Layton v. Board of County Commissioners , 512 F. App'x 861 ( 2013 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    March 12, 2013
    TENTH CIRCUIT
    Elisabeth A. Shumaker
    Clerk of Court
    APRIL LAYTON, as personal
    representative of the Estate of Charles
    Holdstock, deceased; APRIL
    LAYTON, individually; VALERIE
    WINFREY, individually; MELANIE
    HUFNAGEL, individually,
    Plaintiffs-Appellants,
    v.                                                    No. 11-6223
    (D.C. No. 5:09-CV-01208-C)
    THE BOARD OF COUNTY                                   (W.D. Okla.)
    COMMISSIONERS OF OKLAHOMA
    COUNTY, a political subdivision of
    the State of Oklahoma; JOHN
    WHETSEL, in his capacity as Sheriff
    of Oklahoma County,
    Defendants-Appellees.
    ORDER AND JUDGMENT *
    Before KELLY, EBEL, and HOLMES, Circuit Judges.
    Charles Holdstock died while being held as a pretrial detainee in Oklahoma
    County jail. Mr. Holdstock’s daughters—April Layton, individually and as the
    *
    This order and judgment is not binding precedent except under the
    doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Federal Rule of Appellate
    Procedure 32.1 and Tenth Circuit Rule 32.1.
    representative of Mr. Holdstock’s estate, Valerie Winfrey, and Melanie Hufnagel
    (together “Appellants”)—filed a suit against John Whetsel, Sheriff of Oklahoma
    County, in his official and individual capacities; the Board of County
    Commissioners of Oklahoma County (the “County”); and Correctional Healthcare
    Management of Oklahoma (“CHMO”), the contractor that provided primary
    medical services to Mr. Holdstock during his detention. Appellants alleged
    violations of Mr. Holdstock’s rights under the Eighth and Fourteenth
    Amendments pursuant to 
    42 U.S.C. § 1983
    , and violations of Oklahoma law. The
    district court granted summary judgment in favor of Sheriff Whetsel and the
    County. Appellants filed a timely appeal. 1 They challenge the district court’s
    grant of summary judgment to Sheriff Whetsel only with regard to his official
    capacity and also the court’s summary judgment ruling for the County.
    We REVERSE in part and VACATE in part the district court’s grant of
    summary judgment. Because a reasonable jury could find that Sheriff Whetsel
    and the County acted with deliberate indifference, we REVERSE the district
    court’s summary judgment ruling on Appellants’ § 1983 claims. We VACATE
    the grant of summary judgment on Appellants’ state-law claims and REMAND
    for further proceedings.
    1
    In the order from which Appellants appeal, the district court denied
    CHMO’s motion for summary judgment. Appellants and CHMO have since
    settled.
    -2-
    I
    A
    The basic facts regarding Mr. Holdstock’s medical treatment while in jail
    are undisputed. Mr. Holdstock was booked into the Oklahoma County jail on
    September 5, 2006. He suffered from pre-existing medical conditions, including
    congestive heart failure, diabetes, and hypertension. He had a pacemaker, and
    part of his treatment regimen included taking the medication Digoxin. Digoxin is
    filtered through the kidneys, and, if the kidneys are not functioning properly,
    Digoxin can build up to toxic levels in the body.
    On November 25, 2008, jail staff called the University of Oklahoma
    Medical Center because a cardiologist who had seen Mr. Holdstock in the
    Oklahoma Medical Center Emergency Room believed that his pacemaker needed
    to be replaced. The University of Oklahoma Medical Center checked Mr.
    Holdstock’s pacemaker on December 10, 2008, and it was pacing 100% of the
    time. The Medical Center noted that Mr. Holdstock was to receive follow-up
    treatment every twelve weeks. There is no evidence in the record that Mr.
    Holdstock ever received any follow-up treatment or testing related to his
    pacemaker.
    On April 28, 2009, Mr. Holdstock was found unresponsive on the floor of
    his cell. His skin was cool and clammy. He was taken to the infirmary run by
    CHMO, where he was evaluated and treated. The treating physician issued an
    -3-
    “[o]rder to continue to monitor [Mr. Holdstock and] call if [his] condition
    worsen[ed].” Aplts. App., Vol. I, at 145 (R. of Corr. Healthcare Mgmt., dated
    Apr. 28, 2009). The next day, Mr. Holdstock was found in his cell, having
    difficulty breathing and unable to verbalize what was wrong. He was again taken
    to the infirmary, where the staff performed tests and drew blood for analysis.
    When his condition stabilized, he was returned to his cell.
    Two days later, CHMO received the blood-analysis results from the lab.
    The lab work indicated that Mr. Holdstock’s white blood cell count, neutrophils,
    glucose serum, BUN count, creatine serum, and potassium serum were all in the
    high range. Appellants’ medical expert testified that the test results “indicate[d]
    that acid was piling up in his blood; that his kidney failure had gone from a
    chronic, stable state to . . . a downward spiral.” Id. at 122 (Dep. of Ralph
    Lazzara, taken May 9, 2011). Based upon the test results, Appellants’ expert
    “would [have been] very concerned that the digoxin level was toxic,” which
    would have prompted him to check Mr. Holdstock’s digoxin level, conduct further
    testing on his kidneys, and consider hospitalization. Id. at 122–23.
    However, CHMO took no action following receipt of Mr. Holdstock’s test
    results. No further intervention occurred until May 15—the day of Mr.
    Holdstock’s death—when he was found unresponsive in his cell and sent to the
    emergency room. Appellants’ expert testified that Mr. Holdstock’s death could
    have been prevented had Mr. Holdstock been treated for kidney failure, and that
    -4-
    there was a reasonable probability that the kidney failure resulted from Mr.
    Holdstock’s pacemaker failing, which could have been prevented had the
    pacemaker been checked.
    B
    Appellants allege that Sheriff Whetsel and the County were aware of grave
    deficiencies in the medical care provided to detainees, and that the problems were
    systemic and long-standing. They point to several documents—all of which
    involve matters preceding Mr. Holdstock’s death—that evince deficiencies in the
    medical care that the jail furnished to prisoners. In particular, they identify a
    report that the U.S. Department of Justice (“DOJ”) issued on July 31, 2008, and
    seven “Reports on Death Investigations” and two “Reports on Complaint
    Investigations” prepared by the Oklahoma State Department of Health (“OSDH”).
    In addition, they draw attention to the OSDH’s report concerning Mr. Holdstock’s
    death. Appellants aver that Sheriff Whetsel and the County were “aware that
    patients were not being seen in a timely manner” and that there were ongoing
    problems both with the administration of prescription medications and in
    providing follow-up care to seriously ill patients. Aplts. Opening Br. at 12.
    At bottom, Appellants contend that Sheriff Whetsel and the County are
    liable under § 1983 for failing to adequately monitor Mr. Holdstock and for not
    providing him with prescribed, and constitutionally-mandated medical care. In
    this regard, they contend that (1) Mr. Holdstock was not monitored despite the
    -5-
    doctor’s directive that he be monitored; (2) by virtue of the jail’s design, Mr.
    Holdstock could not have been adequately monitored once returned to his cell;
    and (3) the Sheriff and the County had actual knowledge that the deficiencies in
    medical care for seriously ill detainees like Mr. Holdstock were serious enough to
    amount to constitutional violations.
    The DOJ Report—the product of four separate inspections of the
    jail—concluded that “certain conditions at the Jail violate the constitutional rights
    of detainees confined there.” Aplt. App., Vol. I, at 155 (DOJ Investigation of the
    Okla. Cnty. Jail, dated July 31, 2008). The report stated that four years had
    passed between the DOJ’s first three tours of the jail and its most recent one, but
    “[d]espite this opportunity to improve conditions at the Jail, . . . [the DOJ] did not
    observe improved conditions.” Id. at 154.
    More specifically, the DOJ report stated that “actual direct supervision of
    detainees at the Jail is virtually non-existent [and the] facility is not adequately
    staffed to maintain necessary supervision of detainees to secure their safety.” Id.
    at 157. It further found that: (1) conditions at the jail make it “difficult, if not
    impossible, for detention staff to be able to provide adequate safety and security
    checks of the detainees,” id. at 158; (2) the crowded conditions “tax numerous
    areas of Jail operations and create circumstances that contribute to
    unconstitutional conditions,” id. at 157 n.4; (3) “detention officers have little time
    to actually monitor detainees [and] detainees are often left unsupervised for
    -6-
    extended periods of time,” id. at 158; (4) while surveillance cameras have been
    installed in many areas of the jail, “blind spots exist within the housing units,
    such as in . . . the inside of the cells, which cannot be monitored with cameras,”
    id.; and (5) “[c]ompounding the lack of adequate detainee supervision within the
    housing units is limited visibility into the individual cells,” id.
    During the DOJ’s tours of the jail, they “uncovered instances where
    detainees were not provided access to medical care, specifically acute
    services—with dire results.” Id. at 166. While the jail has a “sick call system for
    detainees to access routine medical care services, detainees’ serious medical
    needs are not adequately met.” Id. (emphasis added). Again noting problems
    with non-routine care, the report included the finding that the jail “has had some
    problems providing appropriate access to medical care during emergencies.” Id.
    at 167. The report described an incident where the medical care that the jail
    furnished to a detainee was, in the DOJ’s opinion, “‘unconscionable’ during the
    hours she was in critical need of access to medical care.” Id.
    The report outlined several recommended remedial measures, which, in the
    DOJ’s view, should “at a minimum” be implemented “to address the
    constitutional deficiencies identified . . . and protect the constitutional rights of
    detainees.” Id. at 173. Among these, the DOJ recommended that the jail
    “implement policies and procedures to allow adequate supervision of detainees.
    This should include[] conducting adequate staff rounds . . . and promptly
    -7-
