USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 1 of 37

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-1396

CHARLES WILLIS SHORT, individually and as Administrator of the Estate of Victoria Christine Short,

Plaintiff - Appellant,

v.

J. D. HARTMAN, Sheriff of Davie County, in his individual and official capacity; CAMERON SLOAN, Captain, Chief Jailer with the Davie County Sheriff’s Department, in his individual and official capacity; DANA KELLY RECKTENWALD, Lieutenant, Operations Supervisor of the Detention Center with the Davie County Sheriff’s Department, in her individual and official capacity; TERESA MORGAN, a/k/a Teresa M. Godbey, Sergeant, Jailer-Detention Officer with the Davie County Sheriff’s Department, in her individual and official capacity; CRYSTAL COOK MEADOWS, Sergeant, Detention Officer with the Davie County Sheriff’s Department, in her individual and official capacity; MATTHEW TRAVIS BOGER, Jailer-Detention Officer with the Davie County Sheriff’s Department, in his individual and official capacity; JOHN OR JANE DOES 1-5, Jailers-Detention Officers with the Davie County Sheriff’s Department, in their individual and official capacities; WESTERN SURETY COMPANY; ANDREW C. STOKES, Sheriff of Davie County, in his individual and official capacity,

Defendants - Appellees.

--------------------------------------

AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION; AMERICAN CIVIL LIBERTIES UNION OF SOUTH CAROLINA; RIGHTS BEHIND BARS; RODERICK & SOLANGE MACARTHUR JUSTICE CENTER,

Amici Supporting Appellant. USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 2 of 37

No. 21-1397

CHARLES WILLIS SHORT, individually and as Administrator of the Estate of Victoria Christine Short,

Plaintiff - Appellant,

v.

J. D. HARTMAN, Sheriff of Davie County, in his individual and official capacity; CAMERON SLOAN, Captain, Chief Jailer with the Davie County Sheriff’s Department, in his individual and official capacity; DANA KELLY RECKTENWALD, Lieutenant, Operations Supervisor of the Detention Center with the Davie County Sheriff’s Department, in her individual and official capacity; TERESA MORGAN, a/k/a Teresa M. Godbey, Sergeant, Jailer-Detention Officer with the Davie County Sheriff’s Department, in her individual and official capacity; CRYSTAL COOK MEADOWS, Sergeant, Detention Officer with the Davie County Sheriff’s Department, in her individual and official capacity; MATTHEW TRAVIS BOGER, Jailer-Detention Officer with the Davie County Sheriff’s Department, in his individual and official capacity; JOHN OR JANE DOES 1-5, Jailers-Detention Officers with the Davie County Sheriff’s Department, in their individual and official capacities; WESTERN SURETY COMPANY; ANDREW C. STOKES, Sheriff of Davie County, in his individual and official capacity,

Defendants - Appellees.

--------------------------------------

AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION; AMERICAN CIVIL LIBERTIES UNION OF SOUTH CAROLINA; RIGHTS BEHIND BARS; RODERICK & SOLANGE MACARTHUR JUSTICE CENTER,

Amici Supporting Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:18-cv-00741-NCT-JLW)

2 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 3 of 37

Argued: September 19, 2023 Decided: December 8, 2023

Before GREGORY and HEYTENS, Circuit Judges, and Deborah L. BOARDMAN, United States District Judge for the Maryland District, sitting by designation.

Reversed and remanded by published opinion. Judge Gregory wrote the opinion, in which Judge Heytens and Judge Boardman joined.

ARGUED: William Ellis Boyle, WARD & SMITH, PA, Raleigh, North Carolina, for Appellant. James R. Morgan, Jr., WOMBLE BOND DICKINSON (US) LLP, Winston- Salem, North Carolina, for Appellees. ON BRIEF: Rudolf Garcia-Gallont, WOMBLE BOND DICKINSON (US) LLP, Winston-Salem, North Carolina, for Appellees.

3 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 4 of 37

GREGORY, Circuit Judge:

On the morning of August 24, 2016, Victoria Short 1 attempted suicide while in

custody at the Davie County Detention Center (“Jail”). She died of her injuries about two

weeks later. Her husband, Charles Short, individually and as the administrator of her

estate, filed suit, bringing claims under

against the Davie County

Sheriff’s Department, which is responsible for the care and custody of inmates in the Jail,

and several employees of the Sheriff’s Department individually. He also alleged violations

of state law. Defendant-Appellees moved for judgment on the pleadings pursuant to

Federal Rule of Civil Procedure 12(c). The district court dismissed all of Mr. Short’s

claims, including the claim under the Fourteenth Amendment for the detention officer’s

deliberate indifference to Ms. Short’s risk of suicide, which is at issue in this appeal.

Because the district court erred in concluding that the Complaint failed to state a claim, we

reverse.

I.

On July 6, 2016, Victoria Short attempted suicide for the first time. 2 A deputy of

the Davie County Sheriff’s Department, who had been dispatched to her home, called EMS

and had Ms. Short transported to Forsyth County Hospital for emergency mental health

treatment. At the hospital, it was determined that Ms. Short had taken between 50 and 100

1 We refer to Victoria Short as “Ms. Short” to distinguish her from her husband, Appellant Charles Short, whom we refer to as “Mr. Short.” 2 Unless stated otherwise, all facts are taken from the Amended Complaint. 4 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 5 of 37

prescription medicine pills during her suicide attempt. She remained in the hospital for

four days to receive in-patient treatment.

About six weeks later, on August 22, 2016, at approximately 11:45 p.m., two

officers in the Sheriff’s Department responded to another call at the Shorts’ home—this

time because of a domestic disturbance between Ms. Short and her husband. Ms. Short

told one of the officers that “she used a syringe found in the kitchen to ‘shoot up on Xanax

pills,’” that “she was having withdraw[al]s from shooting up,” and that “she had not shot

up since yesterday.” J.A. 145. The deputy’s report also noted that Ms. Short was

“extremely upset and appeared to be on some type of narcotic as she was shaking

uncontrollably, twitching from the neck area, and had needle marks all down both her

arms.”

The deputies took both Mr. and Ms. Short into custody and transported them to the

Jail. On the way to the Jail, Ms. Short’s brother and Mr. Short told the deputies that Ms. Short

was suicidal and had recently attempted suicide. Ms. Short appeared before a magistrate

upon arriving at the Jail, and he placed her on a forty-eight-hour domestic hold. Mr. Short

was released from custody after approximately four or five hours.

The Amended Complaint alleges that, at 12:09 a.m. on August 23 (approximately

half an hour after the deputies responded to the Shorts’ home), Ms. Short was examined by

licensed practical nurse Linda Barnes. 3 Following the examination, Nurse Barnes placed

3 After Defendant-Appellees moved for judgment on the pleadings but before the district court ruled on the motion, the parties conducted and completed discovery, which revealed that Nurse Barnes had in fact examined Ms. Short at 12:09 p.m., twelve hours (Continued) 5 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 6 of 37

Ms. Short on the Jail’s withdrawal protocol, which included detoxing medications and

heightened monitoring by Jail staff. However, Jail staff did not comply with the protocol’s

monitoring requirements, which included checking on the inmate every fifteen minutes.

Instead, a member of the Jail staff conducted walk-by observations, usually lasting only a

few seconds, 30 minutes or more apart.

