Thompson v. Cope

Decision Date14 August 2018
Docket NumberNo. 17-3060, No. 18-1223,17-3060
Citation900 F.3d 414
Parties Billie THOMPSON, as personal representative of the Estate of Dusty Heishman, Plaintiff-Appellee, v. Lance COPE, Defendant-Appellant. Billie Thompson, as personal representative of the Estate of Dusty Heishman, Plaintiff-Appellee, v. Lance Cope and Health and Hospital Corporation of Marion County, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Scott Leroy Barnhart, Attorney, Brooke Smith, Attorney, Keffer Barnhart LLP, Suite 400, 230 E. Ohio Street, Indianapolis, IN 46204, for Plaintiff-Appellee.

Bryan H. Babb, Attorney, Philip R. Zimmerly, Attorney, Mary M. Ruth Feldhake, Attorney, Bose McKinney & Evans, LLP, Suite 2700, 111 Monument Circle, Indianapolis, IN 46204-0000, for Defendant-Appellant.

Before Flaum, Manion, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

We address here two interlocutory appeals in a case stemming from the death of Dusty Heishman. In Indianapolis in October 2014, Heishman was high on amphetamines and running around naked in the street. Police responded and tried to subdue him. A paramedic arrived on the scene and administered a sedative to Heishman so he could be moved to an ambulance to be taken to an arrestee holding room at a hospital. Soon, Heishman’s heart and breathing stopped. Despite efforts to revive him, he died several days later.

Heishman’s estate sued, asserting federal Fourth Amendment claims and state-law tort claims. The district court denied qualified immunity to the paramedic on the excessive force claim. The court also allowed all but one of the state-law claims to proceed against the paramedic and the hospital without requiring the plaintiff estate to comply with the Indiana Medical Malpractice Act, Ind. Code § 34-18-1-1 et seq. The denial of qualified immunity is appealable as to legal issues, and the district court certified for interlocutory appeal under 28 U.S.C. § 1292(b) the state-law question whether the estate’s claims are covered by the Indiana Medical Malpractice Act.

We reverse as to both issues. The paramedic is entitled to qualified immunity on the excessive force claim. Case law did not (and does not) clearly establish that a paramedic can violate a patient-arrestee’s Fourth Amendment rights by exercising medical judgment to administer a sedative in a medical emergency. All of the state-law claims are subject to the substantive terms of Indiana’s Medical Malpractice Act, including damage caps and the requirement to submit the claim to a medical review panel before suit is filed. The undisputed facts show that the paramedic was exercising medical judgment in dealing with a patient in a medical emergency.

I. Factual and Procedural Background

The district court stated the relevant facts in its summary judgment order. Thompson v. City of Indianapolis , 2017 WL 4248006, at *1–3 (S.D. Ind. Sept. 25, 2017). "Our review on appeal from denial of summary judgment based on qualified immunity is limited to questions of law, so we recount the facts as stated by the district court in its assessment of the summary judgment record." Estate of Clark v. Walker , 865 F.3d 544, 547 (7th Cir. 2017), citing Locke v. Haessig , 788 F.3d 662, 665 (7th Cir. 2015) ; see also Stinson v. Gauger , 868 F.3d 516, 522–28 (7th Cir. 2017) (en banc) (no jurisdiction over appeal of denial of qualified immunity where defendants challenged facts and inferences on appeal).

On October 5, 2014, paramedic Lance Cope was dispatched to the south side of Indianapolis for an animal bite. When he arrived, he learned that the bite was not from an animal but from a man, Dusty Heishman. Before Cope could treat the bite patient, an Indianapolis police officer approached Cope and said he needed him to "take a look" at Heishman, who "was being combative."

Heishman was naked and lying prone in the middle of the street. His hands were cuffed behind his back and his ankles were shackled together. He had been tased by a police officer and had been punched and choked in a physical struggle with two civilians who helped the officer wrestle Heishman to the ground.

The police had responded to a report that Heishman was naked, belligerent, and roaming the neighborhood. The responding officer noticed that Heishman was sweating profusely and appeared to be on drugs. Heishman approached the officer’s vehicle despite the officer’s oral commands to calm down and sit down on the ground. The officer tased Heishman, but Heishman pulled the wires out of the taser, jumped back onto his feet, and tried to get into the officer’s car. Despite oral commands to calm down or sit down, Heishman stared through the officer and repeatedly said "they’re trying to kill me, they’re trying to kill me." After more officers arrived, they tried to put Heishman in the back of a police transport wagon. Heishman resisted and knocked the officers off balance, but the officers ultimately got Heishman back on the ground and held him there. Heishman was still struggling and fighting the officers who were holding him down. That was the scene when paramedic Cope arrived.

