Wagner v. Bay City Texas, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-40175
_______________
MARY WAGNER,
INDIVIDUALLY AND AS NEXT FRIEND OF
GILBERT GUTIERREZ AND IRMA GUTIERREZ,
Plaintiff-Appellee,
VERSUS
BAY CITY, TEXAS, ET AL.,
Defendant,
ROBERT GARCIA, OFFICER; VICTOR R. HADASH, OFFICER;
RICHARD M. HEMPEL, OFFICER; DAVID MIRELEZ, OFFICER;
SCOTT A. SHERRILL, OFFICER,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
September 27, 2000
Before JOLLY, SMITH, and BARKSDALE,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
This is an appeal of a partial denial of a mo-
tion for summary judgment. The appellant po-
lice officers argue that qualified immunity pre-

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2
cludes Mary Wagner’s 42 U.S.C. § 1983
claims of excessive force and deliberate
indifference to the need for medical attention
arising from the arrest of her brother, Gilbert
Gutierrez, who died in police custody. Con-
cluding that there is no reasonable inference
that the officers were objectively unreasonable,
we reverse and render judgment for the
defendant officers and remand for further
proceedings.
I.
In March 1996, Gutierrez entered a fast-
food restaurant in Bay City, Texas, and, using
a receipt that belonged to another customer,
he requested to be given free food. When he
was told he could not have the food, he cursed
one of the managers, who was black, and
called her a racial epithet. The manager told
him to leave and then called the police, who
arrived after Gutierrez already had departed.
Gutierrez returned to the restaurant about
an hour later; the manager again called the po-
lice. This time, Officer Hadash arrived and
recognized the man as Gutierrez, whom he ap-
proached, and an altercation ensued.
According to Hadash, Gutierrez jumped off a
stool and started swinging his fists, striking
Hadash several times. Hadash apparently did
not strike Gutierrez at this time, because he
was busy blocking his assailant’s blows. Other
witnesses also said Gutierrez struck Hadash,
and it is undisputed that Hadash and Gutierrez
eventually ended up struggling on the floor.
Officer Mirelez arrived and, seeing the
fight, tried to assist Hadash. The two officers
struggled to restrain Gutierrez, who continued
fighting. Although different witnesses
provided slightly varying accounts as to the
sequence of events, it is undisputed that one or
both of the officers dragged Gutierrez outside
and sprayed him with pepper spray. It is un-
certain how many times he was sprayed or
how much spray was used. And although one
witness stated that the officers sprayed Gutier-
rez while inside the restaurant, all other
witnesses stated that this occurred after
Gutierrez was taken outside.
Next, the officers placed Gutierrez face
down on the pavement and eventually were
able to handcuff him. According to the
officers, Gutierrez was still struggling at that
point. But, according to one witness, Maria
Juarez, Gutierrez did not appear to be
struggling at the time he was dragged outside.
Juarez stated that after Gutierrez was taken
outside, she watched the incident from the
store and saw Gutierrez on the ground, face
down, handcuffed.
One of the officers had his knee on Gutier-
rez’s back and “kept pushing Mr. Gutierrez
[sic] neck and head to the ground” with a
stick. Mirelez confirmed placing his right shin
across Gutierrez’s back while attempting to
restrain Gutierrez. Neither Hadash nor Mirel-
ez mentioned using a baton, however.
After Gutierrez was cuffed, three other of-
ficers arrivedSSSergeant Garcia, Officer Hem-
pel, and Officer Sherrill. According to Garcia,
when he arrived he observed Hadash and Mi-
relez on top of Gutierrez. Then, when Sherrill
and Hempel arrived, Garcia told them to put
Gutierrez into a patrol car. Garcia advised
Hadash that Gutierrez could go to the hospital
to be decontaminated from the pepper spray,
but Hadash declined, because the jail was
closer and more secure, and because Gutierrez
had been combative.1
1 Decontamination consists primarily of
(continued...)

