In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 17-1668 

LUCINDA LOVETT and MICHAEL LOVETT,

Co-Personal Representatives of 

the Estate of Daniel J. Martin, 

Plaintiffs-Appellees, 

v.

LANDON HERBERT and 

ZACHARY OVERTON, 

Defendants-Appellants. 

____________________ 

Appeal from the United States District Court for the 

Southern District of Indiana, Terre Haute Division. 

No. 15 C 63 — William T. Lawrence, District Judge. 

____________________ 

ARGUED APRIL 20, 2018 — DECIDED OCTOBER 29, 2018 

____________________ 

Before SYKES, and BARRETT, Circuit Judges, and DURKIN, District Judge.*

DURKIN, District Judge. On December 13, 2013, Daniel Martin 

 

* The Honorable Thomas M. Durkin, Northern District of Illinois, sitting by designation.
2 No. 17-1668 

was arrested for drunk driving and taken to the jail in Clay 

County, Indiana. While there, Martin fell out of an upper 

bunk bed, suffering injuries that eventually led to his death 

several months later. Martin’s estate sued Clay County correctional officers Landon Herbert and Zachary Overton who 

were on duty at the jail that night. The district court denied 

the Officers’ motion for summary judgment on qualified immunity. The Officers appeal that order. 

I. Background 

When he arrived at the jail, Martin was booked by Officers 

Herbert and Overton. Officer Herbert was familiar with Martin from previous alcohol-related arrests. Martin’s booking 

paperwork noted that he had a blood-alcohol content of 

0.16%. (When he was subsequently taken to the hospital, his 

blood-alcohol content was measured at 0.22%.) The district 

court found that Officer Herbert “smelled alcohol on Martin, 

but neither [Officer] Herbert nor [Officer] Overton observed 

any slurred speech or stumbling on Martin’s part.” In statements made to a detective investigating the incident, Officer 

Herbert said he could tell Martin was intoxicated “because he 

seemed slow,” whereas Officer Overton said that if he had not 

smelled alcohol then he would not have known that Martin 

was intoxicated. The district court also noted that “[a]fter 

Martin was booked in and fingerprinted, he asked to retrieve 

a phone number from his cell phone so that he could arrange 

for his dog to be fed.” 

The receiving area of the jail, where new arrestees are temporarily detained, has six two-person holding cells (cells 1-6), 

one padded cell, one single-person medical isolation cell, and 
No. 17-1668 3

a “drunk tank” with a capacity for 14 people.1 The two-person 

cells each contain a bunk bed. On the night in question, cell 1 

was occupied by a male inmate from another county who was 

a safety concern; cell 2 was occupied by two male inmates; cell 

3 held one female county inmate; cell 4 held one male inmate; 

cell 5 held one female federal inmate; and cell 6 held one male 

county inmate who was a safety concern.2 The drunk tank 

was occupied by six or nine federal immigration detainees,3

and did not contain bunk beds. The medical cell was occupied, but the padded cell was not. 

Officer Overton decided to place Martin in cell 4, which 

was occupied by one male inmate. The other inmate in cell 4 

had recently had surgery and required the bottom bunk. Martin told Officer Herbert that he was too drunk to get up to the 

upper bunk.4 Officer Herbert disputes that Martin cited his 

intoxication as the reason for this inability. Officer Herbert 

says he told Martin to take the mattress off the upper bunk 

 

1 “Drunk tank” is a slang expression for a jail cell or separate holding 

facility dedicated to accommodating detainees who are intoxicated, where 

they are held until sober.

2 The district court did not state whether the inmates in cells 2 and 4 

were there for county or federal, charges or crimes.

3 The district court’s opinion stated there were six immigration detainees in the drunk tank, but the parties agree the evidence shows there were 

nine. 

4 The evidence of some of Martin’s statements underlying the parties’ 

factual disputes are interrogatory answers based on statements Martin 

made to his wife before he passed away. Since we find that the Officers 

are entitled to qualified immunity even resolving all factual disputes in 

favor of the Estate, it is unnecessary to address any hearsay issues with 

regard to these statements. 
4 No. 17-1668 

and put it on the floor. The Estate disputes this. Martin’s cellmate testified he heard Officer Herbert tell Martin he could 

sleep on the floor. The mattresses are thin and not heavy, and 

are easily moved by one person. However, it was against the 

jail’s policy to place mattresses on the floor. 

