Gerald R. Tlamka v. Otha Lee Serrell

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1648
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Gerald R. Tlamka, as special *
administrator for the estate of Frank *
J. Tlamka, deceased, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Otha Lee Serrell; Michael T. *
Lichtenfeld; Michelle D. Williams; *
Frank X. Hopkins; Harold W. *
Clarke, *
*
Appellees. *

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Submitted: October 23, 2000
Filed: March 23, 2001 (corrected 4/2/01)
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Before McMILLIAN, ROSS, and HANSEN, Circuit Judges.
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HANSEN, Circuit Judge.

Plaintiff, Gerald R. Tlamka, brings this action pursuant to 42 U.S.C. § 1983 on
behalf of his father's estate. Plaintiff's father, Frank J. Tlamka (Tlamka), was
incarcerated at the Nebraska State Penitentiary (NSP) from December 2, 1994, through
July 1, 1995, the date on which he suffered a heart attack and later died. Plaintiff
alleges that corrections officers Otha Serrell, Michael Lichtenfeld, and Michelle
Williams violated Tlamka's Eighth Amendment rights by deliberately refusing and
delaying emergency medical treatment during his heart attack. Plaintiff further claims
Frank Hopkins, NSP Warden, and Harold Clarke, Director of the Nebraska Department
of Correctional Services, failed to train the corrections officers, thus causing a
deprivation of Tlamka's constitutional rights. The district court granted summary
judgment in favor of all defendants, concluding they were entitled to qualified
immunity, and plaintiff now appeals. We affirm the district court's decision as to
Hopkins and Clarke but reverse and remand as to the claims against the corrections
officers.

I.

The record upon which the district court based its summary judgment ruling is
comprised almost entirely of affidavits by prisoners and corrections officers present at
the time Tlamka collapsed in the prison yard. From these accounts, we discern the
following facts relevant to whether defendants are entitled to summary judgment based
on qualified immunity. At approximately 1:00 p.m. on July 1, 1995, Tlamka suffered
a heart attack and collapsed in the NSP prison yard. A nearby inmate ran to notify a
corrections officer that he thought Tlamka was having a heart attack. Two other
inmates rushed to the unconscious Tlamka and attempted to locate his pulse. Unable
to find one and noting that Tlamka was turning bluish in color, the inmates immediately
began cardiopulmonary resuscitation (CPR). One of the inmates had previously
received CPR training, while a third inmate who was knowledgeable in proper CPR
techniques provided instruction. The inmates continued CPR for approximately one
to five minutes and began to see positive results--Tlamka regained a more normal color,
his eyes opened, and his chest began to heave as if he was struggling to catch his breath
on his own.

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 The affidavit accounts of what next transpired substantially conflict and differ.
According to the inmates, corrections officers Lichtenfeld, Williams, and Serrell arrived
on the scene, at which time Officer Serrell immediately ordered the inmates to cease
administering CPR.1 Despite the order, the inmates continued to perform CPR but
were again ordered by Serrell to cease and to clear the area. Upon the second order,
the inmates desisted reluctantly and with objection, both from the inmates performing
the CPR and from other inmates who had gathered at the scene. The inmate providing
the CPR instruction argued with the corrections officers that it was imperative that CPR
be continued.

Tlamka's condition deteriorated immediately after the inmates ceased CPR--as
one inmate describes, Tlamka again turned blue, and his chest began "hitching."
According to the inmates' sworn accounts, although Tlamka was in dire distress, none
of the corrections officers approached him to check his pulse nor did they continue the
CPR begun by the inmates. Sometime later, other corrections officers arrived with a
gurney to transport Tlamka to the turnkey area, located approximately 50 feet from
where he had collapsed, where a prison nurse was waiting to render aid. By the time
the gurney arrived, Tlamka had turned a darker shade of blue and purple. As he was
transported to the turnkey area, the officers walked at a normal pace and did not
provide Tlamka with any medical attention. Upon his arrival, the awaiting nurse
initiated CPR, which was continued until an ambulance arrived and transported Tlamka
to the local hospital. Tlamka never regained consciousness and later died at the
hospital.

1
The inmate accounts are not entirely consistent or clear on the sequence in
which Serrell, Lichtenfeld, and Williams arrived. In fact, inmate Rodney Porter
contends that Officer Lichtenfeld arrived first and issued the order to discontinue CPR;
the complaint alleges it was Serrell. Based on the inmate accounts, we find a
reasonable fact finder could infer that all three officers arrived on the scene either
together or shortly after the order was issued.
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 The inmates offer a range of estimates as to how long Tlamka went without CPR
after Serrell issued the order to the inmates to cease CPR. The consensus, as the
district court noted, is that a two- to five-minute delay occurred between issuance of
the order and the time when Tlamka reached the turnkey area where the nurse resumed
CPR. Inmate Rodney Porter contended in his affidavit that there was a ten-minute
delay during the same period. He also stated, as did the other inmates, that none of the
corrections officers performed CPR nor attempted to administer any other type of
medical attention to Tlamka prior to his arrival in the turnkey area.

