NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0178n.06
Nos. 17-5792 / 17-5793
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JESSICA BARBERICK, Individually, as )
Administratrix of Estate of Frank Barberick, and as ) FILED
Mother and Next Friend of L.B., a minor, ) Apr 04, 2018
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. )
)
ON APPEAL FROM THE
PAUL HILMER, Florence Fire Department EMT, )
UNITED STATES DISTRICT
Individually; JOSHUA ELLISON, Florence Fire )
COURT FOR THE EASTERN
Department EMT, Individually; ROGER ALLEN, )
DISTRICT OF KENTUCKY
Florence Police Department Lieutenant, Individually, )
)
OPINION
Defendants, )
)
BRETT DOVER, Boone County Sheriff’s Office )
Deputy, Individually (No. 17-5792); MIKE )
STEWARD (No. 17-5793), )
)
Defendants-Appellants. )
BEFORE: COOK, McKEAGUE, and STRANCH, Circuit Judges.
PER CURIAM. Frank Barberick died of a drug overdose while in police custody. This
42 U.S.C. § 1983 suit was brought against three law enforcement officers and two Emergency
Medical Technicians (EMTs), alleging that each was deliberately indifferent to Barberick’s
serious medical need. Defendants Officer Mike Steward and Deputy Brett Dover were denied
qualified immunity and bring this appeal. Because the relevant law was not clearly established at
the time of the incident, we REVERSE.
Nos. 17-5792 / 17-5793
Barberick v. Hilmer
The following facts are taken from Plaintiff’s First Amended Complaint.
On November 16, 2015, Defendant Dover was dispatched to Frank Barberick’s home in
response to a 911 hang-up call. Dispatch notified Dover that a suicide attempt had occurred at
that address about two weeks prior. When he arrived at the home, Dover tried to determine what
had prompted the aborted 911 call, but Barberick and his mother gave conflicting reports.
Barberick’s mother told Dover that her son had swallowed either one or two handfuls of pills,
that he had previously attempted to commit suicide by drug overdose, and that she believed he
was attempting “the same thing” again. Barberick initially maintained that he had taken only the
prescription dosage of amitriptyline, a central nervous system depressant. He later admitted that
he had taken “maybe two or three” amitriptyline; some time after that, he added that he had also
taken Xanax. Barberick initially denied mixing pills with alcohol but later said that he had drunk
two or three beers. His mother told Dover that Barberick had been drinking vodka.
In the midst of gathering those conflicting reports, Dover radioed dispatch to relay
Barberick’s mother’s overdose concerns, adding that Barberick appeared “extremely
intoxicated.” Dover asked Barberick to go downstairs for an examination by an EMT, but
Barberick refused. Dover then arrested Barberick on an unrelated outstanding warrant and
handcuffed him.
At that point, Defendants Paul Hilmer and Joshua Ellison, both EMTs with the Florence
Fire Department, arrived with Defendant Steward. One of the EMTs checked Barberick’s pupils
by shining a flashlight in his eyes for seven seconds, concluded that Barberick had taken “no
narcotics,” and stated that Barberick was drunk. Dover, Steward, and one of the EMTs then
escorted Barberick, who was unable to walk under his own power, downstairs to put him in
Dover’s cruiser. The officers discussed whether the jail would accept Barberick in his condition
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Barberick v. Hilmer
and determined that Steward should be the one to transport Barberick to the Boone County
Detention Center. Due to Barberick’s declining condition, the officers struggled to transfer him
from Dover’s cruiser to Steward’s. A third officer, Lieutenant Roger Allen, laid Barberick
across Steward’s backseat with his feet in the passenger seat, and Steward then drove just over
six miles to the jail. On his way, he heard Barberick “snoozing or snoring” in the backseat.
Upon arrival, Steward and the assisting jail personnel opened the car door and realized Barberick
was unresponsive and not breathing. Efforts by jail personnel and paramedics to resuscitate him
failed. The autopsy listed Barberick’s cause of death as “combined drug intoxication.”
