]hen the moving party has carried

its burden under Rule 56(c), its opponent must do more than simply show that

there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The nonmovant ‘must

present affirmative evidence in order to defeat a properly supported motion for

summary judgment.’ If the nonmoving party’s response to the summary judgment

motion consists of nothing more than mere conclusory allegations, then the Court

must enter summary judgment in the moving party’s favor.” Johnson v. Fleet

Finance, Inc., 4 F.3d 946, 949 (11th Cir. 1993) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 257 (1986)).

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                                           III

      The first step in our qualified-immunity framework requires that we

determine whether Defendants were “acting within the scope of [their]

discretionary authority.” Moore v. Pederson, 806 F.3d 1036, 1042 (11th Cir.

2015). The term “discretionary authority” includes “‘all actions of a governmental

official that (1) were undertaken pursuant to the performance of his duties, and (2)

were within the scope of his authority.’” Id. (quoting Jordan v. Doe, 38 F.3d 1559,

1566 (11th Cir. 1994)). Because it is “uncontested that the COs were acting within

their discretionary authority,” “the burden shifts to [the plaintiffs] to demonstrate

that qualified immunity is inappropriate,” Moore, 806 F.3d at 1042.

      Plaintiffs must satisfy both elements of a two-pronged inquiry when

contesting qualified immunity. “The first [prong] asks whether the facts, ‘[t]aken

in the light most favorable to the party asserting the injury . . . show the officer’s

conduct violated a [federal] right[.]’” Tolan v. Cotton, 134 S. Ct. 1861, 1865

(2014) (quoting Saucier v. Katz, 533 U.S. 194, 201, (2001)). “The second prong

of the qualified-immunity analysis asks whether the right in question was ‘clearly

established’ at the time of the violation. Governmental actors are ‘shielded from

liability for civil damages if their actions did not violate ‘clearly established

statutory or constitutional rights of which a reasonable person would have

known.’” Id. at 1866 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).

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       The evidence that Plaintiffs present to support their federal- and state-law

claims is inadequate to demonstrate a constitutional violation—let alone a violation

of a clearly established right—and Plaintiffs thus fall far short of surmounting

Defendants’ qualified-immunity defenses. This section addresses Plaintiffs’ claims

in turn.

                                           A

       Plaintiffs allege under 42 U.S.C. § 1983 that Defendants were deliberately

indifferent to Thomas’ medical needs, thus violating his constitutional rights. A

pretrial detainee’s deliberate-indifference claims “[arise] under the due process

clause of the Fourteenth Amendment rather than the Eighth Amendment,” but are

nevertheless “subject to the same scrutiny as if they had been brought as deliberate

indifference claims under the Eighth Amendment.” Melton v. Abston, 841 F.3d

1207, 1220 (11th Cir. 2016) (quoting Mann v. Taser Int’l, Inc., 588 F.3d 1291,

1306 (11th Cir. 2009)). In order to prevail on a claim of deliberate indifference to

a serious medical need, a plaintiff must show: “(1) a serious medical need; (2) a

defendant’s deliberate indifference to that need; and (3) causation between that

indifference and the plaintiff’s injury.” Id.

       Defendants agree that Thomas exhibited a “serious medical need,” and the

parties thus focus the bulk of their briefing on the deliberate-indifference element

itself. This subcomponent of the broader claim also comprises a three-part inquiry,

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requiring that a plaintiff show “(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). In order to support

their theory of deliberate indifference, Plaintiffs allege that Defendants

“unreasonably delayed administering medical attention and treatment,” and also

that Defendants’ use of the “four-point restraint” and their administration of

Zyprexa were inappropriate. Br. of Appellant at 13, 15.