Also in the early morning hours of August 23, Sergeant Teresa Morgan completed

two forms evaluating Ms. Short’s health. On the first form, some of the questions are

addressed to the inmate (e.g., “Are you diabetic?”), while others are addressed to the officer

(e.g., “Is the inmate . . .”). J.A. 221–22. Both Ms. Short and Sergeant Morgan signed the

form. J.A. 223. One question, directed at the inmate, asks whether the inmate ever

considered or attempted suicide. The response states “yes,” and the comment “last month”

was added. J.A. 221. In response to the question of whether she uses drugs and, if so, how

much, Ms. Short responded “yes” and “what ever can [sic] get my hands on.” J.A. 222.

With respect to alcohol, she commented that she uses alcohol “every other day.”

Another question, directed at the officer, asks, “does the inmate appear to be under the

later than what was alleged in the Complaint. In their Answer to the Amended Complaint, the medical defendants, who included Nurse Barnes, denied the relevant allegation of the Amended Complaint but without explanation. J.A. 278. The Law Enforcement Defendants admitted the allegation that the examination occurred at 12:09 a.m. in their Answer, even though it has subsequently been revealed that this is incorrect. J.A. 46. Because this case comes to us on appeal from a Federal Rule of Civil Procedure 12(c) dismissal, facts revealed during summary judgment are not properly part of the record. See Massey v. Ojaniit,

(4th Cir. 2014). Whether Nurse Barnes examined Ms. Short at 12:09 a.m. or 12:09 p.m. is not outcome determinative here, and we rely on the allegation that this examination occurred at 12:09 a.m. for purposes of this appeal. On summary judgment however, the facts revealed during discovery will be properly before the court. 6 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 7 of 37

influence of, or withdrawing from drugs or alcohol? If yes explain.”

The response

states “yes” and “drugs.”

The second form required Ms. Short to check “yes” or “no” in response to several

questions relating to her mental health. J.A. 225. She checked “yes” for questions 5 and

6: “Do you currently feel like you have to talk or move more slowly than you usually do?”

and “Have there currently been a few weeks when you felt like you were useless or sinful?”

She checked “no” for “have you ever been in a hospital for emotional or mental health

problems?” (question 8), but in the adjacent comment box she wrote, “when I tried to

com[mit] suicide stayed in hospital [sic] 4 days.”

The second section of the form

provides a space for the officer’s comments and impressions, including a line to indicate

whether the detainee is under the influence of alcohol or drugs, but nothing is marked in

this section.

The form then states that the detainee “should be referred for further

mental health evaluation” if they answered “yes” to question 7, “yes” to question 8, or

“yes” to at least two of questions 1 to 6.

Based on these instructions, Ms. Short should

have been referred. The next line of the form, which provides space for an officer to

indicate whether the detainee was referred, is blank, but Sergeant Morgan signed on the

appropriate signature line at the bottom of the page.

At the conclusion of these

evaluation processes, in the early morning hours of August 23, Ms. Short was placed in an

isolation cell.

Detention Officer Sarah Cook arrived for her shift at around 6:45 a.m. on August

24. She overheard Officer Michael Brannock tell another detention officer that he had

responded to the Shorts’ home in July following Ms. Short’s first suicide attempt. Based

7 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 8 of 37

on what she overheard, Officer Cook realized that Ms. Short was at risk of attempting

suicide and, upon learning that Ms. Short was in an isolation cell and was not being

observed as often as the Jail policy mandated, asked why Ms. Short was in isolation. She

was told that Lieutenant Dana Recktenwald had ordered that Ms. Short be placed in

isolation because Ms. Short was “being mouthy.” Ms. Short remained in isolation.

At 9:30 a.m. on August 24, Detention Officer Matthew Boger conducted a walk-by

observation in the female isolation unit to check on Ms. Short. He observed her sitting on

her bed in the cell. According to the complaint, the CCTV footage shows that Ms. Short

attempted suicide by hanging herself from the cell door with a bedsheet between 9:49 and

9:56 a.m. During his next walk-by observation at 10:10 a.m., Officer Boger discovered

Ms. Short hanging from the door. She was rushed to Wake Forest Baptist Medical Center

and died on September 7, about two weeks later. She never regained consciousness.

Davie County Detention Center Policy (“Policy” or “Prison Policy”) Section 4.10

provides that inmates “identified as a suicide risk” must be “place[d] in a populated cell,

never . . . in a single cell” and prison guards must check on inmates every ten to fifteen

minutes and log their rounds. J.A. 227; see also J.A. 228 (“It is important to begin 10–15

minute checks on a suicidal inmate, even if he or she is in a multi-occupant cell. This must

be documented.”). For inmates identified as a suicide risk, the Policy also instructs officers

to “remove all articles that the inmate has that may be used to commit suicide” and requires

evaluation by a mental health professional. J.A. 168. The Policy also provides that all

detention officers will receive “training to recognize signs that an inmate may be suicidal”

and provides a list of non-exclusive factors that “may indicate that an inmate is considering

8 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 9 of 37

suicide,” and further instructs medical personnel and officers to “look carefully for any

other indicators of potentially suicidal behavior.” J.A. 227. One of the factors is “previous

attempts to commit suicide.”

Another is “drug or alcohol intoxication or withdrawal.”

J.A. 228. Under this Policy, Ms. Short should have been placed on suicide watch—she

should have been in a populated cell, the bed sheet should have been removed from her

cell, and prison guards should have conducted checks every 10–15 minutes.

An internal investigation, conducted by a Sheriff’s Department employee, claimed

that Ms. Short was placed in isolation because she had “a multitude of sores all over her

body, some of which were oozing fluid. She was isolated for the safety of other inmates

to avoid exposing them to a possible communicable disease.” J.A. 154–55. But this

rationale contradicts what Officer Cook was told the morning of August 24: that Ms. Short

was in isolation because she was “being mouthy.” 4 The investigation also concluded that

officers and medical personnel followed all protocols—Ms. Short had displayed only

“common withdrawal symptoms from narcotics and alcohol” and had no “current suicidal

indicators.” J.A. 161. When the Sheriff’s Department finally reported Ms. Short’s death

4 The Amended Complaint also alleges that, “at some point on August 23,” Nurse Barnes authorized that Ms. Short be moved to isolation “allegedly due to having open draining sores all over her body.” J.A. 155. To reconcile this allegation with the allegation that Ms. Short was moved to isolation for “being mouthy,” and because we must make all reasonable inferences in favor of the plaintiff at this stage, we assume that Nurse Barnes’s authorization occurred after Ms. Short’s initial assignment to an isolation cell and that the initial decision was made because Ms. Short was “being mouthy.” This inference in no way contradicts the Amended Complaint because the allegation that Nurse Barnes’s authorization occurred “at some point” is entirely consistent with its occurrence later in time than Ms. Short’s initial assignment to an isolation cell. 9 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 10 of 37

to state regulators five months later, the state’s independent investigation refuted the

findings of this internal investigation.

II.

Mr. Short, individually and in his capacity as administrator of Ms. Short’s estate,

sued various Sheriff’s Department employees with authority over the Jail and its inmates,

including Sergeant Morgan (collectively, the “Law Enforcement Defendants”), in both

their official and individual capacities. 5 The suit also named Southern Health Partners, 6

Nurse Barnes, Nurse Bailey, and Physician Assistant Manuel Maldonado as defendants

(collectively, the “Medical Defendants”). Appellant alleged claims under Section 1983 for

violations of Ms. Short’s Fourteenth Amendment rights and related claims under state law.

