Dean Higgins v. Secretary, Florida Department of Corrections, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10065
Non-Argument Calendar
____________________
DEAN HIGGINS,
Plaintiff-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
SCOTT LANDRY,
Defendants-Appellees,
MARK JONES, et al.,
Defendants.
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2 Opinion of the Court 21-10065
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:19-cv-00308-RH-MAF
____________________
Before R OSENBAUM , GRANT, and L UCK , Circuit Judges.
PER C URIAM :
While in the custody of the Florida Department of Correc-
tions, Dean Higgins had an epileptic seizure that caused him to bite
a corrections officer. The department believed that Higgins had
used illegal drugs and that his drug use, not his disability, caused
him to bite the officer, so it punished him with seven and a half
months of disciplinary and administrative confinement and close
management. After he left the department’s custody, Higgins sued
the department for compensatory damages and attorney’s fees un-
der the Americans with Disabilities Act and the Rehabilitation Act.
After a bench trial, the district court found that Higgins was not
entitled to damages because the department was not deliberately
indifferent to his statutory rights. We affirm.
FACTUAL BACKGROUND
Higgins pleaded guilty to lewd and lascivious battery on a
minor aged twelve to fifteen years old and served his sentence in
the department’s custody from June 9, 2017, to May 10, 2019. He
has epilepsy and is on the autism spectrum. On the morning of
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21-10065 Opinion of the Court 3
September 27, 2018, while detained at DeSoto Correctional Insti-
tution, he had an epileptic seizure in a bathroom.
While Higgins convulsed from his seizure, Officer Louinette
Charleston, an uncertified trainee, saw him and called for help. Of-
ficer Jessica Tirado, a trained and certified correctional officer, re-
sponded; when she arrived, Higgins was no longer convulsing. Of-
ficer Tirado got him into “the recovery position” to prevent him
from harming himself. Higgins regained consciousness, became
combative with Officer Tirado, reached out with his mouth, and
bit her. While the seizure’s effects on his mental state caused him
to bite Officer Tirado, the biting was not part of an involuntary
convulsion.
Additional officers arrived, restrained Higgins, and took him
to the prison’s medical facility, where he calmed down and re-
ceived treatment. In treating Higgins, Nurse Lillian Vafi noted in
his records that he had no medical history that would explain his
behavior that morning. But the department had known about his
epilepsy since his first day in prison.
As a result of his behavior during the incident, Higgins was
charged with three disciplinary infractions: assaulting an officer
(for the biting), disobeying an order, and using illegal drugs. Hig-
gins had not used illegal drugs that morning. But his behavior was
consistent with drug use, and Officer Tirado smelled traces of the
synthetic marijuana compound K2 in the bathroom during the in-
cident. The disciplinary panel found that Higgins voluntarily used
illegal drugs and—either voluntarily or because of this drug use,
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not because of a seizure—disobeyed commands and bit Officer
Tirado. Higgins’s punishment for these infractions was seven and
a half months of disciplinary and administrative confinement and
close management.
During the investigation into the incident, both Higgins and
his then-fiancée Christina Kraus conveyed false information to
Warden Mark Jones, including that responding officers had beaten
up Higgins during the incident. Also, before and during the inves-
tigation, Higgins’s mother, Sarah Higgins, regularly called to com-
plain about various issues affecting her son’s treatment in prison,
including problems related to his epilepsy.
PROCEDURAL HISTORY
Higgins sued the department for compensatory damages
and attorney’s fees under Title II of the Americans with Disabilities
Act and section 504 of the Rehabilitation Act.1
The district court held a bench trial lasting three and a half
days. During Higgins’s case-in-chief, the district court heard testi-
mony from prison officials including Officer Charleston and War-
den Jones, medical staff including Nurse Vafi and the prison doctor
who treated Higgins, experts in epilepsy and autism, Higgins’s par-
ents, and Higgins. Higgins testified that, right when he first went
to prison, he tried K2 once thinking it was regular marijuana. He
1 Higgins also sued Warden Jones and four correctional officers, but because
none of those claims are at issue on appeal, we do not discuss them further.