    responding to medical or other emergencies.” Id. Within a general
    admonishment to “ensure the timely assessment, identification and treatment of
    detainees’ medical . . . needs,” the report outlined a need to “[p]rovide timely and
    appropriate treatment for detainees with serious medical . . . conditions,” and
    provided that “detainees with chronic diseases [should] receive screening, testing,
    treatment, and continuity of care,” and that the jail should “[p]rovide medications
    . . . in a timely manner.” Id. at 174. Further, according to the DOJ, the jail
    should “[p]rovide medical and mental health staffing sufficient to meet detainees’
    serious medical and mental health needs . . . includ[ing] staffing to provide timely
    . . . medical care.” Id. at 175.
    The OSDH’s report on Mr. Holdstock’s death also tends to bolster the
    Appellants’ contention that Mr. Holdstock was not monitored as directed by his
    treating physician, as it notes that he was “[n]ot kept in a location where he could
    be observed.” Id. at 148 (Okla. Dep’t of Health Report on Charles Holdstock’s
    Death, dated May 18, 2009). It further points out a number of other deficiencies
    in Mr. Holdstock’s treatment, including that “[m]edications [were] not given as
    directed,” id.—on one day, because his “medication was out of stock,” id. at 147,
    and on others, because Mr. Holdstock either was “not in his cell or would not
    come to the cell door to receive his medications,” id. Further, on “a few days . . .
    [Mr.] Holdstock was not getting his medication at all,” without there being “any
    explanation as to why he didn’t get his medications” in the Medication
    -8-
    Preparation Record. Id.
    The OSDH’s report on Mr. Holdstock’s death was accompanied by a
    violation notice, explaining that “[s]tate law requires periodic inspections of . . .
    jails to ensure compliance with the [statutory] Jail Standards,” and that a “May
    18, 2009 . . . inspection revealed the jail [was] not in compliance with [statutory]
    standards.” Id. at 149. Specifically, the violation notice charged that the jail did
    not meet Oklahoma Jail Standards for five reasons: first, the jail failed to meet the
    standard for “[a]dequate medical care” because Mr. Holdstock “was not kept in a
    location where he could be observed,” id. at 151; second, “administration of
    medication was not logged,” id. at 152; third, the standard for provision of
    medications as directed by a physician was not met because “medications were
    not given as directed,” id.; fourth, the “special diets” standard was not met
    because “according to [Mr.] Holdstock’s cellmate, [Mr.] Holdstock was not
    getting a special diet,” id. at 150; and finally, the standard for record-keeping was
    not met because “no blood sugar tests were found for the month of April,” id.
    In addition, viewed in the aggregate, the Death Investigation Reports and
    Complaint Investigation Reports suggest a pattern of the jail failing to provide
    medical care that meets Oklahoma statutory requirements, including requirements
    to consistently dispense medication as required and to monitor detainees with
    medical problems. These reports, dated between 2007 and 2009, were each issued
    with violation notices and demands to cure. Among the reports that Appellants
    -9-
    cite, there were a total of seventeen official deficiencies noted. The most
    common deficiency was failing to properly administer prescription medications.
    Other deficiencies included failure to keep an inmate in a location where he could
    be monitored, failure to render aid, failure to administer mandatory sight-checks,
    administration of prescription medications without physician oversight, and
    failure to provide appointments with physicians within statutorily-defined
    maximum wait-times.
    Apart from the violation notices included with Death or Complaint
    Investigation Reports, Appellants note that the OSDH issued notices regarding
    numerous other violations at the Oklahoma County jail over a several-year period
    spanning from 2003 to 2007. Frequently, those violations related to the failure to
    dispense prescription medications as prescribed, and the failure to monitor
    inmates as required either for safety or medical reasons. 2
    2
    At oral argument, the attorney for the County and Sheriff Whetsel
    represented that none of the violations identified by the OSDH resulted in
    subsequent sanctions or further action against the jail. See Oral Arg.
    at 16:14–19:51. However, the attorney also admitted that this information was not
    part of the summary judgment record (nor was it included in the record on
    appeal). See id. We do not consider facts presented for the first time at oral
    argument. See Nulf v. Int’l Paper Co., 
    656 F.2d 553
    , 559 (10th Cir. 1981)
    (“Matters not appearing in the [district-court] record will not be considered by the
    court of appeals.”); cf. Gross v. Burggraf Const. Co., 
    53 F.3d 1531
    , 1547 (10th
    Cir. 1995) (“Although Gross maintained in oral argument that she was asserting a
    claim of retaliation under Title VII, she has not adequately briefed this issue on
    appeal. Therefore, we decline to consider the merits of Gross’ claim of
    retaliation.”).
    -10-
    Moreover, the initial report of the Oklahoma County Adult Detention
    Advisory Committee (“ADAC”)—a body created by the County in 2008—notes
    what the ADAC perceives to be myriad ongoing constitutional violations. The
    ADAC points to the DOJ’s investigation of the jail that began in 2003 and
    resulted in a “scathing report” dated July 31, 2008. Aplts. App., Vol. II, at 430
    (ADAC Initial Report). 3
    The ADAC’s twenty-four page report states that “[c]hange must occur” and
    that the “County has received its warning.” Id. at 450. It notes that the “County
    has chosen to take no substantive action” despite several entities—namely, a 1995
    grand jury, the Project 9 Jail Committee, the Jail Funding Task Force, and the
    DOJ—calling for remedies to problems relating to a “continued violation of
    detainees’ Constitutional rights.” Id. at 437. According to the ADAC report, “it
    is not a question of whether something is going to be done about the conditions in
    the Jail, but rather a question of whether something will be done voluntarily and
    under circumstances in which the County retains some control and some choice,
    or involuntarily, when ordered by a federal court.” Id. Among numerous
    recommendations for improvements was a call for the jail to create an annex
    including a “real medical clinic,” amid statements that “[t]he existing ‘clinic’ is
    3
    The ADAC report is undated and, consequently, it is not entirely
    clear when the report was issued. However, based upon its contents, it appears to
    have been issued in late 2008 or early 2009. Significantly, Sheriff Whetsel and
    the County do not appear to argue that it was issued after Mr. Holdstock’s death.
    -11-
    inadequate,” and that there is “[c]ontinued poor care.” Id. at 443.
    According to Appellants, these documents support their contention that
    Sheriff Whetsel and the County had actual knowledge of ongoing constitutional
    violations in the provision of medical care to seriously ill detainees, and that their
    failure to provide constitutionally adequate treatment to Mr. Holdstock caused his
    death.
    II
    A
    “We review summary judgment rulings de novo and apply the same
    standard as the district court . . . .” Breaux v. Am. Family Mut. Ins. Co., 
    554 F.3d 854
    , 858 (10th Cir. 2009). “[S]ummary judgment is appropriate ‘if the movant
    shows that there is no genuine dispute as to any material fact and the movant is
    entitled to judgment as a matter of law.’” Morris v. City of Colo. Springs, 
    666 F.3d 654
    , 660 (10th Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). In reviewing a
    grant of summary judgment, “we consider the evidence in the light most favorable
    to the non-moving party.” EEOC v. C.R. Eng., Inc., 
    644 F.3d 1028
    , 1037
    (10th Cir. 2011) (quoting Duvall v. Ga.-Pac. Consumer Prods., L.P., 
    607 F.3d 1255
    , 1259 (10th Cir. 2010)) (internal quotation marks omitted).
    B
    “We will not hold a municipality liable [for constitutional violations] when
    there was no underlying constitutional violation by any of its officers.” Olsen v.
    -12-
    Layton Hills Mall, 
    312 F.3d 1304
    , 1317–18 (10th Cir. 2002) (quoting Hinton v.
    City of Eldwood, 
    997 F.2d 774
    , 782 (10th Cir. 1993)) (alteration in original)
    (internal quotation marks omitted). “When an officer deprives a citizen of a
    constitutional right, however, municipal governments may incur liability under
    § 1983 when ‘the action that is alleged to be unconstitutional implements or
    executes a policy, statement, ordinance, regulation or decision officially adopted
    and promulgated by that body’s officers.” Id. at 1318 (quoting Monell v. Dep’t.
    of Soc. Servs., 
    436 U.S. 658
    , 690 (1978)). “[I]t is only when the execution of the
    government’s policy or custom . . . inflicts the injury that the municipality may be
    held liable under § 1983.” Id. (quoting City of Canton v. Harris, 
    489 U.S. 378
    ,
    385 (1989)) (internal quotation marks omitted). Accordingly, for Appellants to
    hold the County 4 liable under § 1983, they must first demonstrate (1) that an
    officer deprived Mr. Holdstock of a constitutional right, and (2) that a County
    policy or custom was the moving force behind the constitutional deprivation. See
    City of Canton, 
    489 U.S. at 385
    ; Monell, 
    436 U.S. at 694
    ; Myers, 151 F.3d at
    1318. We turn first to the issue of whether Mr. Holdstock’s constitutional rights
    were violated.
    4
    A “suit against [the Sheriff] in his official capacity as sheriff is the
    equivalent of a suit against [the] County.” Lopez v. LeMaster, 
    172 F.3d 756
    , 762
    (10th Cir. 1999); see also Myers v. Okla. Cnty. Bd. of Cnty. Comm’rs, 
    151 F.3d 1313
    , 1316 n.2 (10th Cir. 1998). Thus, we apply the same analysis to Appellants’
    suit against Sheriff Whetsel in his official capacity as we do to their suit against
    the County. Cf. Myers, 
    151 F.3d at
    1316 n.2.
    -13-
    “Under the Fourteenth Amendment due process clause, ‘pretrial detainees
    are . . . entitled to the degree of protection against denial of medical attention
    which applies to convicted inmates’ under the Eighth Amendment.” Martinez v.
    Beggs, 
    563 F.3d 1082
    , 1088 (10th Cir. 2009) (quoting Garcia v. Salt Lake Cnty.,
    
