UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1644
HILARIE G. SCARBRO, Administratrix of the Estate of Gary
Eugene Rummer,
Plaintiff – Appellant,
v.
NEW HANOVER COUNTY; NEW HANOVER COUNTY SHERIFF’S DEPARTMENT;
NEW HANOVER COUNTY JAIL; SIDNEY A. CAUSEY, Individually and
in his capacity as Sheriff of New Hanover County; J.T.
LEONARD, Individually and in his official capacity as
detective of the New Hanover County Sheriff’s Department; E.
MORTON, Individually and in his official capacity as deputy
of the New Hanover County Sheriff’s Department; B.R. HUDSON,
Individually and in his official capacity as deputy of the
New Hanover Sheriff’s Department; T.L. FUSS, Individually
and in his official capacity as corporal of the New Hanover
County Sheriff’s Department; D.E. KEYES, Individually and in
his official capacity as deputy of the New Hanover County
Sheriff’s Department; MR. HANSEN, Individually and in his
official capacity as deputy of the New Hanover County
Sheriff’s Department; J.P. HATCH, Individually and in his
official capacity as sergeant of the New Hanover County
Sheriff’s Department; M. GRIMES, Individually and in his
official capacity as deputy of the New Hanover County
Sheriff’s Department; MR. WARD, Individually and in his
official capacity as deputy of the New Hanover County
Sheriff’s Department; S. JONES, Individually and in his
official capacity as deputy of the New Hanover County
Sheriff’s Department; W. THOMAS PARKER, Individually and in
his official capacity as chief deputy of the New Hanover
County Sheriff’s Department; CLARENCE A. HAYES, Individually
and in his official capacity as captain of the New Hanover
Sheriff’s Department; ANGELA GOEBEL, Deputy, Individually
and/or in her official capacity; DENNIS KUTROW, Deputy,
Individually and/or in his official capacity; DEPUTY DRAKOW,
Deputy Sheriff, individually and in his official capacity;
DEPUTY FRINK, Deputy Sheriff, individually and in his
official capacity,
Defendants – Appellees,
and
SUSAN BARFIELD, R. N., Individually and in her official
capacity; GAYSHERON BELL, Deputy, Individually and in her
official capacity as an employee of the New Hanover County
Health Department; NEW HANOVER COUNTY HEALTH DEPARTMENT;
JANET MCCUMBIE, Individually and in her official capacity as
Personal Health Director of the New Hanover County Health
Department; PENNY RAYNER, FNP, Individually and in her
official capacity; DAVID RICE, Individually and in his
official capacity as Health Director of the New Hanover
County Health Department,
Defendants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (7:03-cv-00244-FL)
Argued: December 1, 2009 Decided: April 1, 2010
Before KING and SHEDD, Circuit Judges, and John Preston BAILEY,
Chief United States District Judge for the Northern District of
West Virginia, sitting by designation.
Affirmed in part, reversed in part, and remanded by unpublished
opinion. Judge Shedd wrote the opinion, in which Judge King and
Judge Bailey joined.
John Dwight Hudson, HUDSON & GENTRY, LLC, Myrtle Beach, South
Carolina, for Appellant. James R. Morgan, Jr., WOMBLE, CARLYLE,
SANDRIDGE & RICE, PLLC, Winston-Salem, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
SHEDD, Circuit Judge:
Hilarie G. Scarbro, Administratrix of the Estate of Gary
Eugene Rummer, appeals the judgment entered in favor of the
defendants on her claims under 42 U.S.C. § 1983 for excessive
force, inadequate medical care, and conspiracy to deprive Rummer
of his constitutional rights. For the following reasons, we
affirm in part, but we reverse the district court’s order
granting summary judgment in favor of Defendant Deputy Billy Ray
Hudson on the inadequate medical care claim, and we remand for
further proceedings consistent with this opinion.
I.
A.
