Brawner v. Scott County, Tennessee

18 F.4th 551 (Mem)

Tammy M. BRAWNER, Plaintiff-Appellant,

v.SCOTT COUNTY, TENNESSEE, Defendant-Appellee.

No. 19-5623

United States Court of Appeals, Sixth Circuit.

Decided and Filed: December 1, 2021

ON PETITION FOR REHEARING EN BANC: Caitlin C. Burchette, Arthur F. Knight, III, TAYLOR & KNIGHT, GP, Knoxville, Tennessee, for Appellee. ON RESPONSE: Richard E. Collins, II, STANLEY, KURTZ & COLLINS, PLLC, Knoxville, Tennessee, Megha Ram, RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, Washington, D.C., David M. Shapiro, RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, Chicago, Illinois, for Appellant. ON AMICUS BRIEF: Jeffrey C. Mando, Claire E. Parsons, ADAMS LAW, PLLC, Covington, Kentucky, D. Barry Stilz, KINKEAD & STILZ, Lexington, Kentucky, for Amicus Curiae.

Before: CLAY, WHITE, and READLER, Circuit Judges.

The panel issued an order denying the petition for rehearing en banc. READLER, J. (pp. 551–57), delivered a separate opinion dissenting from the denial of the petition for rehearing en banc in which THAPAR, BUSH, NALBANDIAN, and MURPHY, JJ., joined.

ORDER

On Petition for Rehearing En Banc.

The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision. The petition then was circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.

Therefore, the petition is denied. Judge Readler would grant rehearing for the reasons stated in his original dissent and the one appended hereto.

DISSENT

CHAD A. READLER, Circuit Judge, dissenting from the denial of rehearing en banc.

We should not be enlisting a case about excessive force to disturb our deliberate indifference to medical needs jurisprudence. Brawner v. Scott County , 14 F.4th 585, 605 (6th Cir. 2021) (Readler, J., concurring in part and dissenting in part) (" Kingsley [v. Hendrickson ] would be the quintessential stalking horse if invoked as grounds to overrule our current deliberate indifference precedent."). For that and other reasons, I continue to see Brawner as a flawed decision. See generally id. at 605–11.

Yet even more worrisome is the overarching trend Brawner perpetuates. For in both our Eighth Amendment and Fourteenth Amendment jurisprudence, we have moved far away from the Amendments' original public meaning in resolving detainee civil rights litigation. Making matters worse, we have crafted a legal standard for deliberate indifference cases that ignores the Supreme Court's instruction to view those cases through both an objective and subjective lens. Farmer v. Brennan , 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). And these cases are legion, given the frequency with which we are asked to entertain them. See, e.g. , Federal Judicial Center, IDB Appeals 2008-present , https://www.fjc.gov/research/idb/interactive/21/IDB-appeals-since-2008 (last visited Dec. 1, 2021) (reporting that, since 2008, 16.5 percent of the Sixth Circuit's civil docket has been comprised of "prisoner civil rights" and "prison conditions" claims). So far, our en banc Court has been reluctant to reign in wayward decisions like Brawner . Before long, our Court, if not a higher one, should correct this misguided course.

1. Let me begin with Brawner . The majority opinion is yet another example of our Circuit transforming constitutional prohibitions against punishment into a "freestanding right to be free from jailhouse medical malpractice." Brawner , 14 F.4th at 610 (Readler, J., concurring in part and dissenting in part). The Brawner majority opinion did so by forgoing any examination of the Fourteenth Amendment's text or original public meaning. Instead, it turned to Kingsley v. Hendrickson , 576 U.S. 389, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015), an excessive force decision that, all agree, did not address "other Fourteenth Amendment pretrial-detainment contexts." Brawner , 14 F.4th at 592. Despite Kingsley 's express limits, Brawner used Kingsley to jettison our traditional inquiry in the deliberate indifference setting. Rather than asking whether the defendant was subjectively aware of the serious medical risks facing the detainee, Brawner adopted a reckless disregard standard, a benchmark we are told should be viewed through the eyes of a "reasonable official in the defendant's position." Brawner , 14 F.4th at 597 (citation omitted). In that world, if a plaintiff can muster more than a scintilla of evidence to suggest that an official acted with objectively unreasonable reckless indifference to a detainee's medical condition, it is left to the jury—effectively acting as both doctor and warden—to decide whether the official's actions were reasonable.