    768 F.2d 303
    , 307 (10th Cir. 1985)). “A plaintiff states a cognizable Eighth
    Amendment claim for denial of medical attention if he ‘alleges acts or omissions
    sufficiently harmful to evidence deliberate indifference to serious medical
    needs.’” Olsen, 
    312 F.3d at 1315
     (quoting Estelle v. Gamble, 
    429 U.S. 97
    , 106
    (1976)). In the Eighth Amendment context, “[d]eliberate indifference involves
    both an objective and subjective component.” 5 
    Id.
     (quoting Sealock v. Colorado,
    
    218 F.3d 1205
    , 1209 (10th Cir. 2000)) (internal quotation marks omitted).
    The objective component is met “if the deprivation is sufficiently
    serious—that is, if it 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
    5
    As we discuss infra, Appellants must also demonstrate “deliberate
    indifference” to impose municipal liability under § 1983. “Deliberate
    indifference, however, is defined differently for Eighth Amendment and
    municipal liability purposes.” Barney v. Pulsipher, 
    143 F.3d 1299
    , 1307 n.5
    (10th Cir. 1998). “In the prison conditions context, deliberate indifference is a
    subjective standard requiring actual knowledge of a risk by the official.” 
    Id.
     In
    contrast, “[i]n the municipal liability context, deliberate indifference is an
    objective standard which is satisfied if the risk is so obvious that the official
    should have known of it.” Id.; see generally Farmer v. Brennan, 
    511 U.S. 825
    ,
    840–42 (1994). Here, we apply the Eighth Amendment definition of deliberate
    indifference. In Part II.C, we apply the municipal liability definition of deliberate
    indifference.
    -14-
    the necessity for a doctor’s attention.” 
    Id.
     (quoting Hunt v. Uphoff, 
    199 F.3d 1220
    , 1224 (10th Cir. 1999)) (internal quotation marks omitted). More generally,
    in Martinez, we outlined key features of the objective component:
    The objective component of the test is met if the “harm suffered
    rises to a level ‘sufficiently serious’ to be cognizable under the
    Cruel and Unusual Punishment Clause” of the Eighth
    Amendment. . . . [I]t is the harm claimed by the prisoner that
    must be sufficiently serious to satisfy the objective component,
    and not solely “the symptoms presented at the time the prison
    employee has contact with the prisoner.”
    