In reviewing the district court’s order granting summary
judgment to the defendants, we view the facts in the light most
favorable to the plaintiff. Scott v. Harris, 550 U.S. 372, 378
(2007). Gary Eugene Rummer was arrested and incarcerated for
failure to serve the community service portion of his sentence
for driving under the influence of alcohol. A few days after he
was incarcerated, Rummer began having delusions and summoned a
guard. After learning of Rummer’s alcohol addiction, the guard
determined that Rummer was suffering from delirium tremens
(“DTs”) caused by alcohol withdrawal and moved him to a
safekeeping cell for inmates who have medical or mental health
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issues or who are disruptive. Later that morning, Rummer was
taken to the medical unit where Nurse Barfield examined him and
treated him for DTs. Rummer was alert, oriented, and walking on
his own.
Upon his return to the crowded safekeeping cell, Rummer was
stumbling over the other inmates’ mats and bothering them. When
the other inmates complained, Deputy Billy Ray Hudson was
ordered to move Rummer to a padded cell. Officer Melody Grimes
accompanied Hudson and guarded the door to the safekeeping cell.
Hudson entered the room in a “bum rush.” He approached
Rummer and grabbed Rummer’s arm to handcuff him, but Rummer did
not cooperate. At that point, Hudson took him to the concrete
floor head-first from a standing position. Other inmates
recalled Rummer’s head hitting the floor with a thud and then
hearing Rummer give a “horrific” scream.
After the takedown, Rummer was bleeding from a scratch
above his eye. Because Rummer could not walk on his own, the
guards carried him to a padded cell where he laid moaning on the
cell floor. A supervising officer then decided to call the
medical unit, and after the medical staff refused to come to the
cell, Hudson and two other officers lifted Rummer into a
wheelchair and transported him to the medical unit.
Rummer’s condition had drastically changed since Nurse
Barfield first treated him for DTs hours earlier. He was no
4
longer lucid or talking coherently, his glasses were broken, and
he had urinated on himself. When Nurse Barfield asked Hudson if
Rummer had fallen, Hudson responded, “No, he did not fall,” and
failed to inform her of the takedown events. Unaware of Rummer’s
head injury, Nurse Barfield prescribed medication for DTs and
recommended that Rummer be transferred to Central Prison, a
larger facility where he could be monitored more closely.
Rummer was likely unconscious when he was transported to
Central Prison. When Central Prison staff observed Rummer’s
condition, they immediately sent him to Wake Medical Center.
There, Rummer’s CAT scan revealed a large acute subdural
hematoma. Rummer was pronounced dead after an unsuccessful
operation. According to Rummer’s physician, the most important
factor in treating this type of injury is the amount of time it
takes for the injured person to receive treatment.
An autopsy revealed that Rummer died from blunt force head
trauma and that he had also recently sustained a neck fracture
and a bruised right eyebrow. His injuries and rapid
deterioration are consistent with his being thrown to the ground
from a standing position and hitting his head.
B.
After Rummer’s death, Scarbro filed an action against
various members of the New Hanover County Sheriff’s Department
5
and the New Hanover County Health Department asserting claims of
excessive force, inadequate medical care, conspiracy, and
supervisor liability pursuant to 42 U.S.C. § 1983, and
supplemental state law claims of medical negligence and wrongful
death. 1 The district court dismissed Scarbro’s claims against
most of the defendants 2 and eventually granted summary judgment
in favor of the remaining defendants, including Hudson.
II.
Summary judgment is appropriate “if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). We review the district court's order
granting summary judgment de novo. Jennings v. Univ. of North
Carolina, 482 F.3d 686, 694 (4th Cir. 2007) (en banc). 3
1
Scarbro later filed another complaint that alleged
essentially identical claims against different parties. These
cases were thereafter consolidated.
2
Scarbro subsequently filed a stipulation of dismissal as
to her claims against other Health Department defendants.
3
Scarbro raises five issues on appeal, but only two merit
discussion. The plaintiff’s remaining arguments on appeal are
without merit. As to those issues, we affirm substantially on
the reasoning of the district court. Scarbro v. New Hanover
County, No. 7:03-CV-244-FL(1) (E.D.N.C. May 8, 2008).