Officer Overton decided to place Martin in cell 4 rather 

than the drunk tank because the immigration detainees were 

about to be transferred. The Officers intended to move Martin 

to the drunk tank after the immigration detainees were removed. 

Martin was not placed in the padded cell because the Officers had reason to anticipate that a particular inmate in the 

long-term holding section of the jail would need to be separated that night. It is not clear why the two female detainees 

being held in separate cells were not placed in the same cell 

so Martin could have access to a bottom bunk in one of their 

vacated cells. 

As shown on the surveillance video, shortly after being 

placed in cell 4, Martin climbed onto the upper bunk. About 

30 minutes after being placed in the cell, Martin fell while attempting to climb down. He hit his head on a table on the opposite wall, damaging his spinal cord and paralyzing him 

permanently. He died five months later. 

Martin’s Estate sued Officers Herbert and Overton for failing to provide adequate medical care in violation of the 

Fourth Amendment. The Estate argued that a person with 

Martin’s level of intoxication should not have been assigned 

to a cell where the only open bunk was an upper bunk. 
No. 17-1668 5

The Officers moved for summary judgment and sought 

qualified immunity for their conduct. The district court denied the motion on the merits, explaining that because: 

there are competing versions of what occurred 

and whether [Officers] Overton and/or Herbert 

knew or should have ascertained Martin’s level 

of intoxication before assigning him to a cell, 

and the Court must view the facts in the light 

most favorable to the Plaintiffs, the Court finds 

that there are questions of fact regarding 

whether Defendants Herbert’s and Overton’s 

actions were objectively unreasonable that preclude summary judgment on the Plaintiffs’ 

Fourth Amendment claims. 

The district court also denied Officers Herbert and Overton qualified immunity because: 

the factual disputes identified above regarding 

the officers’ knowledge bear directly upon 

whether it was objectively reasonable for the individual Defendants to believe they acted in 

compliance with clearly established law. Therefore, the Court cannot decide at this stage of the 

proceedings whether their action clearly violated established law. Summary judgment is not 

available where factual disputes infuse issues 

on which entitlement to immunity turns. 

Officers Herbert and Overton filed this interlocutory appeal on the qualified immunity issue. 
6 No. 17-1668 

II. Standard of Review 

A district court’s denial of qualified immunity is reviewed 

de novo. See Hurt v. Wise, 880 F.3d 831, 841 (7th Cir. 2018). We 

“draw all factual inferences in favor of Plaintiffs.” Orlowski v. 

Milwaukee County, 872 F.3d 417, 421 (7th Cir. 2017). 

III. Analysis 

A. Jurisdiction 

Ordinarily, interlocutory decisions such as the denial of 

summary judgment are not subject to appellate review. See

Hurt, 880 F.3d at 839 (citing 28 U.S.C. § 1291). However, “there 

is a limited exception for defendants who were denied qualified immunity on summary judgment.” Hurt, 880 F.3d at 839 

(citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). “We may 

consider such appeals to the extent that the defendant public 

official presents an ‘abstract issue of law.’” Green v. Newport, 

868 F.3d 629, 632 (7th Cir. 2017) (quoting Huff v. Reichert, 744 

F.3d 999, 1004 (7th Cir. 2014)). In order to present such an issue for appeal, the “defendant may accept, for purposes of the 

qualified immunity inquiry, the facts and reasonable inferences favorable to the opponent of immunity, and argue that 

those facts fail to show a violation of clearly established law.” 

Hurt, 880 F.3d at 839 (citing Gutierrez v. Kermon, 722 F.3d 1003, 

1009 (7th Cir. 2013)). 

The Estate argues that appellate jurisdiction is lacking because the district court found material factual disputes. The 

parties dispute Martin’s level of intoxication and the Officers’ 

knowledge of it. They also dispute the availability of other 

cells, and the level of risk an upper bunk created. The district 

court held that these disputes precluded summary judgment 

on both the question of whether the Officers’ conduct violated 
No. 17-1668 7

the Fourth Amendment and the question of whether they are 

entitled to qualified immunity. 

