             Case: 15-11491    Date Filed: 06/13/2016    Page: 1 of 14


                                                          [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 15-11491
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 2:10-cv-00141-SLB



GERALD N. LINDLEY,

                                                   Plaintiff-Appellee,

versus

BIRMINGHAM, CITY OF, ALABAMA,
a municipal corporation, et al.,

                                                   Defendants,

FREDIA L. TAYLOR,
Nurse; in her professional and official capacity as an employee
of the City of Birmingham and as a Nurse at the Birmingham City Jail,

                                                   Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                         ________________________

                                 (June 13, 2016)
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Before MARTIN, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Fredia Taylor appeals the district court’s denial of her motion for summary

judgment on Gerald Lindley’s 42 U.S.C. § 1983 deliberate indifference claim and

state-law negligence claim. Lindley’s claims arise out of his nine-day detention at

the Birmingham City Jail, where he alleges he was deprived of medical care for an

infection in his leg. In denying Taylor’s motion, the district court ruled that: (1)

the claims in Lindley’s amended complaint related back to his original complaint;

(2) Taylor was not entitled to qualified immunity on Lindley’s § 1983 claim; and

(3) Taylor was not entitled to state-law immunity on Lindley’s negligence claim.

We have jurisdiction over this interlocutory appeal because it concerns whether

Taylor is entitled to immunity as a matter of law. Moniz v. City of Fort

Lauderdale, 145 F.3d 1278, 1281 (11th Cir. 1998). After careful review, we

affirm.

                                           I.

      Federal Rule of Civil Procedure 15(c) governs when an amended complaint

“relates back” to original filings for statute of limitations purposes. We review a

district court’s application of Rule 15(c) for abuse of discretion. Powers v. Graff,

148 F.3d 1223, 1226 (11th Cir. 1998). An amended complaint that adds a party or

changes the name of a party “relates back” when: (1) the amendment “arose out of


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the conduct, transaction, or occurrence set out—or attempted to be set out—in the

original pleading”; and (2) within the 120-day period for service provided by Rule

4(m), the new party “received such notice of the action that it will not be

prejudiced in defending on the merits” and “knew or should have known that the

action would have been brought against it, but for a mistake concerning the proper

party’s identity.” Fed. R. Civ. P. 15(c)(1)(B), (C)(i)–(ii); see also Krupski v. Costa

Crociere S. p. A., 560 U.S. 538, 548, 130 S. Ct. 2485, 2493 (2010). Constructive

notice satisfies Rule 15(c)’s requirements and can be imputed to a new defendant

through her attorney if that attorney also represents the parties originally sued.

Kirk v. Cronvich, 629 F.2d 404, 407–408 (5th Cir. 1980),1 abrogated on other

grounds by Schiavone v. Fortune, AKA Time, Inc., 477 U.S. 21, 106 S. Ct. 2379

(1986).

       There is no question that Lindley’s amended claims arose out of the same

conduct set out in the original complaint. Taylor asserts, however, that she did not

have adequate notice “that [she] would have been named a defendant but for an

error.” Krupski, 560 U.S. at 548, 130 S. Ct. at 2493. But Lindley’s original

complaint named “Nurse Frida” as a defendant in addition to the Birmingham City

Jail and a number of Taylor’s coworkers there. The city attorney investigated the


1
 Decisions of the Fifth Circuit rendered prior to October 1, 1981, are binding on this Court. See
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

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incident and filed pleadings on behalf of other defendants named in the original

complaint. Once Lindley corrected Taylor’s name to “Nurse Fredia L. Taylor” in

his amended complaint, the city attorney undertook her representation as well. On

this record, the district court did not abuse its discretion by imputing notice of the

action to Taylor. See Kirk, 629 F.2d at 408. Because Taylor should have known

that she was not named in the original complaint due to an error, Lindley’s

amended complaint “relates back” and his claims against Taylor are not time-

barred.

                                          II.

      “We review de novo a district court’s denial of summary judgment based on

qualified immunity, applying the same legal standards that governed the district

court.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013).

Summary judgment is appropriate when “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). In reviewing a denial of summary judgment, we are required to

“view the evidence and all factual inferences therefrom in the light most favorable

to the non-moving party, and resolve all reasonable doubts about the facts in favor

of the non-movant.” Skop v. City of Atlanta, 485 F.3d 1130, 1143 (11th Cir. 2007)

(quotation omitted).




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                                               A.

