Full Opinion (html_with_citations)

                                RECOMMENDED FOR PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 21a0274p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



                                                             ┐
 TAMMY M. BRAWNER,
                                                             │
                                   Plaintiff-Appellant,      │
                                                              >        No. 19-5623
                                                             │
        v.                                                   │
                                                             │
 SCOTT COUNTY, TENNESSEE,                                    │
                                  Defendant-Appellee.        │
                                                             ┘

                               On Petition for Rehearing En Banc.
         United States District Court for the Eastern District of Tennessee at Knoxville;
                     No. 3:17-cv-00108—J. Ronnie Greer, District Judge.

                             Decided and Filed: December 1, 2021

                   Before: CLAY, WHITE, and READLER, Circuit Judges.

                                      _________________

                                            COUNSEL

ON PETITION FOR REHEARING EN BANC: Caitlin C. Burchette, Arthur F. Knight, III,
TAYLOR & KNIGHT, GP, Knoxville, Tennessee, for Appellee. ON RESPONSE: Richard E.
Collins, II, STANLEY, KURTZ & COLLINS, PLLC, Knoxville, Tennessee, Megha Ram,
RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, Washington, D.C., David M.
Shapiro, RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, Chicago, Illinois, for
Appellant. ON AMICUS BRIEF: Jeffrey C. Mando, Claire E. Parsons, ADAMS LAW, PLLC,
Covington, Kentucky, D. Barry Stilz, KINKEAD & STILZ, Lexington, Kentucky, for Amicus
Curiae.

       The panel issued an order denying the petition for rehearing en banc. READLER, J. (pp.
3–10), delivered a separate opinion dissenting from the denial of the petition for rehearing en
banc in which THAPAR, BUSH, NALBANDIAN, and MURPHY, JJ., joined.
 No. 19-5623                     Brawner v. Scott Cnty., Tenn.                           Page 2


                                      _________________

                                             ORDER
                                      _________________

       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. Judge Readler would grant rehearing for the reasons
stated in his original dissent and the one appended hereto.
 No. 19-5623                     Brawner v. Scott Cnty., Tenn.                             Page 3


                                      _________________

                                            DISSENT
                                      _________________

       CHAD A. READLER, Circuit Judge, dissenting from the denial of rehearing en banc.
We should not be enlisting a case about excessive force to disturb our deliberate indifference to
medical needs jurisprudence. Brawner v. Scott County,
14 F.4th 585, 605
 (6th Cir. 2021)
(Readler, J., concurring in part and dissenting in part) (“Kingsley [v. Hendrickson] would be the
quintessential stalking horse if invoked as grounds to overrule our current deliberate indifference
precedent.”). For that and other reasons, I continue to see Brawner as a flawed decision. See
generally
id.
 at 605–11.

       Yet even more worrisome is the overarching trend Brawner perpetuates. For in both our
Eighth Amendment and Fourteenth Amendment jurisprudence, we have moved far away from
the Amendments’ original public meaning in resolving detainee civil rights litigation. Making
matters worse, we have crafted a legal standard for deliberate indifference cases that ignores the
Supreme Court’s instruction to view those cases through both an objective and subjective lens.
Farmer v. Brennan,
511 U.S. 825, 834
 (1994). And these cases are legion, given the frequency
with which we are asked to entertain them. See, e.g., Federal Judicial Center, IDB Appeals 2008-
present, https://www.fjc.gov/research/idb/interactive/21/IDB-appeals-since-2008 (last visited
Dec. 1, 2021) (reporting that, since 2008, 16.5 percent of the Sixth Circuit’s civil docket has
been comprised of “prisoner civil rights” and “prison conditions” claims). So far, our en banc
Court has been reluctant to reign in wayward decisions like Brawner. Before long, our Court, if
not a higher one, should correct this misguided course.

       1. Let me begin with Brawner. The majority opinion is yet another example of our
Circuit transforming constitutional prohibitions against punishment into a “freestanding right to
be free from jailhouse medical malpractice.” Brawner,
14 F.4th at 610
 (Readler, J., concurring
in part and dissenting in part).     The Brawner majority opinion did so by forgoing any
examination of the Fourteenth Amendment’s text or original public meaning. Instead, it turned
to Kingsley v. Hendrickson,
576 U.S. 389
 (2015), an excessive force decision that, all agree, did
not address “other Fourteenth Amendment pretrial-detainment contexts.” Brawner, 14 F.4th at
 No. 19-5623                     Brawner v. Scott Cnty., Tenn.                             Page 4