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3
When Sherrill and Hempel arrived, Gutierrez
was lying on his stomach and was no longer
struggling. The officers had to carry him to place
him in the car; he did not walk on his own. The
officers placed him in the car head-first. Sherrill
had to go to the other side of the vehicle to pull
Gutierrez through, placing him on his stomach with
his head turned toward the front of the vehicle.
Sherrill reported that Gutierrez appeared to have
passed out. According to Garcia, he did not
attempt to assess whether Gutierrez was injured,
nor did he speak to him.
Hadash then drove Gutierrez to the county jail.
He recalled hearing “a couple of groans and
grunts” during the trip but did not speak to Gutier-
rez during that time.
When Hadash arrived, he was met by two
jailers, who again had to assist Gutierrez out of the
car. Gutierrez was not combative; indeed, Hadash
did not know whether he was even conscious at
that point. The jailers carried Gutierrez into the
jail, half dragging him, and laid him face down. At
that point, Hadash looked at Gutierrez and told
Garcia that it appeared Gutierrez was not
breathing.
The officers removed Gutierrez’s handcuffs and
turned him over, and Hadash began CPR. Once
his breathing was revived, Gutierrez was
transported to the hospital, where he slipped into a
coma and eventually died.
II.
Gutierrez’s sister (Wagner) and his daughter
(Irma Gutierrez) sued the city and the officers,
alleging violations of Gutierrez’s civil rights
pursuant to § 1983. The complaint set forth claims
of, inter alia, excessive force and a failure to
respond to Gutierrez’s medical needs. Although
the original complaint named Bay City and every
male officer of the Bay City police force, the
claims eventually were dismissed against all but
Bay City and Mirelez, Sherrill, Garcia, Hadash,
and Hempel, the officers involved in the arrest.
The officers moved for summary judgment on
the basis of qualified immunity, and the court
granted summary judgment on the excessive force
claims as to Sherrill, Garcia, and Hempel, because
they arrived after the altercation was over. The
court denied summary judgment in all other
respects.
III.
Wagner argues that with respect to her claim
for excessive force,2 because the district court
ruled that neither party had submitted enough
evidence about what happened during the
course of the arrest to declare whether Hadash
and Mirelez were entitled to qualified
immunity, we do not have jurisdiction to
review this purely factual conclusion. The
court stated, preliminarily, that it could not
currently say there was no merit to Wagner’s
claims, and it invited the defendants to raise
the summary judgment issue again once
additional discovery was taken.
In so ruling, the court pointed to several
inconsistencies in the record regarding the al-
tercation between Hadash and Gutierrez, and
to inconclusive evidence as to how much pep-
per spray was used. Thus, it concluded that
further discovery would be necessary to
determine whether the defendants were
entitled to qualified immunity.
1(...continued)
flushing the eyes with water. It can be done at the
hospital, at the jail, or even at the scene.
2 Wagner concedes that we have jurisdiction to
review the district court’s ruling denying qualified
immunity on the denial-of-medical-attention claim,
noting that there is very little factual dispute about
what the defendants did or did not do in this
respect.

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4
In deciding an interlocutory appeal of a
denial of qualified immunity, we can review
the materiality of any factual disputes, but not
their genuineness. See Colston v. Barnhart,
146 F.3d 282, 284 (5th Cir.) (on petition for
rehearing en banc), cert. denied, 525 U.S.
1054 (1998). So, we review the complaint
and record to determine whether, assuming
that all of Wagner’s factual assertions are true,
those facts are materially sufficient to establish
that defendants acted in an objectively
unreasonable manner. Even where, as here,
the district court has determined that there are
genuine disputes raised by the evidence, we
assume plaintiff’s version of the facts is true,
then determine whether those facts suffice for
a claim of excessive force under these
circumstances.
Moreover, in light of the fact that the dis-
trict court did not specifically identify those
factual issues as to which it believed genuine
disputes remained, we conduct an analysis of
the record to determine what issues of fact the
district court likely considered genuine. This
ensures that the defendants’ right to an
immediate appeal will not be defeated because
of the district court’s failure to articulate its
reasons for denying summary judgment. See
id. at 285. It follows that we do have
jurisdiction to review the denial of summary
judgment on all of these claims.