In March and April 2020, Appellant filed stipulations of voluntary dismissal of the Medical

Defendants “based on negotiated settlement agreements with those parties.” Stipulation of

Dismissal of LPN Linda Barnes, LPN Susan Desiree Bailey, & P.A. Manuel Maldonado

at 2, Short v. Hartman, 1:18-cv-00741 (M.D.N.C. Mar. 25, 2020), ECF No. 77; Stipulation

of Dismissal of Southern Health Partners, Inc. at 2, Short v. Hartman, 1:18-cv-00741

5 Specifically, the Law Enforcement Defendants are Sheriff Andrew Stokes, the Davie County Sheriff at the time of Ms. Short’s death; Sheriff J.D. Hartman, the Sheriff at the time Mr. Short sued and a deputy at the time of Ms. Short’s death; Captain Cameron Sloan, Chief Jailer of the Sheriff’s Department; and Lieutenant Dana Recktenwald, Sergeant Crystal Meadows, Sergeant Teresa Morgan, and Officer Matthew Boger, who were allegedly present at the Jail at various times during Ms. Short’s detention.

Southern Health Partners (SHP) provided medical services to inmates at the Jail. 6

Nurse Barnes, Nurse Bailey, and PA Maldonado were employees of SHP. 10 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 11 of 37

(M.D.N.C. Apr. 1, 2020), ECF No. 78. Accordingly, only the Law Enforcement

Defendants remain as parties to this case.

While discovery was ongoing, the Law Enforcement Defendants moved for

judgment on the pleadings. Without ruling on the motion, the district court allowed the

parties to continue discovery. After discovery closed, the Law Enforcement Defendants

moved for summary judgment. Rather than ruling on the summary judgment motions, the

district court ruled on the 17-month-old motion for judgment on the pleadings.

The district court dismissed the individual capacity claims against Lieutenant Recktenwald,

Sergeant Crystal Meadows, Officer Boger, and Sergeant Morgan, reasoning that “none of

them is alleged to have personally deprived Mrs. Short of her constitutional rights.” Short v.

Stokes, No. 1:18-cv-00741,

, at *7 (M.D.N.C. Feb. 17, 2021). The District

Court also dismissed the individual capacity claims against Sheriff Stokes, Sheriff Hartman,

and Captain Sloan because “the allegations against each of them appear to be based on a

theory of respondeat superior, which cannot be a basis for individual liability under

§ 1983.” Id. at *6. The court then dismissed the official capacity claims on the basis that

there were no sufficient allegations that “any individual defendants violated Mrs. Short’s

constitutional rights.” Id. at *11. Finally, it declined to exercise supplemental jurisdiction

over any state law claims because no federal law claims remained. Id.

Appellant timely appealed, arguing that he properly alleged that Sergeant Morgan,

in her individual capacity, violated Ms. Short’s constitutional rights. Appellant says that,

if we agree with him and reverse the district court, we ought to remand with instructions to

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reconsider the official capacity and state law claims over which the district court declined

to exercise jurisdiction.

We requested that the parties submit supplemental briefing addressing:

(1) Whether the Fourteenth Amendment claims should be evaluated under the

objective test announced in Kingsley v. Hendrickson,

(2015);

(2) If Kingsley applies, whether this Court should remand for the court below to

address, in the first instance, whether the objective test is met;

(3) This Court’s recent decision in Stevens v. Holler,

(4th Cir. 2023),

decided after the parties’ briefs were submitted.

III.

We review de novo a district court’s ruling on a Rule 12(c) motion for judgment on

the pleadings. Edwards v. City of Goldsboro,

(4th Cir. 1999). In doing

so, we “apply the standard for a Rule 12(b)(6) motion.”

That standard requires that we

accept all facts pled in the complaint as true and “draw all reasonable inferences in favor of

the plaintiff.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,

(4th

Cir. 2009). To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient

facts to state a claim that is “plausible on its face.” Id. at 570. “The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Ashcroft v. Iqbal,

(2009).

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IV.

We first address the issue raised by our request for supplemental briefing—whether

Kingsley v. Hendrickson abrogated our prior precedent and requires us to recognize that

pretrial detainees can state a claim based on a purely objective test under the Fourteenth

Amendment for prison officials’ deliberate indifference to excessive risks of harm to the

inmate.

(2015). Several cases have squarely presented this Court with the

opportunity to decide whether Kingsley applies to pretrial detainees’ claims for deliberate

indifference to an excessive risk of harm. So far, though, we have not reached the issue,

instead resolving each case on alternative grounds. See, e.g., Moss v. Harwood,

, 624 n.4 (4th Cir. 2021) (“Because Moss has expressly endorsed application of the

Eighth Amendment standard—including its subjective component—to his Fourteenth

Amendment claim, we have no occasion to consider that question today.”); Mays v.

Sprinkle,

, 300–01 (4th Cir. 2021) (“We need not resolve this argument as

[Kingsley’s] standard would make no difference here because of qualified immunity.”).

Leaving this question unresolved creates uncertainty in our jurisprudence and allows the

issue to slip past both practitioners and courts, as happened in this case below. More than

eight years after Kingsley, it is time we lay this issue to rest.

A.

Before we turn to the merits of Kingsley’s applicability, we must assure ourselves

that the issue is properly before us. As the Supreme Court has cautioned, “[c]ourts do not,

or should not, sally forth each day looking for wrongs to right.” Greenlaw v. United States,

(2008). Rather, under the party presentation principle, we generally

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address only the issues raised by the parties.

. However, “[c]ourts invested with

the judicial power of the United States have certain inherent authority to protect their

proceedings and judgments in the course of discharging their traditional responsibilities.”

Degen v. United States,

(1996). This inherent power permits courts to

“independently consider an issue not raised by the parties when necessary to protect

important institutional interests.” United States v. Oliver,

(4th Cir.

2017). One such institutional interest is “a court’s fundamental obligation to ascertain

controlling law.” Dan Ryan Builders, Inc. v. Crystal Ridge Development, Inc.,

(4th Cir. 2015). That is what we are doing here.

Of course, “‘[j]ust because’ we have the inherent authority to act ‘does not mean

that it is appropriate to use that power in every case.’” Oliver,

(quoting

Dietz v. Bouldin,

(2016)). In our adversarial system, “we rely on the parties

to frame the issues for decision and assign courts the role of neutral arbiter of matters the

parties present.” Greenlaw,

. “Such adversary proceedings not only

increase public confidence in the justice system, but they implicitly recognize that ‘parties

know what is best for them and are responsible for advancing the facts and arguments

entitling them to relief.’” Oliver,

(quoting Greenlaw,

).

“Habitual sua sponte consideration of a forfeited issue disincentivizes vigorous advocacy

and thereby chips away at the foundation of our justice system.”

But we cannot sacrifice the integrity of our jurisprudence to the party presentation

principle. See Dan Ryan Builders,

. For that reason, we have stated that

the party presentation principle does not constrain our “fundamental obligation to ascertain

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controlling law.”

“When an issue or claim is properly before the court, the court is not

limited to the particular legal theories advanced by the parties, but rather retains the

independent power to identify and apply the proper construction of governing law.”