    563 F.3d at 1088
     (citation omitted) (quoting Mata v. Saiz, 
    427 F.3d 745
    , 752–53
    (10th Cir. 2005)). Death is, “without doubt, sufficiently serious to meet the
    objective component necessary to implicate the [Eighth and] Fourteenth
    Amendment[s].” 
    Id.
     at 1088–89 (citation omitted) (internal quotation marks
    omitted). Because Mr. Holdstock died in the jail, we conclude that there is
    sufficient evidence in the summary judgment record from which a reasonable jury
    could find that Mr. Holdstock suffered an objectively serious harm.
    Next, we turn to the subjective component of deliberate indifference. The
    subjective component is satisfied “if an officer knows of and disregards an
    excessive risk to [a detainee’s] health or safety.” Olsen, 
    312 F.3d at 1315
    (quoting Sealock, 
    218 F.3d at 1209
    ) (alteration in original) (internal quotation
    marks omitted). We ask whether “the symptoms [were] such that a prison
    employee knew the risk to the prisoner and chose (recklessly) to disregard it[.]”
    -15-
    Mata, 
    427 F.3d at 753
    . The Supreme Court’s decision in Farmer, from which our
    jurisprudence on this question has been derived, explains:
    [A] prison official cannot be found liable under the Eighth
    Amendment for denying an inmate humane conditions of
    confinement unless the official knows of and disregards an
    excessive risk to inmate health or safety; the official must
    both be aware of facts from which the inference could be
    drawn that a substantial risk of serious harm exists, and he
    must also draw the inference.
    