IV.
Defendants argue that there is no issue of
material fact regarding whether they acted in
an objectively unreasonable manner in using
the amount of force that they did to subdue
Gutierrez and in failing to notice sooner that
he was in need of medical attention.3 We
examine the various claims in turn.
A.
With respect to the excessive-force claim,
defendants argue that, notwithstanding the dis-
trict court’s assertions to the contrary, there is
no issue of material fact about what occurred
during Gutierrez’s altercation with Hadash and
Mirelez. Hadash claims that Gutierrez
attacked him and that he merely defended
himself by blocking Gutierrez’s blows.
Although another witness was unable to recall
who was the aggressor, nothing about this wit-
ness’s statement is inconsistent with Hadash’s
version of the story. Defendants also argue
that there is no evidence that the officers used
two full cans of pepper spray.
To be sure, there is a slight inconsistency in
the sequence of events as reported by the of-
3 Defendants also argue that Wagner has
(continued...)
3(...continued)
provided no evidence that the officers’ actions,
even assuming they form the basis for liability
under § 1983, caused Gutierrez’s condition. They
assert that Wagner did not show or provide any
evidence to suggest that the officers were the cause
of Gutierrez’s condition, and they point out that it
is the plaintiffs’ burden to establish that his injuries
resulted from the defendant officers’ actions.
But the district court correctly concluded that
Wagner made a plausible argument that Gutier-
rez’s injury directly and exclusively resulted from
his altercation with defendants Hadash and Mirel-
ez. A reasonable jury could conclude that the use
of pepper spray, combined with the fact that the
officers repeatedly pushed him face-first to the
ground, could have resulted in Gutierrez’s stopping
breathing. Perhaps Wagner could have provided
expert medical testimony to support her claims, but
common sense compels the conclusion that Gutier-
rez’s injuries resulted from his altercation with the
police, and there is no requirement that medical
testimony be presented to establish causation.

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5
ficers and Wagner’s witness, Juarez, and there
is some question as to how long the de-
fendants held Gutierrez on the ground, how
roughly they treated him, and how much pep-
per spraySSeven if not two full cansSSwas
used. At least one witness said Gutierrez was
no longer struggling when the officers dragged
him outside, yet they continued to treat him
aggressively, allegedly shoving his face to the
ground.
We are careful not to engage in second-
guessing officers in situations in which they
have to make split-second, on-the-scene de-
cisions while confronted with a violent
individual.4 But our qualified-immunity
inquiry requires us to determine whether the
officers’ actions were objectively
unreasonable, in light of clearly-established law
at the time, and in light of the information the
officers possessed. See Anderson v.
Creighton, 483 U.S. 635, 640 (1987).
“Qualified immunity thus protects an official
whose conduct was objectively reasonable,
even if the conduct infringed upon a con-
stitutional right of the plaintiff.” Gutierrez v.
City of San Antonio, 139 F.3d 441, 445 (5th
Cir. 1998) (citing Anderson, 483 U.S. at 641).
Consequently, “even law enforcement officials
who reasonably but mistakenly use excessive
force are entitled to immunity.” Id. at 447 (in-
ternal citations and punctuation omitted).
In Gutierrez, we offered a lengthy
discussion of how to determine whether a
particular police practice or action was
unreasonable excessive force in light of clearly
established law. Like the instant case,
Gutierrez involved the restraint of a suspect
who subsequently died, apparently as the result
of an improper restraining technique that
caused asphyxiation. Because it is highly
relevant to our analysis, we reproduce a large
portion of the facts of that case to compare
and contrast it with the instant appeal:
The officers observed [Rene Gutier-
rez] running around in circles in the
middle of the street and slipping and fall-
ing on his side. As they parked the pa-
trol car and approached Gutierrez, he
began swinging his arms wildly and
crawling toward them on his hands and
knees. Gutierrez shouted out that he
had been shot; the officers checked, but
found no bullet wounds on Gutierrez or
nearby persons with guns. The officers
did notice numerous abrasions on his
chest and bleeding from his mouth.
