NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0966n.06 No. 11-3775 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

CAROL STEFAN, E x ecutor of the Estate of Michae l P. R eid, Plaintiff-Appellee ,

v. ED OL SON, et al., Def endants, and J ENNI FER MCCUNE, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) On Appea l from the United Sta t es District Court for the Norther n District of Ohio

Be fore : BO GGS and WHI TE, Circuit J udg es; and B L ACK, District J udg e. * BO GGS, Circuit J udg e. J ennife r McCune, a nurse, appea ls the district court’s denial of her motion for summary judgme nt based on qualified and sovere ign immunit y for her role in the death of a pre- trial detainee during her employ ment at the Richland County J ail in Mansfield, Ohio. For the re asons that follow, we aff irm. I

Hon. Timothy S. Bla ck, United States District J udg e for the Southern District of Ohio, * sitti ng by desig nation.No. 11-3775 , Stefan v. Olson

The fac ts of this c ase are both tr ag ic and rela tively straig htforwa rd. Michae l Reid suffe red from chronic alcoholism throug hout his adult life, experiencing periods of both sobriety and alcohol abuse. On Februa

ry 25, 2009, less than a month afte r pl eading g uilty to resisting arr est and being place d on probation, Reid violated his probation ter ms by consuming alcohol. R eid then fa iled to ap p ea r at his probation-violation hear ing on Marc h 6, 2009, and the Mansfield, Ohio, Municipal Court issued a war

rant for his arre st. On April 2, 2009, Reid’s assig ned probation office r direc ted three fellow probation office rs to arr est Reid, informing them that Reid was “prone to have seizures” when he stops drinking

. The office rs ar

rested Re id without incident at his parents’ home. Re id admitted that he had c onsumed alcohol all day and was intox icate d b u t complied with the office rs’ instructions. Prior to their depar ture, Reid’s fathe r war

ned the probation office rs “that he would seizu re,” and the probation office rs assure d him that they would rela

y that information to personne l at the jail. En route to the jail, Reid reg istered a blood-alcohol level of .34 9 p er ce n t on a portable intox iliz er, over four times the leg al limit

. Reid advised the office rs of his history of seizures when he stopped drinking and told them sever al times to make the jail staff awa re. After arr iving at Richland County J ail, the probation off icer s did tell the corre ctions office rs of Reid’s dang erously high blood-alc o h o l l ev el and propensity for seizures during detoxi fica tion. Upon hear ing this information, the presiding corr ections o ff i ce r, L t. J ames My ers, was reluc tant to admit Reid and asked jail employ ee Nurse J ennife r McCune to conduct a medical evalua tion. McCune is a L icense d Practica l Nurse a

nd is certifie d as an e ntry -leve l Emerg ency Medica l Technic ian (EMT- Ba sic).

- 2 -No. 11-3775 , Stefan v. Olson

When L t. My ers first advised McCune of Reid’s .349 blood-alcohol level, she said that the jail should probably not a dmit Reid. McCune initially observe d that Reid had a rac ing pulse, was 1 dehy drate d, and needed to g o to the hospital. Howeve r, during the evalua tion, Reid was “not leaning or swaying or falling ” and his speec h was not slurred. McCune also took his blood pressure , which she rec orded as “within normal limit s.” Reid was coher ent and conver sational with the staff,

even joking during the evalua tion. Howeve r, Reid expressed a desire to g o to the hospital beca use he wa s drunk and ha d high blood pr essure . Had McCune chec ked the jail’s computer r ecor d sy stem, she likely would have found four medical files for Reid fr om previous incar cer ations. These me dical re ports detailed that Reid was

a chronic alcoholic and had a history of seizures due to alcohol withdrawa l. McCune explained that she had no rea son to chec k the medical rec ords, based on the fac t that Reid did not mention his previous incar cer ations during the evalua tion. Howeve r, during the course of the medical evalua tion Reid told McCune that he had a history of alcoholism, that he would suffe r withdrawa l, and that he had a history of seizures during withdrawa l. McCune responde d, “When it star ts, w e will be there for y ou.” After completing the evalua tion, McCune chang ed her initial assessment and approve d Reid for admission to the jail. She then defe rre d to L t. My ers on the decision of whether to a cce pt Re id into the jail. Howeve r, McCune noted that “if we keep him

. . . he will g o thru [ sic ] withdrawa l and

Whil e it is cer

tain that the probation office rs told the corr ections office rs that Reid was 1 p ro n e to seizures, it is unclea r whether L t. My ers or any other corr ections office r rela y ed this information direc tly

to McCune. - 3 -No. 11-3775 , Stefan v. Olson

we will trea t him here .” Acc ording to Probation Offic er (P.O.) Denise St ry ker, McCune advised 2 the arr esting probation office rs that the jail would keep Reid and “start [hi m] on meds to help him.” Ba sed on McCune’ s assessment of Reid a s stable, L t. My ers a cce pted Reid into the jail. When Reid was booked into the jail at 8:02 p.m., he repor ted to the booking office r that he had delirium treme n s . L t. My ers clarified that Reid was not experiencing delirium tremens at the time but was mere ly indicating a history with the condition. L t. My ers elabor ated that this fit with the jail’s under standing that “whe n [R eid] came in . . . he wa s going to go through withdrawa ls.” (empha sis added)

. Whil e McCune did not see th i s re p ort or di scuss it with any of t he correc tions office rs, at one point following the check-in, Reid ag ain t old McCune t hat “I will have seizures if I withdraw.” McCune responde d: “[W ]e w ill take all prec autions,” and noted that if Reid showed any signs of withdrawa l, she would start him on medication. (e mphasis added)

