John Wayne Lumley v. City of Dade City Florida, Michael Wilkes, Linda Leggett Register, Ray White

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
_____________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 10, 2003
No. 01-13794
THOMAS K. KAHN
_____________ CLERK

D.C. Docket No. 99-00070-CV-T-30-8

JOHN WAYNE LUMLEY,
Plaintiff-Counter
Defendant-Appellee,

versus

CITY OF DADE CITY, FLORIDA,
a municipal corporation, et al.,
Defendants,

MICHAEL WILKES,
Lieutenant for the Dade City Police
Deparment, in his individual capacity,
LINDA LEGGETT REGISTER,
Sergeant for Dade City Police Department,
in her individual capacity, et al.,
Defendants-Appellants,

RAY WHITE,
Detective for Dade City Police Department,
in his individual capaclity
Defendant-Counter-
Claimant-Appellant.
 ________________

No. 01-16126
________________
D. C. Docket No. 99-00070-CV-T-30B

JOHN WAYNE LUMLEY,
Plaintiff-Appellant,

versus

CITY OF DADE CITY FLORIDA, A Municipal Corporation,
PASCO COUNTY, FLORIDA, A Municipal Corporation,
LEE CANNON, Sheriff for Pasco County, in his
individual and official capacity,
PHILLIP THOMPSON, Chief of Police for Dade City
Police Department, in his individual and official
capacity,
MICHAEL WILKES, Lieutenant for the Dade City Police
Department, in his individual capacity, et. al.,

Defendants-Appellees.
____________

Appeals from the United States District Court
for the Middle District of Florida
____________
(April 10, 2003)

Before TJOFLAT, WILSON and COWEN*, Circuit Judges.

TJOFLAT, Circuit Judge:

____________________________________

* Honorable Robert E. Cowen, United States Circuit Judge of the Third Circuit, sitting by
designation.

2
 In this civil rights action, brought under 42 U.S.C. § 1983, the plaintiff

seeks money damages for the manner in which he was treated by law enforcement

officers when they arrested him for attempted murder, armed robbery, and

carjacking, and hospitalized him for the injuries he sustained while committing

these crimes. The district court, on summary judgment, rejected the officers’

defense of qualified immunity on the ground that their treatment of the plaintiff

violated clearly established constitutional standards.1 The officers now appeal.

Concluding that the officers did not violate the plaintiffs’ constitutional rights, we

reverse, and direct the district court to grant them judgment.

I.2

On January 3, 1995, John Wayne Lumley, the plaintiff, entered a Winn

Dixie store in Dade City, Florida, and shot a Wells Fargo guard from point blank

range.3 Lumley seized the bag of money in the guard’s possession, fled the store,

1
In the same order denying the defendants qualified immunity, the district court granted
the defendants summary judgment on the plaintiff’s Sixth Amendment right to the assistance-of-
counsel claim. As indicated in the text infra, the plaintiff appeals that interlocutory ruling under
28 U.S.C. § 1292(b). We have consolidated that appeal with the defendants’ appeal.
2
Because we are reviewing the disposition of a motion for summary judgment, we
consider the record in the light most favorable of the non-movant (here, the plaintiff), Lee v.
Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002), and recount the facts accordingly.
3
The Wells Fargo guard was wearing a protective vest, and was not seriously injured.

3
and ran across the parking lot, exchanging gunfire with another Wells Fargo

guard. Lumley eyed a woman getting into a pick up truck, pointed his gun at her

and ordered her to give him the keys; she complied without resistance. As Lumley

attempted to drive away in her truck, the Wells Fargo guard who had been shot

inside the store, emerged from the store, and fired his revolver at the truck. A

bullet went through the windshield and struck Lumley, entering the left side of his

face and lodging in his right jaw. Undeterred, Lumley proceeded to ram the Wells

Fargo armored truck, which was blocking his exit, and escape.

The Dade City Police Department investigated the crime, suspected that

Lumley was the culprit, and obtained a warrant for his arrest. On January 10,

1995, the Sheriff of Appling County, Georgia received a tip that Lumley was

staying at the home of his nephew in Baxley, Georgia, and, a short time later,

Lumley was apprehended. Because Lumley appeared to be seriously injured – he

still had the bullet in his jaw – the arresting officers took him to a local hospital.

