               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0137n.06

                                       Case No. 16-6027
                                                                                       FILED
                                                                                 Mar 03, 2017
                                                                             DEBORAH S. HUNT, Clerk
                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


ESTATE OF DUSTIN BARNWELL BY                       )
NEXT OF KIN S.C.B., A MINOR, BY NEXT               )
FRIEND SHASTA LASHAY GILMORE,                      )
                                                   )       ON APPEAL FROM THE UNITED
       Plaintiff-Appellee,                         )       STATES DISTRICT COURT FOR
                                                   )       THE EASTERN DISTRICT OF
v.                                                 )       TENNESSEE
                                                   )
MITCH GRIGSBY; RICHARD                             )
STOOKSBURY; DAVID RANDLE;                          )
ROBERT COOKER, in their individual and             )
official capacities,                               )
                                                   )
       Defendants-Appellants.                      )


       BEFORE: COLE, Chief Judge; COOK and WHITE, Circuit Judges.

       COOK, Circuit Judge. After taking eight prescription muscle relaxant pills, Dustin

Barnwell lost consciousness for several hours. In the course of attending to Barnwell, police

officers and paramedics administered succinylcholine, a drug that paralyzes the body, including

the muscles used to breathe. After a failed intubation attempt, Barnwell died. His estate sued the

officers and paramedics, alleging that administering succinylcholine constituted excessive force,

among other legal claims.

       The parties dispute a number of facts surrounding Barnwell’s death. Finding those

disputes genuine, the district court denied qualified immunity to the officers and paramedics on
Case No. 16-6027, Estate of Dustin Barnwell v. Grigsby, et al.


the excessive-force claim. It also denied qualified immunity on a “state-created-danger” theory

of liability.   The defendants appealed.      Because the defendants’ arguments for qualified

immunity on the excessive-force claim rely on their own disputed version of the facts, we

DISMISS that portion of their appeal for lack of jurisdiction. But since the district court erred as

a matter of law in applying the state-created-danger doctrine, we REVERSE the district court on

that aspect of its ruling. We REMAND for further proceedings consistent with this opinion.

                                                 I.

A. Factual Background

        On November 11, 2011, Barnwell, his fiancée Shasta Lashay Gilmore, and their

daughter, S.C.B., left their home to go to Walmart. On the way, Barnwell insisted that they visit

his friend, Aaron Sweat, so that he could get several pills of Flexeril, a prescription muscle

relaxant. The family arrived at Sweat’s house at around 4:30 or 5:00 p.m., and Sweat gave

Barnwell eight Flexeril pills. The family then proceeded to Walmart, where Barnwell started

feeling ill. Once they returned home, he began “walking unstead[ily]” before collapsing onto

their loveseat and passing out. When Gilmore directed S.C.B. to wake her father, he stirred,

vomited, and fell back asleep.

        By around 8:00 p.m., Barnwell still had not awakened. Concerned that he overdosed,

Gilmore called 9-1-1. She told the operator that Barnwell had consumed eight Flexeril pills, and

she requested an ambulance. She also said that when she tried to get him up off the couch, he

kept “wanting to fight” with her and was “very combat[ive].” During her deposition, Gilmore

explained that “[w]henever [she] pulled his legs off the couch to see if [she] could get a response,

he just pulled them back really fast.” She surmised that she “miscommunicated” Barnwell’s

combativeness to the 9-1-1 operator because her fiancé was not “swinging [at] or biting” her.


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         Officer Mitch Grigsby and Sergeant Richard Stooksbury of the Roane County Sheriff’s

Department arrived at Barnwell’s residence before the paramedics. They discovered Barnwell

lying unconscious on the loveseat. Gilmore advised them that Barnwell had taken eight Flexeril

pills, and she warned them that he was combative.

         The parties dispute what happened next.

