Patrick Neal NERREN, Plaintiff-Appellee,
                                 v.
 LIVINGSTON POLICE DEPARTMENT; Billy Ray Nelson, Sheriff; and
Bob Key,
                            Defendants,
                                and
   Matthew Parrish, and Robert Alston, Defendants-Appellants.
                           No. 95-40331.
                 United States Court of Appeals,
                          Fifth Circuit.
                           July 2, 1996.

     Appeal from the United States District Court for the Eastern
District of Texas.

     Before HIGGINBOTHAM, WIENER and PARKER, Circuit Judges:

     WIENER, Circuit Judge:
     Plaintiff-Appellee Patrick Neal Nerren filed this pro se civil
rights action against various police and jail officials under 42
U.S.C. s 1983, alleging the denial of reasonable medical attention
in violation of the Fourteenth Amendment.        This appeal only
involves Nerren's medical claims against the officers who arrested
him. They contend that the district court erred in denying their
motion for summary judgment based on qualified immunity. As Nerren
has stated a claim under clearly established law, we affirm.
                                 I
                       FACTS AND PROCEEDINGS
     Nerren filed this pro se civil rights action under 42 U.S.C.
s 1983 against the Livingston Police Department, Livingston Police
Officer Matt Parish, Livingston Police Officer Robert Alston, Polk
County Sheriff Billy Ray Nelson, and Polk County Officer Bob Key,
alleging that he was denied medical care. This appeal, however,
involves only the qualified immunity-based summary judgment motions
of Officers Alston and Parish (Arresting Officers). Viewed in the
light most favorable to the nonmovant Nerren, the facts are as
follows. [FN1]

     FN1. See Blackwell v. Barton, 

, 301 (5th Cir.1994)
(review of denial of qualified immunity based motion for summary
judgment reviewed de novo considering the evidence in the light
most favorable to the nonmovant).

     On July 18, 1993, Nerren was involved in an automobile
accident in Polk County, Texas. Several people were injured. By
the time Officers Parish and Alston arrived at the accident scene,
Nerren, the driver of one of the vehicles in the accident, had
fled. Several hours later while on routine patrol, Officer Alston
spotted Nerren. Alston radioed for back up and with the help of
Officers Parish and Ken Bohnert, [FN2] arrested Nerren. At the
time of the arrest, Nerren stated that he was in pain and requested
medical attention. [FN3] One of the Arresting Officers told Nerren
that because he "didn't worry about the people he had the
automobile accident *471 with the police where [sic] not worried
about him." Nerren was transported to the Polk County Jail without
receiving any medical attention. [FN4]

     FN2. Bohnert, though present at Nerren's arrest, was not named
as a defendant in this suit.

     FN3. In their affidavits, the officers state that Nerren never
requested medical attention.

     FN4. At the jail, Nerren renewed his request for medical
attention, this time to Officer Key, the shift supervisor at the
jail. Officer Key responded "shut up and go to sleep." These
facts are important to the overall complaint, but are not relevant
to this appeal, which assesses only Nerren's claim against the
Arresting Officers.