Defendants offer affidavits from Serrell, Williams, and another corrections
officer in support of summary judgment. None denied in the affidavits that an order
was issued directing the inmates to cease CPR. Serrell contended, however, that
Lichtenfeld relieved one of the inmates who was performing CPR immediately after he
arrived on the scene. He also contended that CPR was continued as Tlamka was
transported to the turnkey area. In addition, the corrections officers' accounts of the
incident do not support inmate Porter's claim that 10 minutes passed before Tlamka
arrived in the turnkey area. Serrell, in particular, stated that approximately three
minutes passed from the time he arrived on the scene to the time Tlamka arrived in the
turnkey area.

Consequently, there are two important areas of factual dispute raised by the
dueling affidavits. Was the administration of CPR to Tlamka stopped by the officers,
and, if so, how much time did it take to get Tlamka to where the prison nurse could
tend to the emergency?

II.

The district court concluded in ruling on defendants' motion for summary
judgment that it was not clearly established at the time of Tlamka's heart attack that a
corrections officer may violate an inmate's Eighth Amendment rights by temporarily

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halting CPR. The court therefore granted summary judgment on qualified immunity
grounds. Plaintiff argues on appeal that the district court failed to view the record in
his favor and that the court's qualified immunity determination was erroneous. We
review de novo a district court's grant of qualified immunity on summary judgment.
Lambert v. City of Dumas, 187 F.3d 931, 935 (8th Cir. 1999). Summary judgment is
proper when there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c). In deciding whether defendants
are entitled to summary judgment, we view the summary judgment record in a light
most favorable to the plaintiff, the nonmoving party, affording him the benefit of all
reasonable inferences. Lambert, 187 F.3d at 934.

A.

Qualified immunity protects a governmental official from suit when his "conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known." Sexton v. Martin, 210 F.3d 905, 909 (8th Cir.
2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "What this means in
practice is that whether an official protected by qualified immunity may be held
personally liable for an allegedly unlawful official action generally turns on the
objective legal reasonableness of the action, assessed in light of the legal rules that
were clearly established at the time it was taken.'" Wilson v. Layne, 526 U.S. 603, 614
(1999) (internal quotations omitted). To determine whether an official is entitled to
qualified immunity, we apply a two-part inquiry: "whether the plaintiff has alleged the
deprivation of an actual constitutional right at all, and if so, . . . whether that right was
clearly established at the time of the alleged violation." Id. at 609 (quoting Conn v.
Gabbert, 526 U.S. 286, 290 (1999)); see also Sexton, 210 F.3d at 909. When applying
this inquiry at the summary judgment stage, the official's conduct must be viewed
through the prism of Rule 56--that is, we must take as true those facts asserted by
plaintiff that are properly supported in the record. See Behrens v. Pelletier, 516 U.S.
299, 309 (1996); see also Gregoire v. Class, No. 00-1255, 2000 WL 1880249, at *2

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(8th Cir. Dec. 29, 2000) ("[I]f there is a genuine dispute concerning predicate facts
material to the qualified immunity issue, there can be no summary judgment." (brackets
in original) (quoting Lambert, 187 F.3d at 935)). Once the predicate facts are
established, the reasonableness of the official's conduct under the circumstances is a
question of law. Pace v. City of Des Moines, 201 F.3d 1050, 1056 (8th Cir. 2000).

B.

We turn first to plaintiff's claims against Officers Serrell, Williams, and
Lichtenfeld. Before reaching the question of whether the district court correctly
determined that the law was not clearly established, we determine whether plaintiff has
set forth sufficient evidence to support a finding that the corrections officers violated
Tlamka's constitutional rights at all. The Eighth Amendment prohibits prison officials'
cruel and unusual punishment of inmates, and it has been interpreted as obligating
prison officials to provide medical care to inmates in their custody. See Estelle v.
Gamble, 429 U.S. 97, 102-03 (1976). An inmate's right to medical care is violated if
a prison official's conduct amounts to a "deliberate indifference to [the prisoner's]
serious medical needs." Dulany v. Carnahan, 132 F.3d 1234, 1237-38 (8th Cir. 1997)
(brackets in original) (quoting Estelle, 429 U.S. at 104). There is both an objective and
subjective component to a claim of deliberate indifference. A plaintiff must
demonstrate "(1) that [he] suffered objectively serious medical needs and (2) that the
prison officials actually knew of but deliberately disregarded those needs." Id. at 1239.