         Sergeant Stooksbury attested that when he tried to wake Barnwell by shaking his foot, the

man “arose and immediately became combative by kicking.” In response, the officers grabbed

his arms to hold him down. Despite the two officers’ efforts, however, Barnwell kicked and

tried to bite them. The officers also attested that he went in and out of consciousness. Because

Barnwell was too difficult to control, the officers took him to the ground and pinned him on the

floor.

         Around this time, Roane County EMS paramedic David Randle arrived. He observed

Barnwell continuing to struggle with Sergeant Stooksbury and Officer Grigsby, and he asked the

officers to handcuff Barnwell so that he could insert an IV line. The officers cuffed Barnwell.

         Gilmore recalls these events differently. After they arrived, the officers were “rough with

[Barnwell],” so much so that she asked them to “please stop before [they] kill him.” She recalls

that whenever her fiancé tried to sit up, they pushed him back down by his throat and slammed

his legs down. She also remembers one of them grabbing Barnwell’s arms and saying, “I’ll

break your damn arm.” In her observation, her fiancé was not violently kicking or biting at the

officers—in fact, he was mostly unconscious during this period. Eventually, they flipped him off

the couch and had him lying on the floor, face-down. Gilmore testified that after the paramedics

arrived, one of the officers “looked straight at [her] and said, ‘We’re about to knock him out.’”




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The officers and paramedics were “talking.” As Randle began to administer medicine through

an IV line, one of the officers escorted her out of the house.

       Meanwhile, paramedic Randle reports observing that Barnwell’s heart rate was

abnormally fast, his breathing irregular, and his blood pressure highly elevated. Randle called

for a second paramedic unit. The second unit, including paramedic Robert Cooker, arrived

shortly thereafter. Upon learning that Barnwell had likely consumed eight Flexeril pills, the

paramedics concluded that he was overdosing and should be taken to a hospital as soon as

possible. They also determined that, as a result of Barnwell’s continued combativeness, they

needed to administer medications to control his involuntary movements and assist with breathing

and heart function.

       They decided to initiate Roane County’s Rapid Sequence Paralysis and Intubation

Protocol (RSI Protocol). The “Assessments and Indications” call for using the protocol on

patients who are “[s]everely combative” or patients for whom “[all] standard attempts to

establish an airway have failed.” To carry out the protocol, they administered succinylcholine, a

muscle relaxant that paralyzes muscles in less than a minute, including those used to breathe.

After achieving paralysis, Randle and Cooker intubated Barnwell—that is, placed a plastic tube

in his trachea to open his airway. Unfortunately, however, Barnwell began suffering cardiac

issues. While transporting Barnwell to the hospital, Cooker and Randle noticed brown fluid

leaching into the intubation tube. They removed the tube and began CPR. Barnwell died at the

hospital thirty minutes later.

       According to the autopsy report, excited delirium syndrome (EDS) following a Flexeril

overdose caused Barnwell’s death. EDS is a rarely observed phenomenon ordinarily associated




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with cocaine and methamphetamine consumption.                  Its symptoms include paranoia,

disorientation, tachycardia, and hyper-aggression.

       But Plaintiff’s expert, Dr. Steven Perlaky, considers it highly unlikely that Flexeril

caused Barnwell’s death. After reviewing Barnwell’s medical records and the EMS reports from

the evening, Dr. Perlaky concluded that the “succinylcholine delivered to Mr. Barnwell was

unnecessary” because Barnwell appeared to have been able to breathe on his own, as evidenced

by his “engag[ing] in acts that required normal breathing” (i.e., kicking at the officers). In Dr.

Perlaky’s view, Barnwell “died because the medics did not reverse the consequences of their

initial mistake, i.e., paralyzing the lungs of an ably breathing . . . man” and “they inserted the

breathing tube improperly” into Barnwell’s esophagus, not his trachea. In an affidavit he also

stated that “[t]here [was] no rational theory in the health sciences for paralyzing the lungs in this

situation.” He concluded “within a reasonable degree of medical certainty that the choice to

administer [succinylcholine] was made without any proper medical foundation.”

