### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40749

ESTATE OF LAURA ALLISON; WILLIAM ALLGOOD; KIMBERLY NOLET, Plaintiffs-Appellees
v. BILL WANSLEY; DAVID HAYES; CYNTHIA HYATT; MICHAEL ALLISON; RYAN ZELLER; JOSHUA DEAN; BOBBYE LEFFEL, Defendants-Appellants

Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:11-cv-00100

Before STEWART, C hief Judge, and BENAVIDES and HI G G I N SON, Circuit Judges. PER CURIAM: * Defendants-Appellants (“Appell a nt s ”) f il e d thi s i nt e rlocutory appeal of the district court’s denial o f s ummary judgment on the defense of qual i fied immunity. Plaintiffs-Appellees (“Appellees”) had brought s u i t in the district court, a lleging that Appellants treated Laura Allison’s serious medical needs with deliberate indifference while she was i ncarcerated i n the Wood County Jail, U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May15, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40749 Document: 00512242220 Page: 1 Date Filed: 05/15/2013No. 12-40749

thereby re sulting in her de ath

. We R EVE R S E an d R EM AND f or f urther proce e dings . I. FACTUAL & PROCEDURAL HISTORY In February 2007, Deced e n t L aura Allison (“Decedent Allison”) was arrested in Wood County, Texas for d riving under the influence of a lcohol. As

a condition of her sentence, she was required to attend the Victim Impact Panel (“VIP”) class, which the Wood County Probation Office c onducted. On March 17, 2009, D ecedent Allison arrived at a VIP c l ass, which A dult Probation Officer/Community Supervision Officer Colin Kovic (“O f f i cer Kovic”) was facilitating that day. When Officer Kovic first saw Decedent Al l i s o n as she arrived at the class around 5:30 PM, he noticed that her eyes were glassy and red, her speech w as slow, and she smelled of alcohol. Decedent Allison explained her condition to Officer Kovic by stating that she was s u f f e r i n g f rom allergies and had taken a double dosage of her allergy medication. Officer Kovic requested several times that D ecedent Allison take a breathalzyer examination, but she r efused. Officer Kovic t h u s c a l l ed the Wood County Sheriff’s Department, which s e n t Quitman Police Officer David Barkley (“Officer Barkley”) to the scene. Texas Department of Public Safe t y T r o o p er B randon Owens acted as backup for Officer Barkley. When Officer Barkley arrived, Officer Kovic told Officer Barkley that he had requested that D ecedent Allison t a k e a b r e a thalyzer test, b ut she had refused. Officer Barkley also requested that s h e t ake a b reathalyzer examination, but she again refused. Officer Barkley told Decedent Allison that he could smell alcohol about her pe rson, but she denied that she had been drinking. Officer Barkley then performed a simple sobriety test by requesting that she stand on o ne l eg, but she failed the t est, as she was unable to keep her leg raised. Officer Barkley therefore placed her under a rrest at approximately

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6:37 PM and transported her t o the Wood C ounty Jail (“Jail”), where she arrived at approximately 7 PM. 1 Officer Barkley’s arr e s t r e p o rt s t at e d : “Suspect arrived at Probation Office had been drinking a nd stated took prescription meds not i n a ccordance with direction.” (capitalizati o n i n o ri gi n al o m itt e d)

. O f f i cer Barkley’s Complaint/With Probable Cause Affidavit states, in pertinent part:

I n oticed the odor of an alcohol beverage e mitting from [Decedent] Allison’s breath. I further observed she was confused in answering questions. H e r speech was slurred and s he was staggered [sic]. [ Decedent] Allison stated she had m i s used her prescription medications. At this time I attempted to have [Decedent] Allison complete a standard field sobriety t est which she could not. [Decedent] Allison did appear in a p ublic place while intoxicat e d and did p resent a threat [illegible] danger to herself or others. (capitalization in original omitted). Officer Kovic later attested in his aff i davit that, on the day of Decedent Allison’s arrest, she appeared intoxicated, but not so i n toxicated a s t o r e q uire medical help. He averred that she was able to walk with o u t a s s istance and
carry on a conversation with him. He further attested that, if she had a ppeared to need medical help, he would have requested emergency assistance for her. Defendant Jail Sergeant David Hayes (“Serg e ant H ayes”) was the supervisor at the Jail the n i ght of Decedent Allison’s arrest, a nd he booked her into the J ail. D ecedent Allison was crying and upset because she was arrested and would be unable t o see her grandchildren the n ext day as she had p lanned. Sergeant Hayes used a screening form to obtain i n formation from her regarding
any “suicide and m edical and mental impairments.” Sergeant Hayes n oted her