592. Despite Kingsley’s express limits, Brawner used Kingsley to jettison our traditional inquiry
in the deliberate indifference setting. Rather than asking whether the defendant was subjectively
aware of the serious medical risks facing the detainee, Brawner adopted a reckless disregard
standard, a benchmark we are told should be viewed through the eyes of a “reasonable official in
the defendant’s position.” Brawner,
14 F.4th at 597
 (citation omitted). In that world, if a
plaintiff can muster more than a scintilla of evidence to suggest that an official acted with
objectively unreasonable reckless indifference to a detainee’s medical condition, it is left to the
jury—effectively acting as both doctor and warden—to decide whether the official’s actions
were reasonable.

       From a policy perspective, one might favor this approach. But our terrain here is the
Constitution. And there, a “reasonable official” standard finds little grounding. The Fourteenth
Amendment familiarly prohibits an individual from being deprived of liberty without due
process of law. U.S. CONST. amend. XIV (“[N]or shall any State deprive any person of life,
liberty, or property, without due process of law . . . .”). In the pretrial detainee context, that
prohibition extends to state-sanctioned punishment. See Bell v. Wolfish,
441 U.S. 520, 535
(1979) (“For under the Due Process Clause, a detainee may not be punished prior to an
adjudication of guilt in accordance with due process of law.”). But beyond those contours, there
is no textual or historical support for extending the prohibition more broadly to examine whether
a jailer’s actions are “reasonable.” See Rhodes v. Michigan,
10 F.4th 665
, 694–95 (Thapar, J.,
dissenting in part). And any purported validation of that view in Supreme Court precedent (e.g.,
Kingsley) should be cabined to its particular context, see Garza v. Idaho,
139 S. Ct. 738, 756
(2019) (Thomas, J., dissenting) (observing that when a precedent is incorrect as an “original
matter,” a court should “tread carefully before extending” that precedent).

       2. Truth be told, efforts in this Circuit to tortify the Constitution did not begin with
Brawner.    The notion of eliminating any inquiry into a government official’s subjective
motivations regarding the provision of medical treatment, as Brawner aims to do, finds allies in
our jurisprudence. To put that turn of events into context, consider first the origins of the
constitutional deliberate indifference standard. The Eighth Amendment prohibits the infliction
of “cruel and unusual punishments,” see U.S. CONST. amend. VIII. That prohibition was later
 No. 19-5623                      Brawner v. Scott Cnty., Tenn.                             Page 5


read to require the government to provide some level of medical care to prisoners. Estelle v.
Gamble,
429 U.S. 97
, 103–04 (1976).          Prisoner lawsuits claiming an Eighth Amendment
violation stemming from an official’s failure to prevent harm to a prisoner, however, raised the
specter of “unbounded liability for prison officials.” Farmer,
511 U.S. at 860
 (Thomas, J.,
concurring in the judgment). To balance out these considerations, the Supreme Court in Farmer
required a plaintiff asserting such a claim to show official wrongdoing measured both from
objective and subjective viewpoints, the latter grounded in the concept of “deliberate
indifference.”
511 U.S. at 828, 834
. Farmer defined deliberate indifference to mean that a
prison official must “both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and . . . draw the inference.”
Id. at 837
. Farmer was thus
thought to have “adopt[ed] a restrictive definition of deliberate indifference.”
Id. at 861
(Thomas, J., concurring in the judgment). Farmer did note that whether a prison official actually
knew of a substantial risk “is a question of fact subject to demonstration in the usual ways,
including inference from circumstantial evidence . . . and . . . from the very fact that the risk was
obvious.”
Id. at 842
 (citation omitted). To help clarify that aspect of the opinion, Farmer
provided an example of such an obvious risk: one that was “longstanding, pervasive, well-
documented, or expressly noted by prison officials in the past, and the circumstances suggest that
the defendant-official being sued had been exposed to information concerning the risk.”
Id.
 at
842–43.

