NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0222n.06

                                        Case No. 15-1684
                                                                                       FILED
                                                                                  Apr 25, 2016
                                                                             DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


JESSE GOODE, Estate of by Personal                  )
Representative Kelley Collett,                      )
                                                    )
       Plaintiff-Appellee,                          )       ON APPEAL FROM THE UNITED
                                                    )       STATES DISTRICT COURT FOR
v.                                                  )       THE EASTERN DISTRICT OF
                                                    )       MICHIGAN
BERLANGA, Deputy,                                   )
                                                    )
       Defendant-Appellant.                         )
                                                    )
____________________________________/


Before: MERRITT, BATCHELDER, and DONALD, Circuit Judges

       MERRITT, Circuit Judge. This is a fact-intensive 42 U.S.C. § 1983 case by a deceased

prisoner’s estate against a prison guard.        The prisoner, Jesse Goode, died of “heroin

intoxication.” The central question in this case is whether the prison guard, Deputy Domingo

Berlanga, is entitled to “qualified immunity” from suit based on the plaintiff’s Eighth

Amendment theory of “deliberate indifference” to Goode’s serious medical needs. We conclude

that Berlanga’s conduct did not violate “clearly established . . . constitutional rights of which a

reasonable person would have known” under applicable Supreme Court doctrine. Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

In addition, we conclude that Berlanga is entitled to summary judgment on plaintiff’s state law
Case No. 15-1684, Estate of Goode v. Berlanga


gross negligence claim. The governing law leads us to a conclusion that is fully consistent with

our sense of fairness concerning the outcome of this case.

                                                I.

       When Berlanga came on duty at approximately 3:00 P.M. on the day that Goode died, he

observed Goode returning to his cell from taking a shower. Goode appeared normal. Shortly

thereafter, Goode’s cell mate informed Berlanga that Goode was “hot and burning up” and

would not be able to perform his work duties that afternoon because he needed to lie down and

rest. At approximately 4:15 P.M., Berlanga checked on Goode in his cell and found him

sleeping normally on his bunk. Shortly thereafter at approximately 4:30 P.M., Goode’s cell mate

asked Berlanga to check on Goode because Goode “was not looking good,” was “making some

type of gurgling sounds” with “heavy snoring,” and had “foam coming out of his mouth.”

Goode’s cell mate and another prisoner state that, despite several further warnings along the

same line, Berlanga unreasonably “waited five to seven minutes” before he came to the cell. As

soon as he observed Goode, Berlanga immediately called for medical assistance, and Goode was

carried to the local hospital where he died of “heroin intoxication” shortly after arriving. The

central question in this case is whether Berlanga’s alleged delay violated Goode’s “clearly

established constitutional rights.”

                                                II.

       We find no case on point, nor any line of reasoning, that would clearly impose a duty on

Berlanga — taking into account what he had observed about Goode during the last hour and his

other responsibilities — to go to Goode’s cell without a short delay of five to seven minutes.

       The estate of Jesse Goode (“Goode”) alleges that Berlanga is liable under 42 U.S.C.

§ 1983 because Berlanga’s deliberate indifference to Goode’s serious medical needs violated



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Case No. 15-1684, Estate of Goode v. Berlanga


Goode’s rights under the Eighth Amendment. In defense, Berlanga has invoked the doctrine of

qualified immunity, which is a defense not just against liability, but against suit itself. Pearson,
555 U.S. at 231. Under the doctrine of qualified immunity, “government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow, 457 U.S. at 818. Because the “driving force”

behind the qualified immunity doctrine is the “desire to ensure that ‘insubstantial claims’ against

government officials will be resolved prior to discovery,” immunity questions should be resolved

at the earliest possible stage of litigation. Pearson, 555 U.S. at 231-32 (quoting Anderson v.

Creighton, 483 U.S. 635, 640 n.2 (1987) (internal quotation marks and brackets omitted)). In

determining whether government officials are entitled to qualified immunity, courts “ask two

questions: First, viewing the facts in the light most favorable to the plaintiff, has the plaintiff

shown that a constitutional violation has occurred? Second, was the right clearly established at

the time of the violation?” Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 538-39 (6th Cir. 2008).