[Officer] Walters cuffed Gutierrez
“for his safety and mine.” He did not
arrest Gutierrez, but police reports
indicate that Walters intended to do so
later. Walters also noted that
Gutierrez’s eyes were glassy, he was
walking unsteadily, and his speech was
slurred. When Walters asked Gutierrez
if he had taken any drugs, Gutierrez said
that he had “shot some bad coke.” Solis
later testified that Gutierrez was
“exhibiting that he was high on some
type of drugs.”
[Officer] Solis called an ambulance
(“EMS”), allegedly for a possible toxic
ingestion overdose. While waiting for
the EMS to arrive, Gutierrez sat calmly
4 See Graham v. Connor, 490 U.S. 386, 396-97
(1989) (noting that we do not utilize “the 20/20
vision of hindsight,” and that we consider “the fact
that police officers are often forced to make split-
second judgmentsSSin circumstances that are tense,
uncertain, and rapidly evolvingSSabout the amount
of force that is necessary in a particular situation”).

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6
with his back against a rear door of the
patrol car. As traffic in the intersection
increased, Walters placed Gutierrez face
down in a prone position in the back
seat and drove the patrol car into a
neighboring parking lot. Gutierrez was
quiet and peaceful, and his feet were not
restrained in any way.
When the EMS arrived, Walters
told EMS Technicians Ernest Lavin and
Michelle Cevallos that Gutierrez had
admitted to injecting bad cocaine. Lavin
and Walters removed Gutierrez from the
back seat of the patrol car and walked
him toward the EMS vehicle. When
Gutierrez got to the rear of the EMS
unit, he turned around and sat down.
Gutierrez suddenly began to push and
tried to get into the EMS vehicle, yelling
“put me in.” As abruptly, he kicked
Lavin in the chest, and shouted “get me
out.” Due to this violence, Lavin
refused to transport Gutierrez to the
hospital. Walters then asked Lavin
whether Gutierrez could be safely
transported in a patrol car, to which
Lavin replied that Gutierrez appeared to
be having psychiatric problems rather
than a reaction to bad drugs.
Walters and Lavin returned Gutier-
rez to the back seat of the patrol car to
transport him to a local hospital for
examination, allegedly placing him face
down in the back seat. Gutierrez began
to kick the back of the driver’s seat, the
metal cage, and the windows of the pa-
trol car with his bare feet. Walters and
Solis agreed that Gutierrez’s legs would
have to be restrained, “for his safety and
ours.” Solis got his personal leg-re-
straint device from the patrol car, a ny-
lon rope with a loop on one end and a
clasp on the other (a “hog-tie”).
Walters placed the loop around
Gutierrez’s feet, and Solis linked the
clasp around the handcuffs, drawing
Gutierrez’s legs backward at a
90-degree angle in an “L” shape, thereby
“hog-tying” him. Whether the officers
then placed Gutierrez in a face down
position on the rear seat or with his face
pointed toward the rear of the front seat
is disputed, but as the officers set off for
the hospital, he was conscious and
struggling.
Walters and Solis drove to the hos-
pital at a normal rate of speed with their
lights and sirens off and the rear of the
patrol car darkened. While Walters
drove, Solis occasionally checked to see
if Gutierrez’s restraints were secure, but
he did not check to see if Gutierrez was
still breathing or otherwise monitor him.
Approximately ten minutes into the jour-
ney, all sounds of Gutierrez struggling
stopped. Upon arriving at the hospital,
Walters went into the hospital to
summon medical personnel while Solis,
believing Gutierrez to be asleep, began
to nudge him. At that time, Gutierrez
was face down on the seat, a position
that allegedly restricted the amount of
oxygen that could reach his heart and his
heart’s ability to pump oxygen-enriched
blood throughout his body. Medical
personnel came out to the car, the
restraints were removed, and the
medical personnel discovered that
Gutierrez did not have a pulse. They
then took him into the emergency room
where doctors pronounced him dead.
