IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-11095

ROBBY JOE TREVINO, Individually, and as Personal Representatives of the 

Estate of Alisha Trevino, and as next friend of A.N., a minor; LAURIE DALE 

REED, Individually, and as Personal Representatives of the Estate of Alisha 

Trevino, and as next friend of A.N., a minor, 

 Plaintiffs - Appellants

v.

JACOB S. HINZ, Fort Worth Police Officer; THOMAS HAUCK, Fort Worth 

Police Officer, 

 Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:17-CV-227

Before HAYNES, HO, and DUNCAN, Circuit Judges.

PER CURIAM:*

Alisha Trevino (“Trevino”) died after she surreptitiously ingested

methamphetamine hidden in her pants while sitting in a patrol car during a 

traffic stop. Members of Trevino’s family (collectively, “Plaintiffs”) sued several 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 27, 2018

Lyle W. Cayce

Clerk

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Fort Worth police officers involved in the stop in their individual capacities 

under 42 U.S.C. § 1983, alleging the officers were deliberately indifferent to 

Trevino’s serious medical needs by not calling an ambulance sooner after 

observing Trevino’s symptoms. The district court granted the officers’ motions 

to dismiss based on qualified immunity. Plaintiffs appeal only as to Officers 

Jacob Hinz and Thomas Hauck. We AFFIRM.

I.

Plaintiffs allege1 that on April 15, 2015, at approximately 8:07 p.m., Fort 

Worth police officers stopped Alfredo Cortez and his girlfriend Alisha Trevino 

for an inoperable brake light, after receiving a tip from a confidential 

informant that the couple was carrying methamphetamine. Before officers 

approached the vehicle, Cortez saw Trevino shove a baggie of 

methamphetamine into her pants. None of the officers saw this.

Officers arrested Cortez based on an outstanding warrant, and they sat 

Trevino on the curb. Officer Hauck recognized Trevino from a 2013 arrest in 

which methamphetamine was found hidden in her anus, and so he asked 

Trevino if she was hiding anything on her person. Trevino denied that she was. 

Claiming she was cold, Trevino was allowed to sit unhandcuffed in the back of 

a patrol car belonging to Officers D. Koplin and Chris McAnulty. Officer Koplin

monitored her carefully to make sure she did not conceal anything on her 

person. At one point, however, he left Trevino unmonitored for a “couple 

minutes” while he helped another officer search the vehicle. When that search 

revealed a large amount of methamphetamine in a woman’s purse, Officer 

 

1 We refer to the allegations in Plaintiffs’ first amended complaint. That complaint 

incorporates information from a Fort Worth Police Department investigative report, which 

Plaintiffs attached to the amended complaint. For purposes of our ruling, we refer only to 

information from the investigative report that Plaintiffs made a part of their allegations. See, 

e.g., Alexander v. City of Round Rock, 854 F.3d 298, 301 (5th Cir. 2017) (on review of granted 

motion to dismiss, considering facts “drawn exclusively” from allegations in complaint).

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Matthew McMeans and Sergeant Sean LaCroix took Trevino to another car for

questioning. Trevino refused to say anything. Officer Hinz then handcuffed 

Trevino and seated her in the original patrol car, while Officer Koplin sat in 

the front seat and completed paperwork. 

Not long after that, Trevino began showing signs of illness such as dry 

heaving, a small amount of vomiting, and shaking. Various officers asked her

whether she had medical issues, had ingested drugs, or wanted an ambulance. 

Trevino denied ingesting drugs and did not ask for an ambulance, but she did 

claim to be having a seizure. Initially, however, the officers doubted she was 

really having seizures—especially given that Trevino was still able to converse 

with them—and suspected she was faking illness to avoid jail. For instance, 

some 10-15 minutes after Trevino first vomited, Officer Hauck (according to 

Plaintiffs’ own allegations) “went to check on Trevino and saw her rocking back 

and forth and coughing, but she seemed to be breathing fine and talking with 

officers.” Similarly, somewhat later Officer Hinz observed Trevino shaking and 

moving her hips up and down, but he could not tell whether these symptoms 

were genuine or whether “she was just trying to get out of jail.” 

