Lucinda Lovett v. LANDON HERBERT and ZACHARY OVERTON

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1668
LUCINDA L OVETT and MICHAEL LOVETT ,
Co-Personal Representatives of
the Estate of Daniel J. Martin,
Plaintiffs-Appellees,
v.
LANDON H ERBERT and
ZACHARY OVERTON ,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 15 C 63 — William T. Lawrence, District Judge.
____________________
A RGUED A PRIL 20, 2018 — D ECIDED OCTOBER 29, 2018
____________________
Before S YKES , and BARRETT , Circuit Judges, and D URKIN, Dis-
trict Judge.*
D URKIN, District Judge. On December 13, 2013, Daniel Martin
* The Honorable Thomas M. Durkin, Northern District of Illinois, sit-
ting by designation.

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2 No. 17-1668
was arrested for drunk driving and taken to the jail in Clay
County, Indiana. While there, Martin fell out of an upper
bunk bed, suffering injuries that eventually led to his death
several months later. Martin’s estate sued Clay County cor-
rectional officers Landon Herbert and Zachary Overton who
were on duty at the jail that night. The district court denied
the Officers’ motion for summary judgment on qualified im-
munity. The Officers appeal that order.
I. Background
When he arrived at the jail, Martin was booked by Officers
Herbert and Overton. Officer Herbert was familiar with Mar-
tin from previous alcohol-related arrests. Martin’s booking
paperwork noted that he had a blood-alcohol content of
0.16%. (When he was subsequently taken to the hospital, his
blood-alcohol content was measured at 0.22%.) The district
court found that Officer Herbert “smelled alcohol on Martin,
but neither [Officer] Herbert nor [Officer] Overton observed
any slurred speech or stumbling on Martin’s part.” In state-
ments made to a detective investigating the incident, Officer
Herbert said he could tell Martin was intoxicated “because he
seemed slow,” whereas Officer Overton said that if he had not
smelled alcohol then he would not have known that Martin
was intoxicated. The district court also noted that “[a]fter
Martin was booked in and fingerprinted, he asked to retrieve
a phone number from his cell phone so that he could arrange
for his dog to be fed.”
The receiving area of the jail, where new arrestees are tem-
porarily detained, has six two-person holding cells (cells 1-6),
one padded cell, one single-person medical isolation cell, and

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No. 17-1668 3
a “drunk tank” with a capacity for 14 people.1 The two-person
cells each contain a bunk bed. On the night in question, cell 1
was occupied by a male inmate from another county who was
a safety concern; cell 2 was occupied by two male inmates; cell
3 held one female county inmate; cell 4 held one male inmate;
cell 5 held one female federal inmate; and cell 6 held one male
county inmate who was a safety concern. 2 The drunk tank
was occupied by six or nine federal immigration detainees, 3
and did not contain bunk beds. The medical cell was occu-
pied, but the padded cell was not.
Officer Overton decided to place Martin in cell 4, which
was occupied by one male inmate. The other inmate in cell 4
had recently had surgery and required the bottom bunk. Mar-
tin told Officer Herbert that he was too drunk to get up to the
upper bunk. 4 Officer Herbert disputes that Martin cited his
intoxication as the reason for this inability. Officer Herbert
says he told Martin to take the mattress off the upper bunk
1 “Drunk tank” is a slang expression for a jail cell or separate holding
facility dedicated to accommodating detainees who are intoxicated, where
they are held until sober.
2 The district court did not state whether the inmates in cells 2 and 4
were there for county or federal, charges or crimes.
3 The district court’s opinion stated there were six immigration detain-
ees in the drunk tank, but the parties agree the evidence shows there were
nine.
4 The evidence of some of Martin’s statements underlying the parties’
factual disputes are interrogatory answers based on statements Martin
made to his wife before he passed away. Since we find that the Officers
are entitled to qualified immunity even resolving all factual disputes in
favor of the Estate, it is unnecessary to address any hearsay issues with
regard to these statements.

