David M. Hopper v. Phil Plummer, et al.

Robert Richardson suffered a seizure two days after he was booked into the Montgomery

County Jail in Dayton, Ohio. Corrections officers and medical staff responded to the medical

call. Despite both a jail policy that prohibited placing restrained inmates in a prone position and

a medic’s appeal to handcuff Richardson in front, the officers handcuffed him behind his back

and restrained him face down on the floor outside his cell. Richardson died after a twenty-two

minute struggle during which record testimony indicates he continually stated he could not

breathe.

Plaintiff David Hopper, in his capacity as Special Administrator of Richardson’s estate,

brought this 42 U.S.C. § 1983 action against the corrections officers and Montgomery County

Sheriff Phil Plummer.1 The district court denied defendants’ motion for summary judgment on

qualified- and statutory-immunity grounds. They appeal that order, and raise the precedential

issue of whether Richardson, a civil contemnor detainee, falls within the protections of the

Eighth or the Fourteenth Amendment. Because Richardson was sanctioned outside the criminal

context, we hold that the Fourteenth Amendment governs his § 1983 claims. The remaining

issues either lack merit or fall outside the limited scope of our jurisdiction on interlocutory

appeal. We therefore affirm in part and dismiss in part.

I.

A.

In 2009, then-Ohio Governor Ted Strickland issued Executive Order 2009-13S, which

addressed the use of prone restraints “across all state systems” and acknowledged “that there is a

risk of sudden death when restraining an individual in a prone position.” The Ohio Department

1Plaintiff also sued certain medical staff, but those defendants settled with plaintiff and are not involved in

this appeal.

No. 17-3175 Hopper v. Plummer, et al. Page 3

of Rehabilitation and Correction, among other state departments, was ordered to adopt a policy

prohibiting the use of prone restraints, “defined as all items or measures used to limit or control

the movement or normal functioning of any portion, or all, of an individual’s body while the

individual is in a face-down position for an extended period of time.” The Montgomery County

Jail adopted a use-of-restraints policy that prohibited “placing prisoners who are in restraints in

prone or ‘spread-eagle’ positions.”

B.

On May 17, 2012, Richardson was arrested on a capias warrant after failing to appear at a

child-support enforcement hearing, and was booked into the Montgomery County jail. That

same day, a Juvenile Court judge imposed a sentence of up to thirty days on Richardson for civil

contempt, but the contempt could be purged and Richardson released upon payment of $2,500 to

the Montgomery County Child Support Enforcement Agency.

Two days later, Richardson collapsed in his cell and his cellmate called for medical help.

An overhead video camera recorded the twenty-two-minute incident that followed.2

The first officer to respond described Richardson as suffering an apparent seizure.

Defendants Sergeant Ted Jackson and Officer Justin Johnson arrived “[l]ess than a minute” later.

Richardson seemed lethargic and unbalanced, with blood and saliva coming from his mouth. He

was sitting against the wall of his cell, trying to stand up. The officers told Richardson, who was

a large man, to “stay down” because they were afraid he would fall down inside his small cell

and hurt himself. Jackson and Johnson then pulled Richardson from his cell and placed him face

down on the floor a few feet away.

A disoriented Richardson continued trying to stand so Jackson decided “to get him

cuffed.” By this point, several other defendant officers had arrived, including Sergeant Brian

Lewis, Officer Michael Stumpff, Officer Bradley Marshall, and Officer Mathew Henning. A

medic and a nurse had arrived as well. Jackson and Johnson, assisted by Lewis, Stumpff, and

2This video lacks sound and the image stutters because the camera recorded at a frame rate of only four

frames per second. Accordingly, the following factual account is informed not only by the video, but also by other

record evidence including deposition testimony.

No. 17-3175 Hopper v. Plummer, et al. Page 4

Henning, cuffed Richardson’s hands behind his back. No defendant testified to hearing any

instruction to do otherwise.

But the medic testified that he and a nurse “told corrections” at the outset to handcuff

Richardson “in the front” and to put him on his back so medical staff could “better assess” him.

Sergeant Lewis, said the medic, “overrode” that instruction. According to the medic, it was

“impossible to do a thorough exam” of Richardson because he was on his stomach. Once

Richardson was handcuffed, the medic tried to administer oxygen. The nurse said she told the

officers “that they need[ed] [to] make sure [Richardson] was on his side” to “keep that oxygen

on him,” and to “get him up and get him to medical.” Although Jackson requested a restraint

chair at some point during the incident, Richardson stopped breathing and died before defendants

attempted to move him.

C.

The district court found that the defendant officers each participated in restraining

Richardson during a struggle that waxed and waned in intensity. Sergeants Lewis and Jackson

helped handcuff Richardson and supervised the other officers. Officer Johnson placed his knees

on either side of Richardson’s legs and straddled the “thigh area.” Officer Henning was behind

Johnson, and placed his left knee on Richardson’s lower legs. Officer Stumpff positioned

himself near Richardson’s head, and was “trying to hold onto [Richardson’s left] shoulder[.]”