The emergency room physician gave Lumley medicine to alleviate his pain and to

stem the infections developing in his wounds. The doctor informed the officers

that he was not competent to determine what should be done about the bullet in

Lumley’s jaw, and that a qualified physician was not readily available. Because

Lumley’s medical condition appeared to have been stabilized, the officers took

4
him to the Appling County Jail to await extradition to Florida.

On learning of Lumley’s apprehension, Lieutenant Michael Wilkes and

Detective Ray White of the Dade City Police Department traveled to Georgia to

interview Lumley.4 They arrived at the Appling County Jail on January 11, at

10:00 a.m. After Wilkes read him his Miranda rights, Lumley asked to see a

lawyer. Wilkes and White did not grant the request, but promptly left the jail. At

3:00 p.m. the same day, two Pasco County Sheriff’s deputies arrived. Lumley

waived extradition, and the deputies transported him to Florida, arriving in Pasco

County around 8:00 p.m. Instead of taking him to the Pasco County Detention

Center, however, the deputies – knowing that Lumley could not be accepted into

the detention facility with gunshot wounds to the head5 – delivered him to the East

Pasco Medical Center (EPMC) for evaluation. The Sheriff’s office contacted the

EPMC prior to their arrival to advise it of Lumley’s condition and request that a

physician qualified to treat Lumley’s wounds be on standby. Lumley was

4
In this opinion, we italicize the names of the law enforcement officers who are
appealing the district court’s rejection of their qualified immunity defense. The names of the
other individuals involved in Lumley’s arrest and his custody and medical treatment at the East
Pasco Medical Center appear in ordinary type because they were either not named as defendants
or were dismissed from the case with prejudice on Lumley’s motion.
5
Pasco County’s Rules of Department of Corrections, Chapter 33-8, provided that
“detention facilities shall not admit an unconscious person or a person who appears to be
seriously ill or injured. Any such person shall be afforded necessary medical attention prior to
admission.” This policy was in compliance with the American Corrections Association
accreditation standards.

5
admitted to the EPMC at 8:42 p.m.

The Pasco County Sheriff’s office regarded Lumley as “extremely

dangerous.” Twice he had been convicted of armed robbery,6 and twice he had

escaped from prison.7 In addition, the Sheriff’s office believed that Lumley had

some accomplices who might try to effect his escape. The Sheriff’s office

therefore decided to restrain him while in the EPMC. Deputies strapped him to his

hospital bed, guarded him round the clock, and prohibited all visitors,8 including

members of his family and lawyers from the Pasco County public defender’s

office. Deputies James Toner and Susan Anderson were the first to guard Lumley.

They were replaced by twenty deputies, who worked eight-hour shifts in teams of

two; the deputies included Benjamin Cooper and Joseph Savino.

Nurses attended to Lumley from the moment of his admission until he was

seen at noon the next day, January 12, by Dr. Tew Sak, an otolaryngologist.9 Dr.

6
In addition to these convictions for armed robbery, Lumley had been convicted of
several other crimes of violence.
7
He escaped while serving his sentence for one of his armed robbery convictions; he
escaped from a prison hospital where he was being treated for schizophrenia, which he had
feigned.
8
Pasco County’s Corrections Bureau Procedure, Hospital Security, mandated each of
these security measures when dealing with an dangerous felon who posed a high escape risk.
These procedures were in compliance with the American Corrections Association accreditation
standards.
9
An otolaryngologist is an ears, nose, and throat specialist.

6
Sak examined Lumley and noted the following:

A bullet entered the left cheek, jaw and jaw line area
penetrating through the hard pallet causing fracture of
the right zygoma and the bullet landed lateral to the
fractured zygomatic bone on the right side. Mr. Lumley
was having significant pain and discomfort on moving
his mouth and eyelid due to the bullet location which
was in close proximity to the masseter muscle . . . . [Mr.
Lumley] was also noted to have a fracture of the right
zygomatic bone which was only minimally displaced. It
was not medically indicated to treat the fracture at the
time . . . .