B. Procedural Background

       In November 2012, Gilmore filed a complaint on behalf of Barnwell’s estate and S.C.B.,

naming Officer Grigsby, Sergeant Stooksbury, paramedics Randle and Cooker, and Roane

County, Tennessee as defendants.        Relevant here, she pleaded 42 U.S.C. § 1983 claims,

contending that the officers’ and paramedics’ (1) restraint of Barnwell and (2) administration of

succinylcholine constituted excessive force. After discovery, the defendants filed a motion for

summary judgment on the § 1983 claims.             The individual defendants asserted qualified

immunity.

       The district court granted the motion in favor of Roane County. It also granted qualified

immunity to the officers and paramedics on the unlawful restraint claim. The district court


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reached a different conclusion, however, with respect to the officers’ and paramedics’ decision to

administer succinylcholine.    Gilmore had argued that giving Barnwell the drug constituted

excessive force and that it amounted to a “state-created-danger.” The district court determined

that genuine disputes of fact precluded summary judgment to the defendant officers and

paramedics under both theories. The officers and paramedics appealed.

                                                 II.

       The officers and paramedics assert they are entitled to qualified immunity for

administering succinylcholine to Barnwell. Yet in doing so, they challenge the district court’s

determination that genuine factual disputes bar summary judgment in their favor. Ordinarily,

appellate courts lack jurisdiction to consider interlocutory appeals involving fact-based

challenges to a district court’s denial of qualified immunity. See Johnson v. Jones, 515 U.S. 304,

319–20 (1995). As a result, we must assure ourselves that we possess jurisdiction to consider the

defendants’ arguments.

A. Legal Standards

       “Qualified immunity shields government officials from standing trial for civil liability in

their performance of discretionary functions unless their actions violate clearly established

rights.” Thompson v. City of Lebanon, Tenn., 831 F.3d 366, 369 (6th Cir. 2016) (citing Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). At the summary judgment stage, the plaintiff bears the

burden of overcoming a qualified-immunity defense—that is, of showing a genuine issue of fact

that the defendant violated a clearly established constitutional right. Id. (citations omitted).

A district court must deny summary judgment if it “determines that the plaintiff’s evidence

would reasonably support a jury’s finding that a defendant violated a clearly established right.”

Id. at 370 (quoting DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 609 (6th Cir. 2015)).


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       Although a summary judgment denial ordinarily does not qualify as a final (and thus

appealable) decision within the meaning of 28 U.S.C. § 1291, “a district court’s denial of a claim

of qualified immunity, to the extent that it turns on an issue of law,” falls within a limited

category of immediately appealable collateral orders. Mitchell v. Forsyth, 472 U.S. 511, 530

(1985) (emphasis added); see also Johnson, 515 U.S. at 311–12. “Yet when analyzing qualified

immunity on interlocutory appeal, our jurisdiction is quite narrow.” Everson v. Leis, 556 F.3d

484, 496 (6th Cir. 2009).

       Simply put, we “may review only ‘purely’ legal arguments.” McKenna v. City of Royal

Oak (“McKenna I”), 469 F.3d 559, 561 (6th Cir. 2006) (internal quotation mark omitted)

(quoting Estate of Bing v. Whitehall, 456 F.3d 555, 563 (6th Cir. 2006)). As a result, the

defendant officers and paramedics must concede Gilmore’s version of events. Baker v. Union

Twp., 587 F. App’x 229, 232 (6th Cir. 2014). Further, we lack jurisdiction to review “inferences

the district court draws from those facts.” Thompson, 831 F.3d at 370 (citing Romo v. Largen,

723 F.3d 670, 673–74 (6th Cir. 2013)).

       There is, however, one exception to the rule that appellate courts lack jurisdiction to

resolve fact-based disputes. If the district court’s factual determination is “blatantly contradicted

by the record,” Scott v. Harris, 550 U.S. 372, 380 (2007), we may consider the challenge.

