IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10280

KATHY DYER; ROBERT DYER, Individually and as Representative of the 

Estate of Graham Dyer, 

 Plaintiffs - Appellants

v.

RICHARD HOUSTON; ALAN GAFFORD; ZACHARY SCOTT; WILLIAM 

HEIDELBURG; PAUL POLISH; JOE BAKER, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Texas 

Before OWEN, Chief Judge, and BARKSDALE and DUNCAN, Circuit Judges.

ON PETITION FOR REHEARING AND REHEARING EN BANC

STUART KYLE DUNCAN, Circuit Judge:

The petition for panel rehearing is DENIED. No panel member nor judge 

in regular active service having requested an en banc poll (Fed. R. App. P. 35;

5th Cir. R. 35), the petition for rehearing en banc is DENIED. We withdraw 

our previous opinion, reported at 955 F.3d 501, and substitute the following:

Plaintiffs Kathy and Robert Dyer (“the Dyers”) appeal the dismissal on 

qualified immunity grounds of their deliberate-indifference claims against 

paramedics and police officers employed by the City of Mesquite, Texas. The 

United States Court of Appeals

Fifth Circuit

FILED

July 6, 2020

Lyle W. Cayce

Clerk

 Case: 19-10280 Document: 00515477549 Page: 1 Date Filed: 07/06/2020
No. 19-10280

2

Dyers’ claims arise out of the death of their 18-year-old son, Graham, from selfinflicted head trauma while in police custody. We affirm in part, reverse in 

part, and remand for further proceedings. 

I.

Graham died after violently bashing his head over 40 times against the 

interior of a patrol car while being transported to jail. The Dyers brought 

various claims against the paramedics who initially examined Graham, the 

officers who transported him, and the City of Mesquite. Relevant here are the 

deliberate-indifference claims against paramedics Paul Polish and Joe Baker 

(“Paramedics”) and police officers Alan Gafford, Zachary Scott, and William 

Heidelburg (“Officers”). The district court granted the Paramedics’ motion to 

dismiss based on qualified immunity. The court later granted the Officers 

summary judgment, also based on qualified immunity. Because the dismissals 

occurred at different stages, we examine the facts separately as they relate to 

the Paramedics and the Officers. 

A. 

Regarding the Paramedics, we accept as true the allegations in the 

Dyers’ operative complaint. In re Katrina Canal Breaches Litigation, 495 F.3d 

191, 205 (5th Cir. 2007). According to the complaint, Polish and Baker arrived 

on the scene in the late evening hours of August 13, 2013. There they found 

Graham already detained by police officers for exhibiting erratic behavior. 

After “learning that [Graham and his friend] had consumed LSD,” one 

“paramedic went over to examine Graham.” He summoned the second 

paramedic, after which they both “further examine[d] Graham.” Graham “had 

sustained a visible and serious head injury.” Moreover, the Paramedics “were 

aware that [Graham] had ingested LSD and was incoherent and screaming,” 

and “were aware that he was not rational and was in a drug induced psychosis.” 

“[B]oth examined [Graham], including his serious head injury.” According to

 Case: 19-10280 Document: 00515477549 Page: 2 Date Filed: 07/06/2020
No. 19-10280

3

video evidence referenced by the complaint, after the Paramedics “were 

finished looking at Graham,” he was “walked to the police car without 

resistance or struggle.” Graham was then driven to jail. The complaint 

contains no further allegations about the Paramedics.

Based on these allegations, the Dyers claim the Paramedics violated 

Graham’s Fourteenth Amendment right not to have his serious medical needs 

met with deliberate indifference. See Hare v. City of Corinth, 74 F.3d 633, 639 

(5th Cir. 1996) (en banc). They claim Polish and Baker “made no 

recommendations for further treatment or medical intervention, including 

sedation which would have calmed Graham down and allowed him to comply 

with instructions.” They further claim “Polish and Baker also knew of the 

substantial risk of serious harm that would result from ignoring the psychosis 

of someone who had ingested LSD, yet they did nothing to treat Graham [or] 

transport him for treatment.” Finally, they claim “Graham should have been 

given a sedative and transported to the emergency room” because the 

Paramedics “were aware of facts demonstrating a substantial risk of serious 

harm and disregarded the risk by failing to take reasonable measures to treat 

Graham.”

B. 