Dr. Sak believed that it was in Lumley’s “best interest” to have the bullet removed.

He told Lumley what Lumley’s options were, and recommended that the bullet be

removed.10 Lumley consented to the surgery in writing.11

The surgery took place at 11:30 the next morning, January 13, and lasted

approximately thirty minutes. Before Lumley entered the operating room,

Buchanon notified Wilkes that Dr. Sak was going to remove the bullet. Wilkes, in

10
The record does not indicate what Dr. Sak said would be the untoward consequences
of leaving the bullet in Lumley’s jaw. There is no dispute in the evidence, however, that Dr. Sak
recommended the bullet’s removal, thus creating the inference that, from a medical point of
view, removing the bullet was advisable.
11
Lumley signed a consent form presented to him by Nurse Sandra Buchanon (one of the
defendants whom Lumley dismissed from the case). On deposition, Lumley said that he
voluntarily signed the form. He did so because he was “scared;” he “thought [he] was dying.”
His testimony contradicted the allegation of his complaint – that he was coerced into signing the
form. His testimony corroborated Buchanon’s testimony on deposition. Buchanon testified that
Dr. Sak told her that Lumley wanted to have the bullet removed, and asked her to have Lumley
sign the consent form.

7
turn, asked Sergeant Linda Register to go to the EPMC and retrieve the bullet.

After Dr. Sak removed it, a nurse handed it to Register. Following the surgery,

Lumley was placed in a recovery room for about an hour, and then returned to his

hospital room where he received post-operative care for two days. Dr. Sak and

several nurses regularly checked on him, and at 2:30 p.m. on January 15, Dr. Sak

authorized his release from the hospital. He was released to the custody of Pasco

County Sheriff’s deputies, who transported him to the Pasco County Detention

Center. The following day, January 16, Lumley appeared before a judge, and a

lawyer from the public defender’s office was appointed to represent him.

Lumley subsequently stood trial on indictments issued by Pasco County and

Middle District of Florida grand juries. A Pasco County jury convicted him on

two counts of attempted first degree murder and two counts of armed robbery. A

Middle District of Florida jury convicted him of carjacking, possession of

ammunition by a convicted felon, and knowingly using and carrying a firearm

during and in relation to a federal crime of violence. He is presently incarcerated

in a federal prison.

II.

8
 Lumley filed this lawsuit, seeking damages under 42 U.S.C. § 1983,12

against the Pasco County Sheriff’s Department, former sheriff Lee Cannon (who

was the sheriff at the time of Lumley’s arrest); current sheriff Bob White (who

took office long after the events at issue); several sheriff’s deputies; the City of

Dade City; several officers in the Dade City Police Department; Dr. Sak; and

Nurse Sandra Buchanon. As to the individual defendants, Lumley sued the current

sheriff in his official capacity, the former sheriff in both his official and individual

capacities, and the sheriff’s deputies, the police officers, Dr. Sak, and Nurse

Buchanon in their individual capacities.

Lumley’s complaint, framed in four counts, is a rambling “shotgun”

pleading.13 As best we are able to discern, Lumley’s claims are as follows: Count

12
42 U.S.C. § 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
13
The complaint we refer to in this opinion is Lumley’s fourth amended complaint. As
indicated in the text, it contains four counts. Each count incorporates by reference the allegations
of the preceding counts and thus includes allegations that are irrelevant to the cause(s) of action
the count ostensibly states. Count I contains 55 paragraphs; Count II includes Count I and five
additional paragraphs, and so on. We have repeatedly condemned such pleading, see e.g.,
Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg, 305 F.3d 1293, 1295-97 (11th Cir.
2002), and suggest that, when faced with such pleading, the district court, acting on its own
initiative, require a repleader.