. The rec ord shows that no medication was ev er gi v en to Reid. McCune understood that medication wa s not to be administered prophy lactica lly but instead should be administered once signs of withdrawa l beg an. Howeve r, this understanding an d i n ac t i on direc tly contra dicted the written jail protocol, which require s that the evalua ting nurse administer seven separ ate medications
at specifie d dosag es and intervals. Dr. W i l l i am s , t he jail phy sician and author of the withdrawa l

There is a discrepa

ncy in the rec ord conce rning this observa tion. Whil e McCune rec orded 2 the observa tion in her medical prog ress notes, she contends that she did not know for cer tain that Reid would withdraw. Rather, she understood withdrawa l to be an indefinite, person- by -per son experience and did not know if or when Reid would suffe r withdrawa l

. McCune explained the notation as a “standa

rd of say ing that if an alcoholic g oes throug h withdrawa l, then we trea t them,” and not a firm predic tion of Reid’s imminent withdrawa l. Plaintiff cites this statement as evidenc e that McCune knew

Reid would experience withdrawa l. Appellee B r. at 21. - 4 -No. 11-3775 , Stefan v. Olson

protocol, said that the medications should have been g iven “ce rtainly by the first hour” afte r medical evalua tion and could not e x plain why McCune did not do so. McCune also believed that she was 3 require d to obtain authorization from Dr. Wil liams prior to dispe n s i n g m ed ication. McCune 4 testified: A. You don’t need to call [t he doctor] until [t he inmate] exhibi ts signs

and sy mptoms of withdrawal. Q. Okay

. And that was the policy in place here at Richland County ? You wait for the patient to start g oing throug h withdrawa l befor e y ou start trea ting? A. Yes. Q. Did y o u ev er call Dr. Wil liams with reg ard to Michae l Reid on April 2nd? MR. DOWNEY: Objection. Q. You ca

n answe r. A. I can’ t acc urate ly

say . But Dr. Wil liams stated that the nurses did not have the discretion to withhol d medications without first calling him. Dr. Wil liams also ag ree d “that an inmate who is highly intox icated and has a history o f s ei z u re s during alcohol withdrawa l has a serious medical need which jail g uards and nursing staff should neve r deliber ately disreg ard.”

There is conflict in the rec ord on this point. Whil e Dr. Wil liams testified that the protocol 3 require d prophy lactic medication, b o th McCune and her supervisor, Nurse Fog le, s tated that their understanding and prac tice was to g ive m ed i ca t i o n once withdrawa l beg an. Fog le aff irmed this approa ch when McCune called her to g ive information about Reid. Du ri ng this call, Fog le also confirme d that thirty -minute chec ks and the cell assig nment wer e appropr iate. The rec ord does not sug g est that McCune told Fog le about Reid’s wa rning s about seizures. This interpre tation is contra dicted by the testimony o f Nu rse Fog le that McCune was 4 authorized to initiate the protocol without first speaking to Dr. Wil liams if she observe d sy mptoms of withdraw al in Reid. Neve rtheless, beca use McCune did not observe any signs of withdrawa l, there is no evidence in the rec ord that she c alled Dr . Wil liams that evening

. - 5 -No. 11-3775 , Stefan v. Olson

I n any event, reg ardle ss of when the medication should have been administered, the jail did
not have t h e n ec es s ar y withdrawa l medications on hand. The office r in char g e of the jail, Major Pax ton, sta ted that the medications wer e order ed on an individual ba sis f rom a local pharma cy . I n the event that an inmate beg an to experience withdrawa l overnig ht, the on-ca ll nurse might come in
to make an evalua tion or direc t the corr ections office rs to send the inmate to the hospital. I f the oncall nurse deter

mined that the inmate could rema in at the jail, the medication would be order ed when the local pharma cy opened that morning and d el i v er ed at some point afte rwa rds. Thus, once McCune left for the evening , the jail posse ssed neither the medication nor per sonnel to a dminist er the withdrawa l protocol if Reid beg an to exhibi t withdrawa l sy mptoms, as he said he would. Dr. Wil liams be lieved that the protocol medications wer e in stock at the jail a nd testified that it would be “impossible” to comply with the protocol during the nig ht shift if they wer e not. Around 9:00 p.m., McCune instructed L t. My ers and Correc tions Offic er (C.O.) Tina Mahon to ke ep Reid in c ell 1B15 on thirty -minute chec ks “due to his hig h level of a lcohol and because of his seizures .” Cell 1B15 consists of concr ete and cinder-b l o ck wa l l s and floor and contains a

concr ete or cinder -block toilet partition and a concr ete bed. McCune chose cell 1B15 beca use it was close to the book-in station and was equ i p p ed wi t h a ca m era “so that if he did have a seizure , it 5

Whil e the came ra captur ed footag e of Reid from the time he was place d in the cell, all but 5 the 10 minutes befor e and afte r Reid’s fall was era sed shortly afte r the incident. The jail offe red no explanation as to why

the footag e wa s era sed. - 6 -No. 11-3775 , Stefan v. Olson

wo uld be noted and action could be taken imm ediately .” (empha sis added)

. Reid was also g i v en a mat for the bunk when he was plac ed in the ce ll. 6 Prior to leaving the j ai l around 9:30 p.m., McCune instructed the corr ections office rs to continue thirty -minute che cks on Reid until the following day and to call Nurse Fogle , the on-c all nurse, if Reid showe d withdrawa l sy mptoms overnig ht. McCune tol d them to “[j] ust keep an ey e

on him.” Although they wer e not trained in alcohol-w ithdrawa l monitoring, C.O

. Mahon and L t. My ers un d er s t o o d t h at they wer e to look for outward signs of withdrawa l, including shaking , tremors, swea ting, or sickness. McCune also instructed that Reid be g iven a bottom bunk “due to 7 his condition” when he was admitted to the g ener al population. At this point, McCune took Reid’s vital signs, ag ain finding that he wa s stable and e x hibited no signs of w ithdrawa l. The jail log indicates that corr ections office rs observe d Reid throug h the window in his cell
at 30-minute intervals beg inning at 10:00 p.m. Howeve r, with a few limit ed exceptions, the office rs