Kamen v. Kemper Fin. Servs., Inc.,

(1991). The Supreme Court has long

recognized that a “court may consider an issue ‘antecedent to . . . and ultimately dispositive

of’ the dispute before it, even an issue the parties fail to identify and brief.” U.S. Nat’l

Bank of Or. v. Indep. Ins. Agents of Am., Inc.,

(1993) (quoting Arcadia

v. Ohio Power Co.,

(1990)) (alteration in original). The question we have

raised—whether Kingsley applies to the type of claim asserted in this case—is antecedent

to our consideration of the district court’s disposition of Mr. Short’s claims. Accordingly,

this issue is properly before us.

B.

We now turn to whether Kingsley abrogates our Circuit’s prior precedent and

requires us to recognize that pretrial detainees can state a claim under the Fourteenth

Amendment, based on a purely objective standard, for prison officials’ deliberate

indifference to excessive risks of harm. 7 Like the Second, Sixth, Seventh, and Ninth

7 The Tenth Circuit has observed that “a deliberate indifference claim presupposes a subjective component.” Strain v. Regalado,

(10th Cir. 2020). But the Supreme Court has recognized that, outside of the Eighth Amendment context, the term “deliberate indifference” is not necessarily subjective. Instead, it is “the equivalent of reckless[ness],” which is an objective standard in the civil law context, but a subjective standard in the criminal law context. Farmer v. Brennan,

, 836–37 (1994). Indeed, in the context of municipal liability, the same term is used to describe a purely objective test. See

at 840 (citing Canton v. Harris,

(1989)). As the Sixth Circuit noted, “the Farmer Court adopted the subjective component of the test for (Continued) 15 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 16 of 37

Circuits, we find that it does. See Gordon v. County of Orange,

,

1122–25 (9th Cir. 2018); Darnell v. Pineiro,

, 34–35 (2d Cir. 2017); Miranda

v. County of Lake,

, 351–52 (7th Cir. 2018); Brawner v. Scott County,

(6th Cir. 2021).

Under our precedent, “[o]ne ‘panel cannot overrule the decision of a prior panel’

. . . ‘[a]bsent contrary law from an en banc or Supreme Court decision.’” Carrera v. EMD

Sales, Inc.,

(2023) (quoting Desmond v. PNGI Charles Town Gaming,

(4th Cir. 2009) and Taylor v. Grubbs,

(4th Cir. 2019)).

Previous “panel precedent . . . is not binding if it subsequently proves untenable

considering Supreme Court decisions,” Rose v. PSA Airlines,

(4th Cir.

2023) (Heytens, J., concurring in part and dissenting in part) (internal quotation omitted),

but “[w]e do not lightly presume that the law of our circuit has been overturned or rendered

no longer tenable,” Carrera v. E.M.D. Sales Inc.,

(4th Cir. 2023) (internal

quotation omitted). A Supreme Court decision overrules or abrogates our prior precedent

only if our precedent is “impossible to reconcile” with a subsequent Supreme Court

decision.

If it is “possible for us to read our precedent harmoniously” with Supreme

Court precedent, we must do so.

(internal quotation omitted). This is a high bar.

deliberate indifference under the Eighth Amendment based on the language and purposes of that amendment, focusing particularly on ‘punishments,’ and not on any intrinsic meaning of the term.” Brawner v. Scott County,

(6th Cir. 2021). Accordingly, like the Second, Sixth, Seventh, and Ninth Circuits we retain the term “deliberate indifference” despite adopting Kingsley’s purely objective standard. We nonetheless acknowledge that, to the average reader, the term “deliberate indifference” suggests subjectivity, and that an alternative term such as “objective indifference” may be preferable if we were writing on a clean slate. 16 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 17 of 37

But here that bar has been met, and we hold, as four of our sister circuits 8 have

previously, that Kingsley is irreconcilable with precedent requiring pretrial detainees to

meet a subjective standard to succeed on claims under the Fourteenth Amendment for

prison officials’ deliberate indifference to excessive risks of harm to the inmate. The fact

that Kingsley refers broadly to “challenged governmental action” and speaks of claims

under the Fourteenth Amendment generally, coupled with its heavy reliance on Bell v.

Wolfish, demonstrate that Kingsley’s objective standard extends not just to excessive force

claims; it applies equally to deliberate indifference claims.

(1979).

i.

Before turning to Kingsley, we examine the jurisprudential history leading up to our

adoption of the subjective deliberate indifference standard for pretrial detainees’ claims

under the Fourteenth Amendment. The Supreme Court first recognized a claim for

deliberate indifference to a prisoner’s serious medical needs in Estelle v. Gamble—an

Eighth Amendment case.

(1976). The Estelle Court, however, did not

establish a standard for evaluating those claims. Two years later, this Court extended

Estelle from Eighth Amendment claims to Fifth and Fourteenth Amendment Due Process

Clause claims, reasoning that “due process is at least as co-extensive as the guarantees of

8 Notably, these four circuits all adopted Kingsley’s purely objective test, without considering the question en banc. See Darnell v. Pineiro,

(2d Cir. 2017); Gordon v. County of Orange,

, 1124–25 (9th Cir. 2018); Miranda v. County of Lake,

, 352–53 (7th Cir. 2018); Brawner v. Scott County,

, 596–97 (6th Cir. 2021). They thus recognized, as we do here, that Kingsley mandates a departure from prior circuit precedent and eliminates the need for en banc consideration of the issue. 17 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 18 of 37

the [E]ighth amendment.” Loe v. Armistead,

(4th Cir. 1978). Like

the Supreme Court before, we did not establish a standard for evaluating those claims.

After a few years without clarification from the Supreme Court, we filled the gap

and adopted an objective test for Fourteenth Amendment claims of deliberate indifference

to serious medical needs. See Whisenant v. Yuam,

(4th Cir. 1984);

Martin v. Gentile,

(4th Cir. 1988). We drew that test from the Supreme

Court’s decision in Bell v. Wolfish,

(1979). In Bell, the Supreme Court held

that “[i]n evaluating the constitutionality of conditions or restrictions of pretrial detention

. . . the proper inquiry is whether those conditions amount to punishment of the detainee.”

. The Court in Bell explained that whereas the Eighth Amendment only protects

post-conviction detainees from “cruel and unusual punishment,” the Fourteenth

Amendment Due Process Clause protects pretrial detainees from being punished at all.

at 535–37 & n.16. As a result, any pretrial detention conditions that “amount to

punishment” violate due process. As we read Bell,

[t]o establish that a particular condition or restriction of his confinement is constitutionally impermissible “punishment,” the pretrial detainee must show either that it was (1) imposed with an expressed intent to punish or (2) not reasonably related to a legitimate nonpunitive governmental objective, in which case an intent to punish may be inferred.

Martin,

(citing Bell, 441 U.S. at 538–40).

Applying Bell, we held that deliberate indifference to serious medical needs violates

the Fourteenth Amendment even in the absence of subjective intent to punish “because no

legitimate nonpunitive goal is served by a denial or unreasonable delay in providing

medical treatment where the need for such treatment is apparent.”

at 871 (citing

18 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 19 of 37

Whisenant,

). And in Gordon v. Kidd, we dispelled any doubt about

whether that test required the plaintiff to show that the defendant knew of and consciously

disregarded the health risk at issue.