Courts have discretion to decide which of the “two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the particular case at hand,” Pearson,
555 U.S. at 236, and indeed “should think carefully before expending ‘scarce judicial resources’

to resolve difficult and novel questions of constitutional or statutory interpretation that will ‘have

no effect on the outcome of the case.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)

(quoting Pearson, 555 U.S. at 236-37). The plaintiff “bears the ultimate burden of proof to show

that [government officials] are not entitled to qualified immunity.”            Cockrell v. City of

Cincinnati, 468 F. App’x 491, 494 (6th Cir. 2012) (quoting Garretson v. City of Madison

Heights, 403 F.3d 789, 798 (6th Cir. 2005) (internal quotation marks omitted)).



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       “We review de novo a district court’s denial of a defendant’s motion for summary

judgment on qualified immunity grounds.” Stoudemire v. Michigan Dep’t of Corr., 705 F.3d
560, 565 (6th Cir. 2013). In reviewing a summary judgment motion, we view all facts and draw

all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris,

550 U.S. 372, 378 (2007). In the qualified immunity context, “this usually means adopting . . .

the plaintiff’s version of the facts, unless the plaintiff’s version is ‘blatantly contradicted by the

record, so that no reasonable jury could believe it . . . .’” Stoudemire, 705 F.3d at 565 (quoting

Harris, 550 U.S. at 380).

                                                 III.

       A clearly established right “is one that is sufficiently clear that every reasonable official

would have understood that what he is doing violates that right.” Mullenix v. Luna, — U.S. —,

136 S. Ct. 305, 308 (2015) (internal quotation marks omitted). While courts do not require a

case directly on point in order to find that a right is clearly established, “existing precedent must

have placed the statutory or constitutional questions beyond debate.” Id. (quoting al-Kidd,

563 U.S. at 741). “The pre-existing law that makes a right clearly established comes primarily

from the Supreme Court and the Sixth Circuit, but it can also come from other courts, including

other circuits and district courts, if the decisions of those courts ‘point unmistakably to the

unconstitutionality of the conduct’ and are ‘so clearly foreshadowed by applicable direct

authority as to leave no doubt in the mind of a reasonable officer that his conduct was

unconstitutional.’” Linden v. Piotrowski, 619 F. App’x 495, 500 (6th Cir. 2015) (quoting Perez

v. Oakland Cnty., 466 F.3d 416, 427 (6th Cir. 2006)).

       “‘The difficult part of this inquiry is identifying the level of generality at which the

constitutional right must be clearly established.’” Cockrell, 468 F. App’x at 494 (quoting Casey



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Case No. 15-1684, Estate of Goode v. Berlanga


v. City of Federal Heights, 509 F.3d 1278, 1284 (10th Cir. 2007)). The Supreme Court has

repeatedly stated that courts should not “‘define clearly established law at a high level of

generality.’” Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 131 S. Ct. at 2074). Instead, the

“dispositive question is whether the violative nature of particular conduct is clearly established.”

Id. (internal quotation marks omitted). Thus, the plaintiff bears the burden of showing “‘that the

right was clearly established in light of the specific context of the case, not as a broad general

proposition.’” Piotrowski, 619 F. App’x at 501 (quoting Perez, 466 F.3d at 427)).

       With this guidance in mind, we define the question this case presents as whether at the

time of the incident it was clearly established that the Eighth Amendment forbids a prison guard,

who had observed a prisoner sleeping in his bunk only minutes earlier, from delaying five to

seven minutes in checking on that prisoner after being asked by other inmates to attend to the

prisoner because he appeared to be seriously ill. Because neither Supreme Court precedent, our

precedents, nor those of our sister circuits would have put every reasonable officer on notice that

Berlanga’s conduct violated the Eighth Amendment in April 2011, we hold that Berlanga is

entitled to qualified immunity even if he did act with deliberate indifference to Goode’s serious

medical condition. We need not decide the separate “deliberate indifference” question.

       Accepting — as we must — Goode’s version of the facts, Berlanga’s conduct in delaying

five to seven minutes before checking on Goode did not violate clearly established law. As

previously stated in Section I, the evidence establishes that Berlanga: (1) saw Goode exit the

shower and walk to his cell around 3:00 P.M.; (2) learned from another inmate that Goode was

“hot and burning up” and would not perform his work duties that afternoon; (3) observed Goode

sleeping in his cell at 4:15 P.M., only fifteen minutes before inmates asked him to check on

Goode; and (4) delayed five to seven minutes after being asked by inmates to check on Goode



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Case No. 15-1684, Estate of Goode v. Berlanga


because Goode was making gurgling noises and foaming at the mouth. The fact that Berlanga

had personally observed Goode both leaving the shower and then sleeping shortly before he was

told that Goode appeared seriously ill would not lead Berlanga to suspect or guess that Goode

had ingested a lethal dose of heroin and was at death’s door. Goode fails to point to any of our

cases clearly establishing that in such circumstances Berlanga had an obligation under the Eighth

Amendment to check on Goode without a brief delay. In fact, the closest Goode gets to

establishing such an obligation is through reference to Speers v. County of Berrien, 196 F. App’x

390, 398-99 (6th Cir. 2006), but even this case falls far short of clearly establishing the right

Goode asserts.

