Quintana v. Santa Fe County Board of Comm. ( 2020 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH August 28, 2020
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
ROSA QUINTANA and CORY
HICKERSON, individually, and as
personal representatives of the Estate
of Ricardo Jose Ortiz, deceased,
Plaintiffs - Appellants,
v. No. 19-2039
SANTA FE COUNTY BOARD OF
COMMISSIONERS; ANNE
ROBINSON, in her individual
capacity; DYLAN CHAVEZ, in his
individual capacity; ANTHONY
VALDO, in his individual capacity;
TYLER LOPEZ, in his individual
capacity; LEONARD GARCIA, in his
individual capacity; CRISTOBAL
GALLEGOS, in his individual
capacity,
Defendants - Appellees.
------------------------------------------
THE RODERICK AND SOLANGE
MACARTHUR JUSTICE CENTER,
Amicus Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 1:18-CV-00043-JB-LF)
Alicia C. Lopez (Carolyn M. “Cammie” Nichols with her on the briefs), Rothstein
Donatelli LP, Albuquerque, New Mexico, for Plaintiffs-Appellants.
Mark E. Komer, Long, Komer & Associates, P.A., Santa Fe, New Mexico (Jonas
M. Nahoum, Long, Komer & Associates, Santa Fe, New Mexico, and Christa M.
Hazlett and Carol Dominguez Shay, Conklin, Woodcock & Ziegler, P.C.,
Albuquerque, New Mexico, with him on the brief), for Defendants-Appellees.
David M. Shapiro, Roderick & Solange MacArthur Justice Center and
Northwestern Pritzker School of Law, Chicago, Illinois, for Amicus Curiae.
Before TYMKOVICH, Chief Judge, BACHARACH, and CARSON, Circuit
Judges.
TYMKOVICH, Chief Judge.
Following the January 2016 death of Ricardo Jose Ortiz at the Sante Fe
Adult Detention Facility (ADF), Ortiz’s personal representatives sued multiple
individual ADF affiliates, alleging state claims under the New Mexico Tort
Claims Act and violations of his Fourteenth Amendment right to medical
treatment under 42 U.S.C. § 1983. The defendants moved to dismiss the first
amended complaint (FAC), and the plaintiffs moved to amend their complaint to
include a claim for municipal liability that was not in any prior complaint. In an
order addressing both motions, the district court dismissed the § 1983 claims,
denied the plaintiffs leave to amend to include that municipal liability claim, and
remanded the state-law claims.
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On appeal, the plaintiffs-appellants argue the district court erred in
dismissing the § 1983 claims against individual prison employees and in denying
leave to amend.
We agree that the plaintiffs-appellants plausibly alleged Officer Chavez
violated Ortiz’s clearly established constitutional right to medical care for acute
symptoms related to his withdrawal from heroin. But we cannot conclude they
plausibly alleged the other individual defendants violated Ortiz’s clearly
established constitutional right to medical care under these circumstances.
Therefore, we VACATE the district court’s dismissal with regard to Officer
Chavez but AFFIRM with regard to the other individual defendants.
Separately, we conclude the district court should not have denied the
plaintiff leave to amend for reasons of futility. The district court determined that
the plaintiff could not state a claim for municipal liability without first properly
stating a claim against an individual, but our court’s precedent allows municipal
liability even where no individual liability exists.
We accordingly VACATE the district court’s denial of leave to amend.
I. Background
Ortiz was arrested and booked into ADF on January 4, 2016. After
booking, Defendant Nurse Anne Robinson conducted a medical intake exam,
apparently without completing various intake forms. During the exam, Nurse
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Robinson determined that Ortiz was dependent on heroin and would likely
undergo withdrawal. She therefore offered Ortiz a set of medications known as a
“kick kit.” The plaintiffs allege the kick kit was never administered.
The other individual defendants—Corporal Gallegos and Officers Chavez,
Valdo, Lopez, and Garcia—supervised or interacted with Ortiz in some capacity
between his medical exam on January 4 and his death on January 7. By their own
admission, they were aware that Ortiz was experiencing withdrawal symptoms.
They did not attempt to provide any further medical assistance, and Ortiz did not
request any further treatment.
On January 7, Officer Garcia found Ortiz unresponsive and disrobed in his
cell, the floors and walls of which were partially covered in feces and bodily
fluids. Attempts to revive him were unsuccessful. Following an autopsy, it was
concluded that Ortiz “died of an acute gastrointestinal hemorrhage due to
probable heroin withdrawal.” App., Vol. 1 at 34.
In January 2018, the plaintiffs filed a law suit in New Mexico state court,
alleging a claim under the New Mexico Tort Claims Act and a claim against only
Nurse Robinson under § 1983 for deliberate indifference to Ortiz’s serious
medical needs. The case was removed to federal district court, and the plaintiffs
filed the FAC, which included claims against all the individual defendants under
§ 1983. Soon thereafter, the defendants filed a motion to dismiss the § 1983
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claims on qualified immunity grounds. The plaintiffs opposed that motion and
moved for leave to file a second amended complaint (SAC).
In their motion to amend, the plaintiffs explained that they wanted to make
several material changes to their complaint. The most significant proposed
amendment was an entirely new claim against Sante Fe County for municipal
liability under Monell v. Dep’t. of Soc. Servs., 436 U.S. 658 (1978). The SAC
also contained amendments to the preexisting claims. According to the motion to
amend, the SAC was meant, in part, to address the defendants’ concerns regarding
the state-law and § 1983 claims. But the motion said that the changes to the
§ 1983 allegations were not material, as the claims were fully stated in the FAC.
App., Vol. 1 at 135 (stating the rewritten paragraphs attempting to state claims
against the individual defendants “contain only allegations previously set forth in
the operative [i.e. First Amended] Complaint”).
The district court granted in full the defendants’ motion to dismiss the
§ 1983 claims based on qualified immunity. In the same order, the court also
denied the motion to amend because the proposed SAC would not have cured the
various deficiencies in the § 1983 claim and because it did not properly state a
Monell claim as a matter of law. Having disposed of the various federal questions
giving rise to the district court’s subject matter jurisdiction, the court remanded
the surviving state-law issues to state court.
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II. Discussion
A. Qualified Immunity
Our qualified-immunity inquiry requires a plaintiff to allege that: (1) the
defendant violated a constitutional right and (2) the constitutional right was
clearly established at the time of the violation. E.