    511 U.S. at 837
    .
    “Our cases recognize two types of conduct constituting deliberate
    indifference.” Sealock, 
    218 F.3d at 1211
    . “First, a medical professional may fail
    to treat a serious medical condition properly. . . . The second type of deliberate
    indifference occurs when prison officials prevent an inmate from receiving
    treatment or deny him access to medical personnel capable of evaluating the need
    for treatment.” 
    Id.
     Notably, a prison medical professional who serves “solely . . .
    as a gatekeeper for other medical personnel capable of treating the condition”
    may be held liable under the deliberate indifference standard if she “delays or
    refuses to fulfill that gatekeeper role.” 
    Id.
    In Tafoya v. Salazar, 
    516 F.3d 912
     (10th Cir. 2008), we considered whether
    and under what circumstances a sheriff could be liable pursuant to § 1983 for a
    -16-
    sexual assault perpetrated by a guard against an inmate. 6 “Because we f[ound]
    that [the sheriff] was aware of prison conditions that were substantially likely to
    result in the sexual assault of a female inmate, and [we] conclude[d] that a jury
    might infer that the assaults on [the plaintiff] were caused by these dangerous
    conditions,” we reversed the district court’s grant of summary judgment in favor
    of the sheriff. Id. at 915.
    In Tafoya, we emphasized that “[t]he official’s knowledge of the risk need
    not be knowledge of a substantial risk to a particular inmate, or knowledge of the
    particular manner in which injury might occur.” Id. at 916; accord Keith v.
    Koerner, --- F.3d ----, 
    2013 WL 500703
    , at *3 (10th Cir. Feb. 12, 2013); see also
    Farmer, 
    511 U.S. at 843
     (finding liability even though the prison official “did not
    know that the complainant was especially likely to be assaulted by the specific
    prisoner who eventually committed the assault” (emphases added)). Moreover,
    “it does not matter whether the risk comes from a single source or multiple
    sources, any more than it matters whether a prisoner faces an excessive risk . . .
    6
    The appellants in Tafoya sought to impose individual rather than
    municipal liability. However, the question that must be answered in the
    individual liability analysis is essentially the same as the one that must be
    answered at the first step of the municipal liability inquiry: whether an individual
    officer committed a constitutional violation. As such, Tafoya provides a useful
    guide for analyzing cases in which the failure to remedy ongoing constitutional
    violations, or circumstances that are likely to lead to such violations, causes harm
    to a particular detainee. As discussed infra, to establish municipal liability,
    Appellants still need to take the additional step of demonstrating that a County
    policy or custom was the moving force behind the constitutional violation.
    -17-
    for reasons personal to him or because all prisoners in his situation face such a
    risk.” Farmer, 
    511 U.S. at 843
    .
    Here, Appellants submitted evidence that tends to demonstrate long-
    standing, systemic deficiencies in the medical care that the jail provided to
    detainees—specifically, that the detainees were not being seen for medical care in
    a timely manner, that medications were not being administered as directed, that
    follow-up care was not being provided to seriously ill detainees, and that the jail’s
    design prevented effective monitoring and supervision of detainees with serious
    medical needs. Despite this ample evidence indicating constitutionally
    inadequate conditions at the jail, the district court reasoned:
    Plaintiffs complain that Mr. Holdstock could not be
    monitored while in his cell and/or that the long history of
    problems at the jail should have caused [the County]
    and/or Whetsel to act differently to Mr. Holdstock.
    However, there simply is no evidence from which any
    reasonable jury could find that on April 28, 2009, Mr.
    Holdstock faced death. Thus, it cannot be said that anyone
    recognized that risk existed and recklessly ignored it.
    Aplts. App., Vol. I, at 20.
    We respectfully disagree with the district court’s analysis. To survive
    summary judgment, Appellants did not need to provide evidence that “on
    April 28, 2009, Mr. Holdstock faced death.” Instead, Appellants merely needed
    to present evidence that Mr. Holdstock faced a substantial risk of serious harm of
    -18-
    which the prison officials were, or should have been, aware. See Gonzales v.
    Martinez, 
    403 F.3d 1179
    , 1183 (10th Cir. 2005) (“[A]n Eighth Amendment
    claimant need not show that a prison official acted or failed to act believing that
    harm actually would befall an inmate; it is enough that the official acted or failed
    to act despite his knowledge of a substantial risk of harm.” (quoting Farmer, 
    511 U.S. at 842
    ) (internal quotation marks omitted)); see also Lopez, 
    172 F.3d at
    762
    n.5 (“[A] prison official [may not] escape liability for deliberate indifference by
    showing that, while he was aware of an obvious, substantial risk to inmate safety,
    he did not know that the complainant was especially likely to be assaulted by the
    specific prisoner who eventually committed the assault.” (quoting Farmer, 
    511 U.S. at 843
    ) (alterations in original) (internal quotation marks omitted)).
    “Whether a prison official had the requisite knowledge of a substantial risk
    is a question of fact subject to demonstration in the usual ways, including
    inference from circumstantial evidence.” Gonzales, 
    403 F.3d at 1183
     (quoting
    Farmer, 
    511 U.S. at 842
    ) (internal quotation marks omitted). Here, we conclude
    that Appellants have raised a triable issue of material fact regarding whether
    Sheriff Whetsel was aware of dangerous prison conditions that were substantially
    likely to result in constitutionally deficient medical care for seriously ill
    detainees. Furthermore, a reasonable jury also could infer that Mr. Holdstock’s
    death was, in fact, caused by these dangerous conditions. Therefore, insofar as
    the district court found that Appellants could not survive summary judgment
    -19-
    regarding the existence of a constitutional violation—the first step in the
    municipal liability analysis—we conclude that the court erred.
    C
    For purposes of municipal liability, in addition to establishing a violation
    of Mr. Holdstock’s constitutional rights, Appellants must also show “that the
    county or its authorized decisionmaker ‘intentionally deprived [Mr. Holdstock] of
    a federally protected right’ through its unconstitutional policy.” Lopez, 
    172 F.3d at 763
     (emphasis added) (quoting Bd. of Cnty. Comm’rs v. Brown, 
    520 U.S. 397
    ,
    405 (1997)); see also Olsen, 
    312 F.3d at 1318
     (holding there was not municipal
    liability where, “[a]lthough Appellant may indeed show that Officer King has
    committed the prerequisite underlying Eighth Amendment violation, Appellant
    has not taken the subsequent step of linking the possible violation to a
    municipality custom or policy”). Stated differently, the unconstitutional policy
    must be the “moving force behind the injury alleged.” Barney, 
    143 F.3d at 1307
    (quoting Brown, 
    520 U.S. at 404
    ) (internal quotation marks omitted). A
    municipality also may be liable under § 1983 for “an act performed pursuant to a
    ‘custom’ that has not been formally approved . . . on the theory that the relevant
    practice is so widespread as to have the force of law.” Brown, 
    520 U.S. at 404
    (quoting Monell, 
    436 U.S. at
    690–691).
    “[The] plaintiff must show that the municipal action was taken with the
    -20-
    requisite degree of culpability and must demonstrate a direct causal link between
    the municipal action and deprivation of federal rights.” 
    Id.
     The requisite degree
    of intent is “deliberate indifference to inmate health or safety.” 7 Lopez, 
    172 F.3d at 763
    .
    In the municipal liability context, “[t]he deliberate indifference standard
    may be satisfied when the [County] has actual or constructive notice that its
    action or failure to act is substantially certain to result in a constitutional
    violation, and it consciously or deliberately chooses to disregard the risk of
    harm.” Barney, 
    143 F.3d at 1307
    . Here, the County was notified in writing by
    the DOJ and the ADAC that deficiencies in the jail’s medical care posed a serious
    risk to prisoner health and safety. Yet, despite having “received its warning,”
    Aplts. App., Vol. II, at 450, the County failed to implement measures to remedy
    its “continued violation of detainees’ Constitutional rights,” id. at 437.
    The failure to remedy ongoing constitutional violations may be evidence of
    deliberate indifference on the part of a municipality. See Brown, 
    520 U.S. at 407
    (“[Municipal decisionmakers’] continued adherence to an approach that they
    know or should know has failed to prevent tortious conduct by employees may
    establish the conscious disregard for the consequences of their action—the
    7
    In Part II.B, we applied deliberate indifference in the context of an
    Eighth Amendment claim. Here, we apply deliberate indifference in the
    municipal liability context, and use an objective rather than subjective standard.
    See supra note 5.
    -21-
    ‘deliberate indifference’—necessary to trigger municipal liability.” (quoting City
    of Canton, 
    489 U.S. at
    390 n.10)). Here, based on Appellants’ references to
    (1) deficiencies described in the Death Investigation and Complaint Investigation
    Reports; (2) the OSDH’s citations of the jail for violations; (3) the DOJ report;
    and (4) the ADAC report, a reasonable jury could find that the County’s
    willingness—demonstrated by inaction—to permit seriously ill inmates to remain
    unmonitored in their cells evinces deliberate indifference for purposes of
    establishing municipal liability. 8
    The County may also “be liable on the basis that [Sheriff Whetsel] is a final
    policymaker with regard to its jail, such that his actions ‘may fairly be said to be
    those of the municipality.’” Lopez, 
    172 F.3d at 763
     (quoting Brown, 
    520 U.S. at 404
    ); see also Winton v. Bd. of Comm’rs of Tulsa Cnty., Okla., 
    88 F. Supp. 2d 1247
    , 1270 (N.D. Okla. 2000) (“The Sheriff’s actions or inactions, as the final
    policy maker for the Jail, are attributable to the County.”). Here, a reasonable
    jury could conclude that Sheriff Whetsel was on notice of constitutional
    deficiencies in the care of seriously ill detainees, and that his failure to take
    appropriate measures to remedy these deficiencies constituted deliberate
    indifference. See Tafoya, 
    516 F.3d at 920
     (holding that previous assaults “should
    8
    In this vein, it is at least arguable that the County’s willingness to
    continue employing CHMO, without sufficient oversight or quality control, could
    be evidence of deliberate indifference, especially where Appellants have pointed
    to reports that reflect a lack of adequate medical care and deaths at the jail.
    -22-
    have served as a wake-up call,” and that failing to take appropriate measures to
    protect against future assaults could rise to the level of deliberate indifference);
    Dyer v. Bd. of Cnty. Comm’rs for Okla. Cnty., No. CIV-09-207-M, 
    2009 WL 3245419
    , at *2–3 (W.D. Okla. Oct. 1, 2009) (“Having reviewed the parties’
    submissions [on the sheriff’s motion for summary judgment on a pretrial
    detainee’s § 1983 claim], the Court finds that plaintiff has presented sufficient
    evidence that [the sheriff] had direct and actual knowledge of a substantial risk of
    inmate attacks as documented . . . in the [DOJ] Report concerning the Detention
    Center.”).
    With regard to the issue of whether the County’s policies or customs were
    “the moving force” behind the violation of Mr. Holdstock’s constitutional rights,
    see Brown, 
    520 U.S. at 404
    , the district court concluded that Appellants had failed
    to demonstrate how Mr. Holdstock’s death could have been prevented by the
    County, see Aplts. App., Vol. I, at 20–21. We disagree. Appellants have
    presented sufficient evidence to demonstrate a “direct causal link,” see Brown,
    