(4th Cir. 1992). “Stated succinctly,

‘[t]he key to deliberate indifference in a prison suicide case is whether the defendants knew,

or reasonably should have known, of the detainee’s suicidal tendencies.’”

(emphasis added) (quoting Elliott v. Cheshire County,

, 10–11 (1st Cir. 1991)).

See also Hill v. Nicodemus,

, 991–92 (4th Cir. 1992).

In 1994, the Supreme Court finally adopted a test for Eighth Amendment deliberate

indifference claims in Farmer v. Brennan.

(1994). That test is subjective:

[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

at 837–38.

The Eighth Amendment drove Farmer’s reasoning and circumscribed its holding.

After identifying “deliberate indifference” with recklessness, Farmer observed that there

are two forms of recklessness. Criminal recklessness is subjective, requiring conscious

disregard of a risk of which the defendant is aware.

at 836–37. By contrast, civil

recklessness is objective, encompassing action or failure to act “in the face of an

unjustifiably high risk of harm that is either known or so obvious that it should be known.”

. Farmer held that Eighth Amendment deliberate indifference required criminal

recklessness—the subjective form—because the Eighth Amendment restricts only cruel

19 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 20 of 37

and unusual punishment,

, and the Court’s precedents “mandate[d] inquiry into a

prison official’s state of mind when it is claimed that the official has inflicted cruel and

unusual punishment,”

. Having previously “rejected a reading of the Eighth

Amendment that would allow liability to be imposed on prison officials solely because of

the presence of objectively inhumane prison conditions,” the Court concluded that only a

subjective test for Eighth Amendment deliberate indifference would respect its preexisting

Eighth Amendment rules.

. In sum, Farmer adopted a subjective test for Eighth

Amendment claims on Eighth Amendment grounds.

Nevertheless, in the years that followed, a consensus emerged among the courts of

appeal that Farmer’s subjective Eighth Amendment standard applied to Fourteenth

Amendment claims. See, e.g., Upham v. Gallant, 99-2224, 2000 WL1425759, at *1 (1st

Cir. 2000); Caiozzo v. Koreman,

(2d Cir. 2009); Serafin v. City of

Johnstown,

, 213–14 (3d Cir. 2002); Hare v. City of Corinth,

(5th Cir. 1996); Polk v. Parnell, No. 96-5711,

, at *1 (6th Cir. 1997);

Henderson v. Sheahan,

, 844–45 (7th Cir. 1999); Crow v. Montgomery,

(8th Cir. 2005); Schell v. Richards, No. 97-15743,

(9th Cir. 1997); Dean v. Hamblin, No. 95-2088,

(10th Cir. 1995);

Cottrell v. Caldwell,

(11th Cir. 1996).

We, too, extended Farmer to Fourteenth Amendment claims, but, like several of our

sister circuits, we did not provide extensive reasoning. The most satisfying justification

that we can glean from our prior caselaw is that we relied on the Supreme Court’s assertion

in City of Revere v. Massachusetts General Hospital that protections for pretrial detainees

20 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 21 of 37

under the Fourteenth Amendment are “at least as great as the Eighth Amendment

protections available to a convicted prisoner.”

(1983). At least with

respect to deliberate indifference claims, we have consistently read this to mean that

protections under the Fourteenth Amendment are the same as those under the Eighth

Amendment and, consequently, should be evaluated under the same standard. See, e.g.,

Stevens v. Holler,

(4th Cir. 2023) (citing City of Revere for this

proposition and then applying the Farmer standard).

Our decision in Martin v. Bowman adopted Farmer’s Eighth Amendment holding

and applied it to pretrial detainees. No. 94-6246,

(4th Cir. 1995). We did

this despite recognizing that (1) Farmer confined itself to the Eighth Amendment context,

and (2) “deliberate indifference” did not have to be a subjective standard—in fact, it was,

and still is, an objective standard in Monell claims. Id.; see Farmer,

(stating

that it “would be hard to describe” the test for municipal liability for failure to train, which

“permit[s] liability to be premised on obviousness or constructive notice, as anything but

objective”)).

We revisited Farmer’s applicability to the Fourteenth Amendment in Ervin v.

Magnum but did not provide substantially more reasoning. No. 93-7129,

(4th Cir. 1997). There, we wrote:

As a practical matter . . . we do not distinguish between the Eighth and Fourteenth Amendments in the context of a pretrial detainee’s § 1983 claim. Despite the Supreme Court’s suggestion that pretrial detainees may be afforded greater protection than convicted prisoners, the circuit courts have generally analyzed both situations under the same “deliberate indifference” standard.

Id. at *4 (citations omitted).

21 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 22 of 37

It is true that if a Fourteenth Amendment claimant is entitled to at least as much

protection as an Eighth Amendment claimant, then whatever treatment violates the Eighth

violates the Fourteenth. But it does not follow that treatment violates the Fourteenth only

if it violates the Eighth. In Ervin and the cases that followed, see Young v. City of Mount

Ranier,

, 575–76 (4th Cir. 2001); Grayson v. Peed,

(4th

Cir. 1999), we elided the distinction between the Eighth Amendment claims of post-

conviction detainees and the Fourteenth Amendment claims of pretrial detainees.

That brings us to Kingsley.

ii.

The Supreme Court’s ruling in Kingsley v. Hendrickson upends the assumption that

Fourteenth Amendment Due Process Clause claims should be treated the same as Eighth

Amendment claims. In Kingsley, the Supreme Court held that, to state a Fourteenth

Amendment Due Process Clause claim for excessive use of force, a pretrial detainee need

allege only that the officer used objectively unreasonable force. Kingsley, 576 U.S. at 396–

97. If that were all Kingsley did, then it would not only be “possible for us to read our

[deliberate indifference] precedent harmoniously,” it would be easy. See Carrera,

. But Kingsley did more. It reiterated that a pretrial detainee may state a claim under

the Fourteenth Amendment by satisfying Bell’s objective standard. Kingsley,

(citing Bell,

). And Kingsley rejected our only ground for replacing the

objective Bell test for Fourteenth Amendment deliberate indifference claims with Farmer’s

subjective Eighth Amendment test. See id. at 400 (stating that because the language of the

Eighth and Fourteenth Amendments differs, “the nature of the claims often differs”). For

22 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 23 of 37

those two reasons, it is “impossible to reconcile” Kingsley with our subjective deliberate

indifference test for Fourteenth Amendment claims. See Carrera,

.

Kingsley is clear: The Fourteenth Amendment Due Process Clause protects pretrial

detainees from “governmental action” that is not “rationally related to a legitimate

nonpunitive governmental purpose” or that is “excessive in relation to that purpose.”

Kingsley,

(quoting Bell,

) (internal quotation marks

omitted). That test is “solely an objective one.” Id. at 397. As Kingsley observed, Bell

applied that “objective standard” to a challenge to “a variety of prison conditions, including

a prison’s practice of double bunking”—not just to excessive force claims. Id. “In doing

so, [Bell] did not consider the prison officials’ subjective beliefs about the policy.” Id.

And, notably, Kingsley itself likewise speaks broadly of “challenged governmental action,”

as opposed to only the government’s use of excessive force. Id. at 398. Of course, a

showing of subjective intent can still help a pretrial detainee state a claim for action that

“amounts to punishment,” because “‘punishment’ can consist of actions taken with an

‘expressed intent to punish.’” Id. (quoting Bell,

). But such a showing is

not necessary.