9
I, brought against the City of Dade City, the Pasco County Sheriff’s Department,

and Sheriff Bob White, alleges that sheriff’s deputies and Dade City police

officers named as defendants deprived him of his right to access a lawyer, in

violation of the Sixth Amendment, and infringed his “rights to privacy and due

process” and his right to be free from “undue and excessive force and cruel and

unusual punishment” by causing the bullet to be removed from his jaw and

restraining his movement (by strapping him to his hospital bed), in violation of the

Fourteenth Amendment. Additionally, Count I alleges that these defendants

“denied proper medical attention for the injuries he had sustained, including

conducting an operation . . . without instructing him on the need or dangers of the

operation and then failing to repair his broken jaw and shattered cheekbone while

performing the surgery to remove the bullet fragments.” 14

Count II, brought against Wilkes, Register, and Ray White (all Dade City

police officers), incorporates Count I, and alleges that these officers strapped him

14
Although Count I does not indicate the constitutional basis for the allegation quoted
above, we assume that the basis is the substantive component of the Fourteenth Amendment’s
Due Process Clause. In addition to the foregoing, Count I alleges that Lumley was “harmed by
the fact that confidential medical records were passed between Defendant EPMC employees and
the Pasco County Sheriff’s Department Defendants without the permission or consent of the
Plaintiff.” In rejecting the defendants’ qualified immunity defense, the district court did not
address the question of whether the conduct described in this allegation infringed a constitutional
right. Neither the complaint nor Lumley’s answer brief in this appeal identifies the constitutional
provision such conduct purportedly implicated. We therefore disregard this allegation.

10
to a bed for five consecutive days, denied him access to a lawyer, family members,

and the court, failed to inform him of the charges against him, ordered Dr. Sak to

perform surgery without his consent, obtained the bullet from his jaw, and

otherwise deprived him of “his rights, privileges, and immunities secured by the

Sixth and Fourteenth Amendments.” Count III, brought against six Pasco County

sheriff’s deputies (Toner, Cooper, Savino, David Roberts, John Fairbanks, and

Don Davidson),15 repeats the allegations of Count II.16 Count IV, brought against

all of the defendants, alleges that they conspired to infringe Lumley’s

constitutional rights as alleged in the preceding three counts.17

In answering the complaint, the individual defendants sued in their

15
Fairbanks was the Sheriff’s office “Captain of Corrections.” His job was to oversee
and ensure that Lumley was properly and safely secured while a patient at the EPMC. At no
time, however, was he present at the EPMC while Lumley was there.
16
Count III added the following allegations: that Lumley was “harmed by the fact that
improper and suggestive means were used to extract identification from a witness which was
subsequently used as a basis for an arrest and search warrant of [Lumley] or as legal authority for
such violation of right to privacy,” and that Lumley was “harmed by the fact that material facts
were intentionally or recklessly misrepresented or omitted to a judge in order to obtain [his]
arrest and to obtain a sample of [his] blood.” In rejecting the defendants’ qualified immunity
defense, the district court did not address the question of whether the conduct described in these
allegations infringed a constitutional right. Neither the complaint nor Lumley’s answer brief in
this appeal identifies the constitutional provision the conduct purportedly implicated. We
therefore disregard these allegations.
17
The complaint is ambiguous as to which defendant – with the exception of Dr. Sak –
committed which act in derogation of Lumley’s constitutional rights. The drafter of the
complaint presumably included the Count IV “conspiracy” so as to make each defendant the
agent of every other defendant and therefore responsible for every constitutional injury Lumley
allegedly suffered.

11
individual capacities pled as an affirmative defense the defense of qualified

immunity. After discovery closed, they filed motions for summary judgment

based on that defense. The defendants also moved for summary judgment on

Lumley’s claims that they infringed his Sixth Amendment right to counsel by

barring his access to an attorney while he was hospitalized.18 Before the court

ruled on their motions, Lumley voluntarily dismissed with prejudice several

defendants, including Dr. Sak and Nurse Buchanon. Subsequently, in an order

addressing the remaining defendants’ motions, the court rejected their qualified

immunity defense. At the same time, it granted the defendants summary judgment

on Lumley’s Sixth Amendment claims. These defendants now appeal the court’s

denial of qualified immunity under 28 U.S.C. § 1291.19 Lumley simultaneously

seeks interlocutory review of the court’s decision on his Sixth Amendment claims;

we will review that decision under 28 U.S.C. § 1292(b).

III.