1 While the arres t rep ort ind icates the arres t tim e w as 6: 37 PM and book ing tim e w as 7 PM , w e note that the p arties and the d is trict court us e s ligh t l y d if f erent tim es f

or thes e events ; thes e d if

f erences are im m aterial to the is s ues p res ented on ap p eal, how ever. 3 Case: 12-40749 Document: 00512242220 Page: 3 Date Filed: 05/15/2013No. 12-40749

medications as “Paxil, Disapam [sic], [and] C lamara [sic],” and Decedent Allison reported to him that s he attempted suicide a year earlier by using pills because she was depressed. In response to the screening f orm’s question, “Observed to be under the inf

l u e n c e of a lcohol drugs or withdrawal?” S ergeant Hayes answered, “No.” In response to the question, “Does arresting officer or any other
person believ e t h a t t h e inmate is at risk due to a medical condition, mental illness, mental retardation, or suicide c oncern?” h e also answered, “No.” In his deposition, Sergeant H ayes testified that, while h e di d not recall w hether he had read the specific information in Officer Barkley’s arrest report t h a t D ecedent Allison h ad t aken prescription dr u gs not i n a ccordance w ith directions, he typically reads arrest reports when a new inmate is booked into the Jail. Several J ailers testified in deposition regarding Decedent Allison’s condition when she arrived at the Jail. Defendant Jailer Joshua Dean (“Jailer Dean”) testified that Decedent Allison did not a ppear to b e in a ny m edical distres s d u r ing the booking process: she was n ot falling down, vomiting, or bleeding, a nd she was c oherent, able t o stand on her o w n , a n d c apable of answering all of J ailer Dean’s questions. Defendant Jailer C y n thia Hyatt (“Jailer H yatt”) likewise testified that Decedent Allison exhibited no signs of medical distress. Additionally, Jailer Hyatt testifi e d th at s h e observed Decedent Allison from 7 PM until 8:30 PM, that she was d oing “okay,” an d t h a t by 8:30 PM, she was sleeping. Jailer Hyatt f u r t h e r t e stified that she asked Decedent Allison i f she needed a nything at one point, but Decedent Allison said that she did not. Defendant Jailer Bobbye L effel (“Jailer L effel”) a lso assisted with D ecedent Allison’s booking by conducting th e p at-down search. Jailer Leffel testified that Decedent Allison was “highly u p s e t” a bout n ot getting to see her grandchildren and “just appeared to be intoxicated.” J ailer Leffel further testified that D ecedent Allison was able to carry on a conversation and did not stumble, fall, or trip on the way to her cell.

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On the other h and, Defendant Jailer Michael Alli s o n (“Jailer Allison”) 2 noticed Decedent Allison “passed out” o n the bench in her cell around 8 PM. By “passed o ut,” Jailer Allison m eant “ she w a s l a i d d own asleep, a nd I k now she had got brought in for PI [public intoxication], for some sort of intoxication.” Due to Jailer Allison’s k nowledge that Decedent Allison was arrested for “some sort of intoxicati o n , ” he a sked Defendant Jailer Ryan Zeller (“Jailer Zeller”) if Decedent Allison “was m essed up with pills or alcohol.” However, Jailer Allison also testified that he “didn’t know how messed up” s he was but she “looked fine,” despite the fact that she was passed out. Various Jailers t e stified that t h e y walked by Decedent Allison’s cell approximately every thirty minutes at least to check on h er, i ncluding to make