     The following day Nerren was released on bond and taken by a
relative to the Lufkin Memorial Hospital. Medical records reveal
that at the time of his admission to the hospital, Nerren had
abrasions on his face and chest. Additionally, the records indicate
that a laparoscopic examination revealed a large amount (1000 ccs)
of intra-abdominal blood. Nerren had a torn liver and was taken to
surgery.
     In this suit Nerren alleges that the Arresting Officers
knowingly and willfully denied him reasonable medical attention in
violation of his substantive due process rights under the
Fourteenth Amendment. Officers Parish and Alston moved for summary
judgment, arguing that Nerren failed to state a claim for the
denial of medical care because (1) there was no evidence that they
knew Nerren needed medical care;      (2) Nerren had not alleged
causation of any injury by their actions;       and (3) they were
entitled to qualified immunity because the law was not clearly
established that they had a duty to provide medical care in the
absence of an obvious or expressed need for such care.
     The district court referred the case to a magistrate judge.
After a hearing, the magistrate judge recommended dismissing
Nerren's claims against the Livingston Police Department and
Sheriff Nelson as frivolous pursuant to 28 U.S.C. s 1915(d), but
recommended denying the Arresting Officers' qualified immunity
based motions for summary judgment.       Applying the reasonable
medical care standard applicable to pretrial detainees at that
time, the magistrate judge held that Nerren's right to medical
attention was clearly established, and that a genuine issue of
material fact existed as to whether the defendants knew of Nerren's
need for medical attention.
     Parish and Alston filed objections.       The district court
overruled the objections and adopted the magistrate judge's report
and recommendation, denying the defendants' motions for summary
judgment. The court held that Nerren had stated a claim for the
denial of reasonable medical care, a clearly established right.
The Arresting Officers timely appealed.
                                 II
                            DISCUSSION
     A. JURISDICTION
     [1] We must first determine whether the district court's
denial of the Arresting Officers' motions for summary judgment
based on qualified immunity are immediately appealable orders.
[FN5] In Mitchell v. Forsyth, [FN6] the Supreme Court held that "a
district court's denial of a claim of qualified immunity, to the
extent that it turns on an issue of law, is an appealable 'final
decision' within the meaning of 28 U.S.C. s 1291 notwithstanding
the absence of a final judgment." [FN7] In Johnson v. Jones, [FN8]
the Supreme Court appeared to narrow our interlocutory jurisdiction
somewhat, holding that a district court's order, entered in a
qualified immunity *472 case, is not appealable if it determines a
question of "evidence sufficiency." [FN9]       More recently, in
Behrens v. Pelletier, [FN10] the Supreme Court clarified that
Johnson "permits [the defendant] to claim on appeal that all of the
conduct which the District Court deemed sufficiently supported for
purposes of summary judgment met the Harlow standard of 'objective
legal reasonableness.' " [FN11] Thus, in Behrens, the district
court's determination that "material issues of fact remain" did not
preclude appellate review. [FN12]

     FN5. Mosley v. Cozby, 

, 660 (5th Cir.1987) ("This
Court must examine the basis of its jurisdiction, on its own
motion, if necessary.").

     FN6. 

, 

, 

(1985).
     FN7. 

105 S.Ct. at 2817-18;     see also Hale v.
Townley, 

, 918 (5th Cir.1995) ("An appellate court has
jurisdiction to review an interlocutory denial of qualified
immunity only to the extent that it 'turns on an issue of law.' "
(quoting 

, 105 S.Ct. at 2817)).       In
Mitchell, the Court held that a district court's order denying a
defendant's motion for summary judgment was an immediately
appealable collateral order under Cohen v. Beneficial Indus. Loan
Corp., where (1) the defendant was a public official asserting a
defense of immunity, and (2) the issue appealed concerned whether
or not certain given facts showed a violation of clearly
established law. 

, 105 S.Ct. at 2816-17.

     FN8. Johnson v. Jones, --- U.S. ----, ----, 

,
2156, 

(1995).
     FN9. 

"a defendant, entitled to invoke a
qualified immunity defense, may not appeal a district court's
summary judgment order insofar as that order determines whether or
not the pretrial record sets forth a 'genuine' issue of fact for
trial") (emphasis added).

     FN10. --- U.S. ----, 

, 

(1996).

     FN11. 

116 S.Ct. at 840.

     FN12. 

wake of Behrens, the Johnson modification (if any) on
appellate review applies only when "what is at issue in the
sufficiency determination is nothing more than whether the evidence
could support a finding that particular conduct occurred." [FN13]
Thus, we cannot review the "evidence sufficiency issue" (i.e.,
whether the nonmovant presented sufficient summary judgment
evidence to create a dispute of fact). But we retain interlocutory
jurisdiction to "take, as given, the facts that the district court
assumed when it denied summary judgment" [FN14] and determine
whether these facts state a claim under clearly established law.

     FN13. 

, --- U.S. at 

.

     Applying the Johnson-Behrens gloss on Mitchell to the instant
case, we conclude that the disputes of fact in this case do not
deprive us of jurisdiction. We have interlocutory jurisdiction to
determine whether Nerren's summary judgment facts state a claim
under clearly established law. Accordingly, we ignore the disputes
of fact, take those facts assumed by the district court in a light
most favorable to Nerren, and determine whether under those facts
Nerren has stated a claim under clearly established law.
     B. STANDARD OF REVIEW
     [2] We review de novo the denial of a public official's motion
for summary judgment predicated on qualified immunity. [FN15] As
Nerren is proceeding pro se, we will construe his complaint
liberally. [FN16]

     FN15. Johnston v. City of Houston, 

, 1059 (5th
Cir.1994).

