[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-10020 NOVEMBER 9, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:08-cv-00328-EAJ
MARCELLA POURMOGHANI-ESFAHANI,
Plaintiff - Appellee,
versus
DAVID GEE, Sheriff of Hillsborough County, individually,
SHANNA MARSH, Hillsborough County Deputy, individually,
Defendants - Appellants,
JOHN DOES, Numbers 1 through 7, individually, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 9, 2010)
Before EDMONDSON, HILL, and ALARCON,* Circuit Judges.
PER CURIAM:
In this section 1983 case, Plaintiff-Appellee Marcella Pourmoghani-
Esfahani (“Plaintiff”) alleges that Defendant-Appellant Deputy Shanna Marsh
(“Defendant”) applied excessive force to Plaintiff and was deliberately indifferent
to her serious medical needs while Plaintiff was detained at the Hillsborough
County Jail in Tampa, Florida, in November 2006. On both constitutional claims,
the district court denied Defendant’s motion for summary judgment and qualified
immunity; we affirm the decision on the excessive-force claim but reverse on the
deliberate-indifference claim.
I. BACKGROUND
We review de novo the district court’s denial of summary judgment, and we
accept Plaintiff’s version of the facts drawing all justifiable inferences in
Plaintiff’s favor. See Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008).
*
Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
2
The parties dispute what happened between check-in at the jail and a later
physical struggle between Plaintiff and Defendant. The entire series of events was
recorded--without sound--on several closed-circuit video cameras placed
throughout the jail. Where the video obviously contradicts Plaintiff’s version of
the facts, we accept the video’s depiction instead of Plaintiff’s account. See Scott
v. Harris, 127 S. Ct. 1769, 1776 (2007) (“When opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.”). But the video is often not
obviously contradictory because it fails to convey spoken words or tone and
because it sometimes fails to provide an unobstructed view of the events. So, as
we must while reviewing the district court’s ruling on summary judgment, we have
credited Plaintiff’s version of the record evidence where no obviously
contradictory video evidence is available.1
Early on a morning in November 2006, Tampa Police Department officers
brought Plaintiff to the jail on outstanding warrants after a domestic-disturbance
1
Plaintiff argues that Defendant has only raised issues of evidentiary sufficiency and that
we have no jurisdiction to consider those matters on an interlocutory appeal. To the contrary, in
denying Defendant’s motion for summary judgment, the district court made a legal conclusion
that, based on Plaintiff’s version of the facts, Defendant violated federal law. We have
jurisdiction to review legal conclusions bearing on questions of immunity.
3
call. After some disagreements between Plaintiff and Defendant during the initial
minutes after Plaintiff’s arrival, the confrontation escalated rapidly and resulted in
a physical struggle between the two women on the waiting-room floor.
According to Plaintiff, while Plaintiff was seated in the jail waiting room,
Defendant initiated physical contact by grabbing Plaintiff by the arm and trying to
pull her up out of a waiting-room chair. Plaintiff clung to the chair’s arm for
support. Within seconds, Defendant succeeded in grabbing Plaintiff--including by
the hair--and flipped her to the ground. In those first few seconds on the floor,
Plaintiff reflexively clutched Defendant’s legs and grabbed at the area near
Defendant’s utility belt. Then, while Plaintiff was on her knees, Defendant hit her
three times on the back of the head with Defendant’s hand. Within seconds,
additional officers came to assist in subduing Plaintiff: a small group of officers
leaned over Plaintiff, who by that time had been restrained face downward on the
floor.
Then, while Plaintiff remained restrained on the floor, Plaintiff says that
Defendant grabbed Plaintiff’s head and slammed it to the floor seven to eight
times, causing cuts and bruises on her face and leaving a pool of blood on the
4
floor.2 The group of officers then lifted Plaintiff to her feet and led her away,
walking to a cell.
Plaintiff was placed into a cell with another female. Plaintiff walked to the
corner of the cell and slid down to a seated position on the floor.3 Within
approximately two minutes of Plaintiff’s arrival in the cell, a jail nurse entered the
cell to check on Plaintiff. After the nurse left, Defendant walked by Plaintiff’s cell
twice within the next approximately five minutes and observed her.