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4 No. 17-1668
and put it on the floor. The Estate disputes this. Martin’s cell-
mate testified he heard Officer Herbert tell Martin he could
sleep on the floor. The mattresses are thin and not heavy, and
are easily moved by one person. However, it was against the
jail’s policy to place mattresses on the floor.
Officer Overton decided to place Martin in cell 4 rather
than the drunk tank because the immigration detainees were
about to be transferred. The Officers intended to move Martin
to the drunk tank after the immigration detainees were re-
moved.
Martin was not placed in the padded cell because the Of-
ficers had reason to anticipate that a particular inmate in the
long-term holding section of the jail would need to be sepa-
rated that night. It is not clear why the two female detainees
being held in separate cells were not placed in the same cell
so Martin could have access to a bottom bunk in one of their
vacated cells.
As shown on the surveillance video, shortly after being
placed in cell 4, Martin climbed onto the upper bunk. About
30 minutes after being placed in the cell, Martin fell while at-
tempting to climb down. He hit his head on a table on the op-
posite wall, damaging his spinal cord and paralyzing him
permanently. He died five months later.
Martin’s Estate sued Officers Herbert and Overton for fail-
ing to provide adequate medical care in violation of the
Fourth Amendment. The Estate argued that a person with
Martin’s level of intoxication should not have been assigned
to a cell where the only open bunk was an upper bunk.

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No. 17-1668 5
The Officers moved for summary judgment and sought
qualified immunity for their conduct. The district court de-
nied the motion on the merits, explaining that because:
there are competing versions of what occurred
and whether [Officers] Overton and/or Herbert
knew or should have ascertained Martin’s level
of intoxication before assigning him to a cell,
and the Court must view the facts in the light
most favorable to the Plaintiffs, the Court finds
that there are questions of fact regarding
whether Defendants Herbert’s and Overton’s
actions were objectively unreasonable that pre-
clude summary judgment on the Plaintiffs’
Fourth Amendment claims.
The district court also denied Officers Herbert and Over-
ton qualified immunity because:
the factual disputes identified above regarding
the officers’ knowledge bear directly upon
whether it was objectively reasonable for the in-
dividual Defendants to believe they acted in
compliance with clearly established law. There-
fore, the Court cannot decide at this stage of the
proceedings whether their action clearly vio-
lated established law. Summary judgment is not
available where factual disputes infuse issues
on which entitlement to immunity turns.
Officers Herbert and Overton filed this interlocutory ap-
peal on the qualified immunity issue.

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6 No. 17-1668
II. Standard of Review
A district court’s denial of qualified immunity is reviewed
de novo. See Hurt v. Wise, 880 F.3d 831, 841 (7th Cir. 2018). We
“draw all factual inferences in favor of Plaintiffs.” Orlowski v.
Milwaukee County, 872 F.3d 417, 421 (7th Cir. 2017).
III. Analysis
A. Jurisdiction
Ordinarily, interlocutory decisions such as the denial of
summary judgment are not subject to appellate review. See
Hurt, 880 F.3d at 839 (citing 28 U.S.C. § 1291). However, “there
is a limited exception for defendants who were denied quali-
fied immunity on summary judgment.” Hurt, 880 F.3d at 839
(citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). “We may
consider such appeals to the extent that the defendant public
official presents an ‘abstract issue of law.’” Green v. Newport,
868 F.3d 629, 632 (7th Cir. 2017) (quoting Huff v. Reichert, 744
F.3d 999, 1004 (7th Cir. 2014)). In order to present such an is-
sue for appeal, the “defendant may accept, for purposes of the
qualified immunity inquiry, the facts and reasonable infer-
ences favorable to the opponent of immunity, and argue that
those facts fail to show a violation of clearly established law.”
Hurt, 880 F.3d at 839 (citing Gutierrez v. Kermon, 722 F.3d 1003,
1009 (7th Cir. 2013)).
The Estate argues that appellate jurisdiction is lacking be-
cause the district court found material factual disputes. The
parties dispute Martin’s level of intoxication and the Officers’
knowledge of it. They also dispute the availability of other
cells, and the level of risk an upper bunk created. The district
court held that these disputes precluded summary judgment
on both the question of whether the Officers’ conduct violated

