UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 19-2448


EDWIN CHARLES KRELL,

                    Plaintiff - Appellee,

             v.

STATE TROOPER KYLE BRAIGHTMEYER; STATE TROOPER TYSON
BRICE,

                    Defendants - Appellants,

             and

QUEEN ANNE’S COUNTY, MARYLAND; LAMONTE COOKE, Individually
and in his Official Capacity as Warden, Queen Anne’s County Detention Center;
GARY HOFMANN, Individually and in his Official Capacity as Sheriff, Queen
Anne’s County Detention Center; OFFICER DUCKERY, Individually and in his
Official Capacity as Corrections Officer, Queen Anne’s County Detention Center;
OFFICER MARCY, Individually and in her Official Capacity as Corrections
Officer, Queen Anne’s County Detention Center; OFFICER CRABTREE,
Individually and in his Official Capacity as Corrections Officer, Queen Anne’s
County Detention Center; OFFICER JOHN DOE #1, Individually and in his Official
Capacity as Corrections Officer, Queen Anne’s County Detention Center; OFFICER
JOHN DOE #2, Individually and in each officer’s Official Capacity as Corrections
Officer, Queen Anne’s County Detention Center,

                    Defendants.



Appeal from the United States District Court for the District of Maryland, at Baltimore.
James K. Bredar, Chief District Judge. (1:18-cv-00637-JKB)
Submitted: September 11, 2020                               Decided: September 22, 2020


Before AGEE and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.


Brian E. Frosh, Attorney General, Phillip M. Pickus, Assistant Attorney General, Brent D.
Schubert, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Pikesville, Maryland, for Appellants. Cary J. Hansel, Ashton Zylstra,
HANSEL LAW, P.C., Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Edwin Charles Krell commenced this 42 U.S.C. § 1983 action against two Maryland

state troopers, Kyle Braightmeyer and Tyson Brice (“Defendants”), alleging excessive

force, deliberate indifference to serious medical needs, an equal protection violation, and

related state law claims. Asserting qualified immunity, Defendants moved for summary

judgment. The district court denied the motion in part, and Defendants timely appealed.

For the reasons that follow, we vacate the district court’s judgment relating to Krell’s

negligence claim but otherwise affirm.

       “Qualified immunity protects government officials from civil liability and suit

insofar as their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Attkisson v. Holder, 

, 623

(4th Cir. 2019) (internal quotation marks omitted). “To overcome an official’s claim of

qualified immunity, the plaintiff must show: (1) that the official violated a statutory or

constitutional right, and (2) that the right was clearly established at the time of the

challenged conduct.”

omitted). On appeal from the denial of

summary judgment and qualified immunity, we review the district court’s decision de

novo. Pegg v. Herrnberger, 

, 117 (4th Cir. 2017).

       As an initial matter, we emphasize that, at this stage, our review is limited to pure

questions of law. Mitchell v. Forsyth, 

, 530 (1985). Thus, we cannot decide

“question[s] of evidence sufficiency,” Johnson v. Jones, 

, 313 (1995) (internal

quotation marks omitted), or “whether or not the pretrial record sets forth a ‘genuine’ issue

of fact for trial,”

For this reason, we need not dwell on the evidence-based

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arguments that occupy much of Defendants’ opening brief. Rather, we will simply “accept

the facts as the district court articulated them” before “determin[ing] whether, based on

those facts, a reasonable person in the defendant’s position could have believed that he or

she was acting in conformity with the clearly established law at the time.” 

(internal quotation marks omitted).

       This action concerns Defendants’ conduct during and after Krell’s allegedly violent

arrest inside of his home. The district court, construing the factual disputes in the light

most favorable to Krell, found that a jury could reasonably conclude: that, after Defendants

entered Krell’s residence, Braightmeyer tackled Krell to the ground and smashed his face

into the tile floor, even though Krell neither resisted arrest nor posed a physical threat to

the officers; that Braightmeyer both declined Krell’s request to reposition his handcuffs in

order to alleviate his shoulder pain and, in so doing, used a slur regarding Krell’s sexual

orientation; and that, during the several hours that Krell was in Defendants’ custody,

Defendants refused to provide him with medical treatment, despite Krell’s repeated

complaints about his visibly injured shoulder. Based on this version of events, the district

court largely rejected Defendants’ qualified immunity defense.

       “The Fourth Amendment prohibits police officers from using excessive force to

seize a free citizen.” Hupp v. Cook, 

, 321 (4th Cir. 2019) (internal quotation

marks omitted). In determining whether the force at issue was excessive or reasonable, we

consider the totality of the circumstances.

Several specific factors guide our

analysis, “including the severity of the crime at issue, whether the suspect posed an

immediate threat to the safety of the officers or others, . . . whether the suspect was actively

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resisting arrest or attempting to evade arrest by flight,” and “the extent of the plaintiff’s

injuries.”

(brackets and internal quotation marks omitted).

       Based on the evidence adduced at summary judgment, the district court held that a

jury could reasonably find that Braightmeyer unnecessarily slammed Krell’s face into the

floor. In disputing this conclusion, Defendants assert that the excessive force claim

necessarily fails because, like in Pegg, Krell suffered only de minimis injuries. See 

(“An efficient, lawful arrest of a resisting suspect that causes the suspect

to suffer only de minimis injuries does not constitute excessive force.”).          But this

contention necessarily relies on the premise that Krell was uncooperative, even though the

district court made clear that a factfinder could reasonably determine that Krell did not

resist arrest. Thus, we conclude that Krell can prevail on his excessive force claim

regardless of the extent of his injuries. See Hupp v. Cook, 

, 322 (4th Cir.