This holding does not deprive us of jurisdiction, however, 

because the district court erroneously conflated two distinct 

inquiries regarding reasonableness. The Supreme Court has 

explained that “it does not suffice for a court simply to state 

that an officer may not [act] unreasonabl[y] ... , deny qualified 

immunity, and then remit the case for a trial on the question 

of reasonableness.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 

(2018). Although questions of (1) Fourth Amendment liability 

and (2) qualified immunity both involve an analysis of the 

“reasonableness” of a defendant’s conduct, the objects of 

those analyses are different. As we have explained in prior 

cases, “’the substantive constitutional standard protects [a defendant officer’s] reasonable factual mistakes [whereas] qualified immunity protects [the officer] from liability where [he] 

reasonably misjudge[d] the legal standard.’” Weinmann v. 

McClone, 787 F.3d 444, 450 (7th Cir. 2015) (quoting Catlin v. 

City of Wheaton, 574 F.3d 361, 369 (7th Cir. 2009)); see also Saucier v. Katz, 533 U.S. 194, 205 (2001) (“If an officer reasonably, 

but mistakenly, believed that a suspect was likely to fight 

back, for instance, the officer would be justified in using more 

force than in fact was needed .... [By contrast,] [t]he concern 

of the immunity inquiry is to acknowledge that reasonable 

mistakes can be made as to the legal constraints on particular 

police conduct.”). 

This distinction allows us to work around the factual disputes identified by the district court by assuming that the Officers knew Martin was severely intoxicated and that cells 

without upper bunks were available. Making these assumptions, we can properly exercise jurisdiction to determine 
8 No. 17-1668 

whether providing a severely intoxicated person access to an 

upper bunk, in a cell where the lower bunk was occupied, violates clearly established law for qualified immunity purposes. 

B. Qualified Immunity 

“Put simply, qualified immunity protects all but the 

plainly incompetent or those who knowingly violate the law.” 

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation 

marks and citation omitted). In practice, this means that “[a] 

state official is protected by qualified immunity unless the 

plaintiff shows: ‘(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.’” Kemp v. Liebel, 

877 F.3d 346, 350 (7th Cir. 2017) (quoting Ashcroft v. al-Kidd, 

563 U.S. 731, 735 (2017)). “We have discretion to choose which 

prong to address first, and since the second prong is dispositive here, we address only whether the right at issue was 

clearly established.” Mason-Funk v. City of Neenah, 895 F.3d 

504, 507-08 (7th Cir. 2018) (citing Pearson v. Callahan, 555 U.S. 

223, 236 (2009)). 

A right is “clearly established” when it is “‘sufficiently 

clear that every reasonable official would have understood 

that what he is doing violates that right.’” Mullenix, 136 S. Ct. 

at 308 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). 

Such knowledge can be imputed to a defendant officer in two 

scenarios. See Reed v. Palmer, --- F.3d ---, 2018 WL 4870351, at 

*3-4 (7th Cir. Oct. 9, 2018). First, if we or the Supreme Court 

have previously held that conduct analogous to the defendant 

officer’s actions constitutes a violation of the right at issue, the 

officer will not be entitled to qualified immunity. See MasonFunk, 895 F.3d at 508 (we ask whether “‘existing precedent 
No. 17-1668 9

[has] placed the statutory or constitutional question beyond 

debate.’” (quoting Kisela, 138 S. Ct. at 1152)); Kemp, 877 F.3d at 

351 (“‘[W]e look first to controlling Supreme Court precedent 

and our own circuit decisions on the issue.’” (quoting Jacobs 

v. City of Chicago, 215 F.3d 758, 767 (7th Cir. 2000))). Second, in 

the “rare” case when the defendant officer’s conduct is so 

“egregious” that it can be said to “obviously” violate the right 

at issue, “the plaintiffs may not be required to present the 

court with any analogous cases.” Jacobs, 215 F.3d at 767; see 

also Abbott v. Sangamon County, 705 F.3d 706, 723-24 (7th Cir. 