When it became clear that Trevino was in real distress, Officer Hinz 

placed her in the recovery position on her side, noticing the presence of spit or 

foam on her mouth. One of the officers called an ambulance at this point, 

around 10:30 p.m. The paramedic reported she received a priority three call 

(meaning no sirens or lights needed) for a woman with breathing problems.

The ambulance arrived about 15 minutes later. Paramedics put Trevino on a 

stretcher, noting she was unresponsive, barely breathing, foaming at the 

mouth and nose, had unreactive pupils, and appeared to have had a seizure 

because her jaw would not open. The paramedic asked the officers if Trevino 

had been left unsupervised so to have an opportunity to ingest drugs, and they 

reluctantly confirmed she had been unsupervised at one point. Trevino went 

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into cardiac arrest during transport to the hospital. Doctors revived her at the 

hospital, but she had brain damage from lack of oxygen and died upon removal 

of life support. An autopsy found two baggies of methamphetamine in her 

stomach. 

Plaintiffs sued the officers in their individual capacities under 42 U.S.C. 

§ 1983 for deliberate indifference to Trevino’s medical needs in violation of the 

Fourteenth Amendment. The officers moved to dismiss based on failure to state 

a claim and qualified immunity. The district court granted the officers’ motions 

to dismiss based on qualified immunity, holding that Plaintiffs’ allegations

failed to show that any officers were deliberately indifferent to Trevino’s 

medical needs nor that any officers violated clearly established law at the time 

of the incident. Plaintiffs appealed only as to Officers Hauck and Hinz.

II.

We review de novo a district court’s grant of a motion to dismiss based 

on qualified immunity, “accepting all well-pleaded facts as true and viewing 

those facts in the light most favorable to the plaintiff.” Stokes v. Gann, 498 F.3d 

483, 484 (5th Cir. 2007). Evaluating whether an officer is entitled to qualified 

immunity involves a two-step analysis. First, “the burden is on the plaintiff to 

show that he pleaded facts showing ... that the official violated a statutory or 

constitutional right.” Alexander v. City of Round Rock, 854 F.3d 298, 303 (5th 

Cir. 2017) (internal quotations and citation omitted). Second, if the plaintiff 

makes that showing, we “determine whether the defendants’ actions were 

objectively unreasonable in light of the law that was clearly established at the 

time of the actions complained of.” Id. We have discretion to base our decision 

on either prong. See Pearson v. Callahan, 555 U.S. 223, 236-45 (2009). 

As to the first prong—whether the pled facts show a constitutional 

violation—Plaintiffs allege that Officers Hinz and Hauck were deliberately 

indifferent to Trevino’s medical needs by failing to timely call an ambulance. 

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The Fourteenth Amendment guarantees pretrial detainees a right “not to have 

their serious medical needs met with deliberate indifference on the part of the 

confining officials.” Thompson v. Upshur Cty., TX, 245 F.3d 447, 457 (5th Cir. 

2001) (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). A plaintiff must prove

“(1) that each defendant had subjective knowledge of ‘facts from which an 

inference of substantial risk of serious harm could be drawn,’ (2) that each 

defendant actually drew that inference; and (3) that each defendant’s response 

to the risk indicates that [he] ‘subjectively intended that harm occur.’” Tamez 

v. Manthey, 589 F.3d 764, 770 (5th Cir. 2009) (quoting Thompson, 245 F.3d at 

458–59). 

We doubt that Plaintiffs have alleged facts giving rise to deliberate 

indifference as to Officers Hauck and Hinz. Even read favorably to Plaintiffs,

their allegations may depict negligence on the officers’ part in not initially

realizing the gravity of Trevino’s condition and in not calling an ambulance 

sooner. But negligent or even grossly negligent conduct does not rise to the 

level of deliberate indifference. Thompson, 245 at 458–59 (citing Hare v. City 

of Corinth, Miss., 74 F.3d 633, 645, 649 (5th Cir. 1996) (en banc)).