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No. 17-1668 7
the Fourth Amendment and the question of whether they are
entitled to qualified immunity.
This holding does not deprive us of jurisdiction, however,
because the district court erroneously conflated two distinct
inquiries regarding reasonableness. The Supreme Court has
explained that “it does not suffice for a court simply to state
that an officer may not [act] unreasonabl[y] … , deny qualified
immunity, and then remit the case for a trial on the question
of reasonableness.” Kisela v. Hughes, 138 S. Ct. 1148, 1153
(2018). Although questions of (1) Fourth Amendment liability
and (2) qualified immunity both involve an analysis of the
“reasonableness” of a defendant’s conduct, the objects of
those analyses are different. As we have explained in prior
cases, “’the substantive constitutional standard protects [a de-
fendant officer’s] reasonable factual mistakes [whereas] qual-
ified immunity protects [the officer] from liability where [he]
reasonably misjudge[d] the legal standard.’” Weinmann v.
McClone, 787 F.3d 444, 450 (7th Cir. 2015) (quoting Catlin v.
City of Wheaton, 574 F.3d 361, 369 (7th Cir. 2009)); see also Sauc-
ier v. Katz, 533 U.S. 194, 205 (2001) (“If an officer reasonably,
but mistakenly, believed that a suspect was likely to fight
back, for instance, the officer would be justified in using more
force than in fact was needed …. [By contrast,] [t]he concern
of the immunity inquiry is to acknowledge that reasonable
mistakes can be made as to the legal constraints on particular
police conduct.”).
This distinction allows us to work around the factual dis-
putes identified by the district court by assuming that the Of-
ficers knew Martin was severely intoxicated and that cells
without upper bunks were available. Making these assump-
tions, we can properly exercise jurisdiction to determine

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8 No. 17-1668
whether providing a severely intoxicated person access to an
upper bunk, in a cell where the lower bunk was occupied, vi-
olates clearly established law for qualified immunity pur-
poses.
B. Qualified Immunity
“Put simply, qualified immunity protects all but the
plainly incompetent or those who knowingly violate the law.”
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation
marks and citation omitted). In practice, this means that “[a]
state official is protected by qualified immunity unless the
plaintiff shows: ‘(1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly estab-
lished’ at the time of the challenged conduct.’” Kemp v. Liebel,
877 F.3d 346, 350 (7th Cir. 2017) (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 735 (2017)). “We have discretion to choose which
prong to address first, and since the second prong is disposi-
tive here, we address only whether the right at issue was
clearly established.” Mason-Funk v. City of Neenah, 895 F.3d
504, 507-08 (7th Cir. 2018) (citing Pearson v. Callahan, 555 U.S.
223, 236 (2009)).
A right is “clearly established” when it is “‘sufficiently
clear that every reasonable official would have understood
that what he is doing violates that right.’” Mullenix, 136 S. Ct.
at 308 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).
Such knowledge can be imputed to a defendant officer in two
scenarios. See Reed v. Palmer, --- F.3d ---, 2018 WL 4870351, at
*3-4 (7th Cir. Oct. 9, 2018). First, if we or the Supreme Court
have previously held that conduct analogous to the defendant
officer’s actions constitutes a violation of the right at issue, the
officer will not be entitled to qualified immunity. See Mason-
Funk, 895 F.3d at 508 (we ask whether “‘existing precedent

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No. 17-1668 9
[has] placed the statutory or constitutional question beyond
debate.’” (quoting Kisela, 138 S. Ct. at 1152)); Kemp, 877 F.3d at
351 (“‘[W]e look first to controlling Supreme Court precedent
and our own circuit decisions on the issue.’” (quoting Jacobs
v. City of Chicago, 215 F.3d 758, 767 (7th Cir. 2000))). Second, in
the “rare” case when the defendant officer’s conduct is so
“egregious” that it can be said to “obviously” violate the right
at issue, “the plaintiffs may not be required to present the
court with any analogous cases.” Jacobs, 215 F.3d at 767; see
also Abbott v. Sangamon County, 705 F.3d 706, 723-24 (7th Cir.
2013) (“a closely analogous case” is not required to demon-
strate violation of clearly established law when “the conduct
is so egregious and unreasonable that … no reasonable [offi-
cial] could have thought he was acting lawfully”). In such
cases, the general statement of the right at issue can provide
the defendant officer sufficient notice that his actions were il-
legal. See Kisela, 138 S. Ct. at 1153 (“‘Of course, general state-
ments of the law are not inherently incapable of giving fair
and clear warning to officers.’ [They can] create clearly estab-
lished law [in] an ‘obvious case.’” (quoting White v. Pauly, 137
S. Ct. 548, 552 (2017)).
Both methods of inquiry into whether a right is “clearly
established … ‘must be undertaken in light of the specific con-
text of the case, not as a broad general proposition.” Mullenix,
136 S. Ct. at 308 (quoting Brosseau v. Haugen, 543 U.S. 194, 198
(2004)). “The dispositive question is ‘whether the violative na-
ture of particular conduct is clearly established.’” Mullenix, 136
S. Ct. at 308 (quoting Ashcroft, 563 U.S. at 742) (emphasis in
Mullenix). “Such specificity is especially important in the
Fourth Amendment context, where the Court has recognized
that ‘[i]t is sometimes difficult for an officer to determine how