With this standard in mind, we conclude that plaintiff has presented sufficient
facts, viewing the record in the light we must, to establish an underlying violation of
Tlamka's Eighth Amendment rights. "It is well settled that an intentional delay in
obtaining medical care for a prisoner who needs it may be a violation of the eighth
amendment." Ruark v. Drury, 21 F.3d 213, 216 (8th Cir.), cert. denied, 513 U.S. 813
(1994). For delay to rise to an actionable Eighth Amendment violation, however, the
information available to the prison official must be such that a reasonable person would

6
know that the inmate requires medical attention, or the prison official's actions (or
inaction) must be so dangerous to the health or safety of the inmate that the official can
be presumed to have knowledge of a risk to the inmate. Id.

Based on the obvious and serious nature of Tlamka's condition, the corrections
officers' alleged failure to even approach Tlamka during the maximum 10-minute period
would rise to a showing of deliberate indifference. None of the parties dispute that
Tlamka's medical condition was objectively serious nor that it was obvious to those
present at the scene that his condition was life threatening. Nevertheless, according to
the plaintiff's witnesses, the corrections officers failed to provide CPR or approach
Tlamka for a period of 10 minutes (albeit that time estimate is provided by only one
inmate) even though all three officers were trained to provide CPR.2 The officers'
alleged inaction occurred even though they were presumably aware that Tlamka had
been responding favorably to the CPR provided by the inmates, and an inmate told
them that it was essential that CPR be continued under the circumstances. This alleged
failure to act given the patent nature of Tlamka's condition, considering the corrections
officers' ability to provide CPR, is conduct sufficiently severe to evidence an Eighth
Amendment violation.3 See Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000)

2
Defendants' counsel conceded at oral argument that the three officers received
CPR instruction, and Warden Hopkins stated in his affidavit that all corrections officers
receive CPR instruction as part of their initial training. The training is updated as
necessary by an NSP training specialist. In addition, NSP regulations specifically
provided at the time of Tlamka's heart attack that at least one on-duty corrections
officer was to be trained in basic life-support measures and was to respond to the scene
of any medical emergency immediately. (J.A. at 67.) Williams was the designated
responding officer on the day of Tlamka's heart attack.
3
The district court concluded that, at most, there was a five-minute delay in CPR
and that "[i]t [was] undisputed that these five crucial minutes were not idle time."
(Appellant's Add. at 8.) We respectfully disagree with the district court's view of the
record because it appears to overlook the affidavit of inmate Rodney Porter and the
reasonable inferences to be drawn from it, and the affidavits of other inmates who
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(observing that sufficiently harmful omissions in medical care are sufficient to evidence
deliberate indifference). The record contains no explanation for the purported delay in
CPR, and thus, under the facts as presented on summary judgment, we cannot say that
as a matter of law the officers were not deliberately indifferent in responding to
Tlamka's heart attack.4 Cf. Curry v. Crist, 226 F.3d 974, 977 (8th Cir. 2000)
(recognizing that a prison official is entitled to qualified immunity if he knew of a
substantial risk of harm to inmate health or safety but responded reasonably to the risk,
even though harm was not ultimately averted).

We are somewhat wary of inmate Porter's allegation that the delay was 10
minutes long and of the almost unthinkable suggestion that the officers were doing
nothing to assist Tlamka during that time. At this stage of the litigation, however, we
must accept the facts as recited in the affidavits filed by the prisoners as true. See
Grossman v. Dillard Dep't Stores, Inc., 47 F.3d 969, 971 (8th Cir. 1995) ("We may
neither weigh evidence nor make credibility determinations at the summary judgment
stage."). We therefore conclude that plaintiff has met his burden of establishing a
genuine issue of material fact as to whether the corrections officers knew of and were
deliberately indifferent to Tlamka's medical needs. See Yellow Horse v. Pennington
County, 225 F.3d 923, 927 (8th Cir. 2000) (stating that when qualified immunity is
claimed, it is a plaintiff's burden to show that a question of fact precludes summary
judgment).