Wit h respe ct to the mat, McCune contra dicted herse lf and the rest of the rec ord. McCune 6 stated that she instructed that Reid be g iven a mat for safe ty rea sons, including lay ing it on the floor for padding

. Howeve r, McCune also stated that she order ed extra sleeping mats to be place d in the cell as a “sig nificant safe ty prec aution

. . . so that if he was to fall, that it would cushion h i m .” McCune testi fi ed that the pl ace ment of t he additional mats was the responsibility of a corr ections office r and that she observe d the additional mats when sh e at t ended to Reid in the cell. This deposition testimony contra dicts McCune’s notes instructing the corr ections office rs to “make sure he g ets a mat .” (empha sis added)

. Ultimately , two considerations are pre s en t

. First, the jail’s standard pract i ce was to issue a single mat to all inmates once they have been proce ssed. Thus, McCune’s reque st f

or a mat was not a

n “extraordinar

y acc ommodation” attributable to me dical or safe ty prec aution. Second, Nurse Fog le, L t. My ers, and the video of the incident all reve al that only one mat wa s in Reid’s cell. My ers testified that there was no require ment to look for vomit or diarrhe a or to eng ag e the 7 inmate in conver sation or enter the ce ll. Mahon did look for vomit, but she left at 10:00 p.m.

- 7 -No. 11-3775 , Stefan v. Olson

did not speak to Re id or enter his c ell. They did not at any point chec k his vitals or look inside his cell for signs of withdrawa l ( vomit, for example). Rather, the c hecks consisted of “[t] he office r . .

. walk[ing] over here an d l ook[i ng ] in the window and com[ing] back and log[g ing] it into the comput er sy stem.” L t. My ers said the g oal of the chec ks was to “[m] ake sure that [R eid was] brea thing and not having any problems.” L t. My ers’ s only conver sation with Reid came just befor e My ers left at 1:30 a.m., when Reid asked to have his blood pressure taken. L t. My ers told him that “the nurse would be in in a couple hours to chec k him.” Acc ording to Dr. Wil liams, these prac tices

wer e insufficient to proper ly car e for an inmate who might g o throug h withdrawa l. He testified that the 30-minute chec ks for a detainee like Reid should have involved enter ing the cell, interviewing the inmate for s i gn s o f wi thdrawa l, and taking vital signs. Fur thermore , the corr ect method of chec king for tremors involved standing direc tly in front of the inmate and watching for shaking as the inmate extended his hands toward the examiner. The chec ks following McCune’s depar ture for the evening did not acc omplish these tasks. McCune’s deposition testimony about the adequa cy and communication of he r instructions is unclear

.

Q. I s the particula

r corr ections office r on duty who is responsible for watching the video monitor e very 10, 15 minutes g iven any specific details to look out for? A. Yes. The y ’re told specifica lly what is—why

they ’re in watch. Q. Okay

. And what things would the corr ections office r be told when we’ re ta lking a

bout now Michae l Reid? A. T his patient is on watch and could possibly exhibi t signs and sy mptoms of withdrawa l. And I am only sum m ar i z ing what could have been said beca

use I don’t have my

—any thing in fr ont of me to tell me exactly

what I said. Q. W ould y ou have written down somewhe re w hat y ou would have told the corre ctions office r?

- 8 -No. 11-3775 , Stefan v. Olson
A. Sometimes. I can’ t tell y ou specific ally if Iwrote tha t down.

. . . Q. Did y ou ever have a discussion with L ieutenant My ers in terms of what to kee p an ey e out for w ith reg ard to Micha el Reid? A. I can’ t acc urate ly say what my expli cit details of the conver sation wer e. Nurse Fog le arr ived for her shift at around 5:15 a .m., on April 3. Fog le testified that it was her custom t o ch ec k t he jail’s computer rec ords for inmates with whom she was not familiar. Beca use of the call from McCune the evening before and the verba l repor t she receive d when she

arr ived at the jail, Fog le acc essed Reid’s rec ords at the beg inning of her shift. The rec ords reve aled
t hat Reid had been in the jail befor e and that the doctor had twice order ed partial protoco l s fo r alcohol withdrawa l. Fur thermore , a full protocol was order ed for Reid at o n e p o int but not administered to Reid bef

ore he was re lease d. Under standing that the alcohol-w ithdrawa l pr otocol could be administered if Reid display ed sy mptoms , Nu rs e Fog le deter mined that a phy sical and visual evalua

tion would be nece ssary to discern if Reid was g oing throug h withdrawa l. Nurse Fog le chec ked Reid on the video monitor three times, e ach time obse rving that he was sleeping

. She did not want to disturb him, so she let him s leep. 8 At 8:29 a.m., Reid stood up and pressed t he call buzz er in his cell seve ral times to reque st assistance

. Whil e Reid stood at the buzz er, he suffe red a violent seizure and struck his head on the

concr ete bunk as he fell to the g round. The impact was sever e, causing a bursting lace ration to the

