Bretton Westmoreland v. BUTLER COUNTY, KENTUCKY; ROCKY W. TYREE, individually

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0118p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRETTON WESTMORELAND,
Plaintiff-Appellant,
v.
BUTLER COUNTY, KENTUCKY; ROCKY W. TYREE,
individually,
Defendants-Appellees.
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No. 21-5168
On Petition for Rehearing En Banc.
United States District Court for the Western District of Kentucky at Bowling Green.
No. 1:19-cv-00073—Gregory N. Stivers, District Judge.
Decided and Filed: June 2, 2022
Before: CLAY, GIBBONS, and BUSH, Circuit Judges.
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COUNSEL
ON PETITION FOR REHEARING EN BANC: Charles E. English, Jr., John A. Sowell,
ENGLISH, LUCAS, PRIEST & OWSLEY, LLP, Bowling Green, Kentucky, for Appellees.
ON RESPONSE: Gregory A. Belzley, BELZLEY, BATHURST & BENTLEY, Prospect,
Kentucky, for Appellant.
The court issued an order denying the petition for rehearing en banc. BUSH, J. (pp. 3–5),
delivered a separate opinion dissenting from the denial of the petition for rehearing en banc.
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No. 21-5168 Westmoreland v. Butler County, et al. Page 2
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ORDER
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The court received a petition for rehearing en banc. The original panel has reviewed the
petition for rehearing and concludes that the issues raised in the petition were fully considered
upon the original submission and decision. The petition then was circulated to the full court.
Less than a majority of the judges voted in favor of rehearing en banc.
Therefore, the petition is denied.

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No. 21-5168 Westmoreland v. Butler County, et al. Page 3
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DISSENT
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JOHN K. BUSH, Circuit Judge, dissenting from the denial of rehearing en banc. For
many years, our circuit has applied the deliberate-indifference standard as set forth in Farmer v.
Brennan, 511 U.S. 825 (1994), to evaluate pretrial detainees’ claims under the Fourteenth
Amendment. See, e.g., Beck v. Hamblen County, 969 F.3d 592, 600–01 (6th Cir. 2020); Richko
v. Wayne County, 819 F.3d 907, 915 (6th Cir. 2016). Last year, however, a split panel in
Brawner v. Scott County, 14 F.4th 585 (6th Cir. 2021), determined that the Supreme Court’s
decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015), permitted deviation from our circuit
precedent and thus an abandonment of the Farmer deliberate-indifference standard in the
medical-needs context. See Brawner v. Scott County, 18 F.4th 551, 551–57 (6th Cir. 2021)
(Readler, J., dissenting from the denial of rehearing en banc). Since then, our circuit has
struggled with how to apply the Brawner test in medical-needs cases. See, e.g., Hyman v. Lewis,
27 F.4th 1233, 1237 (6th Cir. 2022); Smith v. Boyd Cnty. Fiscal Ct., No. CV 20-14-HRW, 2022
WL 992768, at *7 (E.D. Ky. Mar. 31, 2022). Did Brawner obviate an inquiry into defendants’
mental states? See Britt v. Hamilton County, No. 21-3424, 2022 WL 405847, at *6–7 (6th Cir.
Feb. 10, 2022) (Clay, J., dissenting). Did it merely modify that inquiry? See Greene v.
Crawford County, 22 F.4th 593, 606 (6th Cir. 2022). And in so doing, did Brawner leave a
subjective inquiry in place? See Trozzi v. Lake County, 29 F.4th 745, 754–55 (6th Cir. 2022).
The panel majority’s decision in this case represents only the latest example of the post-
Brawner confusion. See generally Westmoreland v. Butler County, 29 F.4th 721 (6th Cir. 2022).
Much as Brawner itself abrogated circuit precedent to reject the deliberate-indifference standard
in the medical-needs context, so too the panel majority here abrogated circuit precedent to reject
the standard in the failure-to-protect context. See id. at 729–30. And it did so with a novel and
ambiguous test that may substantially expand officials’ liability and render the law more difficult
for them to discern. The jail administration problem is exacerbated because many pretrial
detainees and post-conviction prisoners are housed in the same facilities. See, e.g., Dep’t of
Justice, Bureau of Justice Statistics, T. Minton & Z. Zeng, Jail Inmates in 2020 – Statistical
Tables (2021). I query the workability of a standard that changes an official’s liability for the