     FN16. S.E.C. v. AMX, Intern., Inc., 

(5th Cir.1993)
(when litigant is pro se, his allegations and briefs were construed
more permissively); Johnson v. Atkins, 

(5th Cir.1993)
(pro se complaint is to be construed liberally).

     C. NERREN'S CLAIM
     First, we must parse Nerren's complaint. As already noted,
Nerren alleges that by denying him medical attention, both police
and jail officials, deprived him of his due process rights under
the Fourteenth Amendment. This appeal, however, deals with but a
single facet of Nerren's complaint--namely, the allegations that,
in the time interval between his arrest and booking, the Arresting
Officers denied him medical attention. [FN17] In other words, we
here address only Nerren's claims that his substantive due process
rights were violated while he was an arrestee.

     FN17. Apparently, Nerren has also alleged that he was later
denied medical attention by, inter alia, the prison officials
themselves. These claims are not addressed in this appeal.

     D. ARRESTEES AND PRETRIAL DETAINEES
     [3] Today, we make explicit that which was heretofore either
implicit or taken for granted in our case law:      An arrestee's
complaint for denial of substantive due process and a pretrial
detainee's complaint for denial of substantive due process are
evaluated under the same standards. [FN18] We discern no reason to
carve out a separate standard for *473 arrestees, a subset of
pretrial detainees. [FN19]     After the initial incidents of a
seizure have concluded and an individual is being detained by
police officials but has yet to be booked, an arrestee's right to
medical attention, like that of a pretrial detainee, derives from
the Fourteenth Amendment. [FN20]

     FN18. See e.g. Fields v. City of South Houston, Texas, 

(5th Cir.1991) (applying pretrial detainee standards to
an arrestee's claim that arresting officer denied arrestee medical
attention).

     FN19. Bell v. Wolfish, 

, 523, 

,
1865-66, 

(1979).

     FN20. This holding leaves unmolested an arrestee's additional
and specific Fourth Amendment protections to be free from an
unreasonable arrest and excessive force at the time of arrest. As
we said in Valencia v. Wiggins, 

, 1443 (5th Cir.1993),
"[a]s the     Fourth  Amendment   protects   against   unreasonable
'seizures,' it seems primarily directed to the initial act of
restraining an individual's liberty, such as an investigatory stop
or arrest." An arrestee's Fourteenth Amendment due process rights
are in addition to and overlap with that protection. We simply
recognize that arrestees as a subset of pretrial detainees have
substantive due process rights under the Fourteenth Amendment which
are, as Judge Friendly said, "quite apart from any 'specific' of
the Bill of Rights." Johnson v. Glick 

, 1032 (2d
Cir.1972).
     E. QUALIFIED IMMUNITY
     [4] Assessing the defense of qualified immunity is a two-step
process. [FN21] First, using "currently applicable constitutional
standards," [FN22] we determine whether the plaintiff has
"allege[d] the violation of a clearly established constitutional
right." [FN23] If so, we then decide if the defendant's conduct
was objectively reasonable, because " '[e]ven if an official's
conduct violates a constitutional right, he is entitled to
qualified immunity if the conduct was objectively reasonable.' "
[FN24]

     FN21.   See   Salas   v.   Carpenter,   

,   305   (5th
Cir.1992).

     FN22. Rankin v. Klevenhagen, 

, 106 (5th Cir.1993).

     FN23. Siegert v. Gilley, 

, 

, 

(1991).

     FN24. Spann v. Rainey, 

, 1114 (5th Cir.1993)
(quoting 

).

     1. Currently Applicable Law
     [5] Under currently applicable constitutional standards,
Nerren has stated a claim for the denial of his substantive due
process rights. Recently, we held that a state official's episodic
act or omission violates a pretrial detainee's due process right to
medical care if the official acts with subjective deliberate
indifference to the detainee's rights. [FN25]      We then defined
subjective deliberate indifference as subjective knowledge of a
substantial risk of serious medical harm, followed by a response of
deliberate indifference. [FN26]

     FN25. Hare v. City of Corinth, 

, 647-48 (5th
Cir.1996) (en banc). Although the district court did not and could
not have considered Nerren's complaint in light of Hare, to vacate
and remand for reconsideration based on Hare is unnecessary for two
reasons. First, we have de novo review over the legal aspects of
a interlocutory qualified immunity based motion for summary
judgment. Second, Hare is a Fifth Circuit "housekeeping" opinion;
a single opinion that clearly and concisely articulates and unifies
our court's case law in this area.