       That formulation, however, is a far cry from how we have since gone on to interpret the
“obvious” risk concept. Suffice it to say, in our Circuit, Farmer’s “hint” about “obvious” risks
“bec[ame] a suggestion, [was] loosely turned into dictum and [was] finally elevated to . . .
decision[s]” that transformed deliberate indifference. United States v. Rabinowitz,
339 U.S. 56, 75
 (1950) (Frankfurter, J., dissenting). From the looks of things, deliberate indifference to one’s
medical needs—whether in the pretrial or prisoner context—is now functionally an objective-
only standard in our Circuit. In that formulation, we ask only whether a risk was so obvious that
the prison official should have known it presented a substantial risk of serious harm to the
detainee—regardless of what the official actually knew. For instance, we have held that a jury
could conclude that, in a case of involuntary commitment to a state psychiatric hospital, doctors
acted with deliberate indifference because “a jury could possibly decide that a reasonable doctor,
 No. 19-5623                     Brawner v. Scott Cnty., Tenn.                             Page 6


in [the doctors’ positions], would have concluded that a substantial risk of serious harm to the
[patient] existed.” Terrance v. Northville Reg’l Psychiatric Hosp.,
286 F.3d 834
, 845–46 (6th
Cir. 2002); see also Dominguez v. Corr. Med. Servs.,
555 F.3d 543
, 550–51 (6th Cir. 2009)
(holding that a genuine issue of material fact as to deliberate indifference existed when the prison
official “was aware, or should have been aware” of the dangers posed to the prisoner); Phillips v.
Roane County,
534 F.3d 531, 544
 (6th Cir. 2008) (when analyzing the “subjective” component,
“we ask whether a reasonable doctor in his position could have concluded that a substantial risk
of serious harm to [the detainee] existed”). Similarly, we have found that a detainee satisfied her
burden to show deliberate indifference under the “subjective” component where “there is
evidence in the record to suggest that [the official] knew or had reason to know that [the
detainee] had serious psychiatric needs that required treatment.” Richmond v. Huq,
885 F.3d 928
, 940–41 (6th Cir. 2018).

       Lowering the deliberate indifference bar even further, we have made robust use of the
summary judgment standard. Embracing the notion that reasonable inferences must be made in
favor of the nonmoving party, we have held that a plaintiff can make a sufficient showing of
deliberate indifference without presenting any evidence that the jail official actually knew of and
inferred the substantial risk of serious harm to the detainee. To that end, we have explained that
a plaintiff need only show a jail official was “allegedly aware of facts from which the inference
of substantial risk of harm could be drawn.”        Garretson v. City of Madison Heights,
407 F.3d 789, 798
 (6th Cir. 2005) (emphasis added). And we have even gone on to hold that
“deliberate indifference can be based on a strong showing on the objective component” (that the
harm was sufficiently serious) such that a plaintiff need not offer evidence that the official
actually drew the requisite inference. Est. of Carter v. City of Detroit,
408 F.3d 305, 313
 (6th
Cir. 2005).

       This manipulation of Farmer’s aside about “obvious” risks is felt acutely in situations
where the detainee self-reported symptoms. We have held that a plaintiff satisfies the burden to
show that a prison official inferred the risk to the detainee, and fulfills the “subjective”
component for summary judgment purposes, merely because the detainee self-reported an
ailment. See
id.
 (detainee told prison officer that she “was experiencing chest pains, had not
 No. 19-5623                      Brawner v. Scott Cnty., Tenn.                              Page 7


taken her ‘heart’ medication, and needed to go to the hospital”); Garretson,
407 F.3d at 798
(detainee told prison officer “that she required insulin for her condition and that she was past due
for her current dose”); see also Jones v. Muskegon County,
625 F.3d 935
, 943–44 (6th Cir. 2010)
(finding a factual issue regarding delay after the detainee reported his abdominal pain and belief
that he had cancer); Phillips, 534 F.3d at 540–41 (affirming denial of qualified immunity,
partially because the “subjective” component was fulfilled by the detainee telling prison officers
that she had chest pain and was experiencing shortness of breath, and prison protocol required
officials to transport a detainee who complained of such symptoms to an emergency room);
Johnson v. Karnes,
398 F.3d 868
, 875–76 (6th Cir. 2005) (finding a genuine issue of material
fact as to actual knowledge where the detainee submitted medical request forms “stating that his
tendons were severed”); Blackmore v. Kalamazoo County,
390 F.3d 890, 899
 (6th Cir. 2004)
(finding a factual issue regarding delay after the detainee complained of stomach pain and
vomited once after being given antacids). Never mind that a detainee’s report of his symptoms
does nothing to prove that a facility’s medical officer actually “concluded that [the detainee] was
at serious risk.” Phillips,
534 F.3d at 546
 (Ryan, J., concurring in part and dissenting in part).