2013) (“a closely analogous case” is not required to demonstrate violation of clearly established law when “the conduct 

is so egregious and unreasonable that ... no reasonable [official] could have thought he was acting lawfully”). In such 

cases, the general statement of the right at issue can provide 

the defendant officer sufficient notice that his actions were illegal. See Kisela, 138 S. Ct. at 1153 (“‘Of course, general statements of the law are not inherently incapable of giving fair 

and clear warning to officers.’ [They can] create clearly established law [in] an ‘obvious case.’” (quoting White v. Pauly, 137 

S. Ct. 548, 552 (2017)). 

Both methods of inquiry into whether a right is “clearly 

established ... ‘must be undertaken in light of the specific context of the case, not as a broad general proposition.” Mullenix, 

136 S. Ct. at 308 (quoting Brosseau v. Haugen, 543 U.S. 194, 198 

(2004)). “The dispositive question is ‘whether the violative nature of particular conduct is clearly established.’” Mullenix, 136 

S. Ct. at 308 (quoting Ashcroft, 563 U.S. at 742) (emphasis in 

Mullenix). “Such specificity is especially important in the 

Fourth Amendment context, where the Court has recognized 

that ‘[i]t is sometimes difficult for an officer to determine how 
10 No. 17-1668 

the relevant legal doctrine ... will apply to the factual situation the officer confronts.’” Mullenix, 136 S. Ct. at 308 (quoting 

Saucier, 533 U.S. at 205)). 

Here, the right at issue is a pre-arraignment detainee’s 

Fourth Amendment right to “objectively reasonable” treatment. We have explained that this right is assessed with reference to the defendant officer’s notice of the detainee’s medical need, the seriousness of the medical need, the scope of the 

alleged required treatment, and police interests. See Williams 

v. Rodriguez, 509 F.3d 392, 403 (7th Cir. 2007); see also Otis v. 

Demarasse, 886 F.3d 639, 645 (7th Cir. 2018). The Estate argues 

that the Officers obviously violated this right by giving a severely intoxicated person access to an upper bunk. The Officers argue that only analogous precedent could have put them 

on notice that their conduct was unreasonable, but that no 

such precedent exists. 

Examination of the specific context of the Officers’ conduct in this case shows that it was not “egregiously” or “obviously” unreasonable. Martin’s severe intoxication did not 

necessarily indicate imminent or ongoing danger, such that 

giving access to an upper bunk was patently unreasonable. 

Although severe intoxication impairs a person’s physical and 

mental abilities, the level of impairment varies by individual, 

and it is undisputed that Martin was communicating with the 

Officers and moving around under his own capacity prior to 

being left in the cell. Further, impairment from intoxication 

eventually decreases with time. We and the Supreme Court 

have required a much higher level of obvious risk to deny 

qualified immunity based on the Fourth Amendment’s general requirement of reasonable conduct with respect to detainees. See, e.g., Hope v. Pelzer, 536 U.S. 730, 741 (2002) (denying 
No. 17-1668 11

qualified immunity because handcuffing prisoner to hitching 

post for hours in summer sun violated clearly established 

law); Estate of Perry v. Wenzel, 872 F.3d 439, 460 (7th Cir. 2017), 

cert. denied, 138 S. Ct. 1440 (Apr. 2, 2018) (an officer who 

“fail[ed] to take any action in light of a [detainee’s] serious 

medical need” obviously violated the Fourth Amendment 

and was not entitled to qualified immunity) (emphasis in 

original). 

Additionally, the facts of this case in particular show that 

there were a number of intervening events between the Officers’ decision to place Martin in a cell with an upper bunk and 

Martin’s injury: Martin decided to climb into the upper bunk 

rather than taking the mattress off the upper bunk and sitting 

or sleeping on the floor; Martin attempted to climb down 

from the upper bunk before he was sufficiently sober; Martin 

happened to fall; Martin happened to hit his head and seriously injure himself when he fell. None of these events is so 

obviously foreseeable that the Fourth Amendment’s requirement of reasonable conduct would have given the Officers’ 

notice that their actions violated that standard. 