       Qualified immunity “protects public officials to some extent from lawsuits

against them in their individual capacities.” Goebert v. Lee Cty., 510 F.3d 1312,

1329 (11th Cir. 2007). To claim qualified immunity, a defendant must first

demonstrate that she was engaged in a discretionary duty. Mercado v. City of

Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005). After that, the burden shifts to the

plaintiff to show that the defendant is not entitled to qualified immunity because

she violated a clearly established constitutional right. Holloman ex rel. Holloman

v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004). Because it is undisputed that

Taylor was engaged in a discretionary duty as a nurse at the jail, we consider

whether Lindley has overcome Taylor’s claim of qualified immunity.

                                              1.

       We first consider whether the facts, taken in the light most favorable to

Lindley, establish that Taylor violated a constitutional right. Deliberate

indifference to a pre-trial detainee’s serious medical needs is a violation of the

Fourteenth Amendment’s Due Process Clause. Lancaster v. Monroe Cty., 116

F.3d 1419, 1425 n.6 (11th Cir. 1997). 2 To establish deliberate indifference,

Lindley must prove: (1) an “objectively serious medical need”; and (2) that Taylor
2
  The Eighth Amendment’s Cruel and Unusual Punishment Clause governs deliberate
indifference claims by convicted prisoners. Goebert, 510 F.3d at 1326. Because the minimum
standards of medical care are the same under the Eighth and the Fourteenth Amendment, we
apply caselaw developed under both to Lindley’s claim. See Cook ex rel. Estate of Tessier v.
Sheriff of Monroe Cty., 402 F.3d 1092, 1115 (11th Cir. 2005).
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“acted with deliberate indifference to that need.” Brown v. Johnson, 387 F.3d

1344, 1351 (11th Cir. 2004).

      A serious medical need is “one that has been diagnosed by a physician as

mandating treatment or one that is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.” Id. (quotation omitted). In either

case, “the medical need must be one that, if left unattended, poses a substantial risk

of serious harm.” Id. (quotation omitted).

      Lindley was arrested and booked into the City of Birmingham Jail on

January 24, 2008. According to Lindley’s affidavit, he began requesting treatment

on January 28 for a sore on his leg that was “highly inflamed” and “swollen.” The

condition of his leg worsened, and “it became too painful to raise [his] pants leg

over [his] knee.” He “would eat little if any food due to [his] fever and nausea.”

Lindley was scheduled to be transported to the Shelby County Jail on February 2,

2008, but the Shelby County deputies at first refused to move him and told

Birmingham Jail personnel that he needed immediate medical attention. By the

time he arrived at the Shelby County Jail that same day, Lindley “was unable to

walk under [his] own power.” The nurse who examined him upon arrival noted

that Lindley had an abscess with a “blackened center” and recommended

immediate medical attention. After processing, Lindley was transported directly to

the hospital, where he was diagnosed with a staph infection. He underwent two


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surgeries, leaving him with an open wound “from the top of [his] thigh to mid calf”

that took approximately ten months to heal.

      Taylor claims that Lindley did not meet his burden of establishing a serious

medical need because he “never deposed any doctors, nurses or other medical

personnel regarding [his] alleged [staph infection].” However, Lindley’s hospital

records describe a “staph infection in his [] lower extremity” that required the

removal of “[l]arge amounts of necrotic fascia.” Even if Lindley’s specific

diagnosis were not clear from his medical records, his affidavits establish that he

had a rapidly worsening infection whose severity should have been obvious to

trained nurses. In fact, the nurse who examined him at the Shelby County Jail

recommended immediate medical attention. In light of the foregoing, we agree

with the district court that Lindley has demonstrated a serious medical need.

      Lindley must also show that Taylor was deliberately indifferent to this

serious medical need. To satisfy this element, Lindley must prove that: (1) Taylor

had subjective knowledge of a risk of serious harm; (2) she disregarded that risk;

(3) by conduct that was more than gross negligence. Goebert, 510 F.3d at 1326–

27. Whether a defendant had subjective knowledge of the risk of serious harm is a

question of fact, which can be demonstrated by circumstantial evidence. Farmer v.

Brennan, 511 U.S. 825, 842, 114 S. Ct. 1970, 1981 (1994). In a case concerning a

delay in treatment, we decide whether the defendant’s conduct was more than


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gross negligence based on: “(1) the seriousness of the medical need; (2) whether

the delay worsened the medical condition; and (3) the reason for the delay.”

Goebert, 510 F.3d at 1327.

