RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 21a0268p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ ANAS ELHADY, │ Plaintiff-Appellee, │ > No. 20-1339 v. │ │ UNIDENTIFIED CBP AGENTS, et al., │ Defendants, │ │ BLAKE BRADLEY, │ Defendant-Appellant. │ ┘ Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:17-cv-12969—Mark A. Goldsmith, District Judge. Argued: October 21, 2021 Decided and Filed: November 19, 2021 Before: ROGERS, GRIFFIN, and THAPAR, Circuit Judges. _________________ COUNSEL ARGUED: Casen B. Ross, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Justin Sadowsky, CAIR LEGAL DEFENSE FUND, Washington, D.C., for Appellee. ON BRIEF: Casen B. Ross, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Justin Sadowsky, Lena Masri, Gadeir I. Abbas, CAIR LEGAL DEFENSE FUND, Washington, D.C., for Appellee. THAPAR, J., delivered the opinion of the court in which GRIFFIN, J., joined. ROGERS, J. (pp. 11–14), delivered a separate dissenting opinion. No. 20-1339 Elhady v. Unidentified CBP Agents, et al. Page 2 _________________ OPINION _________________ THAPAR, Circuit Judge. In a lawsuit against federal officers, the first question a court should ask is whether a cause of action exists. The district court thought it did. We disagree and reverse. I. Anas Elhady, a United States citizen living in Michigan, drove to Canada to visit friends for the night. But on his return, border-patrol agents stopped him at the border and detained him for questioning.1 During his detention, the officers took Elhady’s jacket and shoes, leaving him wearing only his shirt, pants, undergarments, and socks. Elhady complained to the officers that the cell was cold, asking them to either return his jacket and shoes or provide a blanket. But he claims his requests went unanswered. According to Elhady, the cell “got colder and colder,” and he began shivering uncontrollably. R. 96-1, Pg. ID 1715–16. He says he yelled to the officers that he was freezing and needed to go to the hospital, but they told him not to worry, “you’ll be out soon.” Id. at 1716. Elhady thought the officers were intentionally ignoring his requests. After about four hours, the officers told him he could leave. But he told them he felt too ill to drive and needed to go to the hospital. So the officers called him an ambulance. In the ambulance, the EMT noted that Elhady was alert, aware of his surroundings, and received the highest score on a test that measured his level of consciousness. The EMT also noted that Elhady had delayed capillary refill, which is consistent with exposure to the cold. But by the time he reached the hospital, his temperature was 96.08 degrees—which is barely below 1 Elhady says that he was detained because he was on the “federal terrorist watchlist.” R. 122, Pg. ID 4665. The defendants neither confirmed nor denied this allegation, and the district court noted that Elhady’s status on the watchlist was irrelevant for summary judgment. That is so because “searches …
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