Our subjective deliberate indifference test for pretrial detainees’ Fourteenth

Amendment claims is irreconcilable with the Kingsley–Bell objective test. Under Kingsley,

“a pretrial detainee can prevail by providing only objective evidence that the challenged

governmental action is not rationally related to a legitimate governmental objective or that

it is excessive in relation to that purpose.”

Under our subjective test, however, a pretrial

detainee must also show that the defendant “knew of and disregarded [a] substantial risk

23 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 24 of 37

to the inmate’s health or safety.” Stevens v. Holler,

(4th Cir. 2023). The

showing sufficient to satisfy Kingsley’s objective test is necessary but insufficient to satisfy

our subjective test. It is “impossible to reconcile” our post-Farmer cases with Kingsley.

See Carrera,

.

Further, Kingsley repudiated the reasoning we followed in adopting the subjective

test for deliberate indifference claims in the first place. Our precedent extended Farmer’s

Eighth Amendment test to Fourteenth Amendment claims by dismissing the distinction

between the two amendments as a distinction without a difference. See Martin,

, at *3; Ervin,

, at *4; Grayson,

; Young, 238 F.3d

at 575–76. Kingsley commands the opposite. “The language of the two Clauses differs,

and the nature of the claims often differs.” Kingsley,

. Specifically,

Kingsley directs us to be more solicitous of the Fourteenth Amendment claims of a pretrial

detainee than the Eighth Amendment claims of a post-conviction detainee, for “pretrial

detainees (unlike convicted prisoners) cannot be punished at all.”

In fact, when the

defendant officials in Kingsley argued that Eighth Amendment case law supplies the

Fourteenth Amendment standard, Kingsley rejected that maneuver out of hand for failing

to respect the distinctions between the amendments.

at 400–01. Because “there is no

need here, as there might be in an Eighth Amendment case, to determine when punishment

is unconstitutional,” the heightened, subjective Eighth Amendment deliberate indifference

standard does not extend to Fourteenth Amendment cases.

For a Fourteenth

Amendment claim, it is enough that the challenged action is not rationally related to a

legitimate nonpunitive purpose or is excessive in relation to that purpose.

.

24 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 25 of 37

Now that Kingsley requires us to properly distinguish Eighth Amendment claims from

Fourteenth Amendment claims, our prior precedent applying a subjective deliberate

indifference standard is “no longer tenable.” Carrera,

(quotation omitted).

We cannot harmonize Kingsley with our prior Fourteenth Amendment deliberate indifference

precedent. The only way to respect the distinction Kingsley drew between the Eighth and

Fourteenth Amendments is to recognize that Kingsley’s objective test extends to all pretrial

detainee claims under the Fourteenth Amendment claims for deliberate indifference to an

excessive risk of harm. We therefore conclude that Kingsley abrogated our prior precedent.

iii.

To persuade us that Kingsley does not disturb the law of our circuit, Appellees

extensively quote the Tenth Circuit’s decision in Strain v. Regalado, the most thoroughly

reasoned opinion declining to apply Kingsley’s objective test to deliberate indifference

claims.

(10th Cir. 2020). 9 The Tenth Circuit brushed aside any conflict

between Kingsley and that court’s subjective test for Fourteenth Amendment deliberate

indifference claims primarily by construing Kingsley narrowly: as addressing only

excessive force claims, “nothing more, nothing less.”

. But that reading reduces

Kingsley’s reasoned judgment to an arbitrary fiat. Kingsley did not decree on a whim that

we must use an objective test for excessive force claims. Kingsley found that a pretrial

detainee may state a claim for excessive force on a purely objective basis because “our

9 Three other circuits have retained the subjective test with little analysis or none at all. See Whitney v. City of St. Louis,

, 860 n.4 (8th Cir. 2018); Dang ex rel. Dang. v. Sheriff, Seminole Cnty.,

, 1279 n.2 (11th Cir. 2017); Alderson v. Concordia Parish Corr. Facility,

, 419 n.4 (5th Cir. 2017). 25 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 26 of 37

precedent” (above all, Bell) already recognizes that a pretrial detainee may state a due

process claim against “a variety of prison conditions” by an “objective standard.” Kingsley,

576 U.S. at 397–98. We cannot avoid the conflict between Kingsley and our case law by

ignoring Kingsley’s rationale.

The Tenth Circuit also tried to cabin Kingsley by distinguishing the purposes of

excessive force claims and deliberate indifference claims. “The deliberate indifference cause

of action does not relate to punishment,” Strain says, “but rather safeguards a pretrial

detainee’s access to adequate medical care.”

. For that reason, the Tenth

Circuit reasoned, the Kingsley–Bell objective test for treatment that “amounts to punishment”

does not govern deliberate indifference claims.

While it is certainly true that the deliberate

indifference cause of action safeguards a detainee’s right to medical care, it is not true that

this cause of action does not relate to punishment. The Supreme Court recognized an Eighth

Amendment claim for deliberate indifference because the “denial of medical care may result

in pain and suffering which no one suggests would serve any penological purpose”—that is,

because it would amount to unjust punishment. Estelle, 429 U.S. at 103–04.

In yet another attempt to harmonize Kingsley with a subjective test for deliberate

indifference, Strain emphasizes that “[e]xcessive force requires an affirmative act, while

deliberate indifference often stems from inaction.” Strain,

. To the Tenth

Circuit, “‘the Kingsley standard is not applicable to cases where a government official fails

to act’ because ‘a person who unknowingly fails to act—even when such a failure is

objectively unreasonable—is negligent at most.’”

(quoting Castro v. County of Los

Angeles,

(9th Cir. 2016) (en banc) (Ikuta, J., dissenting)). Yet

26 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 27 of 37

Kingsley and Farmer expressly rejected that proposition. Kingsley, 576 U.S. at 395–96;

Farmer,

. The Supreme Court has recognized that an objective test requires

civil recklessness, observing that “civil law generally calls a person reckless who acts or

(if the person has a duty to act) fails to act in the face of an unjustifiably high risk of harm

that is either known or so obvious that it should be known.” Farmer, 511 U.S. at 836–37

(emphasis added). We cannot reconcile our deliberate indifference precedents with

Kingsley by artificially limiting Kingsley’s objective test to claims that require “affirmative

act[s],” Strain,

, on the spurious ground that deliberate indifference would

collapse into negligence otherwise. Recklessness is a lower bar than intent, but a higher

bar than negligence.

In short, we find Strain’s reasoning unpersuasive and hold that Kingsley is

irreconcilable with our prior precedent. Kingsley repudiates a subjective requirement for

pretrial detainees’ Fourteenth Amendment claims and permits pretrial detainees to state

Fourteenth Amendment claims for deliberate indifference to a serious risk of harm on the

purely objective basis that the “governmental action” they challenge is not “rationally

related to a legitimate nonpunitive governmental purpose” or is “excessive in relation to

that purpose.” Kingsley,

(quoting Bell,

) (internal quotation

marks omitted).

iv.