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10 No. 17-1668
the relevant legal doctrine … will apply to the factual situa-
tion the officer confronts.’” Mullenix, 136 S. Ct. at 308 (quoting
Saucier, 533 U.S. at 205)).
Here, the right at issue is a pre-arraignment detainee’s
Fourth Amendment right to “objectively reasonable” treat-
ment. We have explained that this right is assessed with ref-
erence to the defendant officer’s notice of the detainee’s med-
ical need, the seriousness of the medical need, the scope of the
alleged required treatment, and police interests. See Williams
v. Rodriguez, 509 F.3d 392, 403 (7th Cir. 2007); see also Otis v.
Demarasse, 886 F.3d 639, 645 (7th Cir. 2018). The Estate argues
that the Officers obviously violated this right by giving a se-
verely intoxicated person access to an upper bunk. The Offic-
ers argue that only analogous precedent could have put them
on notice that their conduct was unreasonable, but that no
such precedent exists.
Examination of the specific context of the Officers’ con-
duct in this case shows that it was not “egregiously” or “ob-
viously” unreasonable. Martin’s severe intoxication did not
necessarily indicate imminent or ongoing danger, such that
giving access to an upper bunk was patently unreasonable.
Although severe intoxication impairs a person’s physical and
mental abilities, the level of impairment varies by individual,
and it is undisputed that Martin was communicating with the
Officers and moving around under his own capacity prior to
being left in the cell. Further, impairment from intoxication
eventually decreases with time. We and the Supreme Court
have required a much higher level of obvious risk to deny
qualified immunity based on the Fourth Amendment’s gen-
eral requirement of reasonable conduct with respect to detain-
ees. See, e.g., Hope v. Pelzer, 536 U.S. 730, 741 (2002) (denying

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No. 17-1668 11
qualified immunity because handcuffing prisoner to hitching
post for hours in summer sun violated clearly established
law); Estate of Perry v. Wenzel, 872 F.3d 439, 460 (7th Cir. 2017),
cert. denied, 138 S. Ct. 1440 (Apr. 2, 2018) (an officer who
“fail[ed] to take any action in light of a [detainee’s] serious
medical need” obviously violated the Fourth Amendment
and was not entitled to qualified immunity) (emphasis in
original).
Additionally, the facts of this case in particular show that
there were a number of intervening events between the Offic-
ers’ decision to place Martin in a cell with an upper bunk and
Martin’s injury: Martin decided to climb into the upper bunk
rather than taking the mattress off the upper bunk and sitting
or sleeping on the floor; Martin attempted to climb down
from the upper bunk before he was sufficiently sober; Martin
happened to fall; Martin happened to hit his head and seri-
ously injure himself when he fell. None of these events is so
obviously foreseeable that the Fourth Amendment’s require-
ment of reasonable conduct would have given the Officers’
notice that their actions violated that standard.
The Estate also identifies several cases concerning treat-
ment of people in jail in an attempt to establish that the Offic-
ers conduct fell outside the bounds of what courts have deter-
mined to be reasonable conduct. 5 In Estate of Miller v. Mar-
berry, we affirmed summary judgment for a prison warden
5 A number of these cases concern convicted inmates (rather than pre-
trial detainees like Martin) protected by the Eighth Amendment’s deliber-
ate indifference standard, which imposes a higher burden of proof on
plaintiffs than the Fourth Amendment reasonableness standard at issue
here. See Williams, 509 F.3d at 403. Of course, conduct that is deliberately