      Plaintiffs’ first allegation—that Defendants “unreasonably delayed” in their

treatment of Thomas—lacks support in the record. “An inmate who complains that

delay in medical treatment rose to a constitutional violation must place verifying

medical evidence in the record to establish the detrimental effect of delay in

medical treatment to succeed.” Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176,

1188 (11th Cir. 1994). Plaintiffs provide no such evidence. Even setting aside this

critical deficiency, Plaintiffs fail to provide evidence of any delay—much less an

unreasonable one—between the time that Defendants learned of Thomas’ ailment

and the time they addressed it. Plaintiffs argue that “[t]he record indicates that Mr.

Thomas had been complaining of trouble breathing the night before,” Br. of

Appellant at 13, but they cite no evidence supporting the contention that the COs




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were made aware of Thomas’ alleged complaints. 2 Contrary to Plaintiffs’

conclusory allegation, nothing in the record suggests that Defendants delayed in

their response to Thomas’ ailments.

       Plaintiffs further argue that “even if the CO Defendants responded to the

initial signal 17, there was an improper delay of 45 minutes . . . .” Reply Br. at 10.

Plaintiffs derive this argument from the tenuous inference that “Mr. Thomas’ vitals

were not taken until 7:45 am . . . 45 minutes after the signal 17 was reported,” id. at

12, and therefore that there was necessarily an “improper delay” in treating

Thomas. Plaintiffs’ conclusion simply doesn’t follow. First, the COs had

significant difficulty pacifying Thomas when they arrived in his cell (Plaintiffs

neither dispute nor address this), which presumably hindered the officers’ ability to

make medical assessments. But more importantly, Plaintiffs never explain how the

alleged delay harmed Thomas, and thus they fail to “establish the detrimental

effect of delay,” an essential component of their claim. Hill, 40 F.3d at 1188.

       Plaintiffs’ contentions regarding the four-point restraint and the Zyprexa

injection suffer similar fates.

       In our decisions, conduct deliberately indifferent to serious medical
       needs has included: (1) grossly inadequate care; (2) a decision to take
       an easier but less efficacious course of treatment; and (3) medical care

2
  As explained further below, the only evidence to which Plaintiffs cite to support this claim is
inadmissible hearsay, and “[t]he general rule is that inadmissible hearsay ‘cannot be considered
on a motion for summary judgment.’” Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999)
(quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).

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      that is so cursory as to amount to no treatment at all. A defendant
      who unreasonably fails to respond or refuses to treat an inmate’s need
      for medical care or one who delays necessary treatment without
      explanation or for non-medical reasons may also exhibit deliberate
      indifference.

Melton v. Abston, 841 F.3d 1207, 1223 (11th Cir. 2016) (internal quotation marks

omitted). “Whether an instance of medical misdiagnosis resulted from deliberate

indifference or negligence is a factual question requiring exploration by expert

witnesses.” Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986).

      Here, the gist of Plaintiffs’ claims is that the COs “were alerted to evidence

of a seizure” upon arriving at Thomas’ cell, and that Defendants’ method of

restraint and administration of Zyprexa were therefore so grossly inappropriate as

to evince deliberate indifference. Br. of Appellant at 15-17. Even if we accept

Plaintiffs’ arguments about the propriety of applying restraint and Zyprexa to

someone suffering a seizure, Plaintiffs fail to provide any evidence beyond

conclusory, lay speculation to support the claim that Thomas was in fact having a

seizure prior to the Zyprexa injection. The only testimony from someone qualified

to render medical opinions comes from Nurse Singleton, who concluded that

“[Thomas] did not suffer a seizure before the Zyprexa.” Plaintiffs failed to provide

any expert witnesses to support a finding of the deliberate indifference rather than

mere negligence, thus failing to meet the requirements of their claim. See Rogers,

792 F.2d at 1058.

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       Without showing that Defendants were deliberately indifferent to Thomas’

medical needs, Plaintiffs’ claim cannot survive. See Gonzalez v. Lee Cty. Hous.