Officer Marshall knelt down next to Richardson’s head, placed his knee in front of his right

shoulder “to stop him from moving forward,” and kept at least one hand on Richardson’s

shoulders or upper back throughout the incident, applying pressure as needed to control

Richardson’s movements. The video appears to show Marshall placing his knee on Richardson’s

arm during the last few minutes of the incident.

Other defendants replaced several of these officers as the incident progressed. Officer

Michael Beach replaced Officer Johnson about seven minutes into the incident. After fifteen

minutes, Officer Keith Mayes relieved the medic positioned at Richardson’s head, and used his

hands to prevent Richardson from lifting his head up. Mayes also took control of Richardson’s

No. 17-3175 Hopper v. Plummer, et al. Page 5

shoulders so he would not roll over. Officer Andrew Wittman arrived last, relieving Stumpff

after about eighteen minutes, and held Richardson’s left arm to the ground.

After twenty-two minutes, the officers realized Richardson was not breathing and began

CPR. Officer Stumpff later acknowledged that Richardson “may have said” during the incident

that he could not breathe. Officer Wittman agreed there was concern over Richardson’s ability

to breathe while restrained. Jason Haag, an inmate housed in the cell next to Richardson’s,

stated that Richardson “repeatedly . . . said he couldn’t breathe,” and tried “to get up to breathe,”

but “[defendants] kept pushing him back down until he stopped moving.” Keith Wayne, another

inmate, testified that he also heard Richardson say “I can’t breathe[.]”

Defendants’ efforts to revive Richardson were unsuccessful, and a doctor pronounced

him dead less than an hour after the incident began. The deputy coroner concluded that

Richardson’s death was caused by “[c]ardiac arrhythmia.” But one of plaintiff’s medical experts

determined that Richardson suffered a “fatal cardiac arrhythmia” only because the “manner of

restraint impaired [his] ability to breath[e.]” Plaintiff’s other medical expert agreed Richardson

died from restraint asphyxiation. He elaborated that asphyxiation resulted from the

“compression of Mr. Richardson’s torso, including his upper back and neck[,] while he was

subdued in a prone position with his hands cuffed behind his back.” This expert explained that if

an individual’s arms and legs are restrained like Richardson’s were, that individual cannot use

them to alleviate the compressive pressure, will fatigue “[o]ver time,” and his “[r]espiratory

movements will ultimately stop.”

D.

Plaintiff brought this § 1983 action against defendants. Relevant here, plaintiff alleged

that the officers violated Richardson’s rights under the Eighth or Fourteenth Amendment by

using excessive force against him and by acting with deliberate indifference to his medical

needs. Plaintiff further alleged that the officers violated Ohio state law by causing Richardson’s

wrongful death. Plaintiff also brought official-capacity claims against Sheriff Plummer alleging

failure to train and supervise, and unconstitutional jail policy or custom.

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The district court denied the officers summary judgment on qualified- and statutoryimmunity

grounds. Taking the evidence in the light most favorable to plaintiff, the district court

determined that jurors “could reasonably conclude that officers applied compressive force upon a

restrained Richardson’s back, shoulder blades, shoulders, neck, hands, waist, thighs and lower

legs throughout much of the twenty-two minute ordeal” and “that Richardson died as a result of

position or restraint asphyxia while being restrained in a prone position by multiple corrections

officers.” It also held that genuine issues of material fact precluded summary judgment in favor

of Sheriff Plummer on plaintiff’s official-capacity claims.

The officers and Sheriff Plummer timely filed this interlocutory appeal.

II.

Qualified immunity shields public officials from civil liability under 42 U.S.C. § 1983

unless their actions violate clearly established rights “of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It is “an immunity from suit rather

than a mere defense to liability,” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), and protects “all

but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S.

335, 341 (1986). We review de novo a district court’s denial of summary judgment in this

context, and “draw all inferences in the evidence in favor of the nonmovant.” Arrington-Bey v.

City of Bedford Heights, 858 F.3d 988, 992 (6th Cir. 2017). To defeat defendants’ motion on

qualified-immunity grounds, plaintiff must come forward with evidence from which a jury could

find “(1) that the official violated a statutory or constitutional right, and (2) that the right was

clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731,

735 (2011) (internal quotation marks omitted).

Defendants raise four issues on appeal. The officers argue that (1) the district court’s

application of the Fourteenth Amendment to plaintiff’s excessive-force claim was erroneous, and

that no constitutional guarantee was clearly established at the time of the alleged misconduct,

(2) the district court should have granted them qualified immunity on plaintiff’s deliberateindifference

claim, and (3) the district court erroneously denied them statutory immunity under

Ohio law. Sheriff Plummer maintains that (4) we should exercise pendent jurisdiction over, and

No. 17-3175 Hopper v. Plummer, et al. Page 7

should dismiss, plaintiff’s official-capacity claims against him. We address each argument in

turn.

III.

A.