“Unsuccessful medical treatment, acts of negligence, or medical malpractice do 

not constitute deliberate indifference[.]” Gobert v. Caldwell, 463 F.3d 339, 346 

(5th Cir. 2006).2 We need not ultimately decide this question, however, 

because—even if deliberate indifference has been alleged and even construing 

 

2 See also, e.g., Hartzog v. Hackett, 711 F. App’x 235 (5th Cir. 2018) (unpublished) 

(holding that while “the facts presented could support a conclusion that the Deputies were 

negligent in their treatment of [a detainee]” when they did not seek medical attention for 

him, their “action, or inaction, d[id] not rise to the very high standard required to indicate 

deliberate indifference”); Stewart v. Murphy, 174 F.3d 530 (5th Cir. 1999) (holding that a

prison physician’s failure to transfer an inmate to another facility for physical therapy for his 

bedsores (from which he later died), failure to read the nurses’ notes indicating that inmate 

had an infection, and failure to give the inmate antibiotics, “might constitute negligence, not 

the requisite deliberate indifference”).

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the facts in the light most favorable to the Plaintiffs—as explained below

Plaintiffs fail to show the officers’ conduct was objectively unreasonable. See, 

e.g., Pearson, 555 U.S. at 238-39 (courts may pretermit first prong “[w]hen 

qualified immunity is asserted at the pleading stage, [because] the precise 

factual basis for the plaintiff’s claim or claims may be hard to identify”) 

(citations omitted) (brackets added).

As to the second prong, Plaintiffs must show that Officer Hauck’s and 

Officer Hinz’ conduct was objectively unreasonable in light of clearly 

established law. “To be clearly established, a right must be sufficiently clear 

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

violates that right.’” Reichle v. Howards, 566 U.S. 658, 664 (2012) (quoting 

Anderson v. Creighton, 483 U.S. 635, 640 (1987) (brackets omitted)). While 

plaintiffs need not identify a case “directly on point,” nonetheless “‘existing 

precedent must have placed the statutory or constitutional question beyond 

debate.’” Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (en banc) 

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) (emphasis in original).

The critical consideration is “fair warning”: the specific right must have been

“defined with sufficient clarity to enable a reasonable official to assess the 

lawfulness of his conduct.’” Morgan, 659 F.3d at 372 (internal quotes and 

citations omitted). Therefore, plaintiffs must identify “controlling authority—

or a robust consensus of persuasive authority—that defines the contours of the 

right in question with a high degree of particularity.” Morgan, 659 F.3d at 371-

72 (citing al-Kidd, 563 U.S. at 742) (internal quotes omitted). Plaintiffs have 

not met this burden for two reasons. 

First, Plaintiffs identify no Supreme Court or Fifth Circuit case that 

would have notified Officer Hauck or Officer Hinz that their conduct clearly 

constituted deliberate indifference. “That alone dooms [their] case here.” Vann 

v. City of Southaven, Miss., 884 F.3d 307, 310 (5th Cir. 2018) (citing Cass v. 

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City of Abilene, 814 F.3d 721, 732-33 (5th Cir. 2016)). Instead, they cite only a 

handful of Eighth Circuit decisions. But even assuming a few decisions from 

one sister circuit could constitute a “robust consensus of persuasive authority” 

clearly establishing a specific legal principle, the decisions Plaintiffs cite fail to 

do so.3 Cf. Morgan, 659 F.3d at 382 & n.101 (indicating that one analogous 

decision from the Seventh Circuit “is far from the robust consensus of 

persuasive authority needed to clearly establish the law”) (internal quotes and 

citation omitted).

Second, our own cases suggest, contrary to Plaintiffs’ position, that an 

officer’s failure to immediately recognize ambiguous symptoms as a medical 

emergency does not amount to deliberate indifference. For instance, in Tamez

v. Manthey, 589 F.3d 764, unbeknownst to detectives an arrestee had, before 

his arrest, swallowed a baggie of cocaine that later burst. Despite the facts that 

 

3 At most, the cited Eighth Circuit cases (which construe the Eighth Amendment)

establish the proposition that law enforcement officials show deliberate indifference by

intentionally delaying medical treatment of an inmate whom they know suffers from a 

specific condition (like heart disease) and who is exhibiting symptoms of that condition. See, 

e.g., Gordon ex rel. Gordon v. Frank, 454 F.3d 858, 862-63 (8th Cir. 2006) (fact issues 

precluded qualified immunity on deliberate indifference claim where inmate was on high 

observation for medical problems, told officers he had heart disease, complained of chest pain 

and difficulty breathing, and repeatedly asked for medical help); Plemmons v. Roberts, 439 