Auth., 161 F.3d 1290, 1294 (11th Cir. 1998) (“If the non-moving party fails to

‘make a sufficient showing on an essential element of her case with respect to

which she has the burden of proof,’ then the court must enter summary judgment

for the moving party.”) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986)). Plaintiffs fail to provide evidence sufficient to illustrate a genuine issue of

material fact regarding whether Defendants violated Thomas’ constitutional

rights—let alone any “clearly established” rights of the sort that might overcome

Defendants’ qualified-immunity defense3—and we must therefore grant

Defendants qualified immunity as to Plaintiffs’ federal claims. 4


3
  Seeking to satisfy qualified immunity’s clearly-established prong, Plaintiffs rely primarily on
two cases: Lancaster v. Monroe County, Ala., 116 F.3d 1419 (11th Cir. 1997), and Bozeman v.
Orum, 422 F.3d 1265 (11th Cir. 2005). But these cases involve starkly different facts from those
here. In Lancaster there was virtually no doubt that the defendant prison guards knew that the
deceased inmate was going to suffer a seizure; the inmate himself and his parents conveyed this
information to the defendants repeatedly, and the defendants nevertheless ignored their warnings.
116 F.3d at 1420-23. Here, by contrast, Plaintiffs fail to show that Defendants had any warning
regarding Thomas’ condition prior to the Signal 17, let alone that they ignored them. And
Bozeman is perhaps even further afield. There, “the officers knew [the inmate] was unconscious
and not breathing and—for fourteen minutes—did nothing. They did not check [the inmate’s]
breathing or pulse; they did not administer CPR; they did not summon medical help.” 422 F.3d
at 1274. Here, in contrast, the record demonstrates that Defendants responded to Thomas as
soon as they were aware of his condition. Accordingly, even if we were to conclude that
Plaintiffs had shown a constitutional violation—we conclude that they have not—we would be
constrained to hold that they have failed to show the sort of clearly established law that would
suffice to defeat Defendants’ qualified-immunity defense.
4
  In addition to the claims against the individual defendants just discussed, Plaintiffs also brought
claims under 42 U.S.C. § 1983 against the City of Jacksonville and Sheriff Rutherford. Neither
claim can succeed. “[T]o impose § 1983 liability on a municipality, a plaintiff must show: (1)
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                                                  B

       Plaintiffs also bring a variety of state-law claims against Defendants. These

too lack merit.

       First, Plaintiffs bring wrongful-death claims against the City, the Sheriff, and

the individual defendants. A plaintiff must bring a wrongful-death action within

two years of the death, Fla. Stat. § 95.11(4)(d); Thomas died on July 30, 2010, and

Plaintiffs filed their claims on June 21, 2013, well over two years after Thomas’

death. A claimant must present his wrongful-death claim to the Florida

Department of Financial Services before bringing a claim, Fla. Stat. §

768.28(6)(a)(2), and although “[t]he statute of limitations for . . . wrongful death

actions is tolled for the period of time taken by the [DFS] or the appropriate agency

to deny the claim,” id. at (6)(d), “in wrongful death actions, the failure of the

Department of Financial Services or the appropriate agency to make final




that his constitutional rights were violated; (2) that the municipality had a custom or policy that
constituted deliberate indifference to that constitutional right; and (3) that the policy or custom
caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (citing City of
Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). Because Plaintiffs fail to show an
underlying constitutional violation, their claims against the City fail at the first step. But even if
Plaintiffs could satisfy this threshold requirement, they could not meet the other two because
while their arguments revolve around allegedly improper seizure-response policies, they failed to
offer evidence showing that Thomas actually suffered a seizure prior to receiving Zyprexa.
Plaintiffs’ claim against Sheriff Rutherford fails for similar reasons; not only do Plaintiffs fail to
establish the necessary “causal connection” between the Sheriff and Thomas’ death, Gray ex rel.
Alexander v. Bostic, 458 F.3d 1295 (11th Cir. 2006), but the “causal connection” that Plaintiffs
attempt to prove (once again) relies on the unsupported premise that Thomas suffered a seizure
prior to receiving Zyprexa.