To state a claim for deliberate indifference to a medical need, the specific type of

deliberate indifference claim at issue in this case, a pretrial detainee must plead that (1)

they had a medical condition or injury that posed a substantial risk of serious harm; (2) the

27 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 28 of 37

defendant intentionally, knowingly, or recklessly acted or failed to act to appropriately

address the risk that the condition posed; (3) the defendant knew or should have known (a)

that the detainee had that condition and (b) that the defendant’s action or inaction posed an

unjustifiably high risk of harm; and (4) as a result, the detainee was harmed. We take this

test to be the same test our sister circuits have adopted. See Darnell v. Pineiro,

(2d Cir. 2017); Gordon v. County of Orange,

, 1124–25 (9th Cir.

2018); Miranda v. County of Lake,

, 352–53 (7th Cir. 2018); Brawner v. Scott

County,

, 596–97 (6th Cir. 2021).

The objective test we adopt today differs from our prior subjective test in one respect

only. The plaintiff no longer has to show that the defendant had actual knowledge of the

detainee’s serious medical condition and consciously disregarded the risk that their action

or failure to act would result in harm. That showing remains sufficient, but it is no longer

necessary. Now, it is sufficient that the plaintiff show that the defendant’s action or

inaction was, in Kingsley’s words, “objectively unreasonable,”

: that is, the

plaintiff must show that the defendant should have known of that condition and that risk,

and acted accordingly. Or as the Supreme Court put it when describing civil recklessness

in Farmer, it is enough that the plaintiff show that the defendant acted or failed to act “in

the face of an unjustifiably high risk of harm that is either known or so obvious that it

should be known.” Farmer,

. We go no further.

To be clear, it is still not enough for the plaintiff to allege that the defendant

negligently or accidentally failed to do right by the detainee. See Kingsley,

USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 29 of 37

396; Brawner,

; Gordon,

; Miranda, 900 F.3d at 353–54.

Negligence was not enough before, Stevens,

, and it is not enough now.

V.

Having determined that the proper test for pretrial detainees’ claims under the

Fourteenth Amendment is an objective one, we could remand without considering anything

further, because the district court improperly applied a subjective standard. But because

we conclude that the allegations in the Complaint suffice to state a claim under any test—

including the subjective Eighth Amendment deliberate indifference test—we additionally

explain why the district court erred in granting judgment on the pleadings, and why, as a

result, this case can proceed past the pleadings stage.

As explained above, the objective test is not the sole means of showing a Fourteenth

Amendment violation. We have previously stated that “a pretrial detainee makes out a

violation at least where he shows deliberate indifference to serious medical needs under

cases interpreting the Eighth Amendment.” Mays v. Sprinkle,

(4th Cir.

2021) (emphasis added). Though the Supreme Court instructed in Kingsley that an

objective test is proper for pretrial detainees’ claims under the Fourteenth Amendment, a

pretrial detainee can still state a claim if they can meet the more demanding Eighth

Amendment standard. In other words, satisfying the Eighth Amendment test remains

sufficient, but is no longer necessary, for a pretrial detainee to state a claim for deliberate

indifference to a serious medical need. Because the facts alleged in the Complaint are

sufficient to satisfy even the Eighth Amendment deliberate indifference test against

29 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 30 of 37

Sergeant Morgan, we conclude that the district court erred in dismissing the Complaint for

failure to state a claim, and reverse.

The deliberate indifference test “includes objective and subjective elements.” Mays,

. The objective element requires an objectively “serious” medical

condition.

A condition is objectively serious if it is “diagnosed by a physician as

mandating treatment” or is “so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.” Scinto v. Stansberry,

(4th Cir. 2016).

The subjective element requires that the prison official acted with deliberate indifference

to inmate health or safety, meaning that the official “had actual subjective knowledge of

both the inmate’s serious medical condition and the excessive risk posed by the official’s

action or inaction.” Jackson v. Lightsey,

(4th Cir. 2014).

In applying the deliberate indifference test, we first ask whether Ms. Short had an

objectively serious medical condition. See Mays,

. “A substantial risk of

suicide is certainly the type of ‘serious harm’ that is contemplated by the first prong” of

the deliberate indifference test. Brown v. Harris,

(4th Cir. 2001). The

Complaint alleges that Ms. Short had very recently attempted suicide, was undergoing

severe withdrawal, and was experiencing feelings of uselessness or sinfulness. These

allegations demonstrate a substantial risk of suicide, and, by extension, satisfy the objective

prong of the deliberate indifference test.

Turning to the second element, Sergeant Morgan “had actual subjective knowledge

of both the inmate’s serious medical condition and the excessive risk posed by the official’s

action or inaction.” Jackson,

. Ms. Short conveyed all of these facts—her

30 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 31 of 37

recent suicide attempt, her daily drug use and consequent withdrawal, and her feelings of

worthlessness—to Sergeant Morgan when Sergeant Morgan processed Ms. Short and

completed two health screening forms evaluating Ms. Short’s mental health. The

Complaint therefore sufficiently alleges that Sergeant Morgan had actual subjective

knowledge of Ms. Short’s condition.

Sergeant Morgan also knew the excessive risk posed by her action or inaction.

Section 4.10 of the Prison Policy clearly laid out suicide risk factors of which officers

should be aware. These risk factors include “previous attempts to commit suicide,”

“depression,” and “drug or alcohol intoxication or withdrawal.” An officer’s failure to act

“if they demonstrably knew or had reason to know that a suicide was imminent” constitutes

deliberate indifference. Buffington v. Baltimore County,

(4th Cir. 1990).

Based on the Prison Policy, on which Sergeant Morgan had been trained, Sergeant Morgan

knew that Ms. Short posed a serious suicide risk if Sergeant Morgan did not act. And

Sergeant Morgan was not powerless to mitigate this risk—the Prison Policy lays out several

steps Sergeant Morgan could have taken, including placing Ms. Short in a populated cell,

removing items such as bedsheets with which Ms. Short could hang herself from the cell,

and conducting regular checks every ten to fifteen minutes. J.A. 228. Sergeant Morgan

took none of these steps.

We recently stated, in Stevens v. Holler, that “protocol violations” demonstrate that a

defendant “knew of and disregarded a substantial risk of serious injury to the detainee or that

they actually knew of and ignored a detainee’s serious need for medical care.” Stevens v.

Holler,

(4th Cir. 2023) (quoting Young v. City of Mount Rainier,

USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 32 of 37

567, 575–76 (4th Cir. 2001)); see also Younger v. Crowder,

, 384 (4th Cir. 2023)

(stating that failure to follow “unwritten policy” was evidence supporting jury’s finding that

second prong was satisfied). As in Stevens, the allegation that Sergeant Morgan failed to

follow established protocol that unambiguously applied to the situation at hand is sufficient

to satisfy the subjective prong of the deliberate indifference test. Stevens,

.

Though a violation of a local policy does not by itself violate the Constitution or

give rise to a § 1983 claim, it is nevertheless instructive both in determining the seriousness

of the risk posed and in determining whether an officer knew of “the excessive risk posed

by the official’s action or inaction.” Jackson,

. The Jail established the

Prison Policy to create a baseline of when a risk of suicide is sufficiently severe such that

additional steps must be taken. These judgments can serve as a proxy for when an inmate’s

medical need is so “obvious that even a lay person would easily recognize” it. See Mays,

. This Policy was implemented for a reason; we cannot now cast it aside

as entirely irrelevant to the question of whether additional action was necessary, even

though the Policy unambiguously provides that it was.