First, we must decide which constitutional guarantee plaintiff’s excessive-force claim

implicates. An excessive-force claim may arise under the Fourth, Eighth, or Fourteenth

Amendments. While the Fourth Amendment’s prohibition against unreasonable seizures bars

excessive force against free citizens, see Graham v. Connor, 490 U.S. 386, 388 (1989), the

Eighth Amendment’s ban on cruel and unusual punishment bars excessive force against

convicted persons. See Whitley v. Albers, 475 U.S. 312, 318–19 (1986). When an individual

does not clearly fall within either category, the Fourteenth Amendment’s Due Process Clause

prohibits a governmental official’s excessive use of force. See Phelps v. Coy, 286 F.3d 295,

299–300 (6th Cir. 2002).

The question is not merely academic because the standards of liability differ depending

upon which amendment applies.3 Graham, 490 U.S. at 393 (“We reject [the] notion that all

excessive force claims brought under § 1983 are governed by a single generic standard;” courts

must consider “whether the particular application of force might implicate a more specific

constitutional right governed by a different standard.”). When assessing excessive-force claims

under the Fourth or Fourteenth Amendments, for example, we inquire whether the plaintiff has

shown “that the force purposely or knowingly used against him was objectively unreasonable.”

Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472–73 (2015) (holding in this § 1983 suit brought

by a pretrial detainee alleging a violation of the Fourteenth Amendment’s Due Process Clause

that, in determining “whether force deliberately used is, constitutionally speaking,

‘excessive,’” . . . courts must use an objective standard; thus “a pretrial detainee must show only

that the force purposely or knowingly used against him was objectively unreasonable.”);

3Defendants argue that we should “re-evaluate” the differing standards of liability because corrections

officers need bright-line rules. We may not do so, however, because we are bound by precedent. See, e.g., Kingsley

v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (declining to decide whether a subjective standard still applies in the

context of Eighth Amendment excessive-force claims).

No. 17-3175 Hopper v. Plummer, et al. Page 8

Graham, 490 U.S. at 397 (the “reasonableness” inquiry in this excessive force claim brought

under the Fourth Amendment “is an objective one: the question is whether the officers’ actions

are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without

regard to their underlying intent or motivation.”). But a “prisoner must satisfy both an objective

and a subjective component” to make out an excessive-force claim under the Eighth

Amendment. Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011).

Defendants maintain that the Eighth Amendment applies here because Richardson was

serving a definite jail sentence. Importantly, defendants do not appeal the district court’s finding

under the Fourteenth Amendment that “genuine issues of material fact remain concerning the

reasonableness of the force used in this case.” Indeed, “[h]ow much force [defendants] applied

and for how long are disputed factual issues a jury must decide.” See Martin v. City of

Broadview Heights, 712 F.3d 951, 955 n.1 (6th Cir. 2013). Instead, defendants contend that we

must reverse the district court because it did not make any factual findings relevant to the

subjective prong of our Eighth Amendment analysis. Because the district court correctly

determined that the Fourteenth Amendment governs, and thus obviated the need for any analysis

under the Eighth Amendment’s subjective prong, we disagree.

Richardson was sanctioned for contempt “in an ordinary civil proceeding.” Int’l Union,

United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827 (1994). Unlike civil contempt,

“[c]riminal contempt is a crime in the ordinary sense,” thus one cannot be punished for it without

being “afforded the protections that the Constitution requires of . . . criminal proceedings.” Id. at

826. But Eighth Amendment protections have not been held to apply “outside the criminal

context.” Agg v. Flanagan, 855 F.2d 336, 343 n.7 (6th Cir. 1988); Aldini v. Johnson, 609 F.3d

858, 864 (6th Cir. 2010) (The Eighth Amendment “applies to excessive-force claims brought by

convicted criminals serving their sentences.”).

While a criminal contempt sanction is punitive and seeks “to vindicate the authority of

the court,” a civil contempt sanction is remedial and designed to coerce a future act for the

benefit of the complainant. See Bagwell, 512 U.S. at 827–28 (citations omitted); see also

Uphaus v. Wyman, 360 U.S. 72, 81 (1959). Richardson was to be detained for up to thirty days,

but with the proviso that he could be released upon payment of $2,500 to the county Child

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Support Enforcement Agency––a sentence imposed to coerce Richardson to complete a future

remedial act for the benefit of the Complainant State of Ohio. That Richardson had a discharge

date does not compel a different conclusion because “[i]mprisonment for a fixed term . . . is

coercive when the contemnor is given the option of earlier release if he complies.” Bagwell, 512

U.S. at 828 (citing Shillitani v. United States, 384 U.S. 364, 370 n.6 (1966) (upholding as civil “a

determinate sentence which includes a purge clause”)). A criminal sentence, by contrast,

“cannot [be] avoid[ed] or abbreviate[d] . . . through later compliance.” Id. at 828–29. And to the

extent the relief provided in Richardson’s case was a fine payable to a child support services

agency in addition to his child support obligations, a fine “is remedial when it is paid to the

complainant” rather than to the court. Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 632 (1988).

Richardson was thus the classic civil contemnor detainee in that he “carrie[d] the keys of his

prison in his own pocket” and could “end the sentence and discharge himself at any moment by

doing what he had previously refused to do” for the benefit of the complainant. Gompers v.