Regarding the Officers, we take the relevant facts from the summary 

judgment record, construed in favor of the non-movants.1 Hanks v. Rogers, 853 

F.3d 738, 743 (5th Cir. 2017) (citation omitted). Responding to the late evening

911 call concerning Graham, Officer Gafford first arrived on the scene, 

observed Graham’s erratic behavior, and physically restrained him. Officer 

1 The summary judgment record consists, in part, of affidavits and depositions of all 

officers involved, the police department internal investigation report (based in part on an incar video of the incident from Officer Heidelburg’s patrol car), and the autopsy report.

 Case: 19-10280 Document: 00515477549 Page: 3 Date Filed: 07/06/2020
No. 19-10280

4

Houston arrived next and handcuffed Graham. During this encounter, Graham 

was “rolling” and “yelling” while officers tried to calm him down. Officers 

Heidelburg, Scott, and Fyall next arrived. The Paramedics then arrived, 

examined Graham, and released him to the police. See supra I.B. 

Graham was then placed in Heidelburg’s patrol car. While officers were 

trying to secure Graham, he bit Fyall on the finger. Graham was placed in leg 

restraints, but his seatbelt was not fastened. Heidelburg then drove off with 

Graham. Scott and Gafford followed in their own patrol cars. While Heidelburg 

was driving, Graham screamed, thrashed violently, and slammed his head 

multiple times against the interior of the car. Heidelburg told Graham to stop 

hitting his head, but Graham did not comply. Heidelburg testified he pulled 

the car over to “[t]ry to stop [Graham] from hitting his head on the cage.” Scott

saw Heidelburg pull the car over and assumed he was doing so because 

Graham “was banging his head.” The internal investigation report prepared by 

the Mesquite Police Department (based in part on a video recording of the 

incident) reported that Graham slammed his head against the “metal cage, 

side window and back seat” 19 times before Heidelburg pulled over.

At that point, Scott stopped to help “prevent [Graham] from banging his 

head on the back of the car.” Gafford also pulled over, seeking to help stop

Graham from doing “further harm to himself.” Gafford testified he could 

“actually see the car shaking from side to side” as Graham flung himself 

around in the back seat. When the car stopped, Graham continued to “scream 

and thrash,” and the Officers tased him several times to regain control.2 After 

2 The Dyers brought excessive force claims against the Officers based on their use of 

tasers to control Graham. Only the excessive force claim against Gafford survived summary 

judgment, given evidence that Gafford “tased Graham in the testicles for about eight seconds” 

when Graham was restrained by other officers and no longer actively resisting arrest. That 

claim has since been settled.

 Case: 19-10280 Document: 00515477549 Page: 4 Date Filed: 07/06/2020
No. 19-10280

5

re-securing Graham, Heidelburg resumed driving toward the jail and Graham 

continued to scream and slam his head against the car’s interior. According to 

the investigation report, Graham bashed his head another 27 times before they

arrived at jail.

All three Officers removed Graham from the patrol car and brought him 

into the sally port. Graham continued kicking and screaming as jail personnel 

tried to secure him. Graham was moved inside the jail, placed in a restraint 

chair, and eventually put in a padded cell. No evidence shows Graham caused 

any further harm to himself once restrained. The Officers each said they had 

no recollection of reporting to the jail sergeant the fact that Graham had 

slammed his head repeatedly against the interior of the patrol car en route to 

jail. The investigation report states only that the jail sergeant was “[i]nformed 

by transport officers [Graham] had been medically cleared at the scene.”

Just over two hours later, the sergeant noticed Graham’s breathing was 

labored and summoned paramedics, who arrived at 1:40 a.m. Graham was 

transported to a local hospital and died at 11:00 p.m. that evening. Among 

other injuries, the autopsy reported extensive blunt force injuries to Graham’s

head and cranial hemorrhaging. The reported cause of death was

craniocerebral trauma. 

Based on a review of a video recording from Heidelburg’s patrol car, the

investigation report found that Graham hit his head on the metal cage, side 

window, and back seat of the car approximately 46 times.

II.

“We review a district court’s ruling on a motion to dismiss de novo, 

accepting all well-pleaded facts as true and viewing those facts in the light 

most favorable to the plaintiffs.” Anderson v. Valdez, 845 F.3d 580, 589 (5th 

Cir. 2016) (internal quotation marks and citation omitted). “To survive a 

motion to dismiss, a complaint must contain sufficient factual matter, accepted 

 Case: 19-10280 Document: 00515477549 Page: 5 Date Filed: 07/06/2020
No. 19-10280

6

as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). These standards are the same when a motion to dismiss is based on 

qualified immunity. See, e.g., Turner v. Lieutenant Driver, 848 F.3d 678, 684–

85 (5th Cir. 2017) (citations omitted). 