6
A.
First, Scarbro argues that the district court erred in
granting Hudson summary judgment on the excessive force claim.
A pretrial detainee’s claim of excessive force is governed by
the Due Process Clause of the Fourteenth Amendment. Orem v.
Rephann, 523 F.3d 442, 446 (4th Cir. 2008). To succeed on such
a claim, the plaintiff must demonstrate that the defendant
“inflicted unnecessary and wanton pain and suffering” upon the
detainee. Whitley v. Albers, 475 U.S. 312, 320 (1986); Iko v.
Shreve, 535 F.3d 225, 239 (4th Cir. 2008). This determination
turns on whether the force was applied “in a good faith effort
to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.” Whitley,
475 U.S. at 320-21 (internal quotation marks omitted); Wilkins
v. Gaddy, ___ U.S. ____, 130 S.Ct. 1175 (2010) (describing this
as the “core judicial inquiry”). Moreover, we must accord due
deference to an officer’s efforts to restrain a detainee when
faced with a dynamic and potentially violent situation;
otherwise, “we would give encouragement to insubordination in an
environment which is already volatile enough.” Grayson v. Peed,
195 F.3d 692, 697 (4th Cir. 1999).
To the extent that there are differences in the witnesses’
testimony regarding how the takedown occurred, there is no
evidence suggesting that Hudson applied force in a malicious,
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wanton, or sadistic manner. When Hudson grabbed Rummer’s arm to
handcuff him, Rummer did not cooperate; Hudson then took Rummer
to the floor, which was covered by mats, and handcuffed him.
During the takedown, the mats covering the floor apparently
shifted, allowing Rummer’s head to hit the concrete floor.
However, this is not evidence that Hudson’s purpose was
malicious, sadistic or wanton. Therefore, we find that the
evidence fails to establish that Hudson used excessive force in
subduing Rummer. Accordingly, we affirm the district court’s
order granting summary judgment to Hudson as to Scarbro’s claim
of excessive force.
B.
Scarbro also argues that the district court erred in
granting Hudson summary judgment as to her inadequate medical
care claim. She challenges the district court’s finding that
there is no genuine issue of material fact as to whether Hudson
subjectively knew of Rummer’s serious medical need. 4
Scarbro bears the burden of establishing that Hudson’s
conduct constituted a constitutional violation. Henry v.
Purnell, 501 F.3d 374, 377 n.2 (4th Cir. 2007). The rights of a
4
The district court also stated that Hudson is entitled to
qualified immunity but, because it found no constitutional
violation, it did not fully analyze Hudson’s claim of qualified
immunity.
8
pretrial detainee complaining of inadequate medical care under
the Fourteenth Amendment “are at least as great as the Eighth
Amendment protections available to a convicted prisoner.” City
of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983).
To prevail on a claim of inadequate medical care, Scarbro must
produce evidence of acts or omissions sufficiently harmful to
constitute deliberate indifference to the inmate’s serious
medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
First, Scarbro must show that the injury was objectively
serious. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Then,
she must show that Hudson subjectively knew of Rummer’s serious
medical need. Id. at 834-35. A factfinder may infer that a
prison official knew of a substantial risk of harm from the fact
that the risk was obvious, id. at 842, or from the fact that the
inmate’s need for medical attention was “‘so obvious that even a
lay person would easily recognize the necessity for a doctor's
attention.’” Iko, 535 F.3d at 241 (citation omitted). Finally,
Scarbro must show that Hudson acted with deliberate indifference
to Rummer’s serious medical need. Farmer, 511 U.S. at 835. An
officer can be held liable for deliberate indifference only
where “the official knows of and disregards an excessive risk to
inmate health or safety.” Id. at 837; see Parrish ex rel. Lee
v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (citation
omitted) (“[T]he evidence must show that the official in
9
question subjectively recognized that his actions were
‘inappropriate in light of that risk.’”).
Turning to the facts at hand, we must first decide whether
Rummer suffered from an objectively serious medical condition.