F.3d 818, 824 (8th Cir. 2006) (same, where inmate told officer he had heart disease, exhibited 

classic heart attack symptoms, and asked for an ambulance). But those sister circuit 

decisions—even assuming they could clearly establish law in our circuit—do not clearly 

establish the proposition that officials facing a detainee’s ambiguous medical symptoms in 

the situation presented here (i.e., where a detainee has surreptitiously ingested drugs) show 

deliberate indifference by delaying calling an ambulance until the gravity of the symptoms 

becomes clearer. Indeed, one of Plaintiffs’ cited cases, Ruark v. Drury, 21 F.3d 213, 216-17

(8th Cir. 1994), supports the proposition that, where an inmate exhibits ambiguous 

symptoms of medical distress (like difficulty waking and labored breathing), officials’ 20-

minute delay in calling an ambulance did not constitute “wanton” behavior for Eighth 

Amendment purposes when the inmate later died of a drug overdose en route to the hospital.

Furthermore, Plaintiffs’ Eighth Circuit cases also recognize the proposition that officials 

retain qualified immunity even if they reasonably misunderstand facts and “‘assess the 

legality of [their] conduct based on that misunderstanding.’” Gordon, 454 F.3d at 864 (quoting 

Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)) (and collecting cases).

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the detectives observed Tamez had maximally dilated pupils and that a nurse 

suggested Tamez needed medical treatment before going to jail, detectives did 

not seek immediate medical help. Affirming summary judgment for the 

detectives, we explained that “[b]ecause pupil dilation can mean ‘a lot of 

things,’” it did not show that detectives “were aware of an unjustifiably high 

risk to Tamez’s health, nor ... show that the risk to Tamez’s health was so 

obvious that they should have inferred such a risk.” Id. at 771. Similarly, in

Estate of Allison v. Wansley, 524 F. App’x 963 (5th Cir. 2013) (unpublished), 

we held that officers’ actions were objectively reasonable where they knew a 

woman in custody (who later died of ethanol poisoning) “was very intoxicated, 

had taken prescription drugs not in accordance with directions, and had 

attempted to commit suicide using pills a year earlier” but nonetheless allowed 

her to “sleep it off” while checking on her periodically. Id. at 972. The woman 

was unsteady, slurred her speech, and told officers she had abused prescription 

drugs. Yet the officers believed her symptoms were consistent with intoxication 

and did not believe she was having a medical emergency. Id.

In light of decisions like Tamez and Estate of Allison—and given the lack 

of any controlling authority clearly pointing the other way—we cannot say that 

Officer Hauck and Officer Hinz acted in an objectively unreasonable manner 

by not calling an ambulance earlier. Plaintiffs’ own allegations show that 

Trevino’s symptoms were initially ambiguous, and that Officers Hauck and 

Hinz were therefore not unreasonable in believing she did not require 

immediate medical attention. Trevino vomited, had several shaking episodes, 

and told the officers she was sick. None of these symptoms clearly indicated 

Trevino was undergoing an emergency necessitating immediate medical 

attention. As the district court noted, “[a]s a matter of common sense, vomiting 

does not always indicate medical distress in the sense that it requires 

immediate medical attention.” Trevino v. City of Fort Worth, No. 4:17-CV-227-

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A, 2017 WL 3704511, at *5 (N.D. Tex. Aug. 25, 2017). Similarly, although 

shaking episodes can signify a seizure, Officers Hauck and Hinz believed that 

since Trevino continued conversing with officers, she was not having a seizure.

Furthermore, neither officer had any way of knowing that Trevino had 

ingested drugs while in the patrol car (Trevino had done this surreptitiously, 

of course) nor that she had even had the opportunity to do so (the allegations 

do not reflect that Hauck or Hinz knew that Trevino had been unsupervised 

for a short time in the patrol car). The officers were therefore justified in 

questioning, at least initially, whether Trevino’s symptoms were genuine.

When it became apparent Trevino needed medical attention, an ambulance 

was called.

In sum, even viewing the allegations most favorably to the Plaintiffs as 

we must, we conclude that the officers’ conduct was not objectively 

unreasonable in light of clearly established law and that the district court 

therefore correctly dismissed Plaintiffs’ deliberate indifference claims against 

them on the basis of qualified immunity.

AFFIRMED.

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