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21-10065 Opinion of the Court 5
said he “inhaled two times, started feeling weird, and got into a big
argument over it with th[e] guy [who] gave [him] the marijuana.”
After that, Higgins explained, he never smoked anything at DeSoto
Correctional Institution again; he used dipping tobacco, instead.
During the department’s case-in-chief, Warden Jones and
three correctional officers—Officer Tirado, Sergeant Scott Landry,
and Officer Timothy Johnson—testified. Officer Johnson ex-
plained that he had personal experience with seizures through his
twenty-seven-year-old son’s medical condition: “There’s nothing
about the petit mal, grand mal, or tremor seizures that you can tell
me about. I witness it every day. . . . So I can recognize a seizure
automatically, sir. I’m not a doctor, but I’ve dealt with this for
[twenty-seven] years.” According to Officer Johnson, inmates on
K2 “have seizures,” “become combative,” bite, hit, “go crazy,” and
have to be subdued, and because the behaviors caused by K2 are
“similar” to behaviors caused by seizure conditions, officers would
not necessarily be able to tell the difference.
Officer Tirado testified that she was familiar with K2 from
her training and from her “experience of coming across K2” on the
job, that inmates use K2 “[w]herever they can try and hide from an
officer” including in the bathroom and the open dormitory, and
that K2 can make users “aggressive” or “laid-back” or leave them
“perfectly fine.” She had personal experience with seizures
through her father, she said. About the incident, she testified that
Higgins was not convulsing when she responded to the call about
his seizure, “there was [a] really strong smell of K2” in the
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bathroom where she found him, he had “bloodshot” eyes with “di-
lated” pupils, and he grabbed her hands and pulled and pushed her
with “a very strong grip” in what “was essentially a fight.”
Warden Jones, when asked at the end of all witness testi-
mony if he would take the same actions now if he “had it to do all
over,” said, “Yes, sir. . . . [F]rom what I’ve seen, I believe [Higgins’s
behavior] was from K2.”
Ruling from the bench, the district court found that Higgins
had an epileptic seizure and did not use illegal drugs, that he bit
Officer Tirado as a result of the seizure, and that none of the prison
staff responding to the incident assaulted him or beat him up—they
simply restrained him. The district court characterized Higgins as
“a poor historian, generally,” and “an especially poor historian”
about the events surrounding his seizures, not because he lied
about them but because his seizures affected his mental state. The
district court also found that, although the disciplinary panel came
to the wrong conclusion about Higgins’s drug use, it did so because
his behavior was consistent with drug use.
The district court concluded that the defendants did not in-
tentionally discriminate against Higgins: the department “was
wrong in concluding that this event was caused by drug use rather
than an epileptic seizure, but it wasn’t intentionally wrong and it
wasn’t deliberately indifferent.” “Indeed on this record,” the dis-
trict court continued, “a fact finder could reach a different conclu-
sion.” The district court explained that Warden Jones could have
reasonably concluded, based on the facts available to him, that
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21-10065 Opinion of the Court 7
Higgins bit an officer and disobeyed an order due to drug use. The
district court determined that, although the department’s investi-
gation was not “perfect . . . by any means,” Warden Jones did “as
best he could” sorting out the “crowd noise”—“a whole volume of
information” including “untrue assertions”—to arrive at the truth.
The district court emphasized that the department was “at most
negligent,” “not deliberately indifferent.”
Higgins moved to clarify the district court’s ruling, asking
about the deliberate indifference standard and about the depart-
ment’s duty to investigate his disability-based explanation for the
biting incident. The district court denied the motion to clarify and
issued an opinion on the merits summarizing its oral findings of
fact and conclusions of law and directing judgment for the depart-
ment.
Higgins moved to alter the judgment for the department.
He argued that the district court applied the wrong standard for
deliberate indifference in disability discrimination cases and that
the right standard was an objective test that required the depart-
ment to investigate further his disability-based explanation for the
incident. The disciplinary panel and Warden Jones were deliber-
ately indifferent, Higgins maintained, because they had notice of
his seizure condition and did nothing to investigate his defense—
they did not even review his medical records.