Bucks Stove & Range Co., 221 U.S. 418, 442 (1911) (citation omitted).

The Fourteenth Amendment therefore governs plaintiff’s excessive-force claim. In

arguing the Eighth Amendment applies instead, defendants contend that the use of terms like

“punish” and “penalty” in Ohio’s contempt statutes indicates Richardson was being punished,

not merely coerced. See Ohio Rev. Code § 2705.02, 2705.081, 2705.05. It is true that “[m]ost

contempt sanctions . . . to some extent punish a prior offense as well as coerce an offender’s

future obedience,” but any definitive “conclusions about the civil or criminal nature of a

contempt sanction” must be drawn “from an examination of the character of the relief itself” as

opposed to a sanction’s “stated purposes” or “the subjective intent of a State’s laws and its

courts.” See Bagwell, 512 U.S. at 828 (quoting Hicks, 485 U.S. at 635–36). In short, state

statutory labels are not determinative. See Hicks, 485 U.S. at 631 (“[T]he labels affixed either to

the proceeding or to the relief imposed under state law are not controlling and will not be

allowed to defeat the applicable protections of federal constitutional law”); cf. Liming v. Damos,

979 N.E.2d 297, 301 (Ohio 2012) (distinction between civil and criminal contempt “usually

based on the purpose to be served by the sanction”). As discussed above, whether Richardson

was held in contempt for failure to appear or failure to pay child support, or both, the character of

the relief underscores the civil nature of his sanction.

No. 17-3175 Hopper v. Plummer, et al. Page 10

Defendants’ reliance on two district court opinions that applied the Eighth Amendment to

a civil contemnor’s excessive-force claim is equally unavailing. In Lewis v. Stellingworth, the

district court did so because the civil contemnor was “in custody” when the alleged misconduct

occurred. No. 07–CV–13825, 2009 WL 1384149, at *6 (E.D. Mich. May 14, 2009). Although a

civil contemnor has been found to be in contempt, any detention sanction would be imposed

outside the criminal context and would not necessarily be primarily punitive in nature. Lewis

goes astray in not considering any of the Supreme Court contempt precedent discussed above,

and in relying instead on district court cases applying the Eighth Amendment to criminal

contemnors’ excessive-force claims. See No. 07–CV–13825, 2009 WL 1384149, at *6; see also

Fed. R. Crim. Pro. 42. Because Hammond v. Lapeer County simply adopts the Lewis court’s

reasoning, it evidences the same analytical gaps. See 133 F.Supp.3d 899, 916–19 (E.D. Mich.

2015). Neither opinion is persuasive.

Richardson was not a free citizen at the time of the incident, but he had not been

convicted of, and was thus not being punished for, any past criminal offense either. Even if

Richardson’s contempt sanction could be considered “quasi-criminal [in] nature” (as defendants

maintain it should), by that very label it was not entirely so––leaving him, an individual within

“some gray area” between free citizen and convicted criminal, protected by the Fourteenth

Amendment’s Due Process Clause. See Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013);

see also Aldini, 609 F.3d at 865.

For the reasons stated above, we affirm the district court’s application of the Fourteenth

Amendment to this plaintiff’s excessive-force claim.

B.

Defendants also argue that no clearly established law barred unreasonable force against

civil contemnor detainees in 2012. Plaintiff relies primarily on this court’s opinion in Champion

v. Outlook Nashville, Inc., 380 F.3d 893 (6th Cir. 2004), as notice to defendants that their

“conduct was unlawful in the situation [they] confronted.” Saucier v. Katz, 533 U.S. 194, 202

(2001), modified on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). In Champion,

we considered an excessive-force claim brought by the family of a severely autistic man who

No. 17-3175 Hopper v. Plummer, et al. Page 11

died after several arresting officers restrained him, prone on the ground and handcuffed behind

his back, for seventeen minutes. 380 F.3d at 897. Several witnesses described how the officers

were “laying on top of” the man while “he was prone on the ground with his face towards the

carpet.” See id. at 898. We affirmed the denial of qualified immunity to the officers and

explained that “[c]reating asphyxiating conditions by putting substantial or significant pressure,

such as body weight, on the back of an incapacitated and bound suspect constitutes objectively

unreasonable excessive force.” Id. at 903. Although the man was also pepper sprayed, the

application of asphyxiating force “by itself violated a clearly established right.” Id. at 904.

Thus “the prohibition against placing weight on [Richardson’s] body after he was

handcuffed was clearly established in the Sixth Circuit as of” May 2012. See Martin, 712 F.3d at

961 (discussing Champion); cf. Kulpa v. Cantea, 708 F. App’x 846, 852–53 (6th Cir. 2017)

(considering Fourteenth Amendment excessive-force claim in light of Champion); Lanman v.

Hinson, 529 F.3d 673, 688–89 (6th Cir. 2008) (defendants violated clearly-established

Fourteenth Amendment right to be free of undue restraint by restraining prone and subdued

patient using “techniques that pose a substantial risk of asphyxiation”). Although not every

defendant may have placed his weight on Richardson’s torso, we have cautioned against taking

“too cramped a view” of our precedent, and have explained that Champion “proscribes the use of

‘substantial or significant pressure’ that creates asphyxiating conditions in order to restrain a

subject who does not pose a material danger to the officers or others.” Martin, 712 F.3d at 961.