sure that she was still breathing. For example, Jailer Leffel t es t i f ied that Decedent Allison appeared t o be fine at o ne point, by which she meant Decedent Allison was breathing and snoring. At approximately 9 PM, Decedent Allison’s husband went to the Jail and asked to speak with his wife. T he husband a ppeared concerned and had brought Decedent Allison’s medication wit h h i m . H e told Jailer Dean that h e believed that Decedent Allison “might have taken something,” b ut he was not s ure what. When Jailer Dean asked for more information, the h usband did not provide a ny. Some of the Jailers attempted to rouse D e c e d e nt Allison to speak with her husband, but Allison merely moaned and mumbled; she did not fully wake up. Jailer Dean asked the h usband to wait until another officer relieved him so that he a nd the husband could s peak m ore, but the h usband l eft the Jail before Jailer Dean returned. Jailer Dean relayed his conversation with Decedent Allison’s husband to Sergeant Hayes, t o which Sergeant H ayes r esponded, “Keep a close eye on her.”

2 There is no relation betw een D eced ent Allis on andJailer Allis on. 5 Case: 12-40749 Document: 00512242220 Page: 5 Date Filed: 05/15/2013No. 12-40749

R e g a r ding these instructions, Jailer Dean later testified, “That’s all we were doing t o start with

. . . . W e already knew that information [regarding the prescription medication] from the book-in report. [The husband] w asn’t telling

us any t h i n g w e didn’t already know.” In r esponse to a question, Jailer Dean clarified that the Jail staff already had receiv e d i n formation that Decedent Allison “might have been takin g p r e s cription m edication.” H e stated, “We received that in the book-in p acket a s w e l l a s her husband stated [sic], but we did n ot know for a fact that she was. W e ’ r e n o t d octors.” The Jailers variably testified that they closely monitored Decedent Allison for the rest o f the night in intervals of fifteen to thirty minutes. At a p p r o xi m at e ly 1 1 : 1 5 PM, Sergeant Hayes n oticed that Decedent Alli s o n had n o t c hanged positions in a while, and he could not tell whether she was breathing by looking i n t o h e r c e l l. He banged on h er door but received no response. He th us asked Jailer Zeller to enter the cell w ith him, and they tried to wake her, but w ere unable to do so. When Jailer Z e ller noted that she had no pulse, they presumed she had died. S ergeant Hayes called his captain, as well

as dispatch to call an a mbulance. The ambulance a rrived shortly after midnight. None of t h e Jailers a ttempted to resuscitate D ecedent Allison after they discovered she had no pulse. Appellants assert that no one on the Jail staff was certified to perform cardiopulmonary resuscitation (“CPR”). The Medical Examiner’s autop s y report states, “It i s my opinion that Laura Janette Allison, a 54 year old white w oman, died from a c u t e e thanol intoxication. Although diazepan, i n c o n nection with ethanol can d epress the respirato r y d r ive, the levels were low and had minimal, if any, contribution to the death.” The toxicology report noted

. 3 9% ethanol, .07mg/l diazepam, and .21mg/l demethyldiazpam. In addition to the foregoing facts s urrounding Decedent Allison’s death at the Jail, both parties presented evidence o f the J ail’s policies and practices with