After Defendant left the cell area, Plaintiff’s cellmate at intervals tried to get
the guards’ attention: she knocked on the cell’s glass, waved her arm, and pointed
to Plaintiff. An officer responded within approximately four minutes; and within
two minutes after that response, a nurse returned to check on and to provide
medical care to Plaintiff. A second nurse and another male officer arrived
approximately two minutes later. During this period, Defendant returned to the
cell and oversaw events. According to the jail incident report in the record, as a
result of this second examination, the medical nurse determined that Plaintiff
2
Defendant denies that the face slammings occurred. The video does not establish
whether the slammings occurred and does not establish whether a pool of blood was on the floor.
3
Plaintiff says that she was unconscious and has no recollection of what transpired while
she was in the cell; she offers no independent account of the facts during this time and looks to
the videotape’s account of the events. So, we also look to the videotape evidence for the time
when Plaintiff was in the jail cell.
5
appeared to be “having symptoms of a possible overdose and had an apparent
seizure.” From the time a nurse saw Plaintiff on the second occasion, Plaintiff
received ongoing medical care for approximately fifteen minutes at the jail before
being transported to the hospital for evaluation.
The hospital’s medical records indicate that Plaintiff was found to have a
controlled nosebleed, a contusion to the forehead, and face abrasions. Plaintiff’s
physical exam indicated that she suffered “no obvious discomfort.” While there,
Plaintiff underwent clinical testing: her CT scan showed no brain hemorrhage or
skull fracture; but Plaintiff did test positive for marijuana and cocaine and had a
blood-alcohol level of .141. As a result of the testing, Plaintiff received no
stitches or other notable treatment--just Motrin--while she was at the hospital. At
discharge, Plaintiff’s medical records note that she had a pain score of 1 out of 10
and that her condition was “[i]mproved”; Plaintiff was released back to the jail
fourteen hours later.4
Plaintiff later filed a complaint in the district court. The judge granted
4
Plaintiff does not in her brief dispute the contents of the hospital medical records. But
Plaintiff does additionally rely on a professional neuropsychological assessment performed
seven-and-a-half months after the jail incident. The report states that Plaintiff “sustained
injuries” as a result of the jail incident and that the jail incident “may have exacerbated” her
neuropsychological difficulties. But the report also concluded that “poly-substance abuse, and
history of seizure disorder of unknown [origin] may be the primary or contributing factors to her
current deficits.”
6
Defendant summary judgment on some of Plaintiff’s claims but denied summary
judgment and qualified immunity to Defendant on these two constitutional claims.
II. DISCUSSION
A. EXCESSIVE FORCE
We affirm the denial of qualified immunity on the excessive-force claim.
We stress that we do not decide today that Defendant, in reality, used
unjustified or even unnecessary force. On this record (even with the video), we
cannot know. But, for the sake of this appeal, we have taken the “facts” as
Plaintiff asserts them. If we take her “facts” as true, we then accept that the force
that Defendant used was obviously--in the light of the preexisting law--beyond
what the Constitution would allow under the circumstances.
B. DELIBERATE INDIFFERENCE
Deliberate indifference to a detainee’s serious medical needs requires 1) an
objectively serious medical need and 2) a defendant who acted with deliberate
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indifference to that need. See Burnette, 533 F.3d at 1330. A “serious medical
need” is “one that is diagnosed by a physician as requiring treatment or one that is
so obvious that a lay person would recognize the need for medical treatment.” Id.
For liability, the defendant must 1) have subjective knowledge of a risk of serious
harm, 2) disregard that risk, and 3) display conduct beyond gross negligence. Id.
Deliberate indifference may result not only from failure to provide medical
care at all, but also from excessive delay: “Even where medical care is ultimately
provided, a prison official may nonetheless act with deliberate indifference by
delaying the treatment of serious medical needs.” McElligott v. Foley, 182 F.3d
1248, 1255 (11th Cir. 1999).
On the facts of this case--even when accepting Plaintiff’s version of the
facts as true--it is not possible to conclude that Defendant acted with deliberate
indifference to Plaintiff’s medical needs. On the question of medical needs, that
Defendant disregarded a risk of serious harm to Plaintiff or displayed conduct
beyond gross negligence is not borne out by this record.
To the contrary, Plaintiff received reasonably prompt medical attention.
Directly after their struggle, Defendant dispatched Plaintiff to her cell; a nurse saw
Plaintiff within approximately two minutes of Plaintiff’s arrival there.