Id. at 443.

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7
In Gutierrez, we began our analysis by ad-
dressing the officers’ claims for qualified im-
munity based on the fact that there was no
clearly-established law at the time that
specifically held that hog-tying constituted
excessive force. We stated that “[s]uch a
dogmatic argument is unjustified.” Id. at 445.
Rather, we noted that “[i]n Anderson, the
Supreme Court stated that whether a clearly
established right has been violated
‘substantially depends upon the level of
generality at which the relevant “legal rule” is
to be identified.’” Id. (quoting Anderson, 483
U.S. at 639). What was required to overcome
a claim of qualified immunity, then, was not
that the specific police action had been held
unlawful, but only that it be apparent “in the
light of pre-existing law” that such action
would be unlawful. Anderson, 483 U.S. at
640.
Next, we noted the difficulty the lower
courts have had in deciding which various
police tools, instruments, and actions should
be characterized as “deadly force,” a subset of
excessive force, or force “carrying with it a
substantial risk of causing death or serious
bodily harm.” Gutierrez, 139 F.3d at 446 (in-
ternal citations and punctuation omitted).
With respect to the specific practice of hog-
tying, we noted that while there were no cases
that held such police procedure unlawful, the
San Diego Police Department had issued a
well-circulated report that warned of the
dangers of Sudden Custody Death Syndrome
(“SCDS”).
That report concluded that SCDS could be
caused by the combination of “(1) drug use,
(2) positional asphyxia, (3) cocaine psychosis,
and (4) hog-tying or carotid choke holds.” Id.
Because there were material fact disputes as to
whether all four of these conditions exist-
edSSor at least with respect to whether the of-
ficers were aware that all of the conditions ex-
istedSSand because there was a material fact
dispute about whether the San Antonio Police
Department had made its officers aware of the
SCDS report, in Gutierrez we held that these
issues made it impossible to determine whether
the officers’ actions were objectively
reasonable, thereby precluding summary
judgment on their qualified immunity defenses.
We contrasted Estate of Phillips v.
Milwaukee, 123 F.3d 586 (7th Cir. 1997), in
which that court held that two officers had not
been objectively unreasonable where the
suspect they restrained died as the result of
asphyxia. Two police officers attempted to re-
strain Phillips, an obese man exhibiting
psychiatric problems, by lowering him to the
floor and handcuffing his arms and legs (but
not together in a hog-tie). One officer gently
put her knee on his back to keep him from
rising while they called for a patrol wagon to
take him to a hospital for mental observation.
The officers continuously monitored Phil-
lip’s condition, and when he ceased breathing
shortly thereafter, they began resuscitation ef-
forts and revived him, although he died the
next day in the hospital. The coroner found
that Phillips’s medical condition, obesity, and
positional asphyxia jointly contributed to his
death.
The Phillips court held the officers’
conduct to be objectively reasonable, because
merely “restraining a person in a prone
position with constant monitoring, cannot be
characterized, in itself, as ‘deadly’ force.” Id.
at 593-94. In Gutierrez, we noted that the
Phillips court had expressly distinguished this

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8
factual situation, however, from one in which
police hog-tie a person who subsequently dies.
See Gutierrez, 139 F.3d at 451.
Gutierrez therefore presents us with several
yardsticks by which to measure Wagner’s
claim for excessive force, and it is also highly
relevant to the claim for denial of medical as-
sistance. First, and perhaps most importantly,
as defendants note, Gutierrez was not “hog-
tied,” and, as a result, the “very limited”
holding of Gutierrez cannot support a finding
that Hadash and Mirelez violated clearly-
established law when they handcuffed Gilbert
and placed him in the patrol car.
Likewise, several of the other required con-
ditions in the SCDS report are not present
here, including the fact that there is no
evidence Gutierrez was a drug user, much less
that there was a risk of “cocaine psychosis.”