      Lindley “specifically recall[ed] reporting [his] medical need to Nurses

Fredia Taylor and Allinda Brown” and filling out medical request forms four times

a day between January 28 and February 2. During the week of January 28, he also

showed his knee, which was “clearly swollen, red and very warm to the touch,” to

Taylor and Brown. After it became too painful for Lindley to raise his pants over

his knee, he again “specifically remember[ed]” showing his infection to Taylor and

other jail staff. During the relevant time period, a “staff [sic] infection” is

mentioned three times in the ledger maintained by the jail. The entire time,

Lindley alleges that he was given only Tylenol to manage the pain.

      These allegations support the inference that Taylor had “subjective

knowledge of a risk of serious harm” and “disregard[ed] [] that risk.” Goebert, 510

F.3d at 1327. Lindley’s affidavit indicates that he showed his leg to Taylor in

serious enough condition that she should have provided prompt medical attention.

The fact that deputies and a nurse from Shelby County recognized the severity of

Lindley’s infection the same day he left the Birmingham Jail bolsters this

inference. Regarding whether Taylor’s conduct amounted to more than gross

negligence, Lindley’s hospital records indicate that he arrived with an “extensive


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infection of the right lower extremity, which was not responding to antibiotics.” A

reasonable jury could conclude that Taylor’s decision to offer no treatment besides

Tylenol for six days allowed the infection to worsen to the point that antibiotics

were no longer effective, leading to the extensive loss of tissue and skin. See

Goebert, 510 F.3d at 1327 (finding that a reasonable jury could conclude that a

delay in treatment caused the loss of the plaintiff’s child). Taken in the light most

favorable to Lindley, the facts alleged establish that Taylor was deliberately

indifferent to his medical needs.

                                          2.

      Because Lindley has properly identified a violation of his constitutional right

to adequate medical care for purposes of surviving Taylor’s motion for summary

judgment, we next consider whether that right was clearly established at the time

of the violation. This Court must determine whether a “reasonable official” would

understand that what she was doing violated the right in question. Coffin v.

Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en banc) (quotation omitted). In

this Circuit, a right can be clearly established in three ways. Terrell v. Smith, 668

F.3d 1244, 1255 (11th Cir. 2012). First, cases from the United States Supreme

Court, the Eleventh Circuit, or the highest court of the state where the relevant

events took place (here, the Alabama Supreme Court) may clearly establish the

right. Id. at 1256. “A judicial precedent with materially identical facts is not


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essential for the law to be clearly established, but the preexisting law must make it

obvious that the defendant’s acts violated the plaintiff’s rights in the specific set of

circumstances at issue.” Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010)

(per curiam). Second, a legal principle announced in caselaw may establish the

right “with obvious clarity to the point that every objectively reasonable

government official facing the circumstances would know that the official’s

conduct did violate federal law.” Gilmore v. Hodges, 738 F.3d 266, 279 (11th Cir.

2013) (quotation omitted). Third, an official’s conduct may be “so bad that case

law is not needed to establish that the conduct cannot be lawful.” Id. (quotation

omitted). Cases successfully invoking the second and third rationales are rare.

Coffin, 642 F.3d at 1015.

      Taylor does not argue that existing caselaw failed to give her “fair warning

that [her] alleged treatment of [Lindley] was unconstitutional.” Hope v. Pelzer,

536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002). Instead, she says that she should

not be deprived of liability because Lindley “did not prove that he had MSRA or a

staph infection.” However, the district court identified specific Circuit precedent

that gave Taylor the requisite notice that Lindley’s condition was serious enough to

require treatment. In Andujar v. Rodriguez, 486 F.3d 1199 (11th Cir. 2007), this

Court held that dog bites on the arrestee’s upper thigh created a serious medical

need. Id. at 1203. The plaintiff was “crying in pain, and [] his ability to walk was


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impaired” because of the bites. Id. Here, Lindley had an obvious sore on his leg

that was red, swollen, and later developed a blackened center. His condition

worsened until it was too painful for him to undress himself and “even impossible

for [him] to get out of bed.” By February 2, he could not walk or even “sit

upright.” These symptoms were sufficiently similar to those described in Andujar

to establish that Lindley needed treatment.

      Another case from our Circuit, Mandel v. Doe, 888 F.2d 783 (11th Cir.