Appellees contend that Ms. Short’s risk of suicide was not sufficiently imminent to

require Sergeant Morgan to act in any way to mitigate the risk. Faced with a previous

suicide attempt, active and severe withdrawal, and a Prison Policy that unambiguously

instructs officers that in this exact situation additional steps must be taken, it seems that

Appellees ask us to hold that a risk of suicide is only sufficiently imminent when a detainee

expressly tells a prison official that they are planning to commit suicide at that time. But

if someone were lying on the ground, gasping for air, and clutching their chest, we wouldn’t

32 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 33 of 37

require them to tell the prison official “I am having a heart attack right now” before

concluding that the prison official should have taken action. So too here. A very recent

suicide attempt, alone or coupled with feelings of worthlessness and severe withdrawal

symptoms, are sufficiently obvious indicators of suicide that a lay person could recognize

them. 10 See Scinto,

.

Appellees further contend that Sergeant Morgan was entitled to defer to Nurse Barnes’s

and Nurse Bailey’s professional judgments that Ms. Short did not pose a suicide risk. In

support, Appellees principally cite Shakka v. Smith.

(4th Cir. 1995). There, this

Court held that prison officials were not deliberately indifferent in withholding the inmate’s

wheelchair, where they were acting on the express instructions of a prison psychologist.

. The psychologist had ordered the wheelchair “be removed temporarily for Shakka’s own

protection and the protection of others.”

Though the Amended Complaint in this case contains some conflicting allegations

regarding why Ms. Short was placed in solitary confinement, it alleges that “being mouthy”

was at least one reason. J.A. 159. At this stage in the proceedings, we must credit this version

of events and construe the allegations in favor of Appellant. Nemet Chevrolet, Ltd.,

(stating that we must “draw all reasonable inferences in favor of the plaintiff”).

Because this justification has nothing to do with a medical judgment, Sergeant Morgan cannot

hide behind Shakka to justify her failure to place Ms. Short in a populated area of the prison.

10 Of course, this would be a very different situation if Sergeant Morgan were not aware of Ms. Short’s recent suicide attempt or her withdrawal symptoms. See Grayson v. Peed,

(4th Cir. 1999) (“The law cannot demand that officers be mind readers.”). But the Complaint alleges that Sergeant Morgan was aware of these facts. 33 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 34 of 37

Unlike in Shakka, Sergeant Morgan was not acting on the express instruction of a medical

provider—Appellees merely contend that Sergeant Morgan did not violate Ms. Short’s

constitutional rights because the nurses who examined Ms. Short did not take or order these

additional steps either. But Sergeant Morgan cannot use the Medical Defendants’ conduct or

failure to act to shield her from liability on these facts. Holding otherwise would shield non-

medical defendants from liability whenever a medical provider was at some point consulted.

This Court’s decision in Iko v. Shreve supports this conclusion.

(4th

Cir. 2008). There, an inmate was pepper sprayed in the course of a cell extraction and

transfer to a different cell.

at 231–32. As part of the cell-extraction procedure, the

inmate was taken “to a nearby medical room to be examined by a nurse.”

. In

the medical room, in the nurse’s presence, the inmate collapsed.

“The officers caught

him and directed him into a nearby wheelchair for transportation to the” new cell.

Neither the officers nor the nurse provided or requested any medical treatment.

The

officers argued that they were not deliberately indifferent because they “were entitled to

defer to the actions and medical decisions of the nurse.”

. This Court rejected

this argument, because Iko did not “present a situation in which prison officials might be

held liable for the actions or inactions of a medical professional. The officers face liability

for their own decisions, made while Iko was in their charge.”

This Court also stated

that Iko was “further distinguishable from the precedent on which the officers seek to rely

because it is undisputed that Iko received no medical treatment whatsoever. There was no

medical opinion to which the officers could have deferred.”

34 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 35 of 37

The same is true here. Appellant seeks to hold Sergeant Morgan accountable for her

own decision not to take steps to mitigate Ms. Short’s risk of suicide. Further, there is no

allegation that Sergeant Morgan communicated with either nurse prior to placing Ms. Short

in isolation. In the absence of an allegation that Sergeant Morgan knew of and relied on a

medical provider’s evaluation in the moment, she cannot use the medical provider’s inaction

to justify her own post-hoc. We thus conclude that the Complaint sufficiently alleges that

Sergeant Morgan was deliberately indifferent to Ms. Short’s serious medical needs by failing

to follow the steps outlined in the Prison Policy to mitigate Ms. Short’s suicide risk.

VI.

Appellees also argue in their supplemental brief, for the first time, that Sergeant Morgan

is entitled to qualified immunity because it was not “clearly established” that she could not

rely on the judgment of medical professionals. This argument was not raised in Appellees’

initial brief, nor has Appellant had the opportunity to address the issue before this Court. “A

party waives an argument by failing to present it in its opening brief or by failing to develop

its argument—even if its brief takes a passing shot at the issue.” Grayson O Co. v. Agadir Int’l

LLC,

(4th Cir. 2017) (cleaned up). This principle applies to both parties,

not just to the appellant. See United States v. Legins,

, 319 n.18 (4th Cir. 2022)

(applying the principle of waiver to an argument the appellee failed to raise in its brief).

Accordingly, we make only two small observations concerning the availability of qualified

immunity but decline to decide whether qualified immunity is in fact available to Appellees.

35 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 36 of 37

First, under Iko, where officers are being held accountable “for their own decisions,”

they cannot rely on medical professionals’ lack of action as a shield for liability. Iko,

. Under this precedent, Sergeant Morgan may be hard pressed to explain why

she was entitled to rely on Nurse Barnes’s and Nurse Bailey’s lack of action under “clearly

established” precedent. Second, under this Court’s precedent, qualified immunity is

generally not available at all for deliberate indifference claims. We held in Thorpe v.

Clarke that “when ‘plaintiffs have made a showing sufficient to’ demonstrate an intentional

violation of the Eighth Amendment, ‘they have also made a showing sufficient to overcome

any claim to qualified immunity.’”

(4th Cir. 2022) (quoting Beers-

Capitol v. Whetzel,

, 142 n.15 (3d Cir. 2001)). Accordingly, “[B]ecause the

Eighth Amendment’s deliberate-indifference standard requires knowing conduct, an

official who was deliberately indifferent could not also believe ‘that [their] actions

comported with clearly established law.’” Pfaller Amonette,

(4th Cir.

2022) (quoting Thorpe,

). Nonetheless, we decline to decide the availability

of qualified immunity in this particular case, because the issue is not properly presented.

VII.

For the foregoing reasons, we reverse and remand the district court’s dismissal of

Appellant’s claims against Sergeant Morgan. Additionally, because the district court

dismissed Appellant’s Monell claim and state law claims only on the basis that Appellant

had not properly alleged an individual capacity claim, we reverse and remand the district

court’s dismissal of the Monell and state law claims. Finally, we recognize that the

36 USCA4 Appeal: 21-1396 Doc: 61 Filed: 12/08/2023 Pg: 37 of 37

Supreme Court’s decision in Kingsley abrogated our prior precedent, which is

irreconcilable with Kingsley’s mandate that pretrial detainees’ Fourteenth Amendment

claims be evaluated under the objective framework we identify in this opinion.

REVERSED AND REMANDED

37