The only documented entra nce into Reid’s cell occur

red when C.O. Carla McMana ma, one 8 of the corr ection office rs on duty that morning , delivere d Reid’s brea kfast tray at 6:00 a.m. and then retrie ved it at 6:45. C.O. McMana ma did not repor

t to Nurse Fog le that Reid had not eate n the food and had c omplained of na usea.
- 9 -No. 11-3775 , Stefan v. Olson

rig ht side of his head acc ompanied by profuse bleeding

. C.O. Hicks, another o n -d u t y corr ection office r, said “it sounded like a shot g un, it made s o much noise.” The single mat, situated on the bunk, did n o t p ro vide any protec tion as Reid fell. The corr ections office r seate d at the chec k-in station watching the video monitor of Reid’s cell immediately called the nurse’ s station for help and dialed 911. Nurse Fog le responde d and enter ed Reid’s cell for the first time during her shift. Reid 9

rema ined conscious while suffe ring excruciating pain as he was transporte d b y am b u l ance to MedC en t ra l Health Sy stem Mansfield Hospital. I nitial blood work at the hospital showed that 1 0 Reid’s blood alcohol had dr opped to .099, over 71% lower than when he was admitted to the jail. Ex amination at the hospital reve aled that R ei d had a cer ebra l hernia tion, multipl e hematomas, hemorrha g ing, and contusions. R ei d u n derw ent an emer g ency cra niectomy

. Howeve r, Reid was pronounce d brain de ad and r emoved f rom life support five day s later on Apr il 8, 2009. Reid’s family , throug h his executor, filed suit ag ainst McCune, several other jail officia ls, and the c ounty , alleg ing a n infring ement of Reid’s constitutional rights protec ted under 42 U.S.C. § 1983, as well as claims of medical neg lige nce and wrong ful death under Ohio tort law. After initial dis co v er y , ea ch o f the defe ndants filed a motion for summary judgme nt on the basis of

At some point afte r enter ing Reid’s cell, Nurse Fog le observe d white vomitus in the toilet. 9 I n her deposition, Fog le stated that if someone had informed her Reid was vomiting, she would have g otten up and come in if she was not alre ady at the jail. Nurse Fog le believed that vomitus could be a si g n that the i nmate was “starting i n t o wi t h d rawal.” She also said that once withdrawa l beg ins, alcoholics de teriora te ra

pidly

. The Richland County J ail is situated in downtown Mansfield, Ohio, less than 1. 5 miles 1 0 from the Me dCentral He alth Sy stem Mansfield Hospital.

- 10 -No. 11-3775 , Stefan v. Olson

qualified immunit y . The district court g rante d qualified i m m u n i t y for eac h individual defe ndant except McCune, holding :

Under the circ umstances, a rea sonable juror could find t h at placing Reid in an all concr ete cell with one mat, knowing that he had a blood alcohol content of 0.349, knowing that he would not be drinking any alcohol for the next 10 to 12 hours, knowing that he would g o throug h withdrawa l, knowing that he had a history of wi thdrawa l seizures, knowing that there would be no protocol medications at the jail and no o n e wh o could dispense them in any event, shows delibera te indiffer ence to a known risk. There is evidenc e from which a jury could conclude that McCune made the decision to acc ept Reid at the jail, rathe r than direc ting the arr esting office rs to take Reid direc t l y to the hospital, knowing that the jail had neither the medication nor the overnig ht personne l to follow the jail’s own protocol to t re at Reid. These fac ts, along with the testimony of the jail’s Medica l Direc tor, Dr. Wil liams, cou l d support a finding of delibera te indiffer ence . The dis t ri ct co u rt als o held that, for the same rea sons, McCune was not immune under state law beca use sovere ign immunit y is not available to Ohio employ ees who act rec klessly

. McCune timely appea led. II Gene rally , under 28 U.S.C. § 1 291, a trial court’s denial of summary judgme nt is not an appea lable “fina l decision” subject to this court’s jurisdiction. Comstock v. McCrary , 273 F.3d 693, 700 (6th Cir. 2001)

. Howeve r, t he S upreme Court hel d i n Mi t ch ell v. Forsyth , 472 U.S. 511, 530 (1985), “that a district court’s denial of a claim of qualified immunit y , to the extent that it turns on

an issue of law, is an appea lable ‘final decision’ within the meaning of 28 U.S.C. § 1291.” Ten y ear s later, the Court further clar ified that, in the interest of appellate expertise and eff iciency , jurisdiction

- 11 -No. 11-3775 , Stefan v. Olson

over a denial of summary judgme nt on a qualified immunit y claim i s limit ed “t o ca s es prese nting
neat abstrac t issues of law.” Johnson v. Jones , 515 U.S. 304, 317 (1995) (interna l quotation marks omitted). We r ecog nize that the jurisdictional question tethere d to the law-f act distinction can pose a conundrum to litiga ting pa rties, espe cially

upon a cur sory

rea ding of

the applicable ca se law. I t is well settled that a denial of qualified immunit y is not appea lable on g rounds of whether the rec ord
sets forth a g enuine issue of fac t for trial. Id. at 3 1 9

– 2 0

. Nor can an interlocutory appea l of this
nature challeng e whether the evidenc e supports a finding that the alleg ed conduct actua lly occur red. Id. at 313. Rather, “[f]or appellate jurisdiction to lie over an interlocutory appea l, a defe ndant seeking qualifi ed immunit y must be willing to conce de the fac ts as alleg ed by the plaintiff and discuss only the leg al issues raised by the case .” Dominguez v. Corr. Med. Servs ., 555 F.3d 543, 549 (6th Cir. 2009) (int erna l quotation marks omi tted). F urthermor e, “‘ [a] n appellate court re viewing the denial of the defe ndant’s claim of immunit y need not consider the corr ectne ss of the plaintiff’s version of the fac ts.’” Johnson , 515 U.S. at 313 (quoting Mitchell , 472 U.S. at 528). For p urposes of this appea l, McCune has proper ly conce ded, both in her reply brief and at oral arg ument, that we must take the fac ts in the light most favor able to Stefan. Appellant Reply Br

. at 13–14. She maintains that the conce ded fac ts do not support the conclusion that she was “deliber ately indiffer ent to [R eid’s] medical needs.” Id