Even though “Champion arose in the context of an arrest, the conduct at issue, the risk of death

to the detainee, and the minimal threat posed by a bound and incapacitated detainee to officer

safety is the same in a” jail. Kulpa, 708 F. App’x at 853.

In response to Champion’s admonition, defendants maintain that the presence of medical

personnel distinguishes this case because defendants claim they restrained Richardson only to

facilitate his medical treatment. No medical personnel were present while force was used on

Champion, but defendants do not explain how this distinction is material to our clearlyestablished

analysis here. There is no dispute that Richardson was suffering a medical

emergency, or that while he may have kicked and thrashed, defendants did not consider him a

threat to anyone after he was handcuffed. Champion, who had created a disturbance in a store

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and “kick[ed] violently” while on the ground, arguably posed a threat. Champion, 380 F.3d at

897.

In any event, neither the mere presence of a third party at the scene nor defendants’

professed reason for using force would excuse defendants’ use of an otherwise unreasonable

amount of force or alter relevant, clearly established constitutional guarantees. See Kingsley,

135 S. Ct. at 2476 (when viewing excessive-force claim through lens of Fourteenth Amendment,

error to suggest that jury weigh officers’ subjective reasons for using force); see also Champion,

380 F.3d at 904 (“motive is irrelevant”). We are cognizant that plaintiff must identify a case

with a fact pattern similar enough to have given ‘‘fair and clear warning to officers’’ about what

the law requires. White, 137 S. Ct. at 552 (quotation omitted). But such a case need not “be on

all fours in order to form the basis for the clearly established right.” See Burgess, 735 F.3d at

474; cf. White 137 S. Ct. at 552 (“[G]eneral statements of the law are not inherently incapable of

giving fair and clear warning to officers” where the unlawfulness is apparent).

Defendants also argue that they cannot be held liable for their actions because it was not

clear in 2012 whether civil contemnor detainees fell within the Eighth or the Fourteenth

Amendment. Although some district courts in this circuit may have applied the Eighth

Amendment to civil contemnor detainee excessive-force claims, the Supreme Court long ago

“t[ook] the position that the Eighth Amendment is inapplicable to [a civil contempt] sentence.”

United States v. Dien, 598 F.2d 743, 745 (2d Cir. 1979) (per curiam) (citing Ingraham v. Wright,

430 U.S. 651, 667–68 (1977)). Moreover, it is well-established that “the qualified immunity

doctrine is an objective one[.]” Champion, 380 F.3d at 904; see Harlow, 457 U.S. at 818. We

decline to accept the defense of qualified immunity based on defendants’ “dubious proposition

that, at the time the officers acted, they were on notice only that they could not have a reckless or

malicious intent and that, as long as they acted without such an intent, they could apply any

degree of force they chose.” See Kingsley v. Hendrickson, 801 F.3d 828, 832–33 (7th Cir. 2015)

(per curiam).

Nor can defendants escape liability merely because the incident in question occurred

before the Supreme Court made it clear that the standard of liability applicable to Fourteenth

Amendment excessive-force claims is purely an objective one. Kingsley, 135 S. Ct. at 2473. As

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defendants acknowledge, we have rejected this argument before because “a defendant is not

entitled to qualified immunity simply because the courts have not agreed upon the precise

formulation of the [applicable] standard.” Guy v. Metro. Gov’t of Nashville, 687 F. App’x 471,

476 (6th Cir. 2017) (internal quotation marks omitted) (quoting Harris v. City of Circleville,

583 F.3d 356, 367 (6th Cir. 2009)); see also Katz, 533 U.S. at 202–03; Pearson, 555 U.S. at 236;

Kulpa, 708 F. App’x at 853. Rather, the relevant question under the clearly established prong is

whether defendants had notice “that [their] conduct was unlawful in the situation [they]

confronted.” Katz, 533 U.S. at 202.

We agree with the district court that Champion, among other precedent, gave such notice

to defendants here. Accordingly, we affirm the district court’s conclusion that it “[w]as

unconstitutional” on May 19, 2012, to create asphyxiating conditions by “forcibly restraining an

individual in a prone position for a prolonged period of time” when that individual posed no

material threat.

IV.

Defendants argue they are also entitled to qualified immunity on plaintiff’s deliberateindifference

claim. We analyze a Fourteenth Amendment claim for deliberate indifference to a

serious medical need “under the same rubric as Eighth Amendment claims brought by

prisoners.” Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013). Proving

deliberate indifference requires that plaintiff demonstrate both: (1) the existence of a

“sufficiently serious” medical need; and (2) that defendants “perceived facts from which to infer

substantial risk to the prisoner, that he did in fact draw the inference, and that he then

disregarded that risk.” Comstock v. McCrary, 273 F.3d 693, 702–03 (6th Cir. 2001) (citation

omitted).

A.