We review a summary judgment de novo, applying the same standards 

as the district court. Mason v. Lafayette City-Parish Consol. Gov’t, 806 F.3d 

268, 274 (5th Cir. 2015) (citation omitted). “The court shall grant summary 

judgment if the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(a). “A dispute is genuine if the evidence is such that a reasonable 

jury could return a verdict for the nonmoving party.” Westfall v. Luna, 903 F.3d 

534, 546 (5th Cir. 2018) (internal quotation marks and citation omitted). A fact 

“is material if its resolution could affect the outcome of the action.” Sierra Club, 

Inc. v. Sandy Creek Energy Associates, L.P., 627 F.3d 134, 134 (5th Cir. 2010) 

(citation omitted). “When an officer invokes [qualified immunity], ‘the burden 

then shifts to the plaintiff, who must rebut the defense by establishing a 

genuine fact [dispute] as to whether the official’s allegedly wrongful conduct 

violated clearly established law.’” McCoy v. Alamu, 950 F.3d 226, 230 (5th Cir. 

2020) (quoting Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010)). “We still 

draw all inferences in the plaintiff’s favor.” Taylor v. Stevens, 946 F.3d 211, 

217 (5th Cir. 2019) (citation omitted).

“The qualified immunity defense has two prongs: whether an official’s 

conduct violated a statutory or constitutional right of the plaintiff; and whether 

the right was clearly established at the time of the violation.” Brown, 623 F.3d 

at 253 (citing Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)). A court may

rest its analysis on either prong. Morgan v. Swanson, 659 F.3d 359, 385 (5th 

Cir. 2011) (en banc) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). 

 Case: 19-10280 Document: 00515477549 Page: 6 Date Filed: 07/06/2020
No. 19-10280

7

III.

We first address whether the district court properly granted the 

Paramedics’ motion to dismiss based on qualified immunity. The court relied

on the first prong, finding the amended complaint failed to state a plausible 

deliberate-indifference claim against the Paramedics. Specifically, the court 

found insufficient the allegations that, because the Paramedics observed 

Graham’s “serious head injury” and “LSD-induced behavior,” they should have

provided additional care.

The Fourteenth Amendment guarantees pretrial detainees a right “not 

to have their serious medical needs met with deliberate indifference on the 

part of the confining officials.” Thompson v. Upshur Cty., Tex., 245 F.3d 447, 

457 (5th Cir. 2001) (citing, inter alia, Estelle v. Gamble, 429 U.S. 97, 103 

(1976)). 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. Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 755 (5th 

Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “Deliberate 

indifference is an extremely high standard to meet.” Id. at 756.

We note that some of our cases have posited a third element—that the 

official “subjectively intended that harm occur.” See Garza v. City of Donna, 

922 F.3d 626, 635 & n.5 (5th Cir. 2019) (citing, inter alia, Tamez v. Manthey, 

589 F.3d 764, 770 (5th Cir. 2009)). A panel of our court, however, recently wrote 

that it “cannot endorse [this] analysis” because it “depart[s] from controlling 

Supreme Court and Fifth Circuit law.” Garza, 922 F.3d at 636 (collecting 

decisions). In this case, the district court invoked this additional “subjective 

intent” element, but that does not affect our disposition of the motion to 

dismiss. As we explain, the allegations against the Paramedics would fail 

under the established two-part standard. See id. at 635 (two-part test more 

 Case: 19-10280 Document: 00515477549 Page: 7 Date Filed: 07/06/2020
No. 19-10280

8

consonant with “the weight of our case law and . . . the Supreme Court 

precedent from which our cases flow”); id. at 636 & n.6 (collecting decisions). 

The district court’s invocation of the subjective intent element, however, does 

affect our disposition of the summary judgment for the Officers. See infra IV.B.