Thus, although there arguably is support in
Gutierrez for the concept that in this case
there was a substantial risk of harm from po-
sitional hypoxia,5 that theory cannot serve as
the basis for Wagner’s claim that the officers
violated clearly established law and behaved
unreasonably, because the other three SCDS
factors plainly were not present.
Instead, this case resembles, in several re-
spects, Phillips, in which that court held that
the officers’ restraint of the suspect was not
objectively unreasonable, even where he sub-
sequently died of asphyxiation. Although
there is not as much evidence here of
“constant monitoring” of Gutierrez’s breathing
and medical condition, defendants did state
that they heard him groaning during the trip to
the police station and thus had reason to
believe he was still breathing. And, unlike the
plaintiff’s obesity in PhillipsSSa fact,
according to the doctors, that contributed to
his risk of harm and that the officers could
easily observeSShere there were no apparent
physical signs that Gutierrez was substantially
at risk.
In addition, defendants point out that
nothing about the use of chemical spray or
even a choke-hold was objectively-
unreasonable conduct where the suspect
physically resisted arrest.6 The officers’
actions were all consistent with the idea that
they merely were trying to restrain a violent
individual.
Thus, those actions were objectively
reasonable in the context of this dangerous
situation that Gutierrez created, and we
therefore reverse the denial of summary
judgment on the excessive-force claim. Even
accepting all of Wagner’s pleaded facts as
5 Although the defendants here argue that
Gutierrez was placed on his stomach, with his head
facing forward, not down, the court in Gutierrez
noted that “[e]ven if the jury concludes that the
officers placed Gutierrez on his side, it may still
conclude that the officers’ failure to monitor him
. . . amounted to deliberate indifference, thereby
permitting Gutierrez to roll into a face down po-
sition during the time that the officers transported
him to the hospital.” Id. at 448 n.4. Moreover, it is
not evident whether the person needs to be face
down to be in danger of asphyxiation, since the
SCDS report seems to suggest that it is the fact
that “all of their weight is concentrated on their
chest, thereby interfering with the mechanical pro-
cess of inhalation and exhalation” that is
problematic. Id. at 448.
6 See Gassner v. City of Garland, 864 F.2d
394, 400 (5th Cir. 1989) (upholding use of a
choke-hold); Baldwin v. Stalder, 137 F.3d 836,
840-41 (5th Cir. 1998) (upholding use of chemical
spray).

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9
true, there is no issue of material fact on this
claim.
B.
A pretrial detainee’s constitutional right to
medical care, whether in prison or other
custody, flows from the procedural and
substantive due process guarantees of the
Fourteenth Amendment.7 Liability for failing
to provide such care attaches if the plaintiff
can show that a state official acted with
deliberate indifference to a substantial risk of
serious medical harm and that injuries resulted.
Hare, 74 F.3d at 647-48. “Deliberate
indifference” requires that the official have
subjective knowledge of the risk of harm. Id.
at 650. Mere negligence will not suffice, and
“[d]eliberate indifference, i.e., the subjective
intent to cause harm, cannot be inferred from
a . . . failure to act reasonably.” Id. at 649
(citations omitted).
Thus, for Wagner to prevail on her claim of
deliberate denial of medical care, she needs to
establish more than the typical quantum of ev-
idence necessary to overcome a qualified im-
munity defense. That is, she must show not
only that the defendants’ actions in failing to
provide Gutierrez medical attention before he
arrived at the jail were objectively
unreasonable, but also that defendants
intended the consequence of those actions.
Because the risk of harm from asphyxiation,
of which Wagner alleges defendants should
have been aware, primarily was the result of
Gutierrez’s being handcuffed and placed on his
chest in the back of the patrol car, Gutierrez
again informs our analysis as to the objective
reasonableness of the officers’ actions. As
noted with respect to the excessive force
claim, clearly-established law did not put the
officers on notice that this type of restraint
would lead to the medical problems Gutierrez
eventually suffered. At most, one of the four
required criteria for SCDS was present, and
even then there is no evidence that Gutierrez
was actually placed face-down in the patrol car
as would be required by the positional-
asphyxia prong.