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respect to inmates requiring medical care. Appelle e s a s s e r t that they have presented evidence demonstrating that: 1) there have been three deaths at the Jail since 2006; 2 ) there is no policy requiring medical staff onsite at the Jail at night; 3) the Jail’s policy is to leave d e cisions about whether to contact medical personnel to the discretion of the Jailers on duty; 4) most Jailers are not trained in CPR o r “basic lifesaving measures”; and 5 ) none of the Jailers were disciplined for failing to provide Decedent Allison with m edical t reatment, and the Jail has made no changes t o its policies since h er death. Appellants a s s e r t t h a t they have presented evidence indicating that: 1) the Jail’s policy is n o t to accept inmates who are so i ntoxicated that their health might be in danger; and 2) the Jail’s policy is to obtain medical attention for any inmate who needs it. Appellees–Decedent Allison’s Estate and her two childr e n–filed their complaint on March 2, 2011, alleging that Appellants treated Decedent Allison’s serious medical needs w ith deliberate i n difference w hile she was inc a rcerated at the Jail on public intoxication charges. Appellees named as d e fendants all of the Jailers who were o n duty the night Decedent Allison died, as well as Sheriff Bill Wansley (“Sheriff Wansley”) and Wood County, Texas (“County”). 3 On April 3, 2012, Appellants moved for summary judgment, arguing that the individual defendant s were entitled to qualified immunity and that the County does not have a policy, c ustom, or practice of treating inmates’ constitutional rights with deliberate indifference. Af t e r h olding a hearing, the district c ourt denied Appellants’ motion on July 3, 2012. Appellants t imely filed a n o t i c e of interlocutory appeal. II. DISCUSSION A. Jurisdiction

3 The County is not a p arty to this ap p eal. 7 Case: 12-40749 Document: 00512242220 Page: 7 Date Filed: 05/15/2013No. 12-40749

“Ordinarily, we do not have jurisdiction t o review a denial o f a summary judgment motion because such a decision is not final within the meaning of 28 U.S.C. § 1291.” G obert v . Caldwell , 463 F.3d 339, 344 ( 5th Cir. 2006) (quoting Palmer v. Johnson , 193 F.3d 346, 350 ( 5 t h C i r . 1999)). H owever, “[t]he denial of a motion for summary judgment based on qualified immunity is immediately appealable under the collateral order doctrine to the extent that it turns on an issue of law.” Manis v. Lawson , 5 85 F.3d 839, 842 (5th Cir. 2009) (citation and internal quotation marks omitted). Our jurisdiction on a ppeal is limited. We have jurisdiction t o determin e w h e ther a factual dispute is material, but not whether it is genuine. Id. at 8 4 2

- 4 3 (citation omitted). “A district court’s decision to deny qualified immunity on a motion for summary judgment is ‘not appealable if [it is] based on a claim regarding the sufficiency of the evidence.’” Gobert , 463 F.3d a t 344 (alteration in original) (citations omitted). T hus, “if the district c ourt concludes that the summary judgment record raises a genuine issue of material fact with respect to whether

. . . qualified immunity is applicable, then that decision is not immediately a ppealable[.]” I d. (citations omitted). “The scope of clearly established law and the objective reasonableness of those acts of the defendant that the district court found the p l a intiff could prove at trial are legal issues we r eview de novo.” Thompson v. Upshur Cnty., Tex. , 245 F.3d 447, 456 (5th Cir. 2001) (citations omitted). We conclude, as a threshold matter, that we have j urisdiction to determine t h e m a t e r iality of the factual disputes here, and we address those factua l disputes in our section entitled, “Qualified Immunity Applied Here,” infra

. B. Standard of Review The standard of rev i e w f or “an i n terlocutory appeal asserting qualified immunity differs f

rom the standard employed in most appeals o f summary judgment rulings.” Kinney v. Weaver , 367 F.3d 337, 347 (5th Cir. 2004) (en banc). We accept th e p l a intiffs’ version of events a s t rue and examine “only

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whether the district court erred in assessing the l e gal significance of the conduct that the district c ourt deemed sufficiently supported f o r purposes of summary judgment.” Id. at 348 (citations omitted). We review this question de novo. I d. at 349. C. Qualified Immunity Generally, government officials performing discretionary functions have
qu alif i e d i m m u ni ty, which shields against civil damages liability, so long as the ir actions reasonably c ould have been thought consistent with the rights they are alleged to have violated. A n d e rs o n v. Creighton , 483 U.S. 635, 638 (1987); Gobert , 463 F .3d at 3 45 (citation omitted). To determine whether defendants are entitled t o qualified immunity, we ask: (1) whether the facts, taken in the light most favo r able to the party asserting the injury, show that the defendants’ conduct violated a c o n s t i t utional right, and (2) whether the right violated was clearly established at the time of the defendants’ alleged conduct. Se e Pearson