Viewed in the light most favorable to Scarbro, Rummer hit the
concrete floor head-first, screamed out in excruciating pain,
and was bleeding above his eye. Rummer’s glasses were broken,
he had urinated on himself, he was unable to speak coherently,
and he was unable to walk. In view of this evidence, it is
clear that Rummer had an objectively serious medical need after
the takedown.
We now consider whether Hudson subjectively recognized
Rummer’s serious medical need. After taking Rummer to the
floor, Hudson observed that Rummer’s condition had seriously
deteriorated. Because the substantial risk of harm to Rummer
was so obvious, a jury could infer that Hudson knew that Rummer
had a serious medical need. See Farmer, 511 U.S. at 842.
Therefore, the district court erred in finding that Scarbro
failed to provide sufficient evidence to show that Hudson knew
that Rummer was at serious risk of head injury.
Finally, we turn to whether Hudson acted with deliberate
indifference toward Rummer’s serious medical need. Nurse
Barfield specifically asked Hudson if Rummer had fallen, and
Hudson told her that he had not. Further, Hudson did not inform
10
her how Rummer sustained his injuries or that he had used force
against Rummer. Nurse Barfield’s question should have alerted
Hudson to the importance of her knowing whether Rummer sustained
any physical impact, whether or not his fall was caused by use
of force. Nurse Barfield explained that if she had known about
the takedown, she would have treated Rummer for a head injury
(rather than for DTs) and immediately sent him to the Emergency
Room. Evidence of Hudson’s misrepresentation of critical
medical information requested by medical personnel is sufficient
to raise a reasonable inference that he recognized that his
response was inappropriate in light of Rummer’s serious medical
need. See Parrish ex rel. Lee, 372 F.3d at 303. Therefore, we
conclude that Scarbro provided sufficient evidence to raise a
genuine issue of material fact as to whether Hudson was
deliberately indifferent to Rummer’s serious medical need.
Having determined that there is sufficient evidence of a
constitutional violation as to the inadequate medical care
claim, we must now consider whether Hudson is entitled to
qualified immunity. See Pearson v. Callahan, 555 U.S. ____, 129
S.Ct. 808, 815-16 (2009). Qualified immunity is resolved using
a two-prong analysis: whether the plaintiff provided sufficient
facts to make out a constitutional violation and whether the
right at issue was clearly established at the time of the
alleged violation. Id. Having found that Scarbro has met her
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burden as to the first prong, we must now determine whether
Hudson’s alleged misconduct “violate[d] clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Hudson bears the burden proving that the right at issue
here was not clearly established. Henry, 501 F.3d at 378.
A right is clearly established where it has been
specifically identified so “as to leave no doubt that the
challenged action was unconstitutional.” Swanson v. Powers, 937
F.2d 965, 969 (4th Cir. 1991). “This is not to say that an
official action is protected by qualified immunity unless the
very action in question has previously been held unlawful; but
it is to say that in the light of pre-existing law the
unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730,
739 (2002) (internal quotation marks omitted). Thus, in
determining whether a right was clearly established, the key
issue is “whether it would be clear to a reasonable officer that
the conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 194-95.
We have denied qualified immunity to an officer who
transferred custody of a detainee to another officer without
informing the officer that the detainee was suicidal. See
Gordon, 971 F.2d at 1096-97. The misconduct in the instant case
is even more egregious than that in Gordon because Hudson
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misrepresented critical medical information that was
specifically asked for by medical personnel, and a reasonable
inference from this inquiry is that the requested information
was necessary to properly treat Rummer’s injuries. Unlike
Gordon, where the officer failed to offer information, Hudson
affirmatively misrepresented relevant medical information. No
reasonable officer could have believed, in light of clearly
established law, that such a misrepresentation was lawful under
these circumstances. Therefore, Hudson is not entitled to
qualified immunity.
III.
For the foregoing reasons, we affirm in part, reverse in
part, and remand for further proceedings consistent with this
opinion.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
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