       In Speers, a prisoner died in custody after suffering from delirium tremens. Id. The night

of Speers’s death, two prison guards observed Speers acting strangely in his cell, and an inmate

subsequently alerted the two guards that Speers was “pressed up against the plexiglass window

in his cell, with ‘this foam stuff . . . in his open mouth,’ with a ‘hideous, weird look [and] trying

to press his head through the plexiglass.’” Id. at 397. After learning of Speers’s symptoms, the

guards waited more than fifteen minutes to check on Speers, and upon checking Speers’s cell,

took no further action because they found Speers lying on the floor in his underwear. Id. at 397.

We denied qualified immunity to both guards because a triable issue of fact existed as to whether

the guards, upon learning that Speers was foaming at the mouth and observing him collapsed in

his cell, should have contacted medical personnel in response to Speers’s condition or tried to

engage Speers verbally or enter his cell. Id. at 398. Even under Goode’s version of events,

Berlanga, unlike the officers in Speers, immediately entered Goode’s cell and quickly called for

medical assistance after seeing Goode lying on his bunk, making gurgling noises, and foaming at

the mouth. Id. Moreover, it bears emphasizing that the guards’ delay in Speers was not a factor



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Case No. 15-1684, Estate of Goode v. Berlanga


in our decision to deny them qualified immunity, id. at 398, and in any event, Berlanga’s five-to-

seven-minute delay is significantly shorter than the guards’ more than fifteen-minute delay in

Speers, id. at 397-98. Finally, and significantly, while the guards in Speers knew the prisoner

was suffering from delirium tremens and had already observed the prisoner acting strangely

before another inmate asked them to check on the prisoner, id. at 398, it is undisputed that

Berlanga had observed Goode sleeping on his bunk only minutes earlier and had no prior

knowledge that Goode was suffering from a serious illness.

        Our concurring colleague reads Speers differently, asserting that Speers dictates that

“Berlanga’s prior observations of Goode are irrelevant to whether Berlanga is entitled to

qualified immunity.” Post, at 1 (emphasis added). But in Speers, 196 F. App’x at 398-99, an

unpublished opinion that is not binding precedent, we stated that the guards’ prior observations

and knowledge of Speers’ alcohol withdrawal and strange behavior were relevant to our decision

to deny qualified immunity:

       Both guards handled the shift during which Speers died. Both of them knew that
       Speers was experiencing alcohol withdrawal. Both knew that his condition was
       serious enough that he needed to be checked regularly. Both saw Speers acting
       strangely during the shift. . . . [A]t this stage in the case we must . . . allow a jury
       to resolve this material dispute of fact.

Id. (emphasis added). In short, Speers communicates that a guard’s prior observations and

knowledge of a prisoner’s illness and behavior are indeed relevant to the question of whether the

guard is entitled to qualified immunity. And moreover, it bears emphasizing that the Supreme

Court has “‘repeatedly told courts . . . not to define clearly established law at a high level of

generality.’” Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 131 S. Ct. at 2074). The Court has

mandated that the clearly established “inquiry ‘must be undertaken in light of the specific context

of the case.’” Mullenix, 136 S. Ct. at 308 (quoting Brosseau v. Haugen, 543 U.S. 194, 198



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Case No. 15-1684, Estate of Goode v. Berlanga


(2004)). We adhere to the Court’s guidance by properly considering Berlanga’s short delay as

well as his prior observations and knowledge of Goode’s illness and behavior—all highly

relevant facts that are specific to this case.

        Goode and the district court also rely on Blackmore v. Kalamazoo County, 390 F.3d 890,

899 (6th Cir. 2004), to establish Berlanga’s obligation to check on Goode without delay. But

Blackmore also falls far short of clearly establishing the right Goode asserts. In Blackmore, we

held that a reasonable jury could find that prison guards violated the Eighth Amendment by

acting with deliberate indifference to a prisoner’s serious medical needs when the prisoner

“complained of ‘sharp’ and ‘severe’ stomach pains for an extended period of time,” vomited, and

“complained orally and in writing for over two days before receiving medical treatment.” Id.