As a threshold matter, defendants assert that the district court failed to conduct a

sufficiently individualized qualified-immunity assessment in the context of plaintiff’s deliberateindifference

claim. “[I]t is well-settled that qualified immunity must be assessed in the context

of each individual’s specific conduct.” Stoudemire v. Mich. Dep’t. of Corrs., 705 F.3d 560, 570

(6th Cir. 2013). The district court acknowledged at the outset that it was required to conduct an

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individualized assessment. When considering plaintiff’s excessive-force claim, the district court

determined that “all of the [defendants] either actively participated in the use of allegedly

excessive force or supervised the other officers” and made individualized factual findings about

each officer’s actions during the incident that led to Richardson’s death. The district court also

referenced Haag and Wayne’s testimony that Richardson “continually told officers that he could

not breathe” while the “officers applied compressive force.”

The district court emphasized this circumstantial evidence upon turning to the subjective

component of plaintiff’s deliberate-indifference claim. The district court again cited Haag’s

testimony that Richardson was “continually” telling “those on the scene” that he could not

breathe. Haag’s testimony was corroborated by that of inmate Wayne. The district court added

that Stumpff “agrees that Richardson may have indicated” that he was having difficulty

breathing and that Wittman also “testified that there was cause to be concerned about

Richardson’s ability to breathe.” Building on its excessive-force analysis, the district court

concluded that plaintiff’s evidence taken in the light most favorable to him “demonstrates that

Richardson continually told those on the scene that he could not breathe” but “[d]espite this

cause for concern, the individual [defendants] each participated – or supervised – in

Richardson’s restraint for up to twenty-two minutes” rather than cede control of the scene to

medical personnel.

Defendants fault the district court for failing to specify in the record where each officer

testified that he heard Richardson’s breathing complaints or to reference record evidence

establishing that each officer was present “when Richardson was making such complaints.” But

no testimony concerning Richardson’s breathing complaints links those complaints to a

particular moment in time, and some witnesses, such as Stumpff, were present throughout the

entire incident. A reasonable jury could infer that Richardson’s pleas were ongoing and any of

the officers could have heard them at the time that they were on the scene. Although the video

has no sound, it does not blatantly contradict the district court’s conclusion because it shows

each defendant in close proximity to Richardson and would thus allow a reasonable juror to

conclude that his voice could have reached them. See Scott v. Harris, 550 U.S. 372, 380 (2007)

(“When opposing parties tell two different stories, one of which is blatantly contradicted by the

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record, so that no reasonable jury could believe it, a court should not adopt that version of the

facts for purposes of ruling on a motion for summary judgment.”).

The district court inferred from this evidence that each of the officers may have been

aware of the contextual facts indicating Richardson’s need for medical treatment because he was

struggling to breathe while in a prone position. And “a defendant may not challenge the

inferences the district court draws from th[e] facts, as that . . . is a prohibited fact-based appeal.”

DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 609 (6th Cir. 2015). Because the district court’s

finding of a genuine issue of material fact as to defendants’ “knowledge of a substantial risk of

serious harm” is premised on Richardson’s continuous complaints about his inability to breathe,

its qualified immunity inquiry was sufficiently individualized, even if it referred to “those on the

scene” and the “individual” defendants rather than list each officer by name. Cf. Phillips v.

Roane Cty., 534 F.3d 531, 542 (6th Cir. 2008) (“[W]e do not read Garretson as prescribing a rule

that plaintiffs cannot present general allegations to prove that each individual defendant has the

requisite knowledge for deliberate indifference.”) Defendants’ argument provides no basis for

relief.

B.

Defendants also maintain that they did not disregard any substantial risk to Richardson

because they were “working alongside” medical personnel. Because this argument is premised

on factual disputes, we lack jurisdiction to consider it on interlocutory appeal. DiLuzio, 796 F.3d

at 609–10. It is well-established that “[a] defendant challenging the denial of summary judgment

on qualified immunity grounds must be willing to concede the most favorable view of the facts

to the plaintiff for purposes of the appeal.” Thompson v. Grida, 656 F.3d 365, 367 (6th Cir.

2011) (internal quotation marks omitted). We are precluded from deciding an interlocutory

appeal premised on a challenge either to the inferences a district court draws from its recordsupported

factual determinations or to ‘“evidence sufficiency,’ i.e., which facts a party may, or

may not, be able to prove at trial.” See DiLuzio, 796 F.3d at 609–10.

Defendants do not accept the district court’s conclusion that there was sufficient evidence

to create a genuine issue of material fact. For example, defendants contend the district court

failed to “factor into [its] analysis that medical staff was on the scene throughout” and “the

No. 17-3175 Hopper v. Plummer, et al. Page 16

undisputed evidence is that corrections officers were holding Richardson so the medical

personnel could assess and treat him.” Yet the district court pointed to specific facts about the

medical staff response, and underscored that defendants may have refused a medic’s and a

nurse’s request to reposition Richardson to allow for a proper medical assessment. Defendants

also do not accept the district court’s finding that the plaintiff presented evidence that

“Richardson continually told those on the scene that he could not breathe.” Instead, they

inappropriately argue that the evidence is insufficient to support that conclusion because not

every officer testified to hearing Richardson’s complaints or to being present when the

complaints were made. We have noted that “the deliberate indifference threshold is higher for

correctional officers where . . . an inmate is receiving medical treatment[.]’” Shaver v. Brimfield

Tp., 628 F. App’x 378, 383 (6th Cir. 2015). But our reasoning is premised on non-medical

prison officials reasonably relying on or deferring to medical staff expertise, and it is sharply

disputed whether and to what extent defendants did so here. See id.; see also Ruiz-Bueno v.