    520 U.S. at 404
    , between the County’s (in)action and the deprivation of Mr.
    Holdstock’s constitutional right to receive adequate medical care. Notably, a
    reasonable jury could find that, had Mr. Holdstock’s cell been monitored on a
    more regular basis, prompt intervention would have prevented his death. More
    generally, a reasonable jury could find that the County and Sheriff Whetsel were
    on notice as to the problems with the jail’s medical-care system, and that had they
    -23-
    taken any number of possible remedial actions—many of which were explicitly
    identified by the DOJ and OSDH—Mr. Holdstock’s condition would not have
    deteriorated and his death could have been avoided by timely medical
    intervention.
    Accordingly, Appellants have “presented evidence of disputed material
    facts sufficient to create a genuine question as to whether [the County] was
    deliberately indifferent to the conditions at the [jail],” Tafoya, 
    516 F.3d at 921
    ,
    and regarding whether the County’s policies were the moving force behind Mr.
    Holdstock’s death. As such, we reverse the grant of summary judgment in favor
    of Sheriff Whetsel and the County on Appellants’ § 1983 claim.
    D
    In addition to their § 1983 claim, Appellants pleaded a claim against each
    defendant for wrongful death and a claim for the violation of both Oklahoma tort
    law and “the Oklahoma Constitution, statutory law, [and] common law.” Aplees.
    App., Vol. I, at 7–8. Although the summary-judgment briefing before the district
    court was not limited to the § 1983 claim, the district court’s entire discussion of
    Appellants’ state law claims in its summary judgment order consists of one
    paragraph and relates only to CHMO’s motion for summary judgment. 9
    9
    The district court ruled as follows:
    (continued...)
    -24-
    Appellants state that “the [district court’s opinion] did not address [their]
    state court claims against Defendant Sheriff and [the County].” Aplts. Opening
    Br. at 28. To the contrary, although the district court did not discuss the state-law
    claims as they applied to the non-CHMO defendants, it nonetheless ruled on the
    claims by granting the summary judgment motions of Sheriff Whetsel and the
    County without limitation.
    Appellants aver that “[s]ummary [j]udgment is . . . improper.” Aplts.
    Opening Br. at 29. Notably, their discussion of the issue focuses only on the fact
    that a tort action is different from a § 1983 claim. In other words, Appellants
    appear to assume that the district court dismissed their state-law claims on the
    grounds that a tort claim is the same as a § 1983 claim. According to Sheriff
    9
    (...continued)
    Turning to the state law claims: CHMO argues that Plaintiffs
    cannot establish a claim of medical negligence because they have
    no expert testimony. To the contrary, the same facts and
    testimony which demonstrate that CHMO’s employees acted with
    deliberate indifference are sufficient to satisfy the elements of a
    medical negligence claim under Oklahoma law. Thus, to the
    extent CHMO seeks summary judgment on that claim, it will
    likewise be denied. Whether or not CHMO is entitled to the
    protections of Oklahoma’s Governmental Tort Claims Act and its
    exception to the waiver of sovereign liability was not raised by
    this Defendant and therefore has not been considered by the
    Court.
    Aplts. App., Vol. I, at 21–22.
    -25-
    Whetsel and the County, “Appellants appear to be correct when they state that the
    trial court did not address their state law claims,” Aplees. Br. at 17; they ask us to
    either rule that the state-law claims are barred, or to “refer the issue to the trial
    court for its ruling on the issue,” id. at 18. 10
    In sum, Appellants pleaded state-law claims against Sheriff Whetsel and
    the County, but the district court did not discuss them in its decision.
    Nonetheless, the court granted summary judgment in full as to those defendants.
    Instead of reaching Appellants’ state-law claims in the first instance, we vacate
    the district court’s judgment on those claims and remand for the court to provide
    an explicit determination as to their merits. Cf. Perkins v. Kan. Dept. of Corr.,
    