(emphasis added). The facts in Blackmore in no way clearly establish that Berlanga had an

obligation to immediately respond to inmates’ requests that he check on Goode — a prisoner he

had observed sleeping in his cell only minutes earlier — because other inmates told him that

Goode seemed to be seriously ill. Id. Our holding in Estate of Owensby v. City of Cincinnati,

414 F.3d 596, 603 (6th Cir. 2005), where we denied qualified immunity to officers who beat a

suspect, observed him in significant physical distress, and “made no attempt to summon . . .

medical care” until six minutes later, also does not come close to establishing the right Goode

asserts because Berlanga, unlike the officers in Estate of Owensby, neither caused nor observed

Goode’s injury prior to his short delay in checking on Goode. Id.

        Finally, a survey of our sister circuits’ case law reveals no precedent clearly establishing

that, as of April 2011, a prison guard, who had observed a prisoner sleeping only minutes earlier,

had an obligation to respond without brief delay to inmates’ requests that he check on the

prisoner because the prisoner appeared to be seriously ill. In fact, our sister circuits have only



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Case No. 15-1684, Estate of Goode v. Berlanga


denied qualified immunity to officers who briefly delayed in obtaining medical assistance for

prisoners when the officers either personally observed the prisoner’s serious medical condition

prior to the delay or actually caused the prisoner’s medical condition. See, e.g., McRaven v.

Sanders, 577 F.3d 974, 983 (8th Cir. 2009) (denying qualified immunity to officer who, after

noticing that the inmate was not breathing, failed to give the inmate CPR for seven minutes as he

stood over the inmate in a prison cell); Estate of Bradich v. City of Chicago, 413 F.3d 688, 691-

92 (7th Cir. 2005) (denying qualified immunity to officers who had allegedly delayed ten

minutes in calling for help after discovering that a prisoner had hanged himself); Tlamka v.

Serrell, 244 F.3d 628, 633-34 (8th Cir. 2001) (denying qualified immunity to officers who

delayed ten minutes in providing CPR or any other form of assistance to an inmate they observed

suffering a heart attack).

       Because we cannot say that every reasonable official would have understood that

Berlanga’s delay in checking on Goode violated Goode’s Eighth Amendment rights, we reverse

the district court’s denial of qualified immunity to Berlanga.

                                                IV.

       The district court held that Berlanga was not entitled to summary judgment on Goode’s

gross negligence claim because a reasonable juror could conclude that Berlanga, through his

alleged five-to-seven-minute delay “in attending to Goode, after having been notified that Goode

was in obvious distress, foaming at the mouth and making gurgling sounds,” was grossly

negligent and was the proximate cause of Goode’s death. On appeal, Berlanga makes two

arguments as to why he should be entitled to summary judgment. We review the district court’s

denial of summary judgment de novo. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999).




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Case No. 15-1684, Estate of Goode v. Berlanga


          To withstand a defendant’s summary judgment motion on a gross negligence claim, a

plaintiff must present evidence from which a reasonable jury could find that the defendant’s

conduct was “so reckless as to demonstrate a substantial lack of concern for whether injury

results.” Maiden v. Rozwood, 597 N.W.2d 817, 824 (Mich. 1999) (quoting Mich. Comp. Laws §

691.1407(7)(a)). Evidence of ordinary negligence does not create a material question of fact

concerning gross negligence. Maiden, 597 N.W.2d at 824. “Gross negligence involves ‘almost

a willful disregard of precautions or measures to attend to safety and a singular disregard for

substantial risks. It is as though, if an objective observer watched the actor, he could conclude,

reasonably, that the actor simply did not care about the safety or welfare of those in his charge.’”

Lambert v. Green Oak Twp. Police Dep’t., No. 297088, 2011 WL 1815385, at *10 (Mich. Ct.

App. May 12, 2011) (quoting Tarlea v. Crabtree, 687 N.W.2d 333, 339-40 (Mich. Ct. App.

2004)).     Finally, courts should take care to construe the Michigan legislature’s grant of

governmental immunity broadly, “with exceptions construed narrowly.”            Smith v. Cnty. of

Lenawee, 600 F.3d 686, 690 (6th Cir. 2010) (citing Hinojosa v. Dep’t of Natural Res., 263 Mich.

