Kelson v. Clark

Case: 20-10764 Document: 00515904408 Page: 1 Date Filed: 06/17/2021

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit

FILED
June 17, 2021
No. 20-10764 Lyle W. Cayce
Clerk

Christopher Kelson; Dakota Kelson, and Estate of
Hirschell Fletcher, Jr.; Rylie Kimbrell; Estate of
Hirschell Fletcher, Jr.,

Plaintiffs—Appellees,

versus

Kyle Foster Clark, Firefighter; Brad Alan Cox, Firefighter,

Defendants—Appellants.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CV-3308

Before Wiener, Elrod, and Higginson, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
This interlocutory appeal arises out of the district court’s denial of
defendants Kyle Clark and Brad Cox’s motion to dismiss on the basis of
qualified immunity for claims of failure to treat and the wrongful death of
Hirschell Wayne Fletcher, Jr., who died from previously sustained head
trauma while in custody. We AFFIRM.
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No. 20-10764

I.
As alleged in the plaintiffs’ operative complaint, at approximately 5:30
p.m. on December 30, 2016, Hirschell Wayne Fletcher, Jr., who was
homeless and previously diagnosed with schizophrenia, was assaulted and
robbed outside a soup kitchen in Dallas, Texas. Shortly thereafter, Fletcher
was again assaulted—this time, a punch to the head—causing him to fall and
hit his head on a wall. Bystanders subsequently alerted Dallas Police Officer
George Morales to the incident. After briefly speaking to Fletcher, Morales
called two fellow officers as well as two Dallas Fire-Rescue paramedics, Kyle
Clark and Brad Cox, to the scene.
Fletcher told the officers and paramedics that he needed medical
attention for his head injuries, for which it is alleged that “[b]lood and
contusions from the beatings was [sic] patently visible.” However, “instead
of examining and treating him,” the officers and paramedics “began
harassing and openly laughing” at Fletcher for ten minutes as he sat on the
sidewalk in pain.1 It is further alleged that the police officers “assumed
Fletcher to be drunk,” but “made no investigation to determine whether
Fletcher was intoxicated.” 2
Fletcher was subsequently arrested, charged with public intoxication,
and taken to the Dallas Marshal’s Office and City Detention Center.
Fletcher continued to complain of his visible head injuries and need for

1
This interaction was also recorded on Officer Morales’s body and car cameras.
2
On appeal, plaintiffs say that Fletcher was “sober,” but this is not expressly
alleged in the operative complaint, which alleges only that “Defendants Morales, Todd,
and Morris assumed Fletcher to be drunk” and that they “made no investigation to
determine whether Fletcher was intoxicated before or after arresting and imprisoning
Fletcher and thereafter charging him for public intoxication . . . solely because he was
homeless and mentally ill.”

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No. 20-10764

medical attention to Officer Morales while in transit and again to the booking
officers upon arrival at the detention center.
Once booked, Fletcher lay underneath a mattress in his cell and was
allegedly ignored by the officers who passed by intermittently. The next
morning, at 5:00 a.m. on December 31, 2016, Fletcher was found
unresponsive in his cell and rushed to the hospital. He died shortly thereafter
due to a bleed caused by the head injuries he sustained the day before.
Allegedly, paramedics Clark and Cox later falsely stated in their
reports that they never had any contact with Fletcher on December 30, 2016,
to “cover up their egregious behavior.” Clark and Cox were subsequently
indicted in Dallas County state court for “falsifying their report stating that
Fletcher had been taken from the scene prior to their arrival.” 3
In December 2018, Fletcher’s estate and children subsequently filed
this suit for monetary damages pursuant to 42 U.S.C. § 1983 against the City
of Dallas, the individual Dallas police officers, the two paramedics (Clark and
Cox), and the individual detention facility employees. This interlocutory
appeal involves only the claims against paramedics Clark and Cox for failure
to treat in violation of the Fourteenth Amendment and a derivative wrongful
death claim.
On September 13, 2019, Clark and Cox moved to dismiss the two
claims against them on the basis of qualified immunity. On July 14, 2020, the

3
At the time of the operative complaint, Clark and Cox’s criminal cases were still
pending. Since then, plaintiffs assert that “Clark and Cox both pled guilty to the charges
for tampering with a government record,” and ask us to take judicial notice of those guilty
pleas. We need not do so here because it is enough at this stage to accept as true, as we
must, plaintiffs’ well-pleaded allegations that the paramedics were indicted for this
conduct.

