HEATHER MINICK, Individually v. Metropolitan Government of Nashville, Davidson County, Tennessee

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0901n.06
No. 12-6511
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HEATHER MINICK, Individually, and as
surviving spouse of Michael Minick,
Deceased, and as Co-Administrator of the
Estate of Michael Minick,
Plaintiff-Appellee,
v.
METROPOLITAN GOVERNMENT OF
NASHVILLE, DAVIDSON COUNTY,
TENNESSEE, et al.,
Defendants,
and
MAILENA MASON, Individually and in her
official capacity,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
Before: BATCHELDER, Chief Judge; COOK and O’MALLEY, Circuit Judges*
COOK, Circuit Judge. Plaintiff Heather Minick sued Defendant Mailena Mason, a hospital
unit secretary, and others, for violating her husband’s Fourteenth Amendment rights by failing to
protect him from excessive force that led to his death. Mason appeals the district court’s denial of
qualified immunity. We reverse.
*The Honorable Kathleen M. O’Malley, Circuit Judge for the United States Court of Appeals
for the Federal Circuit, sitting by designation.

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No. 12-6511
Minick v. Metro. Gov’t of Nashville, Davidson Cnty., Tenn., et al.
I.
“Because this appeal comes to us on a motion to dismiss, we construe the complaint liberally
in the plaintiff[’s] favor and accept all its factual allegations and inferences as true.” Hudson v.
Hudson, 475 F.3d 741, 743 (6th Cir. 2007). A 911 call reported an unknown man walking in the
woods around Nashville, Tennessee. The responding officer identified the suspect as Michael
Minick and discovered that he had an outstanding warrant for failure to appear on a misdemeanor
traffic charge. The officer tased Minick and then took him to Nashville General Hospital, where an
emergency-room physician treated him for severe dehydration and loss of muscle mass. Authorities
then transferred Minick to the hospital’s “lock-up” floor and detained him.
Later that day, Minick allegedly became combative. Unit Secretary Mailena Mason heard
noise coming from Minick’s room, left her desk to investigate, and met a county deputy outside of
the room who told her “that everything was fine.” Mason returned to her desk. The deputy
overseeing Minick requested back-up assistance from fellow deputies. The deputies entered the
room, closed the door, and attacked Minick. Mason continued to hear a “ruckus.”
Moments later, Mason told Minick’s nurse that “something was going on with her patient . . .
in his room and his emergency call light had been pulled from the wall.” The nurse rushed to
Minick’s room where she found him unconscious on the floor. Minick died approximately one
month later.
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No. 12-6511
Minick v. Metro. Gov’t of Nashville, Davidson Cnty., Tenn., et al.
Heather Minick sued Mason, among others,1 under 42 U.S.C. § 1983 for failing to protect
her husband. Mason moved to dismiss for failure to state a claim, arguing alternatively her
entitlement to qualified immunity. The district court denied the motion on both grounds, and Mason
appeals.
II.
Though ordinarily we do not review interlocutory orders denying dismissal, “we recognize
an exception to this general rule when a qualified immunity defense is denied,” Hudson, 475 F.3d
at 743, as here, when the district court allowed the Fourteenth Amendment claim to proceed, noting
that qualified immunity would be “appropriately resolved following discovery.” Thus, we may
review this denial on interlocutory appeal.
Qualified immunity protects government officials performing discretionary functions from
liability when their “conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Morrison v. Bd. of Trs. of Green Twp., 583 F.3d
394, 400 (6th Cir. 2009) (citation and internal quotation marks omitted). More than a defense,
qualified immunity serves as an “entitlement not to stand trial or face the other burdens of
litigation.” Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (internal quotation marks
omitted)). “Unless the plaintiff’s allegations state a claim of violation of clearly established law,
1Minick continues to pursue claims against other defendants, including the deputies who
allegedly beat Michael Minick.
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No. 12-6511
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a defendant pleading qualified immunity is entitled to dismissal before the commencement of
discovery.” Mitchell, 472 U.S. at 526.
We review the district court’s denial of qualified immunity de novo asking if Minick’s
allegations, if proved, “would allow a jury to find a violation of a clearly established constitutional
right.” Sutton v. Metro. Gov’t of Nashville & Davidson Cnty., 700 F.3d 865, 871 (6th Cir. 2012).