2019) (emphasizing that plaintiff’s “minor injuries . . . [were] but one consideration in

determining whether force was excessive” (internal quotation marks omitted)). We further

conclude that, at the time of Krell’s arrest, the law clearly prohibited Defendants from

“using unnecessary, gratuitous, and disproportionate force to seize a secured, unarmed

citizen.” Jones v. Buchanan, 

, 532 (4th Cir. 2003). Thus, we affirm the denial

of qualified immunity on Krell’s excessive force claims.

       Turning to the deliberate indifference claim, it is well established that “a pretrial

detainee makes out a due process violation if he shows deliberate indifference to serious

medical needs within the meaning of Estelle v. Gamble, 

, 104-06 (1976).”

Martin v. Gentile, 

, 871 (4th Cir. 1988); see Parrish ex rel. Lee v. Cleveland,

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, 302 (4th Cir. 2004). Under that standard, the plaintiff must first demonstrate

that he had a serious medical condition—i.e., a condition that “has been diagnosed by a

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

recognize the necessity for a doctor’s attention.” Gordon v. Schilling, 

, 356

(4th Cir. 2019) (internal quotation marks omitted). Second, the plaintiff must establish that

the defendants acted with deliberate indifference—i.e., that they “had actual knowledge of

the plaintiff’s serious medical needs and the related risks, but nevertheless disregarded

them.”

(brackets and internal quotation marks omitted).

       Defendants contend that Krell, who had a history of shoulder problems, had to

present evidence that his arrest resulted in a new or exacerbated injury. Thus, according to

Defendants, Krell’s mere complaints of pain were insufficient to establish a constitutional

violation. We disagree. As the district court correctly held, a plaintiff can maintain a

deliberate indifference claim based solely on the theory that the defendant withheld,

delayed, or interfered with medical treatment. 

; Smith v. Smith,

, 739 (4th Cir. 2009). As a result, even if Krell did not suffer a new or

exacerbated injury, evidence that Defendants failed to provide medical care for Krell’s

substantial pain is enough to prevail on a claim of deliberate indifference.

       In addition, we conclude that the requirement that Defendants provide treatment for

Krell’s pain was clearly established at the time of the incident. See Loe v. Armistead, 

(4th Cir. 1978) (holding that pretrial detainee stated deliberate indifference claim

by alleging that, for at least 11 hours, defendants failed to provide medical treatment for

detainee’s broken arm). Although, as Defendants emphasize, the plaintiff in Loe spent

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more time in the defendants’ custody than the three hours Krell spent in Defendants’ care,

we find this distinction immaterial. Booker v. S.C. Dep’t of Corr., 

, 538 (4th

Cir. 2017) (“[D]efendants can still be on notice that their conduct violates established law

even in novel factual circumstances, so long as the law provided fair warning that their

conduct was unconstitutional.” (internal quotation marks omitted)). Thus, we agree with

the district court’s decision to deny qualified immunity on the deliberate indifference claim.

       Next, with regard to the equal protection claim—in which Krell named only

Braightmeyer—the district court identified two actions that, coupled with Braightmeyer’s

alleged use of a sexual orientation slur, could constitute an equal protection violation: first,

Braightmeyer’s refusal to reposition Krell’s handcuffs; and second, Braightmeyer’s refusal

to seek medical care for Krell. On the latter point, Braightmeyer baldly contends that there

was no evidence of deliberate indifference. As discussed above, this argument holds no

water. On the former point, Braightmeyer appears to suggest that he did not use excessive

force when handcuffing Krell, thus precluding a finding that he acted with discriminatory

animus when rejecting Krell’s request to reposition his handcuffs. But Krell does not need

to premise his equal protection claim on some other constitutional violation; rather, he

simply must “demonstrate that he has been treated differently from others with whom he

is similarly situated and that the unequal treatment was the result of intentional or

purposeful discrimination.” King v. Rubenstein, 

, 220 (4th Cir. 2016) (internal

quotation marks omitted). Based on Braightmeyer’s alleged refusal to alleviate Krell’s




                                               7
pain—a decision punctuated with a vile epithet—we conclude that the district court

properly denied qualified immunity to Braightmeyer. *

       Finally, Defendants aver that, under Maryland law, they are entitled to immunity

for Krell’s negligence and gross negligence claims. Under the Maryland Tort Claims Act

(“MTCA”), state officials generally are immune from suit and liability for torts committed

within the scope of their employment, so long as the tortious acts or omissions were “made

without malice or gross negligence.” Md. Code Ann., Cts. & Jud. Proc. § 5-522(b). Thus,

by its terms, the MTCA does not extend immunity to grossly negligent acts, so we therefore

discern no error in the denial of immunity on Krell’s gross negligence claim.

       We agree, however, that Defendants were entitled to immunity on Krell’s claim of

simple negligence. Although the district court determined that the negligence claim rose

and fell with the gross negligence claim, these two torts are, in fact, mutually exclusive of

one another. See Barbre v. Pope, 

, 717 (Md. 2007) (defining simple

negligence and gross negligence).      Thus, a finding of gross negligence necessarily

precludes a finding of negligence for the same act or omission.

       Accordingly, we vacate the part of the district court’s judgment denying immunity

to Defendants on Krell’s negligence claim, we affirm the remainder of the judgment, and

we remand for further proceedings. We dispense with oral argument because the facts and




       *
        Braightmeyer raises no objection to the district court’s determination that, at the
time of Krell’s arrest, the right to be free from discrimination based on sexual orientation
was clearly established.

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legal contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

                                                                   AFFIRMED IN PART,
                                                                    VACATED IN PART,
                                                                     AND REMANDED




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