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district court summarily denied their motion in a two-paragraph order. Clark
and Cox timely appealed the district court’s denial of qualified immunity. 4
II.
“[A] district court’s denial of a claim of qualified immunity, to the
extent that it turns on an issue of law, is an appealable ‘final decision’ within
the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final
judgment. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Consequently, we
have jurisdiction to review Clark and Cox’s interlocutory appeal of the
district court’s denial of qualified immunity under the collateral order
doctrine. Id.; Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).
We review the district court’s denial of Clark and Cox’s motion to
dismiss de novo. 5 McLin v. Ard, 866 F.3d 682, 688 (5th Cir. 2017). In doing
so, “we must accept all well-pleaded facts as true and draw all reasonable
inferences in favor of the nonmoving party.” Morgan v. Swanson, 659 F.3d
359, 370 (5th Cir. 2011) (en banc). However, we do not presume to be true

4
Clark and Cox are represented separately from the other defendants. The Dallas
police officers and detention facility employees also moved to dismiss the § 1983 claims
against them for failure to state a claim under Rule 12(b)(6), but they did not assert qualified
immunity. The district court denied this motion in the same order denying Clark and Cox’s
qualified immunity defense. Since then, on August 4, 2020, the remaining defendants
moved for summary judgment asserting, inter alia, qualified immunity. On October 6,
2020, the district court granted the parties’ joint request to stay the case pending this
court’s resolution of Clark and Cox’s interlocutory appeal, while noting that the City and
police officers’ motion for summary judgment remains pending.
5
Ordinarily “[d]istrict courts should state for the record the reasons for denying
immunity. We assume from the district court’s form dismissal, however, that it found that
disputed issues of material fact existed, which, if true, would constitute violations of clearly
established law by [Clark and Cox].” Morin v. Caire, 77 F.3d 116, 119 n.3 (5th Cir. 1996)
(citations omitted); accord Schaper v. City of Huntsville, 813 F.2d 709, 713 (5th Cir. 1987)
(“[D]istrict courts should state for the record, and for the benefit of the circuit court on
appeal, their reasons for denying immunity.”).

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“legal conclusions; mere ‘labels’; ‘[t]hreadbare recitals of the elements of a
cause of action’; ‘conclusory statements’; and ‘naked assertions devoid of
further factual enhancement.’” Id. (alteration in original) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). Though the complaint need not contain
“detailed factual allegations,” it must contain sufficient factual material that,
accepted as true, “allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)). “[O]f
course, a well-pleaded complaint may proceed even if it strikes a savvy judge
that actual proof of those facts is improbable.” Twombly, 550 U.S. at 556.
“When a defendant asserts a qualified-immunity defense in a motion
to dismiss, the court has an ‘obligation . . . to carefully scrutinize [the
complaint] before subjecting public officials to the burdens of broad-reaching
discovery.’” Longoria v. San Benito Indep. Consol. Sch. Dist., 942 F.3d 258,
263–64 (5th Cir. 2019) (alterations in original) (quoting Jacquez v. Procunier,
801 F.2d 789, 791 (5th Cir. 1986)). “[A] plaintiff seeking to overcome
qualified immunity must plead specific facts that both allow the court to draw
the reasonable inference that the defendant is liable for the harm he has
alleged and that defeat a qualified immunity defense with equal specificity.”
Backe, 691 F.3d at 648. Courts are obligated to “implement a qualified
immunity defense ‘at the earliest possible stage of litigation,’” because
“qualified immunity means immunity from having to stand trial, not simply
immunity from monetary liability.” Westfall v. Luna, 903 F.3d 534, 542 (5th
Cir. 2018) (quoting Brown v. Glossip, 878 F.2d 871, 874 (5th Cir. 1989)).
“The doctrine of qualified immunity protects government officials
from civil damages liability when their actions could reasonably have been
believed to be legal.” Morgan, 659 F.3d at 370. “When a defendant invokes
qualified immunity, the burden is on the plaintiff to demonstrate the
inapplicability of the defense.” McClendon v. City of Columbia, 305 F.3d 314,