Cope assessed Heishman. After checking Heishman’s airway, breathing, and pulse, he suspected Heishman was on amphetamines

. The district court relied on Cope’s report (which is consistent with his deposition testimony), which said he injected Heishman with a sedative, Versed, as a "chemical restraint for patient and crew safety." While the sedative took effect, Cope visually monitored Heishman by watching his breathing and watching for any struggling. Cope did not use medical equipment to monitor Heishman’s vital signs. The medics and the officers picked Heishman up, laid him on his back on a cot, covered him with a blanket, and moved him toward a waiting ambulance.

The darkness (it was after 8:00 p.m. on an October night) made it difficult for Cope to make an assessment. But once Heishman was in the ambulance, Cope saw that Heishman was not breathing and found he had no pulse. Seven minutes of CPR restored Heishman’s heartbeat and breathing, but he remained unconscious. Heishman lost brain function and died eight days later.

Heishman’s estate sued Cope, the Health and Hospital Corporation of Marion County ("the hospital"), and other defendants in state court. The estate brought claims under 42 U.S.C. § 1983 against Cope in his individual and official capacities for excessive force, deliberate indifference, and failure to protect/intervene. The estate also brought six state-law claims against Cope, the hospital, or both: wrongful death, damages resulting from injuries sustained before Heishman’s death, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, and battery. The defendants removed the case to federal court based on federal-question jurisdiction over the constitutional claims, with supplemental jurisdiction over the state-law claims.

Cope and the hospital moved to dismiss the state-law claims for what they called lack of subject-matter jurisdiction, arguing that Indiana’s Medical Malpractice Act required the estate to take those claims before a medical review panel before filing suit. The district court dismissed the wrongful death claim against the hospital but denied the motion with respect to the other state-law claims. Thompson v. City of Indianapolis , 2016 WL 4541434, at *4 (S.D. Ind. Aug. 31, 2016). The defendants moved to reconsider, and the district court denied the motion. Thompson v. City of Indianapolis , 2017 WL 4155224 (S.D. Ind. Sept. 19, 2017). The district court certified for interlocutory appeal the question whether the Medical Malpractice Act applied to the estate’s state-law claims. Thompson v. Burnett , 2017 WL 6606536 (S.D. Ind. Dec. 27, 2017), which we agreed to accept under 28 U.S.C. § 1292(b).

Cope moved for summary judgment on the federal constitutional claims. The district court granted the motion on the official-capacity claims and the claims against Cope for deliberate indifference and failure to protect/intervene, but denied it on the excessive force claim against Cope in his individual capacity. Thompson , 2017 WL 4248006, at *4–10. Cope appealed, and we consolidated that appeal with the interlocutory appeal on the state malpractice issue.

II. Analysis
A. Limits of Jurisdiction Over Denial of Qualified Immunity

Denials of summary judgment are usually treated as unappealable interlocutory orders. Estate of Clark , 865 F.3d at 549, citing 28 U.S.C. § 1291, and Ortiz v. Jordan , 562 U.S. 180, 188, 131 S.Ct. 884, 178 L.Ed.2d 703 (2011). When qualified immunity is denied for legal reasons, however, the collateral-order doctrine gives us jurisdiction over the legal issue. Id. , citing Mitchell v. Forsyth , 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ; see also Green v. Newport , 868 F.3d 629, 632 (7th Cir. 2017) (we may consider such appeals to extent that defendant public official presents an "abstract issue of law" such as "whether the right at issue is clearly established or whether the district court correctly decided a question of law"), quoting Huff v. Reichert , 744 F.3d 999, 1004 (7th Cir. 2014).

In such appeals, we lack jurisdiction over factual disputes. Estate of Clark , 865 F.3d at 549, citing Johnson v. Jones , 515 U.S. 304, 319–20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), and Locke , 788 F.3d at 665. We must take the facts as the district court assumed them or accept the plaintiff’s version of the facts, White v. Gerardot , 509 F.3d 829, 833 (7th Cir. 2007), but we can also look to undisputed evidence even if the district court did not consider it. Id. at 833 n.5, citing Washington v. Haupert , 481 F.3d 543, 549 & n.2 (7th Cir. 2007). If the appellant challenges the facts or inferences drawn from them, we lack jurisdiction over that challenge. E.g., Hurt v. Wise , 880 F.3d 831, 839–40 (7th Cir. 2018) (defendants challenged...

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