. at 1. There fore , “the only ‘fa cts’ in dispute

are the ultimate issues to be decide d by apply ing law to the basic [and uncontested] fac ts.” W illiams

v. Mehra , 186 F.3d 685, 690 (6th Cir. 1999) (en banc)

. Questions of a Def endant’ s specific conduct

- 12 -No. 11-3775 , Stefan v. Olson

are questions of basic fac t, while the question of whether those actions could meet the leg al standard for delibera te indiffer ence is a mix ed question of law and fac t that we revie w de novo as a question of law. See ibid

. Fur

thermore , contra

ry to Appellee ’s asser

tion, should fac tual or infere ntial disputes

rema in on appea l, this court may choose to addre ss only the leg al issues and thus avoid the need to dismiss the appea l for lack of jurisdiction. See Bradley v. City of Ferndale , 148 F. App’x 499, 505 (6th Cir. 2005). “I n considering a motion for summary judgme nt, we view the fac tual evidenc e and draw all

rea sonable infere nces in favor of the non-moving party .” Dominguez , 555 F.3d at 549. There fore , the parties are reminded that “[w]hen no fac ts are in dispute, whether an officia l r ece ives qualified immunit y is a question of law.” Ibid . Acc ording ly , we ha ve jurisdiction in this case beca use “our decision turns on a question of law: whether the alleg ed fac ts, admitted for this purpose, show a violation of clea

rly established law.” W

illiams , 186 F.3d at 6 9 0

. W e may reve rse the denial of qualified i mmunity on summary judge ment if “the evidence viewed in the l ight most favor able to the plaintiff fail [ s] to establish a prima facie violation of clea r constitutional law.” Berrym an v. Rieger , 150 F.3d 561, 563 ( 6th Cir. 1998). III 4 2 U.S.C. § 1983 provides that “[e]very person who, under color of any [st ate l aw o r custom], subjects, or cause s to be subjected, any citizen

. . . to the deprivat i o n o f an y rig hts, privileg es, or immunit ies secur ed by the Constit ution and laws, shall be liable to the party injured.” Howeve r, the thre shold f

or such liability is hig h. I mmunity is available to g overnme nt employ ees

- 13 -No. 11-3775 , Stefan v. Olson

perf orming discretionar

y functions as a wholesale shield to lit iga tion unless: (1) “the plaintiff has alleg ed fac ts which

. . . show that the defe ndant-off icial’s conduct violated a constitutionally protec ted rig ht”;and (2) “that rig ht was clea rly established such that a rea sonable officia l, at the time the act was committed, would have understood that his behavior violated that rig ht.” Comstock , 273 F.3d a t 702 (citing Saucier v . Katz, 533 U.S. 194, 201 (2001)). A I t has l ong been established t hat, under the Ei g hth Amendment’s prohibiti o n against crue l and unusual punishment, prisoners have a c onstitut ional rig ht to medical ca re. Estelle v. Gamble , 429 U.S. 97, 103–04 (1976). This deter mination of a “suff

iciently serious medical need is predic ated upon the inmate demonstrating that he or she is incar cer ated under conditions imposing a substantial risk of serious harm.” Miller v. Calhoun Cnty. , 408 F.3d 803, 812 (6th Cir. 2005) (interna l quotation marks omitted). Additionally , “‘[t] he due proce ss rig hts of a [pre-trial detainee ] are at least as g rea t as the Eig hth A mendment protec tions a vailable to a convicted prisoner.’ ” Phillips v. Roane Cnty , 534 F.3d 531, 539 (6th Cir. 2008) (quoting City of Rev ere v. Mass. Gen. Hosp. , 463 U.S. 239, 244 (1983)) ; see also Estate of Carter v. City of Detroit , 408 F.3d 305, 311 ( 6th Cir. 2005). Whil e this rig ht to medical ca re doe s not impose an aff irmative duty

on the g overnme nt to

scre en detainee s for all possible ailments, this court has “long held t h at prison officia ls who have been ale rted

to a prisoner ’s serious medic al needs are under an obliga tion to offer me dical ca re to such a prisoner.” Comstock , 273 F.3d at 702 (empha sis added). “I f a prisoner asks for and needs medical car e, it must be supplied.” Danese v. Asman, 875 F.2d 1239, 1244 (6th Cir. 1989). Fa ilure

- 14 -No. 11-3775 , Stefan v. Olson

to provide medical trea tment when circ umstances clea rly evince a need amounts to a depriva tion of constitutional due proce ss. Dominguez , 555 F.3d a t 552

. “F or the failure to provide medical trea tme n t t o constitute a constitutional violation, [t he plaintiff] must show th at t h e defe ndants acte d with ‘deliber ate indiffer ence to serious medical needs.’ ” Id. at 550 (quoting Estelle, 429 U.S. at 104). The tes t for delibera te indiffer ence to a medical ne ed is both objective and subje ctive. “T he objec tive component re quires a show ing tha t the alleg ed depriva tion is sufficie ntly serious—that [t he detainee ] was incar cer ated under conditions posing a substantial risk of serious harm.” Garretson v. City of Madison Height s , 4 0 7 F.3d 789, 796–9 7 (6 t h C ir. 2005) (interna l quotation marks omitted). Fur thermore , the risk must be “one which society deems so g rave that it violates contempora ry standards of dece ncy to expose anyone unwillingly to such a risk.” Talal v. W hite , 403 F.3d 423, 426 (6th Cir. 2005) (interna l quot at i on marks o m i t t ed ). To satisfy the subjective component, the plaintiff must demonstrate that the defe ndant possessed “a sufficie ntly culpable state of min d i n d en y i n g medical car e.” Estate of Carter , 408 F.3d at 311 (interna l quota tion marks omitted). This is the equivalent of showing that the “author ities knew of, and manifested delibera te indiffer ence to, [t he detainee ’s] serious medical needs.” Talal , 403 F.3d a t 426. 1 This court has descr ibed an objective m edica l need as “one that has been diag nosed by a phy sician as man d at i n g t re at ment or one that is so obvious that even a lay person would easily

rec og nize the nece ssity for a doctor’s attention.” Harrison v. Ash , 539 F.3d 510, 518 (6th Cir. 2008)