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323 (5th Cir. 2002) (en banc). The plaintiff must show “(1) that the official
violated a statutory or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Morgan, 659 F.3d at 371
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
III.
The plaintiffs primarily assert that paramedics Clark and Cox violated
Fletcher’s Fourteenth Amendment right when they failed to treat his visible
head wounds, which ultimately led to his death. See Hare v. City of Corinth,
74 F.3d 633, 645 (5th Cir. 1996) (en banc). Specifically, they claim that Clark
and Cox “were trained to provide medical care, they had a duty to assess and
render care to those in need, . . . and they breached that duty.”
“[P]retrial detainees have a constitutional right, under the Due
Process Clause of the Fourteenth Amendment, not to have their serious
medical needs met with deliberate indifference.” Thompson v. Upshur Cnty.,
245 F.3d 447, 457 (5th Cir. 2001) (citing, inter alia, Estelle v. Gamble, 429 U.S.
97, 103 (1976), and Hare, 74 F.3d at 636). “To succeed on a deliberate-
indifference claim, plaintiffs must show that (1) the official was ‘aware of
facts from which the inference could be drawn that a substantial risk of
serious harm exists,’ and (2) the official actually drew that inference.” Dyer
v. Houston, 964 F.3d 374, 380 (5th Cir. 2020) (quoting Domino v. Tex. Dep’t
of Crim. Just., 239 F.3d 752, 755 (5th Cir. 2001)).
“Deliberate indifference is an extremely high standard to meet.” Id.
(quoting Domino, 239 F.3d at 756). An official is not liable unless he “knows
of and disregards an excessive risk” to a plaintiff’s safety. Garza v. City of
Donna, 922 F.3d 626, 635 (5th Cir.) (quoting Farmer v. Brennan, 511 U.S. 825,
837 (1994)), cert. denied, 140 S. Ct. 651 (2019). However, “deliberate
indifference cannot be inferred merely from a negligent or even a grossly
negligent response to a substantial risk of serious harm.” Thompson, 245 F.3d

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at 459 (citing Hare, 74 F.3d at 649–50). Rather, “the plaintiff must show that
the officials ‘refused to treat him, ignored his complaints, intentionally
treated him incorrectly, or engaged in any similar conduct that would clearly
evince a wanton disregard for any serious medical needs.’” Domino, 239 F.3d
at 756 (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)); accord
Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006).
A.
As a threshold matter, the parties dispute whether plaintiffs
adequately allege that Fletcher was in police custody as an arrestee or pretrial
detainee. The parties agree that the paramedics’ obligations under the
Fourteenth Amendment began only once Fletcher was detained by the
police. However, Clark and Cox assert that the “pleadings fail to establish
that Fletcher was in custody at the time that Clark and Cox allegedly failed
to treat him.”
“After the initial incidents of a seizure have concluded and an
individual is being detained by police officials but has yet to be booked, an
arrestee’s right to medical attention, like that of a pretrial detainee, derives
from the Fourteenth Amendment.” Nerren v. Livingston Police Dep’t, 86 F.3d
469, 473 (5th Cir. 1996). In the Fourth Amendment context, “a seizure
occurs when, under the totality of the circumstances, a reasonable person
would have thought he was not free to leave.” Keller v. Fleming, 952 F.3d
216, 222 (5th Cir. 2020) (citing Michigan v. Chesternut, 486 U.S. 567, 572
(1988)). “Physical force is not required to effect a seizure; however, absent
physical force, ‘submission to the assertion of authority’ is necessary.”
McLin, 866 F.3d at 691 (quoting California v. Hodari D., 499 U.S. 621, 626
(1991)); accord Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968) (“Only when the
officer, by means of physical force or show of authority, has in some way