     FN26. 

     In the instant case, Nerren has alleged that his face and
chest were marred with abrasions, he was in pain, and he informed
the Arresting Officers that he needed medical attention. Moreover,
the police had subjective knowledge that Nerren had recently been
involved in a multiple vehicle injury accident.       Nevertheless,
after allegedly acknowledging Nerren's request of and need for
medical attention, the Arresting Officers denied his request for
the express reason that he had fled the scene of the accident
without regard for the plight of the other victims.       Accepting
Nerren's allegations as true, the Arresting Officers had subjective
knowledge of Nerren's need of medical attention yet turned a deaf
ear to his request.     If the evidence at trial supports these
allegations, a reasonable juror could conclude that the Arresting
Officers were deliberately indifferent to Nerren's constitutional
right to medical attention. [FN27] Thus, Nerren has cleared the
first hurdle of qualified immunity: Under currently applicable
law, Nerren has alleged a violation of a clearly established right.

     FN27. There is sufficient summary judgment evidence to raise
a fact issue as to the Arresting Officers' deliberate indifference,
thereby precluding summary judgment.

     *474 2. Objectively Reasonable?
     [6] Next, we must turn back the judicial clock to 1993 and
determine if the Arresting Officers' conduct was nonetheless
objectively reasonable at that time. We conclude that it was not.
At least since 1987, it has been clear that pretrial detainees, a
set that includes arrestees, are entitled to reasonable medical
care unless the failure to supply that care is reasonably related
to a legitimate governmental objective. [FN28]         A pretrial
detainee's specific right to medical attention has evolved over
time from his general right to be free from punishment. Pretrial
detainees, as distinguished from convicted prisoners, are those
individuals who have been charged with a crime but who have yet to
be tried on the charge. [FN29]

     FN28. Pfannstiel v. City of Marion, 

, 1186 (5th
Cir.1990) (citing 

, 99 S.Ct. at 1871-72);
Cupit v. Jones, 

, 85 (5th Cir.1987).

     FN29. 

, 99 S.Ct. at 1865-66.

     [7] We contrast pretrial detainees and convicted prisoners
because the due process clause of the Fourteenth Amendment accords
pretrial detainees rights not enjoyed by convicted inmates under
the Eighth Amendment prohibition against cruel and unusual
punishment. [FN30] Specifically, "while a sentenced inmate may be
punished in any fashion not cruel and unusual, the due process
clause forbids punishment of a person held in custody awaiting
trial but not yet adjudged guilty of any crime." [FN31]       This
standard, applied to medical attention, "entitles pretrial
detainees to reasonable medical care unless the failure to supply
it is reasonably related to a legitimate governmental objective."
[FN32]
     FN30. Jones v. Diamond, 

, 1368 (5th Cir.1981) (en
banc), overruled on other grounds, 

(1986).

     FN31. 

see also 

(citing 

, 99 S.Ct. at 1874) ("[I]f a
particular condition or restriction of pretrial detention is
reasonably related to a legitimate governmental objective, it does
not, without more, amount to punishment.        Conversely, if a
restriction or condition is not reasonably related to a legitimate
goal--if it is arbitrary or purposeless--a court permissibly may
infer that the purpose of the governmental action is punishment
that may not constitutionally be inflicted upon detainees qua
detainees.").

     FN32. 

.

     [8] The Arresting Officers have failed to present a legitimate
governmental objective for denying Nerren medical attention.
Moreover, Nerren has alleged facts presented sufficient summary
judgment evidence from which a reasonable juror could find an
expressed intent to punish: The Arresting Officers' statements
implied that they were refusing medical attention to Nerren because
he was not concerned about the other accident victims. From this
a reasonable juror could conclude that Nerren was denied medical
attention as punishment for fleeing the accident.            It is
inescapable that such a punishment could not be objectively
reasonable conduct by the Arresting Officers because Nerren was not
subject to any punishment. His punishment, nevertheless, came in
the form of the denial of his constitutional right to medical
attention. In sum, whether Nerren's allegations are analyzed under
a pretrial detainee's more general right under Bell and Valencia to
be free from punishment or his more specific right to medical
attention announced in Jones and Hare, Nerren has stated a claim
and the Arresting Officers' conduct was objectively unreasonable.
We thus conclude that the district court's denial of the Arresting
Officers' motion for summary judgment is correct.
     For the foregoing reasons, the judgment of the district court
is
     AFFIRMED.