App. 537, 554 (Mich. Ct. App. 2004)).

          The district court erred in finding that a reasonable jury could conclude that Berlanga,

through his delayed response to inmates’ request that he check on Goode, was “so reckless as to

demonstrate a substantial lack of concern for whether an injury [to Goode] result[ed].” Mich.

Comp. Laws § 691.1407(7)(a). Again, the evidence — when viewed in the light most favorable

to Goode — establishes that Berlanga (1) saw Goode exit the shower and walk to his cell around

3:00 P.M.; (2) learned from another inmate that Goode was “hot and burning up” and would not

perform his work duties that afternoon; (3) observed Goode sleeping in his cell at 4:15 P.M.;

(4) delayed five to seven minutes after being asked by inmates around 4:30 P.M. to check on



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Case No. 15-1684, Estate of Goode v. Berlanga


Goode because Goode was making gurgling noises and foaming at the mouth; and

(5) immediately tried to aid Goode upon observing Goode’s condition. Berlanga’s actions in no

way amount to “conduct so reckless as to demonstrate a substantial lack of concern for whether

injury [to Goode] result[ed],” Mich. Comp. Laws § 691.1407(7)(a), because Berlanga, despite

hearing from inmates that Goode seemed to be seriously ill, was not aware that Goode, whom he

had observed sleeping only fifteen minutes earlier, was experiencing a life threatening heroin

overdose; instead, Berlanga’s previous observations of Goode suggested to Berlanga that Goode

was either completely healthy or simply experiencing a minor illness. See Hartzell v. City of

Warren, No. 252458, 2005 WL 1106360, at *16 (Mich. Ct. App. May 10, 2005) (finding that

defendant officer’s awareness of the prisoner’s need for medication, along with his failure to

ensure that prisoner received the medication, did not amount to gross negligence as a matter of

law). Moreover, Berlanga’s actions — attempting to rouse Goode and calling for help — upon

first observing Goode’s medical condition show that Berlanga was indeed concerned for Goode’s

well-being. See Oostdyk ex. rel. Budd v. Caledonia Cmty. Sch., No. 312607, 2014 WL 588063,

at *4 (Mich. Ct. App. Feb. 13, 2014) (granting government officials’ summary judgment motion

on a gross negligence claim in part because the officials’ concern for the injured-plaintiff’s well-

being indicated that the officials were not grossly negligent). In short, Berlanga’s alleged delay,

while certainly very sad in hindsight, does not demonstrate a substantial lack of concern for

Goode’s condition.

       In light of our disposition of Goode’s gross negligence claim, we need not consider

Berlanga’s alternative defense concerning proximate causation.




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Case No. 15-1684, Estate of Goode v. Berlanga


                                           VII.

       For the foregoing reasons, we REVERSE the judgment of the district court and

REMAND for further proceedings consistent with this opinion.




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Case No. 15-1684, Estate of Goode v. Berlanga


          BERNICE B. DONALD, concurring. While I join in the Court’s judgment, I write

separately because I disagree with the majority’s analysis of Speers v. County of Berrien, 196 F.

App’x 390 (6th Cir. 2006).

          The majority frames the question before us as “whether at the time of the incident it was

clearly established that the Eighth Amendment forbids a prison guard, who had observed a

prisoner sleeping in his bunk only minutes earlier, from delaying five to seven minutes in

checking on that prisoner after being asked by other inmates to attend to the prisoner because he

appeared to be seriously ill.” Slip Op. at 5 (emphasis added). Throughout its opinion, the

majority continually relies on Berlanga’s prior observations of Goode. See, e.g., Slip Op. at 6

(noting “[t]he fact that Berlanga had personally observed Goode both leaving the shower and

then sleeping shortly before he was told that Goode appeared seriously ill would not lead

Berlanga to suspect or guess that Goode had ingested a lethal dose of heroin and was at death’s

door”).

          However, Berlanga’s prior observations of Goode are irrelevant to whether Berlanga is

entitled to qualified immunity. Up until Berlanga arrived at Goode’s cell door, the facts here

precisely mirror those in Speers, and therefore, Speers “squarely governs” this case. Brosseau v.