But “[t]his ‘one limited exception’” applies “only ‘where the evidence is so utterly discredited by

the record as to be rendered a visible fiction.’” Kollin v. City of Cleveland, 557 F. App’x 396,

401 (6th Cir. 2014) (quoting Younes v. Pellerito, 739 F.3d 885, 889 (6th Cir. 2014)).




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B. The District Court’s Denial of Qualified Immunity to the Officer Defendants on the
   Excessive Force Claim

       In moving for summary judgment, Officer Grigsby and Sergeant Stooksbury argued that

their participation in administering succinylcholine was done in a medical capacity, not a law

enforcement capacity, entitling them to qualified immunity under Peete v. Metropolitan

Government of Nashville & Davidson County, 486 F.3d 217 (6th Cir. 2007). That case held that

“where the purpose [of defendant emergency responders] is to render solicited aid in an

emergency rather than to enforce the law, punish, deter, or incarcerate” there is no clearly

established “constitutional liability” under the Fourth Amendment. Id. at 221.

       The district court denied summary judgment on this ground, however, noting that, under

Gilmore’s version of the facts, a reasonable factfinder could conclude the defendants gave

Barnwell the drug to punish him or, at best, control his unruly behavior, and the drug-induced

paralysis was not based on any “patient-oriented rational theory of medicine.” Given Gilmore’s

allegations, the district court left it to the jury to decide whether the officers acted in a medical or

law enforcement capacity. In support, it cited McKenna v. Edgell (“McKenna II”), 617 F.3d 432,

441 (6th Cir. 2010), which elaborated upon Peete and held that, if in dispute, the “objective

determination of the role that [emergency responders] played [in the alleged violation]”—

whether they acted in a medical or law enforcement capacity—is “a jury question.” Id.

       On appeal, the officer defendants contest the summary judgment denial.                But their

arguments “rely on their own disputed version of the facts, not the facts as alleged by

[Gilmore].” McKenna I, 469 F.3d at 561.

       For instance, Officer Grigsby and Sergeant Stooksbury argue that they cannot be liable

for administering succinylcholine because they played no role in giving Barnwell the drug. But

the district court inferred the officers could have been involved in the decision. Challenging this

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inference constitutes a “prohibited fact-based appeal.” Thompson, 831 F.3d at 370. And to the

extent Officer Grigsby and Sergeant Stooksbury assert that the record blatantly contradicts the

inference, we disagree. Viewing the facts in the light most favorable to Gilmore, both officers

restrained Barnwell as he came in and out of consciousness and convulsed on the floor. They

conferred with the paramedics as the paramedics inserted an IV line. And one of the officers

exclaimed, “We’re about to knock him out,” as the other ushered Gilmore out of the room. The

inference that the officers were involved in the decision to “knock [Barnwell] out”—by

paralyzing him with succinylcholine—is not “so utterly discredited by the record as to be

rendered a visible fiction.” Kollin, 557 F. App’x at 401 (quoting Younes, 739 F.3d at 889).

         The officers also contend that the district court erred because it is “undisputed” they acted

in a medical-responder capacity, not a law-enforcement capacity. But factual questions about

their role pervade the record. The sequence of steps the officers took to restrain Barnwell

suggests that their purpose was to control his combativeness rather than treat him. The officers’

alleged aggressiveness in handling Barnwell could support the inference that they acted

punitively in “knock[ing] [him] out.” Absent facts rendering the district court’s determination a

“visible fiction,” we lack jurisdiction to upend its decision. Id. (quoting Younes, 739 F.3d at