18
As indicated supra, Lumley’s Sixth Amendment right-to-counsel claim appears in
Count I and, via incorporation by reference, Counts II, III, and IV.
19
This is an interlocutory appeal, in that the district court has not entertained a final
judgment disposing of all claims against all defendants. We nonetheless have jurisdiction under
28 U.S.C. § 1291 to review the denial of the defense of qualified immunity. Mitchell v. Forsyth,
472 U.S. 511, 530, 105 S. Ct. 2806, 2817, 86 L. Ed. 2d 411 (1985).

12
 Qualified immunity protects government officials sued in their individual

capacities as long as their conduct does not violate “clearly established statutory or

constitutional rights of which a reasonable person would have known.” Hope v.

Pelzer, 536 U.S. 730, ___, 122 S. Ct. 2508, 2515, 153 L. Ed. 2d 666 (2002)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L.

Ed.2d 396 (1982)). “The purpose of this immunity is to allow government

officials to carry out their discretionary duties without the fear of personal liability

or harassing litigation,” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002),

by ensuring that only “the plainly incompetent or those who knowingly violate the

law” are subjected to liability. Chesser v. Sparks, 248 F.3d 1117, 1122 (11th Cir.

2001) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L.

Ed. 2d 271 (1986)). “To receive qualified immunity, the public official must first

prove that he was acting within the scope of his discretionary authority when the

allegedly wrongful acts occurred.” Vinyard, 311 F.3d at 1346 (quoting Lee, 284

F.3d at 1194 (internal quotation marks omitted)). If the defendants were not

acting within their discretionary authority, they are ineligible for the benefit of

qualified immunity. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). Here,

it is clear that the defendants were acting – if they acted at all – in their

discretionary capacities when they restrained and guarded Lumley or acted to

13
obtain the bullet from his body.

Once the defendants establish that they were acting within their

discretionary authority, the burden shifts to the plaintiff to demonstrate that

qualified immunity is not appropriate. Vinyard, 311 F.3d at 1346. The Supreme

Court has set forth a two-part approach for the qualified immunity analysis. “The

threshold inquiry a court must undertake . . . is whether plaintiff’s allegations, if

true, establish a constitutional violation.” Id. (quoting Hope, 536 U.S. at ----, 122

S. Ct. at 2513). If a court finds the violation of a constitutional right under the

plaintiff’s version of the facts, “the next, sequential step is to ask whether the right

was clearly established.” Id. (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.

Ct. 2151, 2156, 150 L. E. 2d 272 (2001)).

Lumley contends that, for summary judgment purposes, the record

establishes the following claims for relief.20 First, the appellants infringed his

Sixth Amendment right to counsel when they refused to permit him to see a lawyer

while he was a patient at the EPMC.21 Second, the appellants denied him

substantive due process in violation of the Fourteenth Amendment in the manner

20
Although we use different language in expressing them, these are the claims as
presented in the answer brief Lumley filed in this appeal.
21
The Sixth Amendment is applicable to the states through the Fourteenth Amendment.
Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).

14
in which they restrained him to his hospital bed. Third, the appellants infringed

the right of privacy guaranteed him by the Fourteenth Amendment when Dr. Sak

removed the bullet from his jaw. Fourth, the appellants denied him substantive

due process in violation of the Fourteenth Amendment when they failed to attend

to his medical needs.

We consider the Sixth Amendment claims in the context of Lumley’s appeal

under 28 U.S.C. § 1292(b). We consider the remaining claims under 28 U.S.C. §

1291, as the Supreme Court has instructed in Hope v. Pelzer – by determining first

whether the record establishes any of the claims and, if it does, by determining

whether the constitutional right at issue was clearly established at the time of the

acts complained of. We begin with Lumley’s Sixth Amendment claims.

A.

The Sixth Amendment provides that “in all criminal prosecutions, the

accused shall enjoy the right . . . to have the assistance of counsel for his defense.”