1989), establishes that Taylor’s treatment of Lindley was “so cursory as to amount

to . . . deliberate indifference.” Id. at 789. In Mandel, the plaintiff suffered a hip

injury which worsened to the point “that he could barely stand.” Id. at 785. The

plaintiff repeatedly requested treatment over the course of two months, but was

misdiagnosed with muscle inflammation and only given aspirin or a muscle

relaxant. Id. at 785–86. By the time he was released, he needed a complete hip

replacement. Id. at 787. In this case, Lindley likewise complained of pain so

severe that it prevented him from standing. And yet the only treatment he was

provided before leaving the Birmingham Jail was Tylenol. After Mandel, a

reasonable nurse would know that this was constitutionally inadequate care.

      Indeed, legal principles announced by this Circuit have also established this

right such that “every objectively reasonable government official facing the

circumstances would know that the official’s conduct did violate federal law.”


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Gilmore, 738 F.3d at 279. This Court has stated that “an official acts with

deliberate indifference when he intentionally delays providing an inmate with

access to medical treatment, knowing that the inmate has . . . an urgent medical

condition that would be exacerbated by delay.” Lancaster, 116 F.3d at 1425. This

general statement sufficiently establishes that not treating Lindley even after he

became feverish and could no longer get out of bed for meals was deliberate

indifference. Because a reasonable nurse would have known that refusing Lindley

treatment in his condition was a constitutional violation, we affirm the district

court’s ruling that Taylor is not entitled to qualified immunity with respect to

Lindley’s § 1983 claim.

                                         III.

      We also affirm the district court’s denial of state-law immunity with respect

to Lindley’s negligence claim. Taylor argues that she is entitled to state-agent

immunity under Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), and discretionary-

function immunity under Alabama Code § 6-5-338. Neither argument has merit.

                                          A.

      In Cranman, a plurality of the Alabama Supreme Court clarified the scope of

Alabama’s state-agent immunity doctrine. Under Alabama law, a state agent is

immune from civil liability if she is engaged in:

   (1) formulating plans, policies, or designs; or


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   (2) exercising his or her judgment in the administration of a department
       or agency of government, including, but not limited to, examples such
       as:
       (a) making administrative adjudications;
       (b) allocating resources;
       (c) negotiating contracts;
       (d) hiring, firing, transferring, assigning, or supervising personnel; or
   (3) discharging duties imposed on a department or agency by statute, rule,
       or regulation, insofar as the statute, rule, or regulation prescribes the
       manner for performing the duties and the State agent performs the
       duties in that manner; or
   (4) exercising judgment in the enforcement of the criminal laws of the
       State, including, but not limited to, law-enforcement officers’
       arresting or attempting to arrest persons; or
   (5) exercising judgment in the discharge of duties imposed by statute,
       rule, or regulation in releasing prisoners, counseling or releasing
       persons of unsound mind, or educating students.

Cranman, 792 So. 2d at 405. After Cranman, the Alabama Supreme Court

established a burden-shifting framework to analyze claims of state-agent

immunity. First, the defendant must demonstrate that “the plaintiff’s claims arise

from the defendant’s performance of a discretionary function.” Hollis v. City of

Brighton, 950 So. 2d 300, 306 (Ala. 2006) (quotation omitted). The burden then

shifts to the plaintiff to “establish that the defendant acted in bad faith or with

malice or willfulness.” Id. (quotation omitted).

      Taylor fails at the first step. She claims that her conduct falls under

Cranman’s third category: “discharging duties imposed on a department or agency

by statute, rule, or regulation.” Id. However, she has not identified any “statute,




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rule, or regulation prescrib[ing] the manner for performing [her] duties.” Id. As

such, she is not entitled to state-agent immunity.

                                          B.

      Taylor also claims discretionary-function immunity under Alabama Code

§ 6-5-338. The statute provides, in relevant part, “[e]very peace officer . . . who is

employed or appointed pursuant to the Constitution or statutes of this state . . .

shall have immunity from tort liability arising out of his or her conduct in

performance of any discretionary function within the line and scope of his or her

law enforcement duties.” Ala. Code § 6-5-338(a). According to the statute, a

peace officer is one “empowered . . . to execute warrants, to arrest and to take into

custody persons who violate [the law].” Id.; see also Walker v. City of Huntsville,

62 So. 3d 474, 501 (Ala. 2010). Taylor has presented no evidence that she is

empowered to perform the duties of a peace officer. Therefore, she cannot claim

discretionary-function immunity under Alabama Code § 6-5-338.

                                          IV.

      We hold that Lindley’s claims are not time-barred because his amended

complaint “relates back” to his original complaint. Because we also conclude that

Taylor is not entitled to qualified immunity or state-agent immunity, we affirm the

district court’s denial of summary judgment.

      AFFIRMED.


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