889).1




         1
          The defendant officers also attack the district court’s inferences about their punitive
purpose by arguing that, in the Fourth Amendment context, “subjective intentions” do not matter.
The officers misconstrue the appropriate inquiry. Peete requires an “objective determination” of
a first responder’s “purpose” or role when assessing whether the Fourth Amendment has
application to their conduct. McKenna II, 617 F.3d at 440–41. Applying this framework, the
district court concluded that the officers’ purpose was in dispute. And objectively assessing the
officers’ conduct in the light most favorable to Gilmore, we conclude this inference is not
“utterly discredited by the record” for the reasons explained. Kollin, 557 F. App’x at 401
(quoting Younes, 739 F.3d at 889).
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       Finally, the officers assert that, even if there is a question of fact about their role in

administering succinylcholine, such conduct falls short of violating the Fourth Amendment. In

support, they say that the relevant conduct was not giving Barnwell the drug per se, but merely

assisting the EMS personnel in doing so. And in their view, they violated no clearly established

rights in performing this function.

       But this argument, too, relies on the officers’ own disputed account of the facts. Viewing

the record in the light most favorable to Gilmore, the officers did more than assist the paramedics

in rendering aid. They decided to “knock [Barnwell] out” using a paralytic drug without medical

necessity after already having restrained him facedown. If, as Gilmore alleges, the officers

encouraged the paramedics to shut down Barnwell’s respiratory function (i.e., apply deadly

force) for punitive reasons, such actions would almost certainly cross the Fourth Amendment’s

“objective reasonableness” line. See, e.g., Champion v. Outlook Nashville, Inc., 380 F.3d 893,

901–05 (6th Cir. 2004) (concluding that officers’ use of pepper spray and creation of

asphyxiating conditions against an autistic man after they had already handcuffed and hobbled

him was excessive and violated the man’s clearly established Fourth Amendment rights);

c.f. Thompson, 831 F.3d at 372 (“It is clearly established that using deadly force against a suspect

who does not pose a threat to anyone and is not committing a crime or attempting to evade arrest

violates the suspect’s Fourth Amendment rights.”).2

       Because the officers’ arguments rely on their own account of the events precipitating

Barnwell’s death, we dismiss this portion of the interlocutory appeal for lack of jurisdiction.




       2
          Indeed, the defendant officers essentially concede as much elsewhere in their brief,
noting it “likely true” that paralyzing an individual for punitive purposes “falls outside
constitutionally permissible behavior.”
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C. The District Court’s Denial of Qualified Immunity to the Paramedic Defendants on the
   Excessive Force Claim

       Like the officer defendants, paramedics Randle and Cooker argued for qualified

immunity at summary judgment based on Peete, asserting that they administered succinylcholine

in their capacity as medical responders and that use of the paralytic drug was medically

necessary. The district court, however, disagreed that the record undisputedly supported this

contention. Noting Dr. Perlaky’s statement that there was “no rational theory in the health

sciences for paralyzing the lungs in [Mr. Barnwell’s] situation,” it concluded that a genuine

dispute of fact barred it from granting them qualified immunity.

       On appeal, the paramedics’ arguments again rely on their contention that the RSI

Protocol—including giving Barnwell succinylcholine—was medically necessary. They say it is

undisputed that they followed the RSI Protocol “to the letter.” And they further assert that, since

Gilmore’s expert, Dr. Perlaky, conceded that the RSI protocol is reasonable, their decision to use

it must have been constitutional.

       But these arguments, like the defendant officers’, rely on a contested version of the facts.

Despite the paramedics’ representations, Gilmore proffered evidence undermining their

contention that they followed the RSI Protocol “to the letter.” For example, the paramedics

argue that Barnwell’s inability to breathe made use of the protocol appropriate. Yet Dr. Perlaky

testified that, given the paramedics’ own observations that Barnwell was combative, he doubted

whether they could have reasonably concluded that Barnwell’s airway was compromised. The

paramedics also say they needed to administer succinylcholine because Barnwell was severely

combative.    Gilmore’s deposition testimony, however, disputes this characterization of

Barnwell’s behavior.