The Estate also identifies several cases concerning treatment of people in jail in an attempt to establish that the Officers conduct fell outside the bounds of what courts have determined to be reasonable conduct.5 In Estate of Miller v. Marberry, we affirmed summary judgment for a prison warden 

 

5 A number of these cases concern convicted inmates (rather than pretrial detainees like Martin) protected by the Eighth Amendment’s deliberate indifference standard, which imposes a higher burden of proof on 

plaintiffs than the Fourth Amendment reasonableness standard at issue 

here. See Williams, 509 F.3d at 403. Of course, conduct that is deliberately 
12 No. 17-1668 

and a guard when an inmate with a brain tumor fell out of a 

upper bunk. 847 F.3d 425 (7th Cir. 2017). As an initial matter, 

this case cannot have served to clearly establish Martin’s 

Fourth Amendment right because it concerned Eighth 

Amendment rights and was decided after the events in this 

case. In Marberry, we held that the inmate’s lower-bunk permit and the defendants’ knowledge that he had a brain tumor 

did not constitute knowledge of a serious medical condition 

requiring a lower bunk. Id. at 428-29. The Estate argues the 

case can be parsed to show that when an inmate has a more 

obvious medical condition like Martin’s, the Officers should 

know that they should not assign that inmate an upper bunk. 

But this is too fine an analysis on which to base a finding of 

clearly established law, and we are skeptical that a decision 

on the merits (not addressing qualified immunity), finding 

that defendant officials did not violate an inmate’s rights, can 

clearly establish when a right is violated. 

The same can be said for Estate of Simpson v. Gorbett in 

which we affirmed a grant of summary judgment to jail 

guards who assigned a narrow (2.5 foot wide) upper bunk to 

an obese inmate. 863 F.3d 740 (7th Cir. 2017). The Estate argues that this case clearly established Martin’s rights in this 

case because the jail guards in Gorbett assigned the inmate to 

the drunk tank for 13 hours before assigning him to a cell. After 13 hours, the inmate no longer appeared drunk, but he suffered a withdrawal seizure and fell out of the bunk. But like 

Marberry, this case is too recent to have informed the Officers 

here. And even if the case was timely, it does not establish that 

 

indifferent is also unreasonable, but conduct that is not deliberately indifferent may still be unreasonable. We consider the relevance of these cases 

with that principle in mind. 
No. 17-1668 13

the Officers were unreasonable in not assigning Martin to the 

drunk tank, as the inmate’s physical characteristics and the 

circumstances of the cell here are entirely different. 

In Estate of Clark v. Walker, we affirmed a denial of qualified immunity where the defendant officer “chose to do nothing” despite his knowledge that the inmate was a suicide risk. 

865 F.3d 544 (7th Cir. 2017); see also Hall v. Ryan, 957 F.2d 402 

(7th Cir. 1992) (affirming denial of summary judgment to defendants on claim of failure to take action regarding suicide 

risk). A suicide risk is simply not analogous to permitting an 

intoxicated person access to an upper bunk, and there is no 

suggestion that Martin was a suicide risk. We cannot expect 

officers considering how to treat an intoxicated person to extrapolate the reasonableness of their actions from a court decision about treatment of a person who is a suicide risk. That 

would require the officers to measure the extent of the risk for 

a suicidal person against the risk associated with an intoxicated person. Such an abstract analysis goes beyond the consideration of particular facts required by the Supreme Court 

and cannot serve to clearly establish the law. The same analysis applies to the Estate’s citation of an Eighth Circuit case 

addressing an inmate with a seizure condition. See Phillips v. 

Jasper County Jail, 437 F.3d 791 (8th Cir. 2006). 

The rest of the cases the Estate cites are district court decisions that “‘have no weight as precedents and therefore cannot clearly establish a constitutional right.’” Mason-Funk, 895 

F.3d at 509 (quoting Boyd v. Owen, 481 F.3d 520 (7th Cir. 

2007)). Contrary to the Estate’s argument, the relevance of 

“trends” outside this circuit, see Gill v. City of Milwaukee, 850 

F.3d 335, 341 (7th Cir. 2017), is not an exception to the prohibition on the use of district court decisions. 
14 No. 17-1668 

Therefore, even drawing all factual inferences in its favor, 

the Estate has failed to show that the Officers’ conduct violated clearly established law. For that reason, the Officers are 

entitled to qualified immunity. 

IV. Conclusion 

 The denial of the Officers’ motion for summary judgment is REVERSED and REMANDED with instructions to the 

district court to enter judgment for the Officers on the Estate’s 

Fourth Amendment claim.