v. C allahan , 5 55 U.S. 223, 232 (2009) (citing Saucier v. Katz , 533 U.S. 194, 201 (2001), overruled in part by Pearson , 555 U.S. at 236) (other citations omitted). While it i s often appropriate to answer these two questions sequentially, courts

are allowed to exercise their “sound discretion in deciding w h i c h o f t h e two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. at 236. “‘Clearly established’ means that the ‘ c o n t ours of the right must be sufficiently clear t hat a reasonable official would understand that what he is doing violates that right.’” T hompson , 245 F.3d at 457 (quoting Anderson , 483 U.S. at 6 40). “The defendant’s acts are held to b e objectively reasonable unless all r easonable officials i n the d efendant’s circumstances would have then known that the defendant’s conduc t v iolated the United States Constitution or the federal statute as alleged by the plaintiff.” I d. (citations o m i t t e d). The

“ d e fendant’s c ircumstances” includes f acts that the defendant knows. I d

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“However, because qualifi e d immunity turns only upon the objective reasonableness of the defendant’s acts, a particular defendant’s subjective state of m ind has no bearing on whether that defendant i s en t i t l e d t o qualified immunity.” Id. (citations omitted). “An official is eligible for qualified immunity

even if the official violated another’s constitutional rights.” Id. (citations omitted). “The Suprem e Court h as characterized the d octrine [of qualified immunity] as protecting ‘all but the plainly incompetent or those who knowingly violate the law.’” Cozzo v. T angipahoa Parish C

ouncil-President Gov’t , 279 F.3d 273, 284 (5th Cir. 2002) (quoting Malley v. Briggs , 475 U.S. 335, 341 (1986)). “Whether an official’s conduct was objectively reasonable i s a question of law for the court, not a matter of fact for the jury.” Brown v. Callahan , 623 F.3d 249, 253 (5th Cir. 2010) (citation omitted). D. Constitutional Right to Reasonable Medical Care P r e trial detainees have a constitutional right n o t t o h av e c o nf i ni n g o f f i c i al s treat their serious medical needs with deliberate indiffer e n c e , u nder the Due P r o cess Clause of the F ourteenth Amendment. See Jacobs v. W. Felici a n a Sheriff’s Dep’t , 228 F.3d 388, 393 (5th C ir. 2000) ( “ U n l i k e convicted p risoners, whose rights to constitutional essentials like m edical car e a n d s afety are guaranteed b y the Eight[h] Amendment, pretrial detainees l ook to the procedural and substantive due process guarantees of the Fourteenth Amendment to ensure p rovision of these same b a sic needs.” (citing Bell v. Wolfish , 441 U.S. 520 (1979)). This right was clearly established l aw at the time of the incident in question. 1. Standards for Section 1983 Individual Liability Appellees have alleged that the individual officers were d eliberately indifferent to Decedent Allison’s serious medical need, given her cause of death– acute ethanol p oisoning. “It is well-settled in the law that ‘a state off i c i a l ’ s episodic act o r omission, violate s a p r e trial detainee’s due process rights to
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medical c are . . . if the o fficial acts with subjective deliberate indifference to the d e tainee’s rights.’” 4 I

d. at 393 (citation omitted). In order to demonstrat e subjective deliberate indifference, a p laintiff must p r e s e n t evidence: “ (1) that each defendant had s ubjective k nowledge of facts f r o m which an inference of substantial risk of serious harm could b e drawn, ( 2) that each d efendant actually drew that inference; and (3) that each defendant’s response t o the risk indicates that the [defendant] subjectively intended that harm occur.” Tamez v. Manthey , 589 F.3d 764, 770 (5th C ir. 2009) (cit a t i o n a nd internal quotation marks omitted). Deliberate indifference c annot be i nferred merely from a negligent or

even a grossly negligent r esponse to a s ubstantial risk of serious harm. See Hare

