# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 29, 2018 *

Decided June 6, 2018

Before

FRANK H. EASTERBROOK, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 17

‐ 3071

BRIAN BROADFIELD,

Plaintiff

‐ Appellee

,

v

.

BRIAN MCGRATH, et al.

, Defendants

‐ Appellants

. Appeal from the United States District

Court for the Central District of Illinois.

No. 16

‐ CV

‐ 1202

Sue E. Myerscough,

J udge

.

O R D E R

Three officials at the Livingston County Jail appeal the district court’s denial of

their motion for summary judgment based on a qualified

‐ immunity defense to Brian

Broadfield’s claims of deliberate indifference and excessive force. Broadfield, a pretrial

detainee, had sued the defendants for failing to contact a mental

‐ health professional

* We have agreed to decide the case without oral argument because the briefs and

record adequately present the facts and legal arguments, and oral argument would not

significantly aid the court. See F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 17

‐ 3071 Page 2

when they responded to his manic outburst and for using excessive force when they

transferred him from a restraint chair to a cell. We affirm in part, reverse in part, and

remand for further proceedings.

Because our review of a denial of summary judgment based on qualified

immunity is limited to questions of law, we may take—as given—the facts assumed by

the district court when it denied summary judgment, or we may accept the plaintiff’s

version of the facts. White v. Gerardot

, 509 F.3d 829, 833 (7th Cir. 2007).

The incident at the heart of this appeal stems from Broadfield’s reassignment to a

different housing unit following an altercation with another inmate. Broadfield refused

the reassignment and threatened to launch a hunger strike. Pending his reassignment,

he was placed in a holding cell, whereupon he “flipped out” and began hitting himself

in the face and throwing himself against the wall. From the holding cell, Broadfield told

an officer that he needed to be put in a restraint chair to stop hurting himself.

Forty

‐ five minutes later, Sergeant Jason Durham went to Broadfield’s cell and

asked him why he wanted to be placed in the restraint chair. Broadfield repeated that

he was going to hurt himself. Durham relayed this to Assistant Superintendent Stuart

Inman, who ordered that Broadfield be placed in a padded cell on suicide watch, issued

a suicide

‐ proof smock, and monitored every fifteen minutes. Broadfield, however,

continued to hit himself in the face and bang his head against the doors and walls. He

also kicked and broke his cell door’s window.

At Inman’s directive, Broadfield was moved to a restraint chair, where he

remained for six and a half hours. He was monitored by a nurse every fifteen minutes.

Broadfield says that he continued to try to hurt himself in the chair by pulling and

twisting on the restraints.

Inman, concerned that continued placement in the chair was counterproductive

and potentially harmful to Broadfield, eventually ordered that he be transferred to a

cell. Multiple officers, including Durham and Brian McGrath, forcibly removed him

from the chair. The defendants say that Broadfield became combative, though

Broadfield contends that his resistance was triggered by the officers’ use of force.

Broadfield maintains that the officers put him in an elbow

‐ lock and that McGrath

twisted his wrist and arm while putting on handcuffs. The officers then “hog tied” him

and carried him to his cell. The officers’ violence during this episode, Broadfield says,No. 17

‐ 3071 Page 3

left his wrist “severely bruised” for days. Broadfield adds that he was suffocated when

the officers shoved his throat up “against concrete.”

The district court denied summary judgment for the defendants. In the court’s

view, a jury could find that defendants responded reasonably to Broadfield’s mental

‐

health episode, but a mental

‐ health professional was “arguably the one with the

expertise to decide how Plaintiff should be handled,” and the defendants did not have

that training. As for Broadfield’s excessive

‐ force claim, the court explained that video

evidence did not capture all the force used by McGrath and Dunham, and a “reasonable

inference” could not be ruled out that the amount of force used was excessive. The court

also noted that Broadfield’s level of cooperation with the officers was disputed. Finally,

the court rejected defendants’ qualified immunity arguments because Inman failed to

obtain mental healthcare for Broadfield despite the situation “clearly requiring that

expertise,” and because McGrath and Durham had “no objective need” to use the level

of force that Broadfield contended they used.

On appeal, the defendants argue that they are entitled to qualified immunity on

both of Broadfield’s claims. In determining whether qualified immunity applies, we

look to (1) whether the defendants violated a constitutional right, and (2) whether the

constitutional right was clearly established. Estate of Clark v. Walker

, 865 F.3d 544, 550

(7th Cir. 2017). Beginning with Broadfield’s deliberate

‐ indifference claim, defendants

argue that Inman could not have violated Broadfield’s constitutional rights because his

failure to summon a mental

‐ health professional immediately cannot be equated with

criminal recklessness or anything approaching intentional wrongdoing

. See Rosario v.

Brawn

, 670 F.3d 816, 821 (7th Cir. 2012). Defendants maintain that Inman’s initial

response (ordering that Broadfield be placed in a padded cell in booking and that he be

placed on suicide watch) reflected “due care” for his safety, and that his subsequent

directives (ordering that Broadfield be placed in a restraint chair in the hopes he would

calm down, and that a jail nurse check on him every fifteen minutes while in the chair)

were “quintessentially reasonable.”