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disposition of a claim within 90 days after it is filed shall be deemed a final denial

of the claim,” id. Even with the 90-day tolling period, Florida’s statute of

limitations bars Plaintiffs’ claim. Plaintiffs attempt to circumnavigate this

procedural obstacle by arguing that Defendants’ actions constitute an intentional

tort, which “may be commenced at any time,” Fla. Stat. § 95.11, but Plaintiffs

failed to allege any intentional torts, and, more importantly, the record supports no

such claim.

      Second, Plaintiffs allege that “[t]he City of Jacksonville and [the] Sheriff are

liable for negligent supervision, retention, and training of the CO Defendants.” Br.

of Appellant at 28. “Negligent supervision occurs when during the course of

employment, the employer becomes aware or should have become aware of

problems with an employee that indicated his unfitness, and the employer fails to

take further actions such as investigation, discharge, or reassignment.” Dep’t of

Envtl. Prot. v. Hardy, 907 So. 2d 655, 660 (Fla. Dist. Ct. App. 2005). But beyond

the subjective “aware[ness] of problems with an employee,” a successful

negligent-supervision claim has two constitutive elements: “[N]ot only must the

employer owe a duty to the plaintiff, but the breach of that duty must be the

proximate cause of the plaintiff’s harm.” Id. Plaintiffs here fail to offer evidence

of “harm” sufficient to survive summary judgment, and, as with their claims above,

thus fail to satisfy an essential element of their claim; simply assuming that

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Thomas was suffering a seizure when the COs first arrived and that their treatment

thus harmed Thomas—and providing no expert testimony to rebut Nurse

Singleton’s testimony to the contrary—doesn’t suffice.

      Third, Plaintiffs argue that “a genuine issue of material fact exists as to

whether the defendants are liable for intentional or negligent delay in summoning

medical care.” Br. of Appellant at 32. To support this claim, Plaintiffs assert that

Defendants were likely aware of Thomas’ symptoms during the evening preceding

his death. The only evidence that Plaintiffs cite to support this contention,

however, is testimony from Jalynne Santiago—one of the plaintiffs in this case—

which relies on inadmissible hearsay. Plaintiffs rejoin that “[e]ven if, as asserted

by the Defendants, the CO Defendants were not alerted about Mr. Thomas’

difficulty breathing,” the 40- to 45-minute delay between the Signal 17 initially

sounding and the medical staff reporting Thomas’ vitals “creates a genuine issue of

material fact on whether the CO Defendants provided timely treatment for Mr.

Thomas’ difficulty breathing.” Reply Br. at 29. As explained above, Plaintiffs’

fallback position amounts to little more than a conclusory, foundationless

allegation (and is belied by a record illustrating prompt medical attention).

      Plaintiffs wisely spend little time on their final state-law claim, in which

they allege that “a genuine issue of material fact exists as to whether the individual

defendants are liable for assault and battery.” Br. of Appellant at 35. To support

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their claim, Plaintiffs argue that “[t]he shot of Zyprexa, and the methods of

restraint used [i.e., the four-point restraint], involved nonconsensual and offensive

contact, which contributed to Mr. Thomas’ eventual death.” Id. But where, as

here, a plaintiff sues an “officer, employee, or agent of the state or any of its

subdivisions” in tort, more is required; the plaintiff must not only satisfy the tort’s

standard elements, but must also show that the “officer, employee, or agent acted

in bad faith or with malicious purpose or in a manner exhibiting wanton and willful

disregard of human rights, safety, or property.” Fla. Stat. § 768.28(9)(a). As with

many of their other arguments, Plaintiffs point to no record evidence supporting an

essential element of their allegation, and the claim therefore cannot survive.

                                          IV

      For the foregoing reasons, we AFFIRM.




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