v. City of Corinth , 74 F.3d 633, 645, 649-50 ( 5 t h Cir. 1996) (en banc) (citations omitted). “Deliberate indiff e r e n c e is an extremely high standard to meet.” Domino v. Tex. Dep’t of Criminal Justice , 239 F.3d 752, 756 (5th Cir. 2001). 2. Standards for Section 1983 Supervisory Liability “Under [42 U .S.C. § 1983 (“Section 1983”)], sup e r v i s ory officials are not liable for the actions o f s u b o r dinates on any theory of vicarious l iability.” Thompkins v. Belt , 828 F.2d 298, 303 (5th Cir. 1987) (citations omitted); see also Roberts v . City of Shreveport , 397 F.3d 2 87, 292 ( 5th Cir. 2005) (citation omitted). Where, a s here, a sher i f f i s n ot p ersonally involved in the a cts that a llegedly deprived the p l aintiff of her constitutional rights, that sheriff i s liable under Section 1983 if: “1) the sheriff failed to train or supervise the officers involved; 2) there i s a causal c onnection between the alleged failure t o supervise or train

4 Ap p ellees ’ claim agains t the ind ivid ual d ef end ant s i s p r o p e rly a n alyzed as an “ep is od ic act or om is s ion” cas e, rather than a “cond ition of conf inem ent” cas e. See Scott v . M oore , 114 F. 3d 51, 53 ( 5th C ir. 1997) ( en banc) ( “In an ‘ep is od ic act or om is s ion’ cas e, an actor us ually is interp os ed betw een the d etainee and the m unicip ality, s uch that the d etainee com plains f irs t of a p articular act of, or om is s ion by, the actor and then points d erivatively to a policy, cus tom , or rule ( or lack thereof ) of the m unicip ality that p erm itted or caus ed the act or om is s ion. ”)

. If a cas e f

alls und er the “ep is od ic act or om is s ion” c a t e g o ry, we ap p ly the d eliberate ind if f erence s tand ard

. Id. at 54 ( citation om itted ). 11 Case: 12-40749 Document: 00512242220 Page: 11 Date Filed: 05/15/2013No. 12-40749

and th e alleged violation o f the plaintiff’s rights; and 3 ) the failure to train or supervise constituted deliberate indi fference t o the plaintiff’s constitutional rights.” Thompson , 245 F.3d at 459 (citations omitted). “Proof of more than a s ingle instance of the lack of training or supervision causing a violation of constitutional rights is normally required b efore s uch lack

o f training or s upervision constitutes deliberate indifference.” Id. (cit a t i o n s omitted). Generally, the plaintiff m ust demonstrate at least a pattern of similar violations. Id. (citation omitted). Moreover, “the inadequacy of training must be obvious a n d o b v i o u sly likely to result in a c onstitutional violation.” I d. (citations omitted). E. Qualified Immunity Applied Here 1. Individual Jailers The Jailers argue that they have presented uncontroverted evidence that they did not treat Decedent Allison’s serious medical needs with deliberate indifference. They f

urther argue that, even if th ey did treat her medical needs with d e l ib erate indifference, their actions w ere objectively r easonable. Accordingly, they argue that they are en t itled to i mmunity from suit on this basis. Appellees contend that the evidence illustrates that the Jailers both had “subjective knowledge o f f a c ts from which an inference of substantial risk of serious h arm could be drawn” and “that e a c h d e fendant actually drew that inference.” See Tamez , 589 F.3d at 770 (citation and internal quotation marks omitted). Specifically, Appellees allege that the Jailers knew that Decedent Allison was extremely intoxicated a n d had taken prescription medication in greater dosages than n ecessary, a combination which could be deadly. Further, Appellees argue that the Jailers’ ac tions prove that they a ctually drew this inference, in light of their frequent monitoring of Decedent Al l ison to ensure that she was still breathing. Ap p e l l e e s further argue that the genuine disputes of