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(interna l quotation marks omitted). Additionally , nurses are held to a highe r level of responsibility
to rec og nize medical needs and risks beca use of their training

. Do mi n g u ez , 555 F.3d at 550. Construing the f

acts in fa vor of the Plaintiff, both of the se standar ds have be en satisfied. The likelihood of Reid’s withdrawa l complications had been indicated by the jail doctor, as

s h own by the available medical rec ords noting previous withdrawa l protocols order ed fo r an d administered to Reid. Moreove r, Reid’s rac ing pulse, dehy dration, and .349 blood-alcohol level,

accom panied by verba l war nings of withdrawa l and seizures, wer e sufficie nt to aler t even a lay person, let alone a licensed practica l nurse and EMT, that the detainee shoul d s ee a p h y s i cian. I n addition, Dr. Wil liams, the jail phy sician, ag ree d “that an inmate who is highly intox icated and has a history of seizures during alcohol withdra wal has a serious medica l need.” McCune’s rebuttal, that Reid did not show an objective medical need during the two hours that she was with him, is unsupported by law and ignor es relevan t fa ct s . McCune cites Border v. Trumbull Cnty. Bd

. o

f C o mm ’r

s , 414 F. App’x 831, 837 (6th Cir. 2011), an unpublished Six th Circuit case , for the proposition that “a pretria l detainee ’s g ener alized state of intox ication, without
more, is insufficient to establish a serious medical need,” Appellant Br

. at 15. Howeve r, Reid was not mere ly “in a g ener alized state of intox ication.” Whil e the detainee in Border had no history of seizures that wa s d o cu m ented or communicated to officia ls, Reid expli citly told McCune that he would likely have seizures, a propensity that McCune could have verifie d had she chec ked the jail’s medical rec ords. The other case s that McCune cites are simil arly inapposite, since they all involve

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g uards watching intox icated i n mates who did not have the history , war nings, and medical manifestations that Reid did. F u r th e r mo r e , M c Cu

n e ’ s a n a ly sis is incompatible with the overa rchi n g d e li b e r a

te

- in d if f e r e n c e standard, which looks t o the sever ity of the risk posed to the detainee instead of its temporal immediacy

. “Tha t the Eig hth Am en d m en t p rot ects ag ainst future harm to inmates is not a novel proposition.” Helling v. McKinney , 509 U.S. 25, 33 (1993). “[T] he Eig hth Amen d m en t protec ts ag ainst sufficiently imminent dangers as we ll as curr ent unnece ssary and wanton infliction of pain and suffe ring

. . . . We thus reje ct [t he propo s i tion] that only delibera te indiffer ence to curr ent serious health problems of inmates is actionable under the Eig hth Amendment.” Id. at 34 (empha sis added)

. Reid’s extremely eleva ted .349 blood-alcohol level and verba l communication of a history

o f alcoholism acc ompanied by withdrawa l seizures communicated an obj ectively serious m edical need possessing the “suff iciently imminent dang er” that is “ac tionable under the Eig hth Amendment.” 2 The subjective component requires that the facts alleg ed by the plaintiff, if true , show that the officia l “subjec tively perc eived fac ts from which to infer substantial risk to the prisoner, that he did in fac t drawthe infer ence , and that he then disreg arde d that risk.” Comstock , 273 F.3d at 703 (citing Farmer , 511 U.S. at 837). At the same time, w hile officia ls ma y not de liberate ly disreg ard

a medical need, “[m] edica l malprac tice does not become a constitutional violation mere ly beca use the victim is a prisoner.” Estelle , 429 U.S. at 106. Specifica lly , “if the of fice rs fa iled to act in the

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fac e of an obvious r isk of which they

should have known but did not, then they did not violate the Four teenth Amendment.” Garretson , 407 F.3d at 79 7

. I n a d v e rtent failure or neg lige nce in providing

m edica l car e does not rise to the level of a constitutional depriva tion, as delibera te i n d i ff

er en ce “desc ribes a sta te of mind more blame worthy than neg lige nce.” Farmer, 511 U.S. at 835. Neve rtheless, a plaintiff is not require d to show that the officia l acte d “for the very purpose of causing harm or with knowledg e that harm will result.” Ib i d

. L iability can be imposed “if he knows that inmates fac e a substantial risk of serious harm and disreg ards that risk by failing to take reasonable me asures to abate it.” Id. at 847 (empha sis added). That M cC u n e subjectively perc eived fac ts from which to infer a substantial risk to Reid exis ted is clea

r. L t. My ers told McCune about the high intox iliz er rea ding for Reid, at which point she thought the jail should probably not acc ept him. Although McCune later clea red Reid for admission, she initially observe d that he had a rac ing pulse, was dehy drate d, and neede d to g o to the hospital. Fur

thermore , Reid specific ally reque sted to g o to the hospital. During the initial medical examination, Reid told M cC u n e that he had a history of alcoholism, that he would experience with d ra wa l, and that he had a history of seizures while g oing throug h withdrawa l. McCune responde d: “When it starts, we will be there for y ou.” Finally , Reid told McCune ag ain, prior to her depar ture, “I will have seizures if I withdraw.” She quieted his fea r ag ain, responding that “we will take a ll preca

utions.” All of this evidence shows that McCune knew the fa cts from which to inf er a substantial risk. McCune did not mere ly perc eive these fac ts upon which to ba se the infere nce, but she also