U.S. Const. amend. VI. As the amendment states, the right to counsel is

guaranteed in all “criminal prosecutions,” which the Supreme Court has made

clear do not commence until “at or after the initiation of adversary judicial

criminal proceedings – whether by way of formal charge, preliminary hearing,

15
indictment, information, or arraignment.” Texas v. Cobb, 532 U.S. 162, 167-68,

121 S. Ct. 1335, 1340, 149 L. Ed. 2d 321 (2001).22 In other words, the Sixth

Amendment right to counsel ordinarily does not arise until there is a formal

commitment by the government to prosecute; “[i]t is only at that time ‘that the

government has committed itself to prosecute, and only then that the adverse

positions of government and defendant have solidified.’ ” United States v.

Gouveia, 467 U.S. 180, 189, 104 S. Ct. 2292, 2298, 81 L. Ed. 2d 146 (1984)

(quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 1882, 32 L. Ed. 2d

411 (1967)). Accordingly, “[t]he mere filing of a complaint and the issuance of a

warrant for the [accused’s] arrest,” does not constitute a formal commitment by the

government to commence a criminal prosecution for purposes of the Sixth

Amendment. United States v. Langley, 848 F.2d 152, 153 (11th Cir. 1988).

22
The right to counsel attaches at trial, Gideon, 372 U.S. at 335, 83 S. Ct. at 792, and at
certain “critical” pretrial proceedings. United States v. Grimes, 142 F.3d 1342, 1348 (11th Cir.
1998) (quoting Michigan v. Jackson, 475 U.S. 625, 629-30, 106 S. Ct. 1404, 1407-08, 89 L. Ed.
2d 631 (1986)). The precise contours of what constitutes the“critical” pretrial stages of a
criminal prosecution are not certain, but the right to counsel is said to arise where “substantial
rights of the accused may be affected.” Williams v. Turpin, 87 F.3d 1204, 1209 (11th Cir. 1996)
(quoting Mempa v. Rhay, 389 U.S. 128, 134, 88 S. Ct. 254, 256-57, 19 L. Ed. 2d 336) (1967)).
This essentially turns on whether “counsel’s absence might derogate from the accused’s right to a
fair trial.” United States v. Hidalgo, 7 F.3d 1566, 1569 (11th Cir. 1993) (quoting United States
v. Wade, 388 U.S. 218, 226, 87 S. Ct. 1926, 1932, 18 L. Ed. 2d 1149 (1967)). Applying this
standard, the Supreme Court has held that an accused has the right to the assistance of counsel at
a preliminary hearing, White v. Maryland, 373 U.S. 59, 60, 83 S. Ct. 1050, 1051, 10 L. Ed. 2d
193 (1963), and at some pretrial identification procedures. United States v. Wade, 388 U.S. 218,
236, 87 S. Ct. 1926, 1237, 18 L. E. 2d 1149 (1967).

16
 The district court concluded, and Lumley concedes, that at the time he was

held at the EPMC, formal criminal proceedings had not been initiated. Given the

precedent cited above, this would seem to foreclose his right to counsel claim.

Nonetheless, he contends that his right to counsel attached because he was under

arrest and he was the sole suspect in the case. He draws support for his position

from one Supreme Court decision, Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct.

1758, 12 L. Ed. 2d 977 (1964). In that case, the petitioner, Escobedo, was arrested

for the murder of his brother-in-law and taken to the police station. There, the

police refused to let him speak to his lawyer and took him to the “Homicide

Bureau” where detectives questioned him for several hours; they did so despite his

repeated requests to see his lawyer and while his lawyer was at the Homicide

Bureau asking to see him. The Illinois courts denied Escobedo’s motion to

suppress the statements he gave to the detectives. On review, the Supreme Court

framed the question: “whether . . . the refusal by the police to honor petitioner’s

request to consult with his lawyer during the course of an interrogation constitutes

the denial of the Assistance of Counsel in violation of the Sixth Amendment . . . as

made obligatory upon the States by the Fourteenth Amendment.” Id. at 479, 84 S.

Ct. at 1759 (internal quotation marks omitted).

Putting aside the fact that subsequent Supreme Court decisions have

17
indicated that the constitutional right at stake in Escobedo was the petitioner’s

Fifth Amendment right against self-incrimination, see Kirby, 406 U.S. at 689, 92

S. Ct. at 1882 (stating that Escobedo’s “ ‘prime purpose’ . . . was not to vindicate

the constitutional right to counsel as such, but, like Miranda, ‘to guarantee full

effectuation of the privilege against self-incrimination’ ”) (quoting Johnson v.