       In other cases, we have adopted this objective-only standard with less fanfare. For
example, we have often relied on an expert’s opinion that a reasonable doctor would have known
of the risk to the detainee to hold that the plaintiff satisfied her burden, under the “subjective”
component, to show the prison official knew of the risk. See Quigley v. Tuong Vinh Thai,
707 F.3d 675, 682
 (6th Cir. 2013) (prison doctor knew the detainee was taking two drugs and experts
“state[d] that it is well known in the psychiatric profession” that the two drugs should not be
administered together and, “if they are, the patient should be closely monitored for toxicity and
adverse effects”); Phillips,
534 F.3d at 544
 (expert stated that the prison doctor “failed to
establish and maintain a medical record for this [detained] patient that would meet any minimum
criterion for an acceptable medical record[]”); Johnson,
398 F.3d at 874, 876
 (non-prison doctor
who treated the detainee said “that it is common medical knowledge, which should be known to
every medical practitioner, that severed tendons must be repaired in a timely manner”); LeMarbe
v. Wisneski,
266 F.3d 429
, 437–39 (6th Cir. 2001) (the prison doctor knew there was bile in the
prisoner’s stomach and an expert opined that the risk of harm to the plaintiff from bile in his
stomach was “obvious to anyone with a medical education and to most lay people”). Needless to
 No. 19-5623                      Brawner v. Scott Cnty., Tenn.                            Page 8


say, reliance on an expert witness’s “opinion of what [the defendant] or anyone with a medical
education should have known” is “an objective standard, not a subjective one.” LeMarbe,
266 F.3d at 441
 (Batchelder, J., dissenting).

       In short, even before Brawner, we had already diluted the traditional deliberate
indifference inquiry merely to ask whether an official should have known of and inferred (rather
than actually knew and actually inferred) that the detainee faced a substantial risk of harm. This
objective-only inquiry for constitutional deliberate indifference claims pays no heed to the
subjective inquiry we traditionally required. See Farmer,
511 U.S. at 829
 (defining “deliberate
indifference” as “requiring a showing that the official was subjectively aware of the risk”). Nor
does it honor what, as its name suggests, should be obvious in this setting: that the conduct must
be both “deliberate,” that is, “[d]one with or marked by full consciousness of the nature and
effects,” Deliberate, American Heritage Dictionary (5th ed. 2020), and “indifferent,” in other
words, uninterested or unconcerned, Indifferent, American Heritage Dictionary (5th ed. 2020)
(“Having no particular interest or concern.”). And query how our decaying standard is any
different from a state law negligence claim. On that front, it bears reminding that a detainee, just
like an individual not in official custody, may bring a state tort claim should she be the victim of
negligent medical care.     But why has our Court allowed the detainee to also pursue a
constitutional claim to seek compensation for negligent care (unencumbered by the liability-
reducing damages caps and limits on attorneys’ fees that often accompany a state law claim)?
And why are medical providers who work in detention facilities subject to the risk of both state
and constitutional theories of liability for providing negligent care? See Rhodes,
10 F.4th at 695
(Thapar, J., dissenting in part) (“By holding that a reckless workplace injury becomes a
constitutional violation when (and only when) it takes place within a prison, the majority
accelerates our doctrine’s departure from the Punishment Clause’s original meaning.”) Our
precedent answers those questions only with silence.

       All of this is to say that, over time, we have seized on Farmer’s aside functionally to rid
any serious inquiry into the subjective intentions of the sued government official. Yet what took
decades to achieve, Brawner aims to accomplish more rapidly. What began as a requirement
that the government official “both be aware of facts from which the inference could be drawn
 No. 19-5623                        Brawner v. Scott Cnty., Tenn.                             Page 9


that a substantial risk of serious harm exists, and . . . draw the inference,” Farmer,
511 U.S. at 837
, has devolved into a nebulous consideration of whether “a reasonable official in [the
official’s] position would have known that the serious medical need posed an excessive risk to
[the detainee’s] health or safety,” Brawner,
14 F.4th at 597
. As we long ago abandoned the text
and history of the Eighth and Fourteenth Amendments in favor of a “tender-hearted desire to
tortify” the Constitution, such a departure is perhaps unsurprising. Kingsley,
576 U.S. at 408
(Scalia, J., dissenting). But it is no less regrettable.

        3. So far, we have been unwilling to reconsider these developments. In fact, more than
two decades have passed since the en banc Court last considered a detainee’s deliberate
indifference claim. See Williams v. Mehra,
186 F.3d 685, 687
 (6th Cir. 1999) (en banc). Given
the ensuing dilution of the governing standard, it is exceptionally important that we reconsider
our precedent in this area. See Fed. R. App. P. 34(a). Otherwise, the lesson for future panels is
obvious: fortune favors the bold.