The district court denied the motion to alter the judgment
because Higgins was essentially seeking strict liability and the de-
partment was “at most negligent,” not willfully blind or
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deliberately indifferent. Warden Jones “considered all available in-
formation, including [Higgins’s] history of, and later treatment for,
epilepsy,” the district court found, and the conclusion that Higgins
bit Officer Tirado because he used drugs and not because he had a
seizure “was a good-faith conclusion based on consideration of, not
blindness to, the available information.”
DISCUSSION
On appeal, Higgins argues that the district court erred in
finding that the department was not deliberately indifferent to his
statutory rights. Higgins pursues two theories: actual knowledge
and constructive knowledge.2 Under the actual knowledge theory,
he contends that the department knew of his epilepsy and therefore
knew that it was substantially likely that he was punished for his
disability. Because the department continued to punish him any-
way, he says, it was deliberately indifferent as a matter of law. Un-
der the constructive knowledge theory, Higgins argues that the de-
partment did not know of his epilepsy because it breached its duty
to investigate when he provided it with specific evidence that he
was epileptic. The department was willfully blind, he says, so it can
be charged with constructive knowledge that it was substantially
likely that he was punished for his disability. According to Higgins,
because the department continued to punish him after it had this
2 We assume, without deciding, that a constructive knowledge theory of lia-
bility is available.
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21-10065 Opinion of the Court 9
constructive knowledge, it was deliberately indifferent as a matter
of law.
We normally review the district court findings of fact after a
bench trial for clear error and its conclusions of law de novo.
Knight v. Thompson, 797 F.3d 934, 942 (11th Cir. 2015). But Hig-
gins argues that we should review de novo whether the facts estab-
lished by the record constitute deliberate indifference. He cites
Keohane v. Florida Department of Corrections, 952 F.3d 1257 (11th
Cir. 2020), to argue that a prison official’s deliberate indifference is
a question of law, not fact.
In
Keohane, the majority opinion “appl[ied] de novo review
to the district court’s ultimate conclusion whether the objective
and subjective elements of a deliberate-indifference claim state an
Eighth Amendment violation” because “what the Eighth Amend-
ment means—and requires in a given case—is an issue squarely
within the core competency of appellate courts.”
Id. at 1272 n.8
(ellipses and quotation omitted). But, here, there is no constitu-
tional issue. We are not asked to say what the Constitution means
and requires. This is a compensatory damages claim under the
Americans with Disabilities Act and the Rehabilitation Act.
“To prevail on a claim for compensatory damages under ei-
ther the [Rehabilitation Act] or the [Americans with Disabilities
Act], a plaintiff must show that a defendant violated his rights un-
der the statutes and did so with discriminatory intent.”
McCullum
v. Orlando Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1146–47 (11th
Cir. 2014) (footnote omitted). “A plaintiff may prove
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10 Opinion of the Court 21-10065
discriminatory intent by showing that a defendant was deliberately
indifferent to his statutory rights.”
Id. at 1147. And “[t]o establish
deliberate indifference” to a plaintiff’s statutory rights, he “must
show that the defendant
knew that harm to a federally protected
right was substantially likely and
failed to act on that likelihood.”
Id. (quotations omitted).
Critically, “[w]hether a prison official had the requisite
knowledge of a substantial risk is a question of fact subject to
demonstration in the usual ways . . . .”
Farmer v. Brennan, 511 U.S.
825, 842 (1994),
quoted in McCullum, 768 F.3d at 1147. And “[d]is-
regard of the risk is also a question of fact that can be shown by
standard methods.”
Goebert v. Lee County, 510 F.3d 1312, 1327
(11th Cir. 2007).
These knowledge and disregard-of-risk findings, the
Keo-
hane majority explained, are “historical facts—
e.g. what happened,
who knew what, how did they respond”—that the district court is
“undoubtedly better suited than appellate courts to make” and that
are “entitled to deference.” 952 F.3d at 1272 n.8 (quoting, as exam-
ples of historical facts, the same language from
Farmer, 511 U.S. at
842, and
Goebert, 510 F.3d at 1327). So, we will give deference to
the district court’s findings of historical fact.