Scott, 639 F. App’x 354, 360 (6th Cir. 2016).

Our decision in McKinney v. Lexington-Fayette Urban County Government is instructive.

651 F. App’x 449 (6th Cir. 2016). In that case, McKinney suffered a seizure while incarcerated

and died after corrections officers placed him in a prone position while handcuffed behind his

back. Id. at 451–56. As in this case, multiple officers responded when McKinney began

displaying seizure activity and used “force to restrain and subdue McKinney.” Id. at 451. And

like the officers here, the defendant officers in McKinney relied on the presence of medical staff

in support of their qualified immunity defense. Id. at 460 n.6. We declined to consider that

argument on interlocutory appeal, concluding that:

[t]he officers’ arguments about the medical staff . . . pose questions of fact

capable of resolution by competent evidence, including evidence about the

officers’ observations of facts that indicated that McKinney was in medical

distress, the training that the officers received about how to care for an inmate

who was in medical distress, and the officers’ perceptions about the adequacy of

the treatment that the medical staff provided to McKinney.

Id. This reasoning is equally applicable here.

No. 17-3175 Hopper v. Plummer, et al. Page 17

“When the legal arguments advanced rely entirely on a defendant’s own disputed version

of the facts, the appeal boils down to issues of fact and credibility determinations that we cannot

make.” Thompson, 656 F.3d at 367. Because defendants’ medical-personnel argument turns on

such determinations, we cannot consider it on interlocutory appeal. See DiLuzio, 796 F.3d at

609–10 (allowing excision of “the prohibited challenge”).

C.

Defendants also assert in a conclusory fashion that Richardson’s right to medical care

was not clearly established. They argue the district court erroneously relied on Lanman v.

Hinson, in which we held in 2008 that the defendants violated a mental-health patient’s clearlyestablished

Fourteenth Amendment right to freedom from undue bodily restraint by continuing to

restrain him in a prone position using “techniques that pose a substantial risk of asphyxiation”

after the patient was subdued. 529 F.3d at 688–89. According to defendants, Lanman is

irrelevant because it does not specifically involve “law enforcement officers working alongside

qualified medical staff in dealing with an inmate not responding to commands and struggling

with officers.” To the extent defendants are merely repackaging their argument that the presence

and activities of medical personnel absolves them of any liability, we have explained why that is

a determination for a jury in this case.

Moreover, defendants neglect to mention the other cases referenced by the district court

such as May v. Township of Bloomfield, which includes a discussion of our longstanding

precedent establishing that a detainee has a constitutional right to medical care when an officer

becomes aware that the detainee needs medical attention. See No. 11-14453, 2013 WL 2319323,

at *13–16 (E.D. Mich. May 28, 2013). We made it clear in 1972 that “fundamental fairness and

our most basic conception of due process mandate that medical care be provided to one who is

incarcerated and may be suffering from serious illness or injury . . . where the circumstances are

clearly sufficient to indicate the need of medical attention for injury or illness[.]” Fitzke v.

Shappell, 468 F.2d 1072, 1076 (6th Cir. 1972).

Here, the district court found that “reasonable minds could conclude that Richardson was

suffering from an obvious serious medical need” as he lay prone, handcuffed, and complaining

No. 17-3175 Hopper v. Plummer, et al. Page 18

he could not breathe for the better part of twenty-two minutes. Defendants conceded in their

motion for summary judgment that they each “were aware this was a medical situation, where

Richardson was having some sort of medical issue,” and that “this is not a case where

[defendants] failed to get Richardson medical attention.” We fail to see how, considering our

precedent, a detainee like Richardson could have had no clearly established right to adequate

medical care under circumstances even defendants admit indicated a need for medical attention.

In sum, defendants’ medical-personnel argument is fact-bound and beyond our limited

jurisdiction.

V.

Plaintiff also brings an Ohio tort claim for wrongful death against the officers, and

defendants argue they should have been granted statutory immunity. Ohio law does not

immunize “acts or omissions [done] with malicious purpose, in bad faith, or in a wanton or

reckless manner.” Ohio Rev. Code § 2744.03(A)(6)(b). As relevant here, recklessness is

conduct “characterized by the conscious disregard of or indifference to a known or obvious risk

of harm to another that is unreasonable under the circumstances and is substantially greater than

negligent conduct.” Argabrite v. Neer, 75 N.E.3d 161, 164 (Ohio 2016).