        Of course, we are not alone in endorsing this wayward trajectory for deliberate
indifference claims. Indeed, today’s writing is only the latest lament about the misguided nature
of modern constitutional jurisprudence on detainee medical care. See, e.g., Edmo v. Corizon,
Inc.,
949 F.3d 489, 502
 (9th Cir. 2020) (O’Scannlain, J., dissenting from the denial of rehearing
en banc) (“[T]he panel concludes that [the doctor’s] deviations were simply not ‘reasonable’—
the test for negligent malpractice, not deliberate indifference.” (citation omitted));
id. at 505
(Collins, J., dissenting from the denial of rehearing en banc) (“[B]y narrowly defining the range
of ‘medically acceptable’ options that the court believes a prison doctor may properly consider
. . . and by then inferring deliberate indifference . . . the district court and the panel have applied
standards that look much more like negligence than deliberate indifference.”);
id. at 511
(Bumatay, J., dissenting from the denial of rehearing en banc) (“If courts follow the panel’s
reasoning, in every case of medically unacceptable treatment, courts could automatically infer
deliberate indifference. . . . [T]he ultimate effect of the panel’s analysis is to dilute the
heightened, subjective culpability . . . into mere negligence.”); Foelker v. Outagamie County,
394 F.3d 510, 515
 (7th Cir. 2005) (Manion, J., dissenting) (“[P]laintiffs should not be able to
survive summary judgment by merely establishing a serious medical need and then claiming that
 No. 19-5623                    Brawner v. Scott Cnty., Tenn.                          Page 10


a defendant’s failure to do more to recognize or treat that need amounted to deliberate
indifference.”).   All things considered, our new-fashioned jurisprudence on Eighth and
Fourteenth Amendment detainee medical claims is at best a mess—and at worst a “font of tort
law” wholly divorced from the Constitution’s text and original meaning. Paul v. Davis,
424 U.S. 693, 701
 (1976).

       This is no small matter. Not in substance, for the reasons just discussed. Nor in scope.
Detainee medical malpractice claims are at the heart of federal dockets. Nearly 71,000 “prisoner
civil rights” and “prison condition” claims have been appealed since 2008—that is,
approximately 16.7 percent of the Courts of Appeals’ civil docket. Federal Judicial Center, IDB
Appeals 2008-present, https://www.fjc.gov/research/idb/interactive/21/IDB-appeals-since-2008
(last visited Dec. 1, 2021). Estimates indicate that up to a quarter of such claims concern
medical treatment. Margo Schlanger, Inmate Litigation,
116 Harv. L. Rev. 1555
, 1570–71 nn.47
& 48 (2003). Other studies suggest that 91 percent of jails holding 1,000 or more inmates have
been sued by an inmate concerning medical care. Pew Charitable Trusts, Jails: Inadvertent
Health Care Providers, at 9 (Jan. 2018); see also Zhen Zeng, Jail Inmates in 2017, Bureau of
Justice Statistics, at 1 (Apr. 2019) (reporting that almost two-thirds of jail inmates were
“unconvicted”). And these cases have real world consequences for those charged with the
difficult task of running our detention facilities. After all, one cannot easily overstate the
“Herculean obstacles” prison administrators face in “effective[ly] discharg[ing] the[ir] duties.”
Procunier v. Martinez,
416 U.S. 396, 404
 (1974), overruled on other grounds by Thornburgh v.
Abbott,
490 U.S. 401
 (1989). Yet how, as a jurisprudential matter, have we rewarded those who
take up the “unenviable task” of ensuring the safety and rehabilitation of detainees? Farmer,
511 U.S. at 845
 (citation omitted); Procunier,
416 U.S. at 404
.       With the likelihood of a
summons and jury trial.
 No. 19-5623                     Brawner v. Scott Cnty., Tenn.                         Page 11


       The Supreme Court’s refrain rings clear today: “[C]ourts are particularly ill equipped to
deal with the[] problems” of prison administration. Shaw v. Murphy,
532 U.S. 223, 229
 (2001)
(quoting Procunier,
416 U.S. at 405
). Regrettably, we have turned a deaf ear to these concerns.
Perhaps others, hearing this growing chorus, will decide to take action.

                                             ENTERED BY ORDER OF THE COURT




                                             ___________________________________
                                             Deborah S. Hunt, Clerk