Barberick’s widow sued Dover, Steward, Allen, and both EMTs for deliberate
indifference to Barberick’s serious medical need. The district court granted Allen’s motion to
dismiss, but denied motions by Dover, Steward, and the EMTs. Dover and Steward appeal,
contending that they should be granted qualified immunity because they were entitled to rely on
the EMTs’ assessment that no medical treatment was necessary.
“When a defendant appeals the denial of a motion to dismiss based on qualified
immunity, we review de novo whether the complaint alleges violation of a clearly established
constitutional right. No heightened pleading requirement applies.” Heyne v. Metro. Nashville
Pub. Sch., 655 F.3d 556, 562 (6th Cir. 2011) (citations omitted). The complaint, read in the light
most favorable to the plaintiff, must plausibly allege that (1) the defendants’ acts violated a
constitutional right that (2) was clearly established at the time the acts were committed. Id. at
562–63. Courts may address either prong first, depending on the circumstances in the particular
case. Pearson v. Callahan, 555 U.S. 223, 236 (2009). In the instant case, we look first to
whether the constitutional right was clearly established.
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Nos. 17-5792 / 17-5793
Barberick v. Hilmer
“For a right to be clearly established, the contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that right.” Holzemer
v. City of Memphis, 621 F.3d 512, 527 (6th Cir. 2010) (quoting Leonard v. Robinson, 477 F.3d
347, 355 (6th Cir. 2007)). “We do not require a case directly on point, but existing precedent
must have placed the statutory or constitutional question beyond debate.” Mullenix v. Luna, 136
S. Ct. 305, 308 (2015) (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011)). The necessary,
existing precedent can be in the form of a case of “controlling authority or a robust consensus of
cases of persuasive authority.” Latits v. Phillips, 878 F.3d 541, 552 (6th Cir. 2017) (quoting
Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014)). As the Supreme Court has recently
emphasized, “‘clearly established law’ should not be defined ‘at a high level of generality.’”
White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (quoting Ashcroft, 563 U.S. at 742). To
the contrary, “the clearly established law must be ‘particularized’ to the facts of the case.” Id.
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “[G]eneral statements of the law are
not inherently incapable of giving fair and clear warning to officers, but in the light of pre-
existing law the unlawfulness must be apparent.” Id. (internal quotation marks and citations
omitted).
On this prong of the qualified immunity test, Plaintiff argues that three of our cases
clearly establish that an officer in Dover’s or Steward’s situation may be deliberately indifferent
if he blindly relies on a medical opinion: Phillips v. Roane County, 534 F.3d 531 (6th Cir. 2008),
Border v. Trumbull County Board of Commissioners, 414 F. App’x 831 (6th Cir. 2011), and
Smith v. County of Lenawee, 505 F. App’x 526 (6th Cir. 2012). We consider each case in turn.
In Phillips, we affirmed the denial of qualified immunity to corrections officers who were
aware of a detainee’s life-threatening symptoms (including collapses into unconsciousness, chest
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Nos. 17-5792 / 17-5793
Barberick v. Hilmer
pain, numbness, dizziness, and vomiting) over a period of two weeks, but did not call for
transportation to the hospital. 534 F.3d at 536–37. Phillips had been examined by a doctor
during the first week, but the doctor’s examination lasted only six minutes, and in the second
week, he did not follow up to confirm that an ordered urinalysis had been completed. Id. at 536.
Phillips then died of untreated diabetes. Id. at 536–37. The opinion does not address whether
the officers were entitled to rely on the doctor’s treatment of Phillips. Rather, we “f[ou]nd
persuasive the correctional officers’ disregard of prison protocols” that required the officers to
transport an inmate who complained of chest pain to an emergency room. Id. at 541. No
violation of protocols has been alleged in this case, nor did Barberick exhibit comparably serious
symptoms over an extended period of time subsequent to his medical examination. Thus,
Phillips is factually distinguishable and cannot be deemed to have put Defendants Dover and
Steward on notice that their reliance on the EMT’s assessment was unlawful.