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restrained the liberty of a citizen may we conclude that a ‘seizure’ has
occurred.”).
Clark and Cox principally argue that the complaint does not allege that
Fletcher was physically restrained at the time they arrived on the scene, and
that after their alleged failure to treat Fletcher, he was “thereafter” arrested
and taken to the detention facility. Clark and Cox concede, as they must, that
“a reasonable person would not have thought that Fletcher was free to leave
once Fletcher was being transported to the City’s detention facility in Officer
Morales’ patrol car,” but that “prior to that point, Fletcher was neither an
arrestee nor pretrial detainee . . . [while] just sitting on the sidewalk talking
with the officers and paramedics.” By contrast, the plaintiffs argue that
Fletcher was detained earlier: he “submitted to police authority and
reasonably believed [he] was not free to leave [] while on the street before
being transported to the Detention Center.” 6
While we agree with Clark and Cox that the precise timeline of events
is underdeveloped, “detailed factual allegations” are not required at the
pleadings stage. See Iqbal, 556 U.S. at 678. Mindful of the standards
governing Clark and Cox’s motion to dismiss, and drawing all reasonable
inferences in favor of the nonmoving party, the plaintiffs have pleaded
sufficient factual material to allege that Fletcher was detained.
For example, by the time Clark and Cox arrived, the plaintiffs allege
that Officer Morales had already called two other police officers to the scene.
With the arrival of the two paramedics, the plaintiffs allege that Fletcher was
surrounded, and harassed, by five officers while he sat on the sidewalk.

6
Plaintiffs also assert on appeal that Fletcher was “intercepted and forced to sit on
the sidewalk.” We do not rely on these statements because they are not alleged in the
operative complaint.

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Fletcher was subsequently arrested, cited for public intoxication, and
transported to the detention facility.
Consequently, we agree with the plaintiffs that between when Clark
and Cox arrived and allegedly failed to treat Fletcher, but before he was
formally transported, a reasonable person in Fletcher’s position—
surrounded and confronted by five officers—may not have thought he was
free to leave, and was therefore detained. Clark and Cox’s alternative
argument rests on an overly narrow reading of the operative complaint and
an undue reliance on the word “thereafter.”
B.
Next, we consider whether the plaintiffs sufficiently allege that
Fletcher’s constitutional rights were violated. The parties do not dispute
that pretrial detainees have a Fourteenth Amendment right to medical care.
See Hare, 74 F.3d at 645; Thompson, 245 F.3d at 457; Dyer, 964 F.3d at 380.
Rather, we must determine whether the plaintiffs here adequately allege that
paramedics Clark and Cox acted with deliberate indifference in failing to treat
Fletcher.
After arriving on the scene, Clark and Cox allegedly failed to provide
any substantive treatment to Fletcher, despite “patently visible” “[b]lood
and contusions” and Fletcher’s repeated protestations of a head injury.
Contrary to Clark and Cox’s assertions, the paramedics were not “merely”
negligent in failing to provide “additional treatment,” or because they
provided an “incorrect diagnosis”—both of which our court has emphasized
are insufficient to establish deliberate indifference. See Dyer, 964 F.3d at 381;
Domino, 239 F.3d at 756. Here, the plaintiffs allege that the paramedics
entirely failed to treat Fletcher despite his protestations and visible head
injuries. To the extent Clark and Cox assert that they could not have been
expected to diagnose Fletcher’s internal bleeding, our court has emphasized