New Jersey, 384 U.S. 719, 729, 86 S. Ct. 1772, 1779, 16 L. Ed. 2d 882 (1965)),

Escobedo is factually inapposite.23 Here, there was no interrogation; neither the

Pasco County sheriff’s deputies nor the Dade City police officers asked Lumley

anything about the offenses for which he had been arrested. All we have in this

case is an arrest. Nothing had occurred to trigger Lumley’s Sixth Amendment

right to counsel.

B.

Having disposed of Lumley’s appeal, we turn to the question of whether the

appellants are entitled to qualified immunity on Lumley’s remaining claims. As

required by Hope v. Pelzer, we first consider whether the record establishes any of

those claims.

23
We also note that the Supreme Court has limited the holding of Escobedo to its own
facts. See Kirby, 406 U.S. at 689, 92 S. Ct. at 1882.

18
 1.

Lumley contends that, in violation of the Fourteenth Amendment, the

appellants denied him “substantive due process” by using excessive force to strap

him to his hospital bed while he was at the EPMC. He asserts, moreover, that this

constituted “cruel and unusual punishment.” “Claims involving the mistreatment

of arrestees or pretrial detainees in custody are governed by the Fourteenth

Amendment’s Due Process Clause, instead of the Eighth Amendment’s Cruel and

Unusual Punishment Clause, which applies to such claims by convicted

prisoners.” Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996). “As a

general rule, to prevail on a claim of a substantive due-process violation, a

plaintiff must prove that a defendant’s conduct ‘shocks the conscience.’ ” Nix v.

Franklin County School Dist., 311 F.3d 1373, 1375 (11th Cir. 2002) (quoting

County of Sacramento v. Lewis, 523 U.S. 833, 836, 846-47, 118 S. Ct. 1708,

1717, 140 L. Ed. 2d 1043 (1998)). “A showing of mere negligence is insufficient

to make out a constitutional due-process claim: ‘[L]iability for negligently

inflicted harm is categorically beneath the threshold of constitutional due process.’

” Id. at 1375-76 (quoting Lewis, 523 U.S. at 849, 118 S. Ct. at 1708). In this case,

we could hardly say that strapping Lumley to his hospital bed “shocks the

conscience.” He was a dangerous criminal with a violent record. He presented a

19
significant risk of flight, having escaped from prison settings on two occasions.

As he testified on deposition, he should have been considered a dangerous person

and an escape risk. His substantive due process claim accordingly fails.

2.

Lumley next complains that the appellants violated his privacy expectations

under the Fourteenth Amendment when they had Dr. Sak remove the bullet from

his face. The record is clear that, contrary to the allegations of Lumley’s

complaint, Dr. Sak acted alone. As noted supra, Lumley has dismissed his claims

against Dr. Sak with prejudice. The legal affect of such dismissal is that Dr. Sak

did not infringe any of Lumley’s constitutional rights. If that is so, it could hardly

be said that the appellants, who took no part in removing the bullet, are vicariously

liable – under Lumley’s conspiracy theory, in which the individual defendants

conspired with one another to violate the constitution – for the doctor’s conduct.

The appellants are consequently entitled to qualified immunity on this claim.

3.

Lumley’s final claim is that the appellants denied him substantive due

process in violation of the Fourteenth Amendment when they failed to attend to

his medical needs. Specifically, Lumley contends that Dr. Sak failed to treat the

20
“fracture of the right zygomatic bone[, i.e., the right cheek bone,]” which the

Doctor observed on examination. We dispose of this claim, and hold that the

appellants are entitled to qualified immunity, under the same analysis we used to

dispose of Lumley’s previous claim regarding the removal of the bullet.

IV.

For the foregoing reasons, we AFFIRM the district court’s decision granting

the appellants summary judgment on Lumley’s Sixth Amendment claims, and we

REVERSE the court’s decisions denying the appellants qualified immunity. On

receipt of our mandate, the court shall enter an order granting the appellants

summary judgment on Lumley’s claims against them in their individual capacities.

SO ORDERED.

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