Two steps comprise our qualified immunity analysis here. First, Minick must plead a plausible
violation of her husband’s rights. Second, she must show that right was clearly established at the
time of the incident. Id.; Carver v. City of Cincinnati, 474 F.3d 283, 285 (6th Cir. 2007).
As a threshold matter, Minick, without citing any authority, summarily states that qualified
immunity does not protect Mason because she is not a government official. Yet, as an employee of
Nashville General Hospital, owned and operated by the metropolitan government, Mason benefits
from qualified immunity. Our precedent extends qualified immunity to persons employed
comparably to Mason. See, e.g., Hearring v. Sliwowski, 712 F.3d 275, 278–82 (6th Cir. 2013)
(school nurse); Farinacci v. City of Garfield Heights, 461 F. App’x 447, 448–50 (6th Cir. 2012) (city
employees); Davis v. Holly, 835 F.2d 1175, 1179–82 (6th Cir. 1987) (state hospital administrators
and supervisors).
Second, Minick fails to carry her burden of showing that Mason violated a clearly
established constitutional right. See Andrews v. Hickman Cnty., Tenn., 700 F.3d 845, 853 (6th Cir.
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No. 12-6511
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2012). Hearing a disturbance, Mason: 1) questioned the law enforcement officer present; and 2)
upon receiving his assurance, referred the matter to the patient’s nurse.
Minick does not explain how this conduct rises to the level of a constitutional violation.
“The relevant, dispositive inquiry in determining whether a right is clearly established is whether
it would be clear to a reasonable [official] that [her] conduct was unlawful in the situation [she]
confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). We ask this question in the specific context
of this case, and not as a general proposition. Carver, 474 F.3d at 287; see also Waeschle v.
Dragovic, 576 F.3d 539, 544 (6th Cir. 2009). Though Minick need not provide a case that
previously found the very same action unlawful, Bell v. Johnson, 308 F.3d 594, 602 (6th Cir. 2002),
ordinarily the plaintiff must point the court to a decision from the Supreme Court, Sixth Circuit, or
other appellate court finding a constitutional violation in analogous circumstances. That is, Minick
must offer the court cases demonstrating that Mason’s conduct falls within the realm where a
reasonable official would realize that her conduct violates a right. Andrews, 700 F.3d at 853;
Waeschle, 576 F.3d at 544. “[I]n the light of preexisting law the unlawfulness must be apparent.”
Andrews, 700 F.3d at 853 (citation omitted).
Minick cites no law establishing constitutional liability for a hospital unit secretary failing
to protect a patient under another’s care. Minick also fails to provide authority for the proposition
that such an employee has a duty—or even would have been permitted—to intervene in a situation
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No. 12-6511
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similar to what Mason faced. Minick provides no case, and we know of none, finding a
constitutional violation under similar circumstances. See Carver, 474 F.3d at 287.
The district court, in holding that the complaint stated a facially plausible constitutional
violation, relied on Durham v. Nu’Man, 97 F.3d 862 (6th Cir. 1996). That case, however, differs
in important ways: the defendant nurse both initiated the encounter that led to the beating of a
patient in her care and also watched security officers attack him. Durham, 97 F.3d at 868. Durham
held summary judgment inappropriate because “precedent holding police officers . . . liable for
failure to intervene was sufficient to place the nurse who caused the conflict on notice that she had
a duty to protect [the] plaintiff while under her charge.” Id. (emphasis added). Minick alleges no
comparable facts. Cf. Davis v. Rennie, 264 F.3d 86, 93, 114 (1st Cir. 2001) (citing Durham, court
held that supervising nurse and mental health workers who restrained patient during an attack had
notice of the clearly established constitutional duty).
Accepting Minick’s allegations as true, we find that Mason violated no clearly established
right. Because a reasonable official in Mason’s shoes would not know that her response violated
Minick’s clearly established rights, qualified immunity shields Mason from liability. Saucier, 533
U.S. at 202; see also Carver, 474 F.3d at 287 (acknowledging case should be dismissed if complaint
does not state a violation of a clearly established constitutional right); Jackson v. Schultz, 429 F.3d
586, 592 (6th Cir. 2005) (same).
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No. 12-6511
Minick v. Metro. Gov’t of Nashville, Davidson Cnty., Tenn., et al.
III.
For these reasons, we REVERSE the district court’s judgment denying qualified immunity
to Mason and REMAND for proceedings consistent with this opinion.
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