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that an “official’s knowledge of a substantial risk of harm may be inferred if
the risk was obvious.” Easter, 467 F.3d at 463–64 (distinguishing “mere
disagreement with the course of treatment” from allegations that nurse
refused to provide treatment to prisoner complaining of severe chest pain
after being informed of his history of cardiac problems, which “meets the
‘deliberate indifference’ threshold”).
Moreover, instead of treating or even evaluating the visible head
injuries, Clark and Cox allegedly mocked Fletcher and then, in an apparent
attempt to cover their tracks, allegedly lied in their official report about
interacting with Fletcher at all. Taken together, this is enough to allege that
the officials “refused to treat him,” “ignored his complaints,” and engaged
in conduct that “clearly evince[d] a wanton disregard for any serious medical
needs.” Domino, 239 F.3d at 756 (internal quotation marks and citation
omitted).
Clark and Cox’s contrary arguments are unavailing. They primarily
assert that Fletcher’s allegations are indistinguishable from Dyer v. Houston,
in which this court affirmed the paramedics’ motion to dismiss based on
qualified immunity. 964 F.3d at 380–81. We disagree.
In Dyer, the plaintiffs brought deliberate indifference claims against
the paramedics and officers following the death of their 18-year-old son,
Graham, who died in police custody. Id. at 377. When the paramedics arrived
on the scene, they examined Graham, who “had sustained a visible and
serious head injury,” and learned that he “had ingested LSD and was
incoherent and screaming . . . and was in a drug induced psychosis.” Id. at
377–78. Following the paramedics’ examinations, Graham was “walked to
the police car without resistance or struggle” and driven to jail. Id. at 378.
While being transported by the police officers (but not the paramedics),
Graham repeatedly bashed his head against the car over 40 times, and

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subsequently died as a result of the “extensive blunt force injuries to [his]
head and cranial hemorrhaging.” Id. at 379.
The Dyer plaintiffs claimed that the paramedics violated Graham’s
Fourteenth Amendment right because, “after examining Graham and
observing his head injury and drug-induced behavior,” they should have
provided additional care, such as sending Graham to the hospital, providing
further monitoring, or sedating him. Id. at 381. In affirming the district
court’s dismissal of these claims, this court held that the parents alleged “[a]t
most . . . that the Paramedics acted with negligence in not taking further steps
to treat Graham after examining him,” which is insufficient to support a
deliberate indifference claim. Id. Moreover, “the decision whether to
provide additional treatment is a classic example of a matter for medical
judgment, which fails to give rise to a deliberate-indifference claim.” Id.
(internal quotation marks and citations omitted).
As in Dyer, Clark and Cox assert that the plaintiffs here allege that the
paramedics failed to properly treat Fletcher or bring him to the hospital
despite being alerted that he suffered a serious head injury. But that is where
the similarities end. Unlike in Dyer, Clark and Cox’s alleged conduct
demonstrated that they had a greater awareness of Fletcher’s visible head
injuries—both allegedly in the moment and after the fact in their false
reporting—yet simultaneously they provided less treatment than the Dyer
paramedics. 7

7
On this point, our court’s reversal of the district court’s dismissal of the deliberate
indifference claims against the officers in Dyer v. Houston is also illustrative. Dyer, 964 F.3d
at 381. There, in reviewing the summary judgment record, we concluded that a reasonable
factfinder could find that the Dyer officers were aware that Graham, “in the grip of a drug-
induced psychosis, struck his head violently . . . over 40 times en route to jail and thereby
sustained severe head trauma,” yet “sought no medical care” for him, “[n]or did they alert
jail officers” of the incident. Id. at 381–82. Consequently, we held that “[a] reasonable

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Clark and Cox further attempt to minimize these allegations,
contending that “inappropriate comments and/or laughing are legally
irrelevant” to deliberate indifference claims. Not so. For example, in
affirming the officers’ motion for summary judgment on the deliberate
indifference claims in Aguirre v. City of San Antonio, 995 F.3d 395 (5th Cir.
2021), the court noted that an officer’s demeanor is relevant to determining
whether he subjectively disregarded a risk of serious harm. In that case, the
police’s dashcam videos showed that the officers surrounding Aguirre—who
was lying in a prone, “hog-tie-like” position, ultimately leading to his death
from asphyxiation—were “smiling and laughing” before an officer
attempted CPR. Id. at 403–04. However, the court emphasized that the
officers “quickly took on a sober aspect as Aguirre remained unresponsive,
which suggests their initial manner was the result of subjective unawareness
of the risk rather than knowledge of the risk and a deliberate choice not to
take any precautions against the realization of the danger’s fatal
consequences.” Id. at 421. 8
By contrast, the plaintiffs here allege that Clark, Cox, and the
surrounding officers harassed and laughed at Fletcher until he was
transported to the detention facility, all without any medical treatment. As