Here, after a three-and-a-half day bench trial, the district
court found that the department did not know that harm to Hig-
gins’s disability rights was substantially likely. The district court’s
did-not-know finding is entitled to deference because Higgins’s ac-
tual knowledge theory rests on the flawed premise that the
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department’s knowledge of his disability equates to its knowledge
of a substantial likelihood that he was punished because of his dis-
ability. This theory ignores that an epileptic inmate could use ille-
gal drugs and then experience seizure-like symptoms stemming
from the drug use. If an epileptic inmate, high on drugs, bit an
officer and disobeyed commands, then punishing him for his drug-
related misconduct would not violate his statutory rights—even if
punishing him for the biting and disobedience would violate his
rights had he not done drugs and instead suffered from epileptic
seizures causing the conduct. As the department puts it,
“[k]nowledge of a seizure disorder is not the same as knowledge of
a substantial likelihood of harm to a federally protected right. In-
mates may be punished for misconduct, especially misconduct un-
related to the disability.”
See Kornblau v. Dade County, 86 F.3d
193, 194 (11th Cir. 1996) (“The purpose of the [Americans with Dis-
abilities] Act is to place those with disabilities on an equal footing,
not to give them an unfair advantage.”).
The trial record amply supports the district court’s finding
that the department did not know of a substantial likelihood of
harm to Higgins’s Americans with Disabilities Act and Rehabilita-
tion Act rights. Warden Jones testified that he believed that Hig-
gins was punished for his drug use and resultant misconduct, not
for his disability. The district court credited Warden Jones’s testi-
mony and found that “there were facts from which [he] could rea-
sonably conclude” that drug use caused Higgins’s behavior because
“the events that were seen and reported were consistent with drug
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use.” Officer Johnson’s testimony about the similarities in the be-
haviors caused by K2 and those caused by seizure conditions sup-
ported this finding. And the record showed: Higgins used K2 in
prison and then “got into a big argument”; inmates on K2 can get
“combative” and “aggressive”; and Higgins was “combative,” “not
. . . convulsive,” when, with “bloodshot” eyes and “dilated” pupils,
he bit Officer Tirado in a bathroom that, to her, “really strong[ly]
smell[ed] of K2.” As the district court explained, from these facts,
it was reasonable for Warden Jones and the disciplinary panel to
conclude that Higgins’s seizure was caused by drug use and not his
disability.
As to Higgins’s constructive knowledge theory, it depends
on the department’s willful blindness to his disability. But the dis-
trict court found that Warden Jones “considered all available infor-
mation” and thus was not willfully blind. This finding is also enti-
tled to deference.
Warden Jones testified that before he approved Higgins’s
punishment for the disciplinary infractions, he knew that Higgins
claimed to have epilepsy and to have suffered an epileptic seizure
in the bathroom. Warden Jones also stated that in deciding
whether to approve the punishment, he reviewed the officers’ in-
cident reports, the use of force report, videos of the incident, the
disciplinary panel’s written basis for its decision, witness state-
ments, an email from Kraus stating that Higgins “ha[d] a long his-
tory of seizures” and that officers had “beaten him up thinking he
was on drugs,” and a statement from the medical unit that Higgins
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21-10065 Opinion of the Court 13
“did not have a seizure that day” but “was treated for a drug over-
dose.” And Warden Jones testified that he spoke with Higgins’s
mother about the incident and that “[w]henever [he] received in-
formation, [he] provided it to the appropriate department and
made appropriate reports.” This evidence supports the district
court’s finding that the department considered and rejected epi-
lepsy as a reason for the incident and was not willfully blind to Hig-
gins’s disability.
CONCLUSION
Because the district court found that the department did not
know that harm to Higgins’s disability rights was substantially
likely, and that the department was not willfully blind to his disa-
bility, and these findings were amply supported by the record and
entitled to deference, we affirm the district court’s judgment for
the department on Higgins’s Americans with Disabilities Act and
Rehabilitation Act claims.
AFFIRMED.
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