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fact as to both the Jailers’ knowledge regarding Decedent Allison’s ingestion of prescription drugs and her apparent physical condition upon arriving at the Jail preclu d e s u m mary j udgment in the J ailers’ favor on their qualified immunity defense. The district court a g r e e d w i th Appellees, c oncluding that the Jailers

were not entitled to qualified immunity because there was “conflicting summary judgment evidence on th e i s s u e o f the Defendants’ knowledge regarding Allison’s medical condition.” We conclude, however, that Appellees’ deliberate indifference claim fails,

as they present no evidence that the Jailer s “ s u bjectively intended that harm occur.” Se e Tamez , 5 89 F.3d at 770 (citation o mitted). To the contrary, the Jailers’ constant monitoring o f Decedent Allison and their attempts to r ouse her to speak to her husband and take her medicat i o n s u g g e s t that they did not subjectively intend harm t o b e f a l l her. “Even i f those steps were ‘ineffectual,’ they do not demo n s t r a t e deliberate indifference.” Southard v. Tex. Bd. of Criminal Justice , 114 F.3d 539, 5 54 (5th Cir. 1997); see also F a rmer v. Brennan , 511 U.S. 825, 8 35 ( 1994) (noting that deliberate indifference “entails s omething

more than mere negligence”). Appellees have presented no evidence to suggest that the Jailers had this subjective intent to harm, nor evidence t o suggest that they “responded with deliberate indifference” to a risk of s e r i o u s harm. See Hare , 74 F.3d at 650 (emphasis added). Further, even if Appellants treated Decedent Allison’s medical needs with d e lib e r ate indifference in violation of her constitutional righ t s , th e ir a c ti o n s w e r e objectively reasonable. See Brown , 623 F.3d at 253 (“If the defendant’s actions violated a clearly established constitutional right, the c ourt then asks whether qualified immunity is still appropriate because the defendant’s actions w e re ‘objectively reasonable’ in light of ‘law which was clearly established a t the time of the disputed action.’” (citation omitted)); id. (“Whether an official’s conduct

was objectively reasonable is a question of law for th e court, not a matter of fact

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for the jury.”). Viewing the facts in the light m o st favorable to Appellees, the Jailers had knowledge that: Decedent Allison was v ery intoxicated, had taken prescription drugs not i n accordance with di rections, and had attempted to

c o m m i t s u icide using pills a year earlier. Specifically, with respect to the medication, the evidence d emonstrates that she either took twice her normal dosage of allergy medicine, a s she stated to O fficer Kovic, or more vaguely, that she took t h e m e d i cine “not in accordance with directions” or “not like she was supposed to.” This evidence is a far cry from a suggestion that she overdosed on pills or took an unusually large amount. Moreover, Appellees have p r esented no evidence to indicate that Decedent Allison’s physical condition exceeded anything beyond perhaps significant intoxication. Officer Barkley’s probable

cause affidavit s tates that: 1) he noticed the odor of an alcoholic beverage emitting from her b r e a t h ; 2 ) she was confused in a nswering questions; 3) her speech was s l u r r e d ; 4) she w as unsteady on her feet; 5) s he stated she had misused her prescription medications; 6) she failed a field sobriety test; and 7) she presented a danger to herself or others. O n these facts, we c a nnot s ay that, by frequently monitoring Decedent Allison and allowing h er t o sleep, “ all reasonable officials in the defendant[s’] circumstances would h ave then known that the defendant[s’] conduct violated the United Stat e s Constitution or the federal statute.” See Thompson , 245 F.3d at 457 (citations omitted). Indeed, it seems objectively reasonable for the Jailers to allow an intoxicated inmate t o “sleep it off,” with periodic monitoring to safeguard her well-being. As the Fourth Circuit aptly has stated:

[The deceased inmate’s] symptoms hardly distinguish him f rom the m ultitude of drug and a lcohol abusers th e police deal with everyday. [The deceased inmate] was found in possession of drugs while acting irrationally and s lurring his speech. H ow e v e r , an officer could hardly be faulted under [Estelle v. Gamble , 429 U.S. 9 7 (1976)] for believing that [the d e ceased inmate] needed