We agree with the district court that the Dyers’ complaint fails to allege 

facts that plausibly show the Paramedics’ deliberate indifference. The thrust 

of the complaint is that, after examining Graham and observing his head 

injury and drug-induced behavior, the Paramedics should have provided 

additional care—such as sending Graham to the hospital, accompanying him 

to jail, providing “further assessment or monitoring,” or sedating him. At most, 

these are allegations that the Paramedics acted with negligence in not taking 

further steps to treat Graham after examining him. Our cases have 

consistently recognized, however, that “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 at 458–59 (citing Hare, 

74 F.3d at 645); see also, e.g., Delaughter v. Woodall, 909 F.3d 130, 136 (5th 

Cir. 2018) (clarifying that “mere disagreement with one’s medical treatment is 

insufficient to show deliberate indifference”); Gobert v. Caldwell, 463 F.3d 339, 

346 (5th Cir. 2006) (explaining that “[u]nsuccessful medical treatment, acts of 

negligence, or medical malpractice do not constitute deliberate indifference”) 

(citations omitted). For instance, in Stewart v. Murphy, 174 F.3d 530, 533–534 

(5th Cir. 1999), we held that a prison physician’s failure, among other things,

to discover earlier the ulcers that led to a prisoner’s death “might constitute 

negligence, [but] not the requisite deliberate indifference.” Finally, with 

particular salience here, we have long held that “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. Gobert, 

463 F.3d at 346 (quoting Domino, 239 F.3d at 756).

 Case: 19-10280 Document: 00515477549 Page: 8 Date Filed: 07/06/2020
No. 19-10280

9

Measured against these standards, we cannot say the complaint 

plausibly states a deliberate-indifference claim against the Paramedics. We 

therefore affirm the district court’s dismissal of those claims. 

IV. 

We next address the district court’s grant of summary judgment to the 

Officers based on qualified immunity. On prong one of the qualified immunity 

standard, the district court found genuine disputes of material fact as to 

whether Officers Heidelburg and Gafford acted with deliberate indifference to 

Graham’s serious medical needs. But, as to Officer Scott, the district court 

found the Dyers “failed to present evidence that [he was] aware of facts 

indicating a risk of injury and inferred a risk of injury to Graham.” On prong 

two, however, the district court concluded all three Officers were entitled to 

qualified immunity. Pointing to inconsistency in our court’s deliberateindifference standards, the district court reasoned that “there is no clearly 

established right in the Fifth Circuit to be free from medical inattention by 

officers who do not actually intend to cause harm.” The court therefore granted 

summary judgment dismissing the Dyers’ deliberate-indifference claims 

against all three Officers.

A.

Turning first to the district court’s prong one ruling, we agree that the 

record discloses genuine disputes of material fact regarding whether Officers 

Heidelburg and Gafford acted with deliberate indifference. But we disagree as 

to Officer Scott, finding similar fact disputes as to him. 

The district court correctly found a genuine dispute concerning whether 

Gafford and Heidelburg were deliberately indifferent to the serious medical 

needs of a detainee in their custody. A reasonable trier of fact could find that 

those Officers were aware that Graham, in the grip of a drug-induced 

psychosis, struck his head violently against the interior of Heidelburg’s patrol 

 Case: 19-10280 Document: 00515477549 Page: 9 Date Filed: 07/06/2020
No. 19-10280

10

car over 40 times en route to jail3 and thereby sustained severe head trauma. 

Both Officers told Graham to stop hitting his head and Heidelburg even pulled 

his patrol car over in an effort to stop him. Gafford acknowledged that, during 

his encounter with Graham, he knew “[t]here could be some inherent dangers” 

associated with head trauma; Heidelburg testified that what Graham was 

doing “certainly could” cause a head injury. Yet the Officers sought no medical 

care for Graham when they arrived at the jail. Nor did they alert jail officers 

(who had no way of knowing what had happened en route to the jail) of the 

possibility that Graham had seriously injured himself. The record instead 

reflects that the jail sergeant was “[i]nformed by [the] transport officers [that] 

Dyer had been medically cleared at the scene.”

A reasonable 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, by failing to inform jail 

personnel about Graham’s injuries, and by informing jail personnel only that 

Graham had been “medically cleared” before arriving at the jail.4 A reasonable 

3 We emphasize that qualified immunity must be considered based on “facts that were 

‘knowable’ to [the officers]” at the time of the incident. Winzer v. Kaufman Cty., 916 F.3d 464, 

474 (5th Cir. 2019) (quoting White v. Pauly, -- U.S. --, 137 S. Ct. 548, 550 (2017)), reh’g and 

reh’g en banc denied, 940 F.3d 900 (5th Cir. 2019), cert. denied, -- S. Ct. --, 2020 WL 3038295 

(Jun. 8, 2020). Here, the record refers to a dash-cam video recording of the incident as it was 

taking place. 