The district court relied on its “analysis of Plaintiff’s deliberate indifference claim” in

concluding the officers were not entitled to statutory immunity because “a reasonable jury could

find recklessness sufficient to overcome employee immunity” under Ohio law. When federal

qualified immunity and Ohio state-law immunity under § 2744.03(A)(6) rest on the same

questions of material fact, we may review the state-law immunity defense “through the lens of

the federal qualified immunity analysis.” Chappell v. City of Cleveland, 585 F.3d 901, 907 n.1

(6th Cir. 2009); cf. Stefan v. Olson, 497 F. App’x. 568, 580–81 (6th Cir. 2012) (noting

similarities between the Eighth Amendment “deliberate indifference” standard and Ohio’s

“wanton or reckless manner” standard). Just as a district court’s denial of a federal qualified

immunity claim is appealable only to the extent that the denial turns on an issue of law, Mitchell,

472 U.S. at 530, the Ohio Supreme Court has stated that a court of appeals “may resolve the

appeal” of a trial court’s denial of summary judgment on the basis of statutory immunity

No. 17-3175 Hopper v. Plummer, et al. Page 19

“if [after de novo review of the law and facts] only questions of law remain[.]” See Hubbell v.

City of Xenia, 873 N.E.2d 878, 882 (Ohio 2007).

Defendants make the same arguments here as they made in challenging the district

court’s deliberate-indifference findings: that there was an insufficient individualized inquiry as to

each defendant’s qualified immunity defense, and that the district court did not consider the

presence of medical personnel throughout the incident. As discussed above, the district court’s

qualified immunity analysis was sufficiently individualized.

In support of their renewed medical-personnel argument, defendants rely on our decision

in Ruiz-Bueno v. Scott. There, a pretrial detainee’s estate sued jail officials under federal and

Ohio law after the detainee died from a preexisting heart condition of which no one at the jail

was aware. 639 F. App’x 354 at 355. We held that two deputies were entitled to statutory

immunity against the plaintiff’s state-law wrongful death and loss-of-consortium claims “[f]or

the same reasons” they were entitled to federal qualified immunity against the plaintiff’s

deliberate-indifference claim. Id. at 365. In so concluding, we noted that the defendants

“reasonably relied on the judgment of numerous doctors and nurses” treating the decedent and

that there was no evidence that either deputy was subjectively aware of the detainee’s condition.

See id. at 356, 360–61. There is such evidence of subjective awareness here, therefore Ruiz-

Bueno does not help defendants (who in any case allegedly did not “rel[y] on the judgment of”

medical staff at the scene). See id. at 360.

Defendants’ statutory immunity defense stands or falls with their federal qualified

immunity defense. Cf. Martin, 712 F.3d at 963 (holding that “[a]s resolution of the state-law

immunity issue is heavily dependent on the same disputed material facts as the excessive-force

determination under § 1983, the district court properly denied summary judgment to the officers

on the estate’s state-law claims”). For the same reasons that we declined to accept defendants’

defense of qualified immunity on plaintiff’s deliberate-indifference claim, we decline to accept

their defense of statutory immunity under Ohio law.

No. 17-3175 Hopper v. Plummer, et al. Page 20

VI.

Finally, defendant Sheriff Plummer appeals from the district court’s denial of summary

judgment on plaintiff’s § 1983 claims brought against him in his official capacity.4 That is not

an independently appealable “final decision” under 28 U.S.C. § 1291. See Swint v. Chambers

Cty. Comm’n, 514 U.S. 35, 43 (1995). Accordingly, we may exercise our pendent appellate

jurisdiction over Sheriff Plummer’s appeal only if his motion for summary judgment is

“inextricably intertwined with the qualified immunity analysis properly before the Court.” Lane

v. City of LaFollette, 490 F.3d 410, 423 (6th Cir. 2007). In other words, only “when the

appellate resolution of the collateral appeal necessarily resolves the pendent claim as well.”

Mattox v. City of Forest Park, 183 F.3d 515, 524 (6th Cir. 1999) (quoting Moore v. City of

Wynnewood, 57 F.3d 924, 930 (10th Cir. 1995)).

That is not the case here. The officers’ appeal of the qualified immunity issues is not

“inextricably intertwined” with Sheriff Plummer’s appeal because their “liability turns on

whether the force they used to restrain [Richardson] violated his clearly established

constitutional rights,” while municipal liability turns on separate questions of the jail’s training

and supervision obligations and practices as well as its policies and customs. See Martin,

712 F.3d at 963. Because pendent jurisdiction is inapplicable, we cannot consider Sheriff

Plummer’s interlocutory appeal. See id. (“[I]n the face of a constitutional violation, we lack

subject-matter jurisdiction to entertain an appeal of the municipal-liability claim”); see also

Courtright v. City of Battle Creek, 839 F.3d 513, 523–24 (6th Cir. 2016) (same); Floyd v. City of

Detroit, 518 F.3d 398, 410–11 (6th Cir. 2008) (same).



* * *



4“Official-capacity suits . . . ‘generally represent only another way of pleading an action against an entity

of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (quoting Monell v. New York

City Dep’t of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)).

For these reasons, we affirm in part and dismiss in part.