From a policy perspective, one might favor this approach. But our terrain here is the Constitution. And there, a "reasonable official" standard finds little grounding. The Fourteenth Amendment familiarly prohibits an individual from being deprived of liberty without due process of law. U.S. CONST. amend. XIV ("[N]or shall any State deprive any person of life, liberty, or property, without due process of law ...."). In the pretrial detainee context, that prohibition extends to state-sanctioned punishment. See Bell v. Wolfish , 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ("For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law."). But beyond those contours, there is no textual or historical support for extending the prohibition more broadly to examine whether a jailer's actions are "reasonable." See Rhodes v. Michigan , 10 F.4th 665, 694–95 (6th Cir. 2021) (Thapar, J., dissenting in part). And any purported validation of that view in Supreme Court precedent (e.g. , Kingsley ) should be cabined to its particular context, see Garza v. Idaho , ––– U.S. ––––, 139 S. Ct. 738, 756, 203 L.Ed.2d 77 (2019) (Thomas, J., dissenting) (observing that when a precedent is incorrect as an "original matter," a court should "tread carefully before extending" that precedent).

2. Truth be told, efforts in this Circuit to tortify the Constitution did not begin with Brawner . The notion of eliminating any inquiry into a government official's subjective motivations regarding the provision of medical treatment, as Brawner aims to do, finds allies in our jurisprudence. To put that turn of events into context, consider first the origins of the constitutional deliberate indifference standard. The Eighth Amendment prohibits the infliction of "cruel and unusual punishments," see U.S. CONST. amend. VIII. That prohibition was later read to require the government to provide some level of medical care to prisoners. Estelle v. Gamble , 429 U.S. 97, 103–04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Prisoner lawsuits claiming an Eighth Amendment violation stemming from an official's failure to prevent harm to a prisoner, however, raised the specter of "unbounded liability for prison officials." Farmer , 511 U.S. at 860, 114 S.Ct. 1970 (Thomas, J., concurring in the judgment). To balance out these considerations, the Supreme Court in Farmer required a plaintiff asserting such a claim to show official wrongdoing measured both from objective and subjective viewpoints, the latter grounded in the concept of "deliberate indifference." 511 U.S. at 828, 834, 114 S.Ct. 1970. Farmer defined deliberate indifference to mean that a prison official must "both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and ... draw the inference." Id. at 837. Farmer was thus thought to have "adopt[ed] a restrictive definition of deliberate indifference." Id. at 861, 114 S.Ct. 1970 (Thomas, J., concurring in the judgment). Farmer did note that whether a prison official actually knew of a substantial risk "is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence ... and ... from the very fact that the risk was obvious." Id. at 842, 114 S.Ct. 1970 (citation omitted). To help clarify that aspect of the opinion, Farmer provided an example of such an obvious risk: one that was "longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk." Id. at 842–43, 114 S.Ct. 1970.

That formulation, however, is a far cry from how we have since gone on to interpret the "obvious" risk concept. Suffice it to say, in our Circuit, Farmer 's "hint" about "obvious" risks "bec[ame] a suggestion, [was] loosely turned into dictum and [was] finally elevated to ... decision[s]" that transformed deliberate indifference. United States v. Rabinowitz , 339 U.S. 56, 75, 70 S.Ct. 430, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting). From the looks of things, deliberate indifference to one's medical needs—whether in the pretrial or prisoner context—is now functionally an objective-only standard in our Circuit. In that formulation, we ask only whether a risk was so obvious that the prison official should have known it presented a substantial risk of serious harm to the detainee—regardless of what the official actually knew. For instance, we have held that a jury could conclude that, in a case of involuntary commitment to a state psychiatric hospital, doctors acted with deliberate indifference because "a jury could possibly decide that a reasonable doctor, in [the doctors' positions], would have concluded that a substantial risk of serious harm to the [patient] existed." Terrance v. Northville Reg'l Psychiatric Hosp. , 286 F.3d 834, 845–46 (6th Cir. 2002) ; see also Dominguez v. Corr. Med. Servs. , 555 F.3d 543, 550–51 (6th Cir. 2009) (holding that a genuine issue of material fact as to deliberate indifference existed when the prison official "was aware, or should have been...