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       And while it is true that Dr. Perlaky agreed the RSI Protocol “seem[ed] reasonable” as

written, he did not opine that its use on Barnwell was reasonable. In fact, he stated “within a

reasonable degree of certainty that the choice to administer [succinylcholine] was made without

any proper medical foundation.” The paramedics aim to poke holes in Dr. Perlaky’s statements,

calling them “stale” and “untested.” But witness credibility determinations are the trier-of-fact’s

to make, and as a result, this argument constitutes exactly the type of contention we lack

jurisdiction to consider on interlocutory appeal.       The paramedics also assail Dr. Perlaky’s

medical conclusions in other ways, citing proposed testimony in expert disclosures from three

different physicians. These expert disclosures, however, to the extent they impugn Dr. Perlaky’s

opinion, simply create more disputes of fact that lie outside our jurisdiction to review.

       Given the paramedics’ reliance on their own disputed version of the facts, we lack

jurisdiction to opine on their qualified immunity defense for the excessive force claim.

D. The State-Created-Danger Theory’s Application to This Case

       As noted, the district court also denied qualified immunity to the individual defendants

under Gilmore’s other asserted theory of liability: the state-created-danger doctrine.         The

defendants argue the doctrine is inapplicable to the types of harms Gilmore alleges. Because this

argument avoids relying on the defendants’ disputed version of the facts, we have jurisdiction to

review this aspect of their appeal. Thompson, 831 F.3d at 370 (citing DiLuzio, 796 F.3d at 610)

(noting that a court may “separate an appellant’s reviewable challenges from the unreviewable”).

Further, we agree with the defendants that the law forecloses any claim against them premised on

a state-created-danger theory.

       Governmental entities and officials have no general duty or “affirmative obligation” to

protect citizens from private harm. DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S.


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189, 195 (1989). There are, however, two exceptions to this rule: the “custody” or special

relationship exception, and the “state-created-danger” exception. See Willis v. Charter Twp. of

Emmett, 360 F. App’x 596, 599 (6th Cir. 2010) (citing Kallstrom v. City of Columbus, 136 F.3d

1055, 1066 (6th Cir. 1998)). Only the latter is at issue here. The state-created-danger exception

imposes liability on the government when it “exposes an individual to private acts of violence by

either creating danger or causing an individual to be more vulnerable to danger.” Id. at 600–01.

As this court has explained,

       To establish liability under this theory, a plaintiff must show: (1) affirmative acts
       by the state that “create or increase the risk that an individual will be exposed to
       private acts of violence;” (2) that the state’s actions placed the victim “specifically
       at risk, as distinguished from a risk that affects the public at large;” and (3) that
       the state knew or “clearly should have known that its actions specifically
       endangered an individual.”

Peete, 486 F.3d at 223 (emphasis added) (quoting Kallstrom, 136 F.3d at 1066). Accordingly, to

prevail on a claim under this doctrine, a plaintiff must show a governmental actor put the

plaintiff at risk for an injury committed by a private person. See Peete, 486 F.3d at 223; Willis,

360 F. App’x at 601; see also Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909, 921 (10th Cir.

2012); Pena v. DePrisco, 432 F.3d 98, 108–09 (2d Cir. 2005).

       Here, Gilmore alleges that the defendants administered succinylcholine to penalize

Barnwell, and that this drug caused his death. Thus, according to her, Barnwell suffered harm at

the hands of government defendants—the officers and paramedics—not private actors, obviating

the state-created-danger theory of liability. See, e.g., Peete, 486 F.3d at 223 (paramedics who

unintentionally asphyxiated man while restraining him during an epileptic seizure did not expose

man to private acts of violence as required to state a viable claim under the state-created-danger

theory).



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       We thus reverse this aspect of the district court’s denial of summary judgment to the

officer and paramedic defendants.

                                              III.

       We DISMISS for lack of jurisdiction those portions of the defendants’ appeal relating to

Gilmore’s excessive force claim.     We REVERSE the district court’s denial of summary

judgment to the defendants on the state-created-danger theory and REMAND for proceedings

consistent with this opinion.




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