    165 F.3d 803
    , 807, 811 (10th Cir. 1999) (affirming in part, reversing in part, and
    remanding the case to the district court, which had dismissed the plaintiff’s action
    10
    The County and Sheriff Whetsel present no substantive arguments
    relating to Appellants’ state-law claims in their brief before this court. Instead,
    they reference the arguments they made in their motion for summary judgment
    before the district court, and signal only that “those arguments are incorporated
    herein.” Aplees. Br. at 18. We note that this practice is disfavored and counsel
    who resort to it do so at their peril. See 10th Cir. R. 28.4 (“Incorporating by
    reference portions of lower court . . . briefs or pleadings is disapproved and does
    not satisfy the requirements of Fed. R. App. P. 28(a) and (b).”); Concrete Works
    of Colo., Inc. v. City & Cnty. of Denver, 
    321 F.3d 950
    , 979 n.14 (10th Cir. 2003)
    (“This court is under no obligation to consider arguments not fully set forth in a
    party’s appellate brief, including arguments incorporated by reference to prior
    pleadings or other materials.”); accord Lauck v. Campbell Cnty., 
    627 F.3d 805
    ,
    814–15 (10th Cir. 2010). However, given our disposition with respect to the
    state-law claims, we have no need to further explore the implications of this
    delict.
    -26-
    in its entirety despite “explicitly address[ing]” only certain claims, and directing
    the district court to address those claims “which it did not consider initially”).
    III
    For the foregoing reasons, we REVERSE the district court’s grant of
    summary judgment to Sheriff Whetsel and the County on Appellants’ § 1983
    claim. We VACATE the grant of summary judgment on Appellants’ state-law
    claims and REMAND for further proceedings consistent with this opinion.
    ENTERED FOR THE COURT
    Jerome A. Holmes
    Circuit Judge
    -27-
    