Having concluded that plaintiff's complaint and his untested evidence states and
supports a valid Eighth Amendment violation against the corrections officers, we

claimed the officers provided no assistance during the period CPR was interrupted.
4
One of the corrections officers stated in his affidavit that a decision was made
to transport Tlamka to the turnkey area because inmates were crowding the yard area,
creating a security risk. Even so, there is no explanation for why the officers present
offered no aid prior to transporting Tlamka.
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address whether it was one of clearly established law. To be clearly established the
"contours of the right [allegedly violated] must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right." Buckley v.
Rogerson, 133 F.3d 1125, 1128 (8th Cir. 1998) (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)). "The official is not required to guess the direction of future
legal decisions, Mitchell v. Forsyth, 472 U.S. 511, 535, 105 S. Ct. 2806, 2820, 86 L.
Ed. 2d 411 (1985), but may rely on preexisting case law for guidance." Buckley, 133
F.3d at 1128. Our circuit subscribes to a "broad view" of what constitutes clearly
established law; "[i]n the absence of binding precedent, a court should look to all
available decisional law, including decisions of state courts, other circuits and district
courts." Id. at 1129 (quoting Norfleet v. Ark. Dep't of Human Servs., 989 F.2d 289,
291 (8th Cir. 1993)).

We are unaware of any decisions involving facts similar to those presented in
this case, but that is not dispositive of our inquiry. At the time of Tlamka's heart attack,
as we discussed previously, the law in this circuit was settled that an intentional delay
in obtaining medical care for an inmate could give rise to a violation. See Ruark, 21
F.3d at 216;5 cf. Lancaster v. Monroe County, 116 F.3d 1419, 1425 (11th Cir. 1997)
("The case law also had clearly established before this case arose that an official acts
with deliberate indifference when he intentionally delays providing an inmate with
access to medical treatment, knowing that the inmate has a life-threatening condition

5
Defendants argue the district court correctly concluded that the officers' conduct
did not violate clearly established law based on this circuit's decision in Ruark. In
Ruark, the court affirmed the trial court's holding that a 20-minute delay in calling an
ambulance, without more, was insufficient to give rise to a claim of deliberate
indifference. 21 F.3d at 217-18. This case is distinguishable from Ruark because there
is no explanation for the officers' alleged failure to render aid to Tlamka during the
delay. There was evidence in Ruark, in contrast, establishing that the jailors were
unaware of the serious nature of the inmate's condition and that they had no knowledge
their delay risked harm to the inmate. Id. at 216.
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or an urgent medical condition that would be exacerbated by delay." (citing cases from
1994 or earlier)). While the determination of whether that delay is constitutionally
actionable depends on the seriousness of an inmate's medical condition and on the
reason for the delay, Harris v. Coweta County, 21 F.3d 388, 393-94 (11th Cir. 1994),
we conclude that under the facts we are presented with in this summary judgment
appeal, any reasonable officer would have known that delaying Tlamka's emergency
medical treatment for 10 minutes, with no good or apparent explanation for the delay,
would have risen to an Eighth Amendment violation. Plaintiff's factual assertions, in
our view, if proven to be true, would constitute a quintessential case of deliberate
indifference to serious medical needs.

C.

Plaintiff also seeks to hold Hopkins and Clarke liable for the alleged deprivation
of Tlamka's medical care on a failure-to-train theory. The district court granted
summary judgment on the claim, concluding as a matter of law that the two could not
be held liable absent an underlying violation of clearly established law by the
corrections officers. Although we reverse as to the corrections officers, Hopkins and
Clarke are entitled to summary judgment on their assertion of qualified immunity.

A supervisor may not be held liable under § 1983 for the constitutional violations
of a subordinate on a respondeat superior theory. Boyd v. Knox, 47 F.3d 966, 968 (8th
Cir. 1995). Rather, a supervisor's liability arises if:

he directly participates in a constitutional violation or if a failure to
properly supervise and train the offending employee caused a deprivation
of constitutional rights. The plaintiff must demonstrate that the supervisor
was deliberately indifferent to or tacitly authorized the offending acts.
This requires a showing that the supervisor had notice that the training
procedures and supervision were inadequate and likely to result in a
constitutional violation.

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Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996) (citations omitted). In this
case, plaintiff alleges the officers were inadequately trained to respond to Tlamka's
emergency, but the record is void of any facts which would have alerted Hopkins and
Clarke that the officers were inadequately trained. In fact, it is uncontroverted that all
NSP new hires are trained in CPR and that the training is updated as necessary. Based
on the record, no reasonable fact finder could conclude that Hopkins and Clarke
violated Tlamka's constitutional rights by failing to properly train the corrections
officers. See Davis v. Fulton County, 90 F.3d 1346, 1350 (8th Cir. 1996) ("The
non-moving party . . . may not rest upon mere denials or allegations in the pleadings,
but must set forth specific facts sufficient to raise a genuine issue for trial.").

III.

For these reasons, we affirm the district court's judgment as to Hopkins and
Clarke but reverse and remand the deliberate indifference claim against Serrell,
Lichtenfeld, and Williams for further proceedings consistent with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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