4 See, e.g., Gobert, 463 F.3d at 346 (deliberate indifference shown through evidence 

that officials “refused to treat [prisoner], 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”) (quoting Domino, 239 F.3d at 756); Nerren v. Livingston Police 

Dept., 86 F.3d 469, 473 (5th Cir. 1996) (deliberate indifference shown when detainee’s “face 

and chest were marred with abrasions, he was in pain, and he informed the Arresting Officers 

that he needed medical attention,” especially because “police had subjective knowledge that 

[detainee] had recently been involved in a multiple vehicle injury accident”).

 Case: 19-10280 Document: 00515477549 Page: 10 Date Filed: 07/06/2020
No. 19-10280

11

jury could find otherwise, of course, but the district court correctly concluded 

that the Dyers presented enough evidence that the Officers “were aware of a 

risk of injury to Graham that they did nothing to alleviate,” allowing the Dyers 

to survive summary judgment on prong one.5

We disagree, however, with the ruling as to Officer Scott.6 The district 

court found the Dyers “failed to present evidence that [Scott was] aware of facts 

indicating a risk of injury and inferred a risk of injury to Graham.” True, Scott’s

affidavit stated he “never observed anything or any action by anyone which 

might cause a head injury on the part of [Graham],” nor did he “observe[] 

anything to indicate [Graham] might have any serious injury.” But his 

deposition testimony was quite different. Scott testified he assumed 

Heidelburg pulled the patrol car over because Graham “was banging his head.” 

Scott also testified he tried “to prevent [Graham] from banging his head on the 

back of the car.” Lastly, Scott stated he did not tell the jail sergeant about 

Graham slamming his head, nor did he recall hearing anyone else report it.

In sum, viewing the evidence in the light most favorable to the Dyers, we

conclude there are genuine disputes of material fact as to whether Officer 

Scott, like Gafford and Heidelburg, acted with deliberate indifference to 

Graham’s serious medical needs. The district court therefore erroneously

granted Scott summary judgment on prong one.

5 The district court based its prong one analysis on our precedent’s more common 

deliberate-indifference test that does not require subjective intent to cause harm. See, e.g., 

Olabisiomotosho v. City of Hous., 185 F.3d 521, 526 (5th Cir. 1999); see also Garza, 922 F.3d 

626, 635–36 & nn.5–6 (discussing differing strands of our precedent). 

6 We recognize the settled rule that, in assessing qualified immunity, a court must 

“consider the conduct of each officer independently,” not “collectively.” Meadours v. Ermel, 

483 F.3d 417, 421 (5th Cir. 2007); see also id. at 421–22 (collecting cases). For that reason, 

we focus only on allegations pertinent to Officer Scott.

 Case: 19-10280 Document: 00515477549 Page: 11 Date Filed: 07/06/2020
No. 19-10280

12

B.

Turning to prong two of the qualified immunity standard, we ask 

whether there are genuine disputes of material fact as to whether “the 

unlawfulness of the [Officers’] conduct was ‘clearly established at the time.’”

Rich v. Palko, 920 F.3d 288, 294 (5th Cir.), cert. denied, __ U.S. __, 140 S. Ct. 

388 (2019) (quoting District of Columbia v. Wesby, __ U.S. __, 138 S. Ct. 577, 

589 (2018)). “To be clearly established, a right must be sufficiently clear that 

every reasonable official would have understood that what he is doing violates 

that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (cleaned up). While 

the Dyers need not identify a case “directly on point,” “existing precedent” must

“place[ ] the statutory or constitutional question beyond debate.” Morgan, 659

F.3d at 372 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). That 

precedent, moreover, must “define[ ] the contours of the right in question with 

a high degree of particularity.” Id. at 371–72. In sum, “the salient question” we 

ask at prong two is whether the state of the law at the time of the incident 

“gave [the Officers] fair warning that their alleged treatment of [Graham] was 

unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002); accord Morgan, 659 

F.3d at 372 (“The sine qua non of the clearly-established inquiry is ‘fair 

warning.’”) (citing Hope, 536 U.S. at 741).