Haugen, 543 U.S. 194, 201 (2004). Here and in Speers, the guards knew that the decedent had

been exhibiting non-serious medical symptoms. Compare R. 88-6, PageID# 1023 (Berlanga

indicating that he understood Goode to have a fever and to be too sick to perform his housing

duties) with Speers, 196 F. App’x at 395, 399 (explaining that the guards knew that Speers was

exhibiting symptoms of the non-serious version of alcohol withdrawal).           The guards also

checked on each decedent and observed behavior that did not indicate a need for immediate

medical attention. Compare R. 88-6, PageID# 1023, 1026 (Berlanga observing Goode leaving



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Case No. 15-1684, Estate of Goode v. Berlanga


the shower and sleeping) with Speers, 196 F. App’x at 397 (guards observing Speers sleeping on

the floor in his underwear, playing with his food slot, and picking at something on the wall).

Another inmate then informed the guards that each decedent needed medical attention, relaying

substantially similar symptoms.     Compare R. 88-6, PageID# 1028 (foaming at the mouth,

heaving snoring, gurgling noises, and “not looking good”) with Speers, 196 F. App’x at 397

(foaming at the mouth, “hideous, weird look,” “trying to press his head through the plexiglass,”

collapsing, and twitching). Lastly, the guards delayed in checking on the decedent. Compare R.

104, PageID #1376-77 (delaying five to seven minutes) with Speers, 196 F. App’x at 397-98

(delaying fifteen minutes). Thus, the facts from Speers are not “too factually distinct to” guide

our decision here. Mullinex, 136 S. Ct. at 312.

       Because Speers is indistinguishable, we must abide by its relevant mandates.             See

Brosseau, 543 U.S. at 201. Speers states that we measure a failure to act from the moment that

an official is informed of a substantial risk of serious harm, without regard to the officer’s prior

observations of the decedent. The Speers Court was explicit: “[A fellow inmate’s] statement—

that Speers had ‘foam’ in his mouth, had a ‘hideous, weird look,’ was ‘trying to press his head

through the plexiglass,’ and ‘collapsed’ and was ‘twitching,’ JA 692-93—made [the guards]

‘aware of facts from which the inference could be drawn that a substantial risk of serious harm’

to Speers existed.” 196 F. App’x at 398 (emphasis added). Speers affirmatively dispelled the

significance of the guards’ prior observations: “[w]ith or without alcohol withdrawal, with or

without training, the symptoms that [the fellow inmate] reported establish a triable issue of fact

about whether the guards should have contacted medical personnel in response to this problem or

at least should have tried to engage Speers verbally or entered his cell.” Id. (emphasis added).

Thus, Berlanga’s prior observations of Goode are not significant for purposes of our review. Our



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analysis should only focus on Berlanga’s conduct subsequent to being informed of Goode’s

serious medical symptoms.

       The majority also distinguishes Speers by noting that “in any event, Berlanga’s five-to-

seven-minute delay is significantly shorter than the guards’ more than fifteen-minute delay in

Speers.” Slip Op. at 6-7. Even though we should be wary of cases that are too factually distinct,

I fail to see how differentiating between a mere matter of minutes effectively distinguishes

Speers. While a ten-minute delay may be reasonable in one instance, it could be deemed

excessive in another. We should not consider such minor differences in determining whether the

law is clearly established.

       This case is a prime example.           The majority accounts for Berlanga’s “other

responsibilities,” Slip Op. at 2, in finding that his five-to-seven-minute delay did not violate

clearly established law. It may be that in a particular case other responsibilities prevented an

officer from promptly responding to a substantial risk of serious harm. However, Berlanga

stated that he immediately checked on Goode upon being informed of Goode’s serious medical

symptoms. R. 88-6, PageID# 1028. It therefore seems that any delay could be construed as a

failure to act in response to a known substantial risk of serious harm. Accordingly, whether a

particular delay was reasonable in light of surrounding circumstances is a consideration better

suited for answering whether there actually was an Eighth Amendment violation. When we are

only attempting to determine whether the law is clearly established, parsing between mere

minutes amounts to a difference without a real distinction.

       All of that being said, I agree with the majority that Speers does not clearly state that the

guards’ brief delay constituted deliberate indifference in violation of the Eighth Amendment. In

dicta, Speers simply mentions that the parties do not dispute that such symptoms require



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Case No. 15-1684, Estate of Goode v. Berlanga


“prompt” medical attention. 136 F. App’x at 398. Our court has yet to hold that a brief delay

could constitute a violation of the Eighth Amendment. For that reason, I too would reverse the

district court and grant Berlanga qualified immunity.




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