In Border, we affirmed the denial of qualified immunity to a booking officer who was
likely aware that a detainee was under the influence of drugs but failed to seek satisfactory
medical care for him. 414 F. App’x at 839–40. The booking officer asked an unlicensed
medical assistant to treat a minor cut on Border’s head, but the officer never mentioned to the
assistant his suspicion concerning drugs, and the assistant performed no medical examination of
Border aside from cleaning and bandaging his head. Id. at 839. The officer therefore potentially
violated jail policies and procedures, which required an officer to contact medical personnel for
evaluation and treatment in any case involving suspected intoxication or drug overdose. Id. at
836. We held that the officer’s referral of Border to an unlicensed medical assistant did not
relieve the officer of potential liability because he had failed to alert the assistant to his suspicion
that Border had ingested drugs. Id. at 839. We therefore affirmed the denial of qualified
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Nos. 17-5792 / 17-5793
Barberick v. Hilmer
immunity because the evidence could potentially support a finding that the officer was aware of
facts from which the inference could be drawn that there was substantial risk of serious harm and
that the officer ignored that risk. Id. Unlike the detainee in Border, Barberick was examined by
a licensed EMT—an examination which Defendant Dover facilitated—for the specific purpose
of determining if he was drunk or using drugs. After the EMT concluded that Barberick was
drunk and did not need medical treatment, Defendants took action in reliance on this assessment.
Nothing in Border can be said to have given them fair and clear warning that it was unlawful to
do so. Thus, Border also does not help Plaintiff meet the clearly-established-law requirement.
In Smith, we affirmed the denial of qualified immunity as to certain corrections officers
who had been present during and immediately before a pretrial detainee’s alcohol-related death,
but reversed the denial as to other officers. 505 F. App’x at 529. The detainee’s alcohol
withdrawal symptoms—including agitation, hallucinations, and delusional and violent
behavior—worsened over the course of the weekend she was in jail until, on Sunday evening, an
officer moved her to a padded observation cell and called the jail doctor. Id. at 530. The doctor
replied that Smith, who had been prescribed Librium upon arrival at the jail on Friday night, was
“on good medicine” and that a nurse would examine her the next day. Id. at 529–30. Smith died
the next morning from a delirium tremens–induced seizure. Id. at 529. We determined that the
officers who were present before and during the call to the doctor, and for the rest of Sunday
night, were not deliberately indifferent to Smith’s medical need because they were aware of the
doctor’s opinion and followed the proper protocols. Id. at 533–34, 536. As to the three officers
who were present the morning Smith died, we held that qualified immunity was appropriate for
the rookie who, on her very first day of work, failed to detect the severity of the problem during
the thirty minutes she observed Smith. Id. at 535–36. We reached the opposite conclusion with
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Barberick v. Hilmer
regard to the shift commander who “encountered Smith in her last hour, at a time when she was
unresponsive and sweating profusely,” but did nothing. Id. at 534–35. We likewise affirmed the
denial of qualified immunity to the officer with fourteen years’ experience as an EMT who was
charged with monitoring Smith during her final hours but, in violation of jail policy requiring
monitoring every fifteen minutes, failed to check on Smith during a critical forty-minute period.
Id. at 536–37.
Smith simply affirms that an officer who seeks out the opinion of a doctor is generally
entitled to rely on a reasonably specific medical opinion for a reasonable period of time after it is
issued, absent circumstances such as the onset of new and alarming symptoms or a violation of
policy. Smith would therefore not have put Dover and Steward on notice that they were violating
Barberick’s constitutional rights. See Holzemer, 621 F.3d at 527.
Each of the cited cases involved circumstances such as a violation of protocol, the onset
of new symptoms, or the passage of time. Plaintiff has not identified controlling authority that
would make clear to an officer in Dover’s or Steward’s position that, absent such circumstances,
failure to seek out further medical assistance immediately after receiving an EMT evaluation
could constitute deliberate indifference. The law governing the asserted constitutional violation
was therefore not clearly established, and we REVERSE the district court’s decision denying
qualified immunity to Defendants Dover and Steward. The case is REMANDED to the district
court with instructions to dismiss the claims against Defendants Dover and Steward.
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