The district court’s prong two analysis was legally erroneous. Instead of 

asking whether controlling authority placed the unconstitutionality of the 

Officers’ alleged conduct “beyond debate,” Morgan, 659 F.3d at 372, the court 

instead found that our deliberate-indifference case law was too muddled even 

to attempt the inquiry. Specifically, the district court pointed to “confusion” in 

our cases over whether deliberate indifference requires proof of an officer’s 

“actual intent to cause harm in medical-inattention claims.” The court 

therefore concluded that “there is no clearly established right in the Fifth 

 Case: 19-10280 Document: 00515477549 Page: 12 Date Filed: 07/06/2020
No. 19-10280

13

Circuit to be free from medical inattention by officers who do not actually 

intend to cause harm.”

We disagree with the district court’s prong two analysis. Admittedly, the 

district court was correct that our deliberate-indifference cases are not a 

paradigm of consistency. As discussed supra, a panel of our court recently 

observed that, whereas many of our decisions hew to the traditional deliberateindifference standard from Farmer v. Brennan, 511 U.S. 825 (1994), others 

appear to add the element that the officer “subjectively intended that harm 

occur.” See generally Garza, 922 F.3d at 626, 634–36 & nn. 5–6; compare 

Delaughter, 909 F.3d at 136 (deliberate indifference present “only if [official] 

knows that inmates face a substantial risk of serious harm and disregards that 

risk by failing to take reasonable measures to abate it”) (citing Farmer, 511 

U.S. at 847), with Tamez, 589 F.3d at 764, 770 (deliberate indifference also 

requires showing official “subjectively intended that harm occur”) (citing 

Thompson, 245 F.3d at 458–59). Contrary to the district court’s reasoning, 

however, this apparent tension in our cases does not ipso facto “doom[ ]” the 

Dyers’ deliberate-indifference claim. To the contrary, the district court was still 

required to analyze whether the Officers’ alleged conduct contravened clearly 

established law as set by the controlling precedents of this court and the 

Supreme Court.

Reviewing the record de novo, we conclude a reasonable jury could find 

the Officers’ conduct contravened clearly established law. In Thompson v. 

Upshur County, Texas, our court confronted a deliberate-indifference claim 

after a detainee, Thompson, died in jail from a seizure brought on by delirium 

tremens (“DTs”). 245 F.3d at 452–54. We found genuine disputes of material 

fact as to the jail sergeant, Whorton, who was aware that Thompson had 

elevated blood-alcohol content, was “hallucinating,” and “was injuring himself 

in his cell.” Id. at 452, 463. In particular, Whorton knew Thompson had

 Case: 19-10280 Document: 00515477549 Page: 13 Date Filed: 07/06/2020
No. 19-10280

14

“beg[u]n to collide with objects in his cell, sometimes falling and striking his

head against the window, floor or concrete bench.” Id. at 454. Whorton provided 

some care to Thompson—she placed him in a straitjacket (but not an available 

helmet), had extra mattresses placed in his cell, dressed his head wound, and 

even claimed to seek advice from a hospital, id. at 453–54, 463—but when 

Whorton’s shift ended, she instructed her colleagues not to summon medical 

help without contacting her and only if Thompson was “dying.” Id. at 454.

Seven hours later, Thompson died from a seizure brought on by DTs. Id. We 

found a jury question as to whether Whorton’s behavior was objectively 

unreasonable, given “[c]learly established law forbids a significantly 

exacerbating delay or a denial of medical care to a detainee suffering from 

DTs.” Id. at 463. Any reasonable jailer, we explained, “would have recognized 

the constitutional obligation to summon medical assistance well before 

Thompson died,” and also would not have instructed subordinates not to get

help unless Thompson “was on the verge of death.” Id. at 464.

Thompson defines clearly established law in sufficient detail to have 

notified the Officers that their actions were unconstitutional. See, e.g., Morgan, 

659 F.3d at 372 (controlling precedent must define pertinent right “with a high 

degree of particularity”). Similar to the jail sergeant in Thompson, here the 

Officers had custody of a delusional detainee who was severely harming

himself, and yet—despite being aware of the detainee’s dire condition—they 

did nothing to secure medical help. Arguably, this situation presents a clearer 

case of deliberate indifference than Thompson. There, although providing 

Thompson some care, the jailer recklessly misjudged the severity of

Thompson’s condition that led to the seizure that caused his death. 245 F.3d 

at 453–54, 463–64. Here, the Officers actually witnessed Graham violently 

slamming his head against the patrol car over and over again, inflicting the 

 Case: 19-10280 Document: 00515477549 Page: 14 Date Filed: 07/06/2020
No. 19-10280