After this initial evaluation by a nurse, Defendant was informed that
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Plaintiff had a possible nose injury (but not that it was broken): this report gave
Defendant no subjective notice of a medical emergency exceeding the capabilities
of the jail nurses or that required a different course of action than the one
Defendant actually took. Two minutes after the nurse’s initial check, Defendant
observed Plaintiff in her cell while Defendant completed paperwork posted on the
exterior of Plaintiff’s cell and on an adjacent cell. During this time, the video
shows Plaintiff sitting on the cell floor apparently resting or asleep but not
obviously in distress; Defendant was presented with no reason to perceive a
serious medical need. Neither Plaintiff nor her cellmate sought Defendant’s
attention at that time.
When Plaintiff’s cellmate later did signal for help, the response--again--
occurred promptly. A nurse and an officer attended to Plaintiff within
approximately five minutes of the cellmate’s first attempts to signal for help.
Nothing indicates that Defendant ignored the cellmate’s signals. And once
someone did recognize the cellmate’s signals for help, the jail nurse promptly
returned; Plaintiff then received continuous medical care until she was taken to the
hospital.
The medical treatment that Plaintiff received will support no conclusion of
deliberate indifference by Defendant. The term “delay” hardly seems to fit the
9
facts at all; but to the extent that one could call the time involved in this case
“delay,” it was only a matter of minutes. Cf. Brown v. Hughes, 894 F.2d 1533,
1538-39 (11th Cir. 1990) (finding deliberate indifference where inmate with a
broken foot was delayed treatment for a few hours); Aldridge v. Montgomery, 753
F.2d 970, 972-73 (11th Cir. 1985) (finding deliberate indifference where inmate
had bleeding cut under his eye with treatment delayed for two and a half hours).
Plaintiff contends that Defendant should have immediately sent Plaintiff to
the hospital after the alleged face slammings, that is, should have totally skipped
over the jail nurses’ care. But Plaintiff has pointed to no evidence in the record
that Defendant possessed subjective knowledge of a medical need that required
something more drastic than first being promptly checked by the jail’s nurse. And
when, during the second examination, a nurse suspected that Plaintiff had
symptoms of a possible overdose and seizure, an ambulance arrived shortly
thereafter to take Plaintiff to the hospital. Even if this information indicates that
Plaintiff had a serious medical need--as Defendant concedes it does--it does not
indicate that Defendant disregarded a risk of serious harm to Plaintiff or displayed
conduct beyond (or conduct even approaching) gross negligence.
As a result, we must reverse the district court’s decision and conclude that
Defendant is entitled to summary judgment on the claim for deliberate indifference
10
to a serious medical need.
Even if a constitutional violation based on deliberate indifference was
shown, Defendant is entitled to qualified immunity. Questions of deliberate
indifference to medical needs based on claims of delay are complicated questions
because the answer is tied to the combination of many facts; a change in even one
fact from a precedent may be significant enough to make it debatable among
objectively reasonable officers whether the precedent might not control in the
circumstances later facing an officer. No preexisting law clearly established that
an approximately two-to-five-minute delay of medical care--either while Plaintiff
moved from the waiting room to her cell or then while the cellmate waited for a
guard to respond to her signaling--is a constitutional violation, especially with
facts like this case.5
Plaintiff acknowledges that no precedent supports her position but still
contends that the law was, at the pertinent time, already clearly established
because the violation was so obvious that every objectively reasonable officer in
Defendant’s position would have known that what Defendant did following the
struggle was not enough. See generally Lee v. Ferraro, 284 F.3d 1188, 1198-99
5
The district court referenced a delay of 12 minutes (the time between the nurse’s first
and second visits): under the preexisting law at the pertinent time, hardly a clear constitutional
violation given all the circumstances.
11
(11th Cir. 2002) (sometimes constitutional violation is clear even without case law
on point). The constitutional violation of deliberate indifference was not obvious
given the preexisting law, even if we are mistaken in concluding that the
Constitution’s prohibition of deliberate indifference was not violated at all.
III. CONCLUSION
The district court’s order denying summary judgment and qualified
immunity to Defendant on the excessive-force claim is AFFIRMED. But we do
not rule out today that Defendant might yet be due qualified immunity as the facts
become developed.6 The district court’s order denying summary judgment and
qualified immunity to Defendant on the claim for deliberate indifference to serious
medical needs is REVERSED.
AFFIRMED in part, REVERSED in part, and REMANDED.
6
For example, the district court may use special verdicts or written interrogatories to a
jury to resolve disputed facts before finally ruling on qualified immunity.
12