Jurisdictional constraints prevent us from addressing whether Inman’s actions

amounted to deliberate indifference: Whether Inman’s actions were reasonable in light

of the circumstances is a factual question not suited to resolution on an interlocutory

appeal. See Paine v. Cason

, 678 F.3d 500, 504, 511 (7th Cir. 2012) (reasonableness of police

officer’s recommendation not to contact psychiatrist or physician to treat bipolar

arrestee who was crying and chanting rap lyrics during her intake interview was fact

issue that could not be decided on appeal from denial of summary judgment on civil

‐No. 17

‐ 3071 Page 4

rights claims). So we must accept the district court’s conclusion that a reasonable jury

could conclude that Inman knew of Broadfield’s medical needs but did not act

reasonably in response. See id.

We may, however, consider defendants’ argument regarding the second step of

the qualified immunity inquiry: that no clearly established law put Inman on notice that

his actions amounted to deliberate indifference. We have found no case law that would

have instructed Inman that he was required to do more than take the precautionary

actions that he did. True, calling a mental

‐ health professional may have been the

preferable course of action, but whether Inman engaged in the best possible course of

action (or even whether he was grossly negligent) is not the standard for deliberate

indifference. Rosario

, 670 F.3d at 821. Instead, we require “something approaching total

unconcern for the prisoner’s welfare in the face of serious risks.” Id. (citation omitted);

see also Liebe v. Norton

, 157 F.3d 574, 577–78 (8th Cir. 1991) (jailer who classified detainee

as suicide risk and took preventative measures such as placing him in holding cell,

removing his belt, and periodically checking on him was entitled to qualified immunity

on deliberate

‐ indifference claim). The steps that Inman took to quell Broadfield’s

attempts at self

‐ harm do not amount to a complete lack of concern. And also it was not

clearly established that his failure to seek out mental

‐ health treatment rose to the

requisite level of criminal recklessness to establish deliberate indifference. The district

court erred in denying qualified immunity to Inman.

Defendants next dispute the district court’s conclusion that McGrath and

Durham are not protected by qualified immunity on Broadfield’s claim that they used

excessive force while removing him from the restraint chair and then transferring him

to another holding cell. Defendants argue that the district court erred in concluding that

Broadfield’s level of cooperation at this time was genuinely disputed. They contend that

the officers’ use of force—using wrist locks while taking Broadfield out of the restraint

chair and then briefly hog

‐ tying him while transferring him to another cell—was

penologically justified to preserve order and security during circumstances in which

Broadfield was disobedient, combative, and uncooperative.

But a defendant who is denied qualified immunity at summary judgment may

not immediately appeal whether the evidence was sufficient to show a genuine issue of

fact for trial. See Estate of Clark

, 865 F.3d at 551 (quoting Johnson v. Jones

, 515 U.S. 304, 307

(1995)). And accepting the defendants’ argument would require disrupting the district

court’s conclusion that Broadfield’s level of cooperation was sufficiently disputed.No. 17

‐ 3071 Page 5

Because the court’s ruling on this step of the qualified immunity inquiry turns on

factual questions, we lack jurisdiction to review this issue.

We do have jurisdiction to decide the second step of the qualified

‐ immunity

inquiry: whether Broadfield’s right to be free from the type of excessive force described

by the district court was clearly established. The Supreme Court has stressed that this

right must be defined with adequate specificity. Kisela v. Hughes

, 138 S. Ct. 1148, 1151

(2018). The question, then, is not whether the law forbids the use of excessive force, but

whether the law clearly established as excessive force the pressing of a non

‐ resisting

detainee’s neck against the concrete in a manner that prevented him from breathing,

carrying him hog

‐ tied to his cell, and severely twisting his wrist in the process. See

Plumhoff v. Rickard

, 134 S. Ct. 2012, 2023 (2014). In making this determination, we do not

require a case be directly on point, but existing precedent must be sufficiently

analogous to place the officers on notice that their conduct was unlawful. Kisela

, 138 S.

Ct. at 1152.

The Supreme Court has held that a pretrial detainee can succeed on an excessive

force claim by showing only that the force used against him was objectively

unreasonable. Kingsley v. Hendrickson

, 135 S. Ct. 2466, 2472 (2015). And our precedent

makes clear that the actions of McGrath and Durham were objectively unreasonable if

Broadfield was not resisting. See Kingsley v. Hendrickson

, 801 F.3d 828, 832 (7th Cir. 2015)

(denying qualified immunity to officers who slammed non

‐ resisting detainee’s head

into concrete bunk and used a Taser while he was handcuffed); see also Sallenger v.

Oakes

, 473 F.3d 731, 741–42 (7th Cir. 2007) (denying qualified immunity to officers who

improperly hobbled and repeatedly struck non

‐ resisting suspect). Thus, we will not

disturb the district court’s denial of McGrath and Durham’s qualified

‐ immunity

defense.

We AFFIRM the district court’s denial of summary judgment with respect to

McGrath and Durham. We REVERSE the denial of summary judgment with respect to

Inman and REMAND for further proceedings.