As a result, because Wagner has failed to
establish even that the officers were objectively
unreasonable in their treatment of Gutierrez,
a fortiori there is no way she can prevail on a
claim that defendants intended to harm him.
She offers no evidence that would refute Had-
ash’s claim that he heard Gutierrez moaning
during the short trip to the jail (indicating that
he was still breathing), and she provides no
reason to question the veracity of the officers’
testimony that as soon as they discovered
Gutierrez had stopped breathing, Hadash im-
mediately began CPR.8
7 See Hare v. City of Corinth, 74 F.3d 633, 639
(5th Cir. 1996) (en banc) (comparing such right to
a prisoner’s Eighth Amendment right to be free
from cruel and unusual punishment).
8 Perhaps Wagner could have provided expert
medical testimony that would refute a claim that
Hadash began resuscitation efforts shortly after
Gutierrez stopped breathing, but she did not offer
any such evidence. And while the district court felt
that discovery in addition to the affidavits and
depositions already produced would help illumi-
nate the actual sequence of events that occurred
during Gutierrez’s altercation with Officers Had-
ash and Mirelez, the medical information that could
have helped Wagner’s denial-of-medical-care claim
was information entirely within her control from
the outset of this case. Moreover, even Wagner
concedes that the factual record with respect to this
claim is well-established and not in dispute.
(continued...)

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10
Indeed, according to the undisputed
evidence, Hadash’s recuperative efforts
continued until the EMS arrived at the jail, and
Gutierrez was revived, though he later slipped
into a coma. As defendants persuasively
argue, these “actions are a far cry from the
deliberate indifference required to establish
liability.”
The district court was troubled by the fact
that the officers on the scene took little or no
actions to evaluate Gutierrez’s medical
condition before transporting him to the jail.
It also felt that defendants would be hard-
pressed to establish a legitimate governmental
interest in not taking Gutierrez to the hospital
for decontamination of the pepper spray,
opining that because he was apparently
unconscious at the time, therefore he no longer
posed a continuing threat that required that he
be transported directly to the jail. This
decision was particularly worrisome to the
court, because Hadash allegedly ignored
Garcia’s suggestion that Gutierrez be taken to
the hospital.
But again, the district court’s observations
are made through the lens of 20/20 hindsight.
Garcia’s suggestion that Gutierrez be taken to
the hospital was based solely on a need to
decontaminate the effects of the pepper spray.
The undisputed record establishes, however,
that such decontamination effectively could
occur in any number of places, including the
jail, the hospital, or even on the scene.
Importantly, there is no suggestion in the
record that the delay in the decontamination
caused Gutierrez to stop breathing; indeed, the
evidence is that the jail was closer than the
hospital. Because decontamination was the
only reason Garcia suggested the hospital as
an alternative destination, then, nothing else
about his statement should imply that
defendants had knowledge that Gutierrez was
in need of any other immediate medical
attention.
While we are required to make all
reasonable inferences in favor of the non-
movant, here there is simply a dearth of
evidence suggesting that defendants had
subjective knowledge and a deliberate
indifference to Gutierrez’s needs.
Accordingly, even if we accept all of Wagner’s
factual assertions as true, she still has failed to
show an issue of material fact regarding
deliberate indifference to Gutierrez’s need for
medical attention, and the district court erred
in refusing summary judgment on this claim as
well.
The order appealed from, denying summary
judgment, is REVERSED, and judgment is
RENDERED for the defendant officers, and
this matter is REMANDED for further
proceedings.
8(...continued)
Thus, we are not required to make any inference
that such medical evidence exists or would be
discoverable; the record simply is silent in this
respect. Consequently, Wagner has failed to create
a material fact dispute as to whether Hadash
immediately began resuscitation efforts.

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