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12 No. 17-1668
and a guard when an inmate with a brain tumor fell out of a
upper bunk. 847 F.3d 425 (7th Cir. 2017). As an initial matter,
this case cannot have served to clearly establish Martin’s
Fourth Amendment right because it concerned Eighth
Amendment rights and was decided after the events in this
case. In Marberry, we held that the inmate’s lower-bunk per-
mit and the defendants’ knowledge that he had a brain tumor
did not constitute knowledge of a serious medical condition
requiring a lower bunk. Id. at 428-29. The Estate argues the
case can be parsed to show that when an inmate has a more
obvious medical condition like Martin’s, the Officers should
know that they should not assign that inmate an upper bunk.
But this is too fine an analysis on which to base a finding of
clearly established law, and we are skeptical that a decision
on the merits (not addressing qualified immunity), finding
that defendant officials did not violate an inmate’s rights, can
clearly establish when a right is violated.
The same can be said for Estate of Simpson v. Gorbett in
which we affirmed a grant of summary judgment to jail
guards who assigned a narrow (2.5 foot wide) upper bunk to
an obese inmate. 863 F.3d 740 (7th Cir. 2017). The Estate ar-
gues that this case clearly established Martin’s rights in this
case because the jail guards in Gorbett assigned the inmate to
the drunk tank for 13 hours before assigning him to a cell. Af-
ter 13 hours, the inmate no longer appeared drunk, but he suf-
fered a withdrawal seizure and fell out of the bunk. But like
Marberry, this case is too recent to have informed the Officers
here. And even if the case was timely, it does not establish that
indifferent is also unreasonable, but conduct that is not deliberately indif-
ferent may still be unreasonable. We consider the relevance of these cases
with that principle in mind.

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No. 17-1668 13
the Officers were unreasonable in not assigning Martin to the
drunk tank, as the inmate’s physical characteristics and the
circumstances of the cell here are entirely different.
In Estate of Clark v. Walker, we affirmed a denial of quali-
fied immunity where the defendant officer “chose to do noth-
ing” despite his knowledge that the inmate was a suicide risk.
865 F.3d 544 (7th Cir. 2017); see also Hall v. Ryan, 957 F.2d 402
(7th Cir. 1992) (affirming denial of summary judgment to de-
fendants on claim of failure to take action regarding suicide
risk). A suicide risk is simply not analogous to permitting an
intoxicated person access to an upper bunk, and there is no
suggestion that Martin was a suicide risk. We cannot expect
officers considering how to treat an intoxicated person to ex-
trapolate the reasonableness of their actions from a court de-
cision about treatment of a person who is a suicide risk. That
would require the officers to measure the extent of the risk for
a suicidal person against the risk associated with an intoxi-
cated person. Such an abstract analysis goes beyond the con-
sideration of particular facts required by the Supreme Court
and cannot serve to clearly establish the law. The same anal-
ysis applies to the Estate’s citation of an Eighth Circuit case
addressing an inmate with a seizure condition. See Phillips v.
Jasper County Jail, 437 F.3d 791 (8th Cir. 2006).
The rest of the cases the Estate cites are district court deci-
sions that “‘have no weight as precedents and therefore can-
not clearly establish a constitutional right.’” Mason-Funk, 895
F.3d at 509 (quoting Boyd v. Owen, 481 F.3d 520 (7th Cir.
2007)). Contrary to the Estate’s argument, the relevance of
“trends” outside this circuit, see Gill v. City of Milwaukee, 850
F.3d 335, 341 (7th Cir. 2017), is not an exception to the prohi-
bition on the use of district court decisions.

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14 No. 17-1668
Therefore, even drawing all factual inferences in its favor,
the Estate has failed to show that the Officers’ conduct vio-
lated clearly established law. For that reason, the Officers are
entitled to qualified immunity.
IV. Conclusion
The denial of the Officers’ motion for summary judg-
ment is REVERSED and REMANDED with instructions to the
district court to enter judgment for the Officers on the Estate’s
Fourth Amendment claim.

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