Pretrial detainee claim for failure to protect in violation of the Eighth & Fourteenth Amendments; 42 USC § 1983; Qualified immunity; Application of the “objective unreasonableness” test, Kingsley v Hendrickson; Brawner v Scott Cnty, TN; Application against an individual officer

In an issue of first impression in this circuit, the court applied the objective unreasonableness standard to an individual officer (defendant-Tyree) on a failure-to-protect claim by a pretrial detainee. Only “an objective showing that an individual defendant acted (or failed to act) deliberately and recklessly” is required. Plaintiff-Westmoreland was attacked by another pretrial detainee while in defendant-county’s jail. He sued the county and Tyree under § 1983. The district court granted them summary judgment. In Kingsley, the Supreme Court held that “in an excessive-force claim, a pretrial detainee must show only that the officers’ use of force was objectively unreasonable and need not show the officers were subjectively aware their use of force was unreasonable.” In Brawner, the court held that “Kingsley presented a ‘clear delineation between claims brought by convicted prisoners under the Eighth Amendment and claims brought by pretrial detainees under the Fourteenth Amendment,’ and, accordingly, ‘applying the same analysis to these constitutionally distinct groups is no longer tenable.’” In the wake of Brawner, “a pretrial detainee establishes deliberate indifference by proving ‘more than negligence but less than subjective intent—something akin to reckless disregard.’” The court noted that Brawner did not address “application of this standard to individual officers[.]” The court also had not yet applied it “to a failure-to-protect claim against an individual officer,” although it had done so for claims of deliberate indifference to serious medical needs. In the failure-to-protect context, it held that “a defendant officer must act 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 the plaintiff’s injuries.” It concluded that Tyree’s intentional decision as to Westmoreland’s “conditions of confinement,” knowing he had been accused of being a “snitch” and the danger this created, met the first and second elements. The third element “is that the defendant did not take reasonable available measures to abate the substantial risk of serious harm, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved and the obvious consequences of the defendant’s conduct.” The district court must decide if the record is sufficient for a jury to find “that Tyree was deliberately indifferent to Westmoreland’s substantial risk of serious harm.” The fourth element was established as Westmoreland showed he sustained physical harm. Reversed and remanded.