15

cerebral trauma that would kill him within about a day’s time.7 And yet, 

instead of seeking medical assistance, the Officers deposited Graham at the 

jail, told jailers nothing about what Graham had done to himself en route, and 

informed the jail sergeant only that Graham “had been medically cleared at 

the scene.” In sum, Thompson gave officers “fair warning,” Morgan, 659 F.3d 

at 372, that their behavior was deliberately indifferent to Graham’s serious 

medical needs.8 

Compare this case with our decision in Wagner v. Bay City, Texas, 227 

F.3d 316 (5th Cir. 2000). There, officers pepper sprayed the plaintiff, cuffed 

him, and placed him on his chest in the back of the patrol car. Id. at 319. 

Instead of taking the plaintiff to the hospital to flush out the pepper spray, the 

officers drove him to jail. Id. There, they discovered the plaintiff had stopped 

breathing and attempted CPR; the plaintiff later died at the hospital. Id. at 

318–19. We concluded the officers were entitled to qualified immunity against 

a deliberate-indifference claim. Id. at 324–25. Among other reasons, we 

explained that the officers heard the plaintiff moaning during the trip to jail 

(indicating he was still breathing), and that, when the officers realized he had 

7 This case is thus quite different from cases where officers had no reason to suspect 

a detainee’s underlying medical condition. See, e.g., Tamez, 589 F.3d at 770–71 (no evidence 

of deliberate indifference where pupil dilation could “mean a lot of things” and therefore did 

not alert officers that detainee had ingested an open cocaine baggy); Simmons v. City of 

Columbus, 425 F. App’x 282, 283–84 (5th Cir. 2011) (unpublished) (officers entitled to 

qualified immunity because they were unaware the detainee was suffering from subdural 

hematoma, or “invisible brain bleed”); Arshad ex rel. Arshad v. Congemi, 2009 WL 585633, 

at *7–*8 (5th Cir. 2009) (unpublished) (officers entitled to qualified immunity for failure to 

seek medical attention for heart condition unknown to them, especially because detainee was 

breathing, walking and talking in normal manner).

8 It makes no difference that Thompson also found the sergeant acted unreasonably 

by telling subordinates to get help only if Thompson was “on the verge of death.” 245 F.3d at 

464. Here, again, the Officers’ actions arguably manifested equal, if not greater, indifference. 

A reasonable jury could find the Officers misstated the severity of Graham’s condition by 

telling the sergeant only that Graham had been “medically cleared” at the scene.

 Case: 19-10280 Document: 00515477549 Page: 15 Date Filed: 07/06/2020
No. 19-10280

16

stopped breathing in jail, they “immediately began CPR.” Id. at 325. Further,

the suggestion that the officers take the plaintiff to the hospital was “based 

solely on a need to decontaminate the effects of the pepper spray,” and there 

was no evidence “that the delay in the decontamination caused [the plaintiff]

to stop breathing.” Id. Thus, we concluded there was no evidence that the 

officers “had knowledge that [the plaintiff] was in need of any other immediate 

medical attention.” Id.

By contrast, in this case a reasonable jury could find that (1) Graham 

violently bashed his head against the interior of Officer Heidelburg’s patrol car 

over 40 times while en route to jail; (2) Officers Heidelburg, Gafford, and Scott 

were fully aware of Graham’s actions and of their serious danger; (3) the 

Officers sought no medical attention for Graham; and (4) upon arriving at jail, 

the Officers failed to inform jail officials what Graham had done to himself, 

telling them only that Graham had been “medically cleared” at the scene. From 

this evidence, a reasonable jury could conclude that the Officers “were either 

aware or should have been aware, because it was so obvious, of an unjustifiably 

high risk to [Graham’s] health,” did nothing to seek medical attention, and 

even misstated the severity of Graham’s condition to those who could have 

sought help. Tamez, 589 F.3d at 770 (cleaned up) (discussing Thompson).

V. 

For the foregoing reasons, we AFFIRM the district court’s order 

dismissing the deliberate-indifference claims against the Paramedics. We 

REVERSE the summary judgment dismissing the deliberate-indifference 

claims against the Officers, and REMAND for further proceedings consistent 

with this opinion.

AFFIRMED in part; REVERSED and REMANDED in part.

 Case: 19-10280 Document: 00515477549 Page: 16 Date Filed: 07/06/2020