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same action for two individuals with differing trial statuses housed in the same facility. And I
fear that our current trajectory will soon undermine the Eighth Amendment.
Moreover, the panel majority never defined its vague requirement of an “intentional” (but
not deliberately indifferent) decision by the defendant regarding the “conditions” under which a
plaintiff was confined, see Westmoreland, 29 F.4th at 738–40 (Bush, J., dissenting), whether
liability may flow from merely but-for causation or, if proximate causation is required, whether
the liability extends to multiple officials, see id. at 740–41 (Bush, J., dissenting), or how this new
test differs from a de facto (and impermissible) negligence standard under the color of “civil
recklessness,” see id. at 740 (Bush, J., dissenting); see also Kingsley, 576 U.S. at 396
(“[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional
due process.” (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998))). The panel
majority compounded this confusion by “holding” that a plaintiff must show that “a defendant
officer [ ] act[ed] intentionally in a manner that puts the plaintiff at substantial risk of harm,
without taking reasonable steps to abate that risk, and by failing to do so actually cause[d] the
plaintiff’s injuries.” Id. at 729. Because the panel majority declined to clarify these ambiguous
elements and statements, I fear that the Westmoreland test will add to the muddle that is our
current Fourteenth Amendment deliberate-indifference jurisprudence.
The Supreme Court has not addressed the deliberate-indifference issue since its 2015
Kingsley decision, and it has declined petitions to do so. See, e.g., Strain v. Regalado, 977 F.3d
984 (10th Cir. 2020), cert. denied, 142 S. Ct. 312 (2021); Castro v. County of L.A., 833 F.3d
1060 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 831 (2017). This appears to be despite
the development of a sizable circuit split on the question whether Kingsley abrogated the
deliberate-indifference standard for pretrial detainees’ claims. See, e.g., Darnell v. Pineiro,
849 F.3d 17, 35 (2d Cir. 2017) (“The same objective analysis [from Kingsley] should apply to an
officer’s appreciation of the risks associated with an unlawful condition of confinement in a
claim for deliberate indifference under the Fourteenth Amendment.”); Cope v. Cogdill, 3 F.4th
198, 207 n.7 (5th Cir. 2021) (“Since Kingsley discussed a different type of constitutional
claim[, excessive force], it did not abrogate our deliberate-indifference precedent.”); Kemp v.
Fulton County, 27 F.4th 491, 495 (7th Cir. 2022) (“Following Kingsley . . . a plaintiff such as
Kemp challenging the conditions of his pretrial detention need show only that a defendant’s

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No. 21-5168 Westmoreland v. Butler County, et al. Page 5
conduct was ‘objectively unreasonable.’” (citation omitted)); Whitney v. City of St. Louis,
887 F.3d 857, 860 n.4 (8th Cir. 2018) (“Kingsley does not control because it was an excessive
force case, not a deliberate indifference case[.]”); Castro, 833 F.3d at 1070 (“[W]e are persuaded
that Kingsley applies, as well, to failure-to-protect claims brought by pretrial detainees against
individual defendants under the Fourteenth Amendment.”); Strain, 977 F.3d at 991 (“We decline
to extend Kingsley to Fourteenth Amendment deliberate indifference claims[.]”); Dang v. Sheriff,
Seminole Cnty., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017) (rejecting modification of the
deliberate-indifference standard because “Kingsley involved an excessive force claim”). I thus
share the hope of Judge Readler, see Brawner v. Scott County, 18 F.4th at 557 (Readler, J.,
dissenting from the denial of rehearing en banc), that the Court will soon step in to clarify the
proper standard under the Fourteenth Amendment. And it indeed may be soon, as there are
currently petitions for writs of certiorari pending before the Court in Brawner and Cope.
Brawner v. Scott County, petition for cert. pending, No. 21-1210 (filed Mar. 4, 2022); Cope v.
Cogdill, petition for cert. pending, No. 21-783 (filed Nov. 24, 2021).
Our circuit’s decision to deny rehearing en banc in this case, like the similar decision
made in Brawner, highlights the need for the Supreme Court to provide guidance. I respectfully
dissent.
ENTERED BY ORDER OF THE COURT
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Deborah S. Hunt, Clerk

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