14 Case: 12-40749 Document: 00512242220 Page: 14 Date Filed: 05/15/2013No. 12-40749 nothing so much as t o sleep i t off. To accept appellant’s claim would be to mandate as a matter of constitutional law that officers take all criminal suspects u nder th e influence of drugs or alcohol to hos p i t al emergency rooms rather than d etention centers. That would be a startling step to take. Grayson v. Peed , 195 F.3d 692, 696 (4th Cir. 1999). While the r e s u l t h e re was tragic, we cannot say that all, or even most, reasonable officers would not have done the same, absent an i nmate’s additional external manifestations o f medical distress. We note that the district court here ruled that the existence of factual disputes precluded a f inding that the Jailers we r e e n t i tled to qualified immunity. Accordingly, we e m p hasize our conclusion, on the b asis of the materialit y of those disputed facts in the l ight most favorable to Appellees, that the J ailers here are entitled to qualified immunity. See Manis , 585 F.3d at 842 (citation omitted) (“Where

. . . the district c ourt finds t h a t g enuinely disputed, material fact issues p reclude a qualified i mmunity d etermination, this court can review only their materiality, not their genuineness.”). We therefore reverse the district court’s denial of qualified immunity for the individual Jailers. 2. Sheriff Wansley Appellees assert that they have presented evidence d e monstrati n g that: 1 ) t h e r e have been three d eaths at the Jail since 2006; 2) there is no pol i c y requiring m edical staff onsite at the Jail at night; 3) the Jail’s policy i s to leave decisions about whether to contact medical personnel to the di scretion of the Jailers on duty (who are ill-equipped to make this determination); 4) most Jailers are not trained i n CPR or “basic lifesaving measures”; and 5) none of the Jailers were disciplined for f ailing to p r o vide Decedent Al l ison with medical treatment , a n d t h e J ail has made no changes to its policies since her death. Appellants argue that they have presented evidence indicating that: 1) the Jail’s

15 Case: 12-40749 Document: 00512242220 Page: 15 Date Filed: 05/15/2013No. 12-40749

policy is not t o accept inmates who are so intoxicated that their health m ight be in danger; and 2 ) the Jail’s p olicy is to obtain medical attention for any inmate who needs it. The district court c oncluded that i f the Jailers were a d e q u a tely trained and yet they were d eliberately indifferent to Decedent Allison’s serious medical needs, then the Jailers “are at fault” for ignorin g t h e i r t raining. The court further stated:

However, if defendants did not know o f Allison’s condition or need for medical care, then fact is s ues remain as to: (1) the adequacy of Wansley’s training regarding recognizing a s erio us medical need; (2) his implemen t a tion of Wood County’s p o licies o f n ot providing medical personnel on s ite at night who a re able t o recognize that need; a nd ( 3) whether an inadequacy amounted to deliberate indifference.
We c onclude, however, that Appellees have f ailed to d e m o n s t rate that Sheriff Wansley was delib e r a t e l y i ndifferent to his responsibility to train his staff. To the contrary, the uncontroverted evidence i n the record i llustrates that the Jailers receive training o n obtaining medical assistance for any inmate when needed, and that the Sheriff has promulgated this policy. Further, “[p]roof of

more than a single instance of the lack o f training or supervision causing a violation of constitutional rights is normally required before su c h l a c k o f tr ai ning

or supervision c onstitutes deliberate indifference.” T h ompson , 245 F.3d at 459 (citati o ns omitted). The three jail deaths in the r ecord–for unrelated or unknown reasons–do not evidence such a p attern. Moreov e r , Appellees fail to demonstrate how the Sheriff’s policies were inadequate. See id. at 459 (citations omitted) (noting that “the i nadequacy of training must b e obvious and obviously likely to result in a constitutional violat i o n” ). As Appellees f ail to carry their burden, we conclude that Sheriff Wansley is entitled to qualified immunity. I II. CONCLUSION

16 Case: 12-40749 Document: 00512242220 Page: 16 Date Filed: 05/15/2013No. 12-40749

Based on the foregoing, we REVERSE the distr i c t c ourt’s denial of
summary j udgment to Appellants on their qualified immunity defense, and we REMAND for further proceedings not inconsistent with this opinion.

17 Case: 12-40749 Document: 00512242220 Page: 17 Date Filed: 05/15/2013