jury could find that Graham’s injuries—from which Graham would die within roughly 24
hours—were so severe, and their cause so plainly evident to the Officers, that the Officers
acted with deliberate indifference by failing to seek medical attention” and “failing to
inform jail personnel about [his] injuries.” Id.
8
Clark and Cox cite other inapposite authority for the proposition that an officer’s
threats or use of racial slurs are insufficient to sustain an excessive force claim, which are
not germane to plaintiffs’ allegations here. See Bender v. Brumley, 1 F.3d 271, 274 & n.4
(5th Cir. 1993) (“Mere allegations of verbal abuse do not present actionable claims under
§ 1983.” (citing McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983))).

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alleged, such conduct supports that the paramedics may have been both
subjectively aware of, and disregarded, Fletcher’s serious risk of injury. 9
C.
As to the second prong of qualified immunity, we consider whether
Fletcher’s constitutional rights were clearly established at the time plaintiffs
allege that he was denied treatment. Our analysis under this prong “asks
whether the detainee’s right to treatment for serious medical needs was
‘clearly established’ such that every ‘reasonable official would understand
that what [he] is doing violates that right.’” Baldwin v. Dorsey, 964 F.3d 320,
326 (5th Cir. 2020) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)),
cert. denied, 141 S. Ct. 1379 (2021). “To answer that question in the
affirmative, we must be able to point to controlling authority—or a ‘robust
consensus of persuasive authority’—that defines the contours of the right in
question with a high degree of particularity.” Morgan, 659 F.3d at 371–72
(quoting al-Kidd, 563 U.S. at 742); accord Mullenix v. Luna, 577 U.S. 7, 12
(2015) (“We do not require a case directly on point, but existing precedent
must have placed the statutory or constitutional question beyond debate.”
(quoting al–Kidd, 563 U.S. at 741)).
It is undisputed that, at the time Clark and Cox allegedly failed to treat
Fletcher, the law was clearly established that pretrial detainees have a
Fourteenth Amendment right to medical care. See, e.g., Hare, 74 F.3d at 645;
Thompson, 245 F.3d at 457; Dyer, 964 F.3d at 380; see also Jacobs v. W.
Feliciana Sheriff’s Dep’t, 228 F.3d 388, 393–94 (5th Cir. 2000). Nor is it
disputed that plaintiffs could demonstrate a violation of Fletcher’s

9
Clark and Cox also argue that plaintiffs’ derivative wrongful death claim should
be dismissed because the plaintiffs fail to allege a plausible failure to treat claim. Because
we conclude otherwise, Clark and Cox’s dismissal challenge to the wrongful death claim
likewise fails.

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constitutional rights by showing that an official “‘refused to treat him,
ignored his complaints, intentionally treated him incorrectly, or engaged in
any similar conduct that would clearly evince a wanton disregard for any
serious medical needs.’” Domino, 239 F.3d at 756 (quoting Johnson, 759 F.2d
at 1238); Easter, 467 F.3d at 464 (same).
Instead, Clark and Cox argue that clearly established law does not
require them to provide medical care to an individual who is “not a pretrial
detainee.” This is irrelevant; for the reasons previously stated, Fletcher was
allegedly detained at the relevant time. Alternatively, Clark and Cox contend
that the law does not require them to diagnose an “internal brain bleed that
was not observable to the naked eye.” But that mischaracterizes the
complaint, which alleges that the paramedics failed to treat Fletcher’s visible
head injuries at all.
IV.
For the foregoing reasons, the district court’s denial of Clark and
Cox’s motion to dismiss on the basis of qualified immunity is AFFIRMED.

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