Document Info

Docket Number: 11-6223

Citation Numbers: 512 F. App'x 861

Judges: Kelly, Erel, Holmes

Filed Date: 3/12/2013

Precedential Status: Non-Precedential

Modified Date: 10/19/2024

Authorities (25)

Board of the County Commissioners of Bryan County v. Brown , 117 S. Ct. 1382 ( 1997 )

Winton v. Board of Com'rs of Tulsa County, Okl. , 88 F. Supp. 2d 1247 ( 2000 )

Mata v. Saiz , 427 F.3d 745 ( 2005 )

Monell v. New York City Dept. of Social Servs. , 98 S. Ct. 2018 ( 1978 )

City of Canton v. Harris , 109 S. Ct. 1197 ( 1989 )

Estelle v. Gamble , 97 S. Ct. 285 ( 1976 )

Sealock v. State Of Colorado , 218 F.3d 1205 ( 2000 )

Duvall v. Georgia-Pacific Consumer Products, L.P. , 607 F.3d 1255 ( 2010 )

Farmer v. Brennan , 114 S. Ct. 1970 ( 1994 )

Concrete Works of Colorado, Inc. v. City & County of Denver , 321 F.3d 950 ( 2003 )

Mapp v. Uphoff , 199 F.3d 1220 ( 1999 )

Shirley NULF, Plaintiff-Appellant, v. INTERNATIONAL PAPER ... , 656 F.2d 553 ( 1981 )

68-fair-emplpraccas-bna-88-66-empl-prac-dec-p-43689-42-fed-r , 53 F.3d 1531 ( 1995 )

Martinez v. Beggs , 563 F.3d 1082 ( 2009 )

kenneth-l-hinton-for-himself-and-as-father-and-next-friend-of-kamilah , 997 F.2d 774 ( 1993 )

susan-barney-kathy-christensen-v-gerald-r-pulsipher-individually-and-in , 143 F.3d 1299 ( 1998 )

Breaux v. American Family Mutual Insurance , 554 F.3d 854 ( 2009 )

deborah-garcia-marcella-garcia-and-alphonso-garcia-individually-deborah , 768 F.2d 303 ( 1985 )

Perkins v. Kansas Department of Corrections , 165 F.3d 803 ( 1999 )

Tafoya v. Salazar , 516 F.3d 912 ( 2008 )

View All Authorities »