- 18 -No. 11-3775 , Stefan v. Olson

made the log ical conne ction, draw ing the infere nce for herse lf that Reid was at substantial r isk f or

a seizure and fall. I n addition to her assura nces in response to Re id’s conce rn, McCune noted that “if we keep him

. . . he will g o thru [ sic ] withdrawa l and we will trea t him here .” Acc ording to P.O. Stry ker, McCune said that the jail would “start [ R ei d ] o n meds to help him.” During McCune’s final interac tion with Reid, she even noted that if he showed any signs of withdrawa l, she would start him on medication. Fur

thermore , McCune’s knowledg e of the risk is evident from the instructions she g ave for his trea tment “due to his high level of alcohol and because of his seizures .” (empha sis added) . She also instructed that Reid be g iven a bottom bunk “due to his condition” whe n he wa s admitted to the g ener al population. Finally , McCune stated that she order ed extra sleeping mats to be place d in the cell as a “sig nificant safe ty prec aution

. . . so that if he was to fall, that it would cushion him.” There fore , McCune drew the infere nce that Reid was at a substantial risk for a seizure and an a ccompa

ny ing f all. The deter mination of qualified immunit y thus turns on whether McCu n e ’ s a ctions rose above the level o f o rd i nary neg lige nce into rec kless disreg ard. The district court’s opinion deny ing qualified immunit y was swee ping in its inclusion of many rea sons that a rea sonable jury could find that McCune acte d with delibera te indiffer ence . Even if eac h rea son was not itself valid, we ag ree that a re asonable jury

could conc lude: [P ]l acing Reid in an all conc rete cell with one mat, knowing that he had a blood alcohol content of 0.349, knowing that he would not be drinking any alcohol for the next 10 to 12 hours, knowing that he would g o throug h withdrawa l, knowi n g t h at he had a history of withdrawa l seizures , k n owing that there would be no protocol medications at the jail and no one who could dispense them in any event, shows de liberate indiffer ence to a known risk.

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Even apart fr o m t h e other components of t he dis trict court’s rationale, these fac ts could s upport a finding of consc ious disreg ard of a known r isk. Howeve r, there is more that a fac t finder could use to discern McC u n e’ s s t at e of mind. McCune stated that she order ed extra sleeping mats to be place d in the cell as a “sig nificant safe ty prec aution

. . . so that if he was to fall, t h at it would cushion him.” McCune testified that a

corr ections office r was responsible for placing the mats in Reid’s cell and that she observe d the extra mats in Reid’s cell when she enter ed the cell to take his blood pres s u re . Howeve r, McCune’s deposition testimony contra dicts the notes that she made at the time, which instructed the corr ections office rs to “[m] ake sur e he g ets a mat .” (e mphasis added)

. Fur thermore , L t. My ers, Nur se F og le, and the video of the incident all confirm that only one mat was in Reid ’s ce l l

. Fi n al ly , McCune instructed the g uards to “[j] ust keep an ey e on him” and could not rec all any additional instructions that she g ave the corr ections office rs conce rning the chec ks they wer e to perf orm. A rea sonable jury could construe these fac ts as McCune “fa iling to take rea sonable measure s to abate ” the substantial risk to Reid of which she w as aw are . Farmer , 511 U.S. at 847. A rea sonable jury thus could conclude that McCune had the “culpa ble state of mind” for delibera te indiffer ence by observing fac ts from which to infer Reid was at serious risk for a seizure,
actua lly draw ing the infere nce, and then delibera tely disreg arding that risk when she approve d him for inca rce ration and pla ced him in the conc rete and cinde r-block c ell. B I t is not enoug h for the pl ai ntiff to show that a constitutional violation has occur red.

- 20 -No. 11-3775 , Stefan v. Olson

Additionally , “the plaintiff’s fac ts, taken at their best, [m ust] show a violation of clea rly established law.” W illiams , 186 F.3d at 689. Howeve r, while “[t] he contours of the rig ht must be sufficie ntly clea r that a rea sonable officia l wo u l d u n d erstand that what he is doing violates that rig ht,” the specific action in question need not have been previously held unlawful. Anderson v. Creighton , 483 U.S. 635, 640 (1987). Moreov er , t h e d efendant need not fore cast the particula rized harm that
eventua lly

befe ll the plaintiff. Dominguez , 555 F.3d a t 550. T his court has rec og nized the rig ht of inmates to obtain medical car e under the Eig hth Amendment as ear ly as 1972. Rich v. City of Mayfield Heights , 955 F.2d 1092, 1096 (6th Cir. 1992). The Supreme Court delineate d the bases of an Eig hth Amendment violation when it h eld “that a prison officia l may be held liable

. . . if he knows that inmates fac e a substantial risk of serious harm and disreg ards that risk by failing to take rea sonable measure s to abate it.” Farmer , 511 U.S. at 847. I t is im portant to note that delibera te indiffer ence to a serious medic al nee d is informed by the broade r conce pt of delibera te indiffer ence to a known risk. Miller , 408 F.3d at 812. This family of cases descends from Farmer , a case that dealt not with m ed i ca l needs, but known dange r from other inmates. Farmer , 511 U.S. at 834. The mere fac t that the instant risk happens to be a specific medical one (seizures) does not alter the clea rly established law that inmates and pretria l detainee s

are constitution a ll y e n ti tl e d to protec tion from known substantial risks. Dominguez , 555 F.3d at 550. Viewe d throug h this lens, any rea sonable licensed prac tical nurse at the time o f Reid’s detention would have understood that placing a detoxi fy ing inmate, who was at high risk for s eizures, in a

concr ete and cinder -block cell without appropr iate medical prec autions would violate the inmate’s

- 21 -No. 11-3775 , Stefan v. Olson

rig ht to obtain medical car e. T h at R ei d had not y et manifested the most pronounce d signs of withdrawa l does not relieve an officia l from adher ing to this duty to protec t him from known substantial risks. The constitutional rig ht to protec tion from substantial risks, which includes the rig ht to medical ca

re, w as cle arly

established at the time of Reid’s detention. Thus, a rea sonable jury could conclude that McCune acte d with delibera te indiffer ence to a known medical need o r ri s k

. Fu rt hermore , Reid’s rig ht to protec tion from that risk was clea rly established. IV Concerning the state-law c la im , Ohio law provides civil reme dies for medical neg lige nce and wrong ful death. See Schirmer v. Mt. Auburn Obstetrics & Gyne cologic Assocs., Inc. , 844 N.E.2d 1 1 6 0 , ¶ 1 7 (Ohio 2006); Ohio Rev. Code § 2125.01. Howeve r, an employ ee of a politica l subdivision has sovere ign immunit y from suits seeking “to rec over damag es for injury , death, or loss
to person or proper

ty alleg edly cause d by any act or omission in connec tion with a g overnme ntal or proprieta ry function.” Oh i o R ev. Code § 2744.03(A). Be cause the opera tion of jails is a

1 1 g overnme ntal function, Ohio Rev. Code § 2744.01(C)(2) (h), a jail e mploy ee reta ins the protec tion of sover eig n immunit y

unless: (a) The employ ee’ s acts or omissions wer e manifestly outside the This court has jurisdiction over an interlocutory appea l from the denial of sovere ign 1 1 immunit y from pendent Ohio-law claims. “An order deny ing statutory immunit y is immediately appea lable only if the state law provides immunit y from suit, as opposed to immunit y simply from liability .” Chesher v. Neye r , 477 F.3d 784, 793 (6th Cir. 2 007). Ohio revised its statutes in 2003 to make the denial of immunit y im mediately appea lable as a final order , essentially providing officia ls with im munity

from suit. Ibid . (citing Ohio Rev. Code § 2744.02(C)).

- 22 -No. 11-3775 , Stefan v. Olson scope of the employ ee’ s employ

ment or off

icial re sponsibili ties; (b) The employ ee’ s acts or omissions wer e with m alicious purpose, in bad fa ith, or in a wanton or r eckle ss manner; [or] (c) Civil lia bility is expressly imposed upon the employ ee by a section of the Re vised Code. Ohio Rev. Code § 2744.03. The only issue befor e this c ourt is whether the fac ts, taken in the light
most favor able to the plaintiff, indicate that the acts or omissions wer e done “in a wanton or rec kless

manner .” Ibid.

1 2 The Supreme Court has ac knowledg ed both that “deliber ate indiffer ence l[ ies] som ewhe re betwee n the poles of neg lige nce at one end and purpose or knowledg e at the other” and that “ac ting

or failing to act with delibera te indiffer ence to a substantial risk of serious harm to a prisoner is the equivalent of rec klessly disreg arding that risk.” Farmer , 511 U.S. at 836. Oh i o l aw has define d

rec klessness in light of the Restatement (Second) of Torts § 500 (1965) and require s that the officia l
act or fail to a ct in a way that cre ates an unre asonable risk “substantially g rea ter than tha t w hich is

nece ssary to make his co n duct neg lige nt.” O’Toole v. Denihan , 889 N.E.2d 505, 516–17 (Ohio 2008). “Distilled to its essenc e, . . . rec klessness is a perve rse disreg ard of a known risk.” Id

. at 517. Additionally , Plaintiff sug g ests that sovere ign immunit y is not available to McCune based 1 2 on a statutory exemption, Ohio Rev. Co d e § 2 7 4 4

. 0 9(E), for claims arising out of an alleg ed violation of the Constit ution of the United States, Appelle e Br

. at 2 7

. Howeve r, this arg ument misreads Ohio case law interpre ting the statute, which permits the prec lusion of immunit y on fede ral claims but reta ins the possibili ty of immunit y from state claims. See, e.g. , Patton v. W o o d C n t y. Humane Soc ., 798 N.E.2d 676, 6 8 1 (O h i o Ct. App. 2003) (“[T]he immunit ies found within R.C. Chapter 2744 do not apply to Section 1983 actions. Ho weve r, defe ndants may still be entitled to immunit y on the state-la

w t ort claims.”); McCallister v. C ity of Portsmouth , 673 N.E.2d 195, 197 (Ohio Ct. App. 1996) (“I t is plain from a rea ding of the statutes that appellee s are immune from any cl aims the appellant has ag ainst them which are tort claims or claims under the const i t u t i o n o r statutes of the state of

Ohio.”). - 23 -No. 11-3775 , Stefan v. Olson

Whil e the threshold for liability appea rs to be slightly highe r under Ohio law, for the same rea sons discussed above, a rea sonable jury could conclude that McCune acte d with a perve rse disreg ard for

a risk under Ohio law by placing Reid in a concr ete and cinder -block cell in the fac e of looming withdrawa l seizures. McCune contends that no rea sonable jury could find that she “wa s conscious that, in all probability , Reid would suffe r a life-threatening injury .” Appellant Br

. at 25–26 (interna l quotation marks omitted) (empha sis added)

. Whil e this may be true, Ohio law does not require she fore see a specific or life-threatening injury

. I n fac t, it is sufficie nt that she was awa re that an injury

was probable

. O’Toole, 889 N.E.2d at 517. Be cause a rea sonable jury could find that McCune was

awa re of a probable injury to Reid, the district court was corr ect in deter mining that s h e i s not entitled to sovereig n immunit y under O hio law. V For the fore g oing rea sons, we AFF I RM the district court’s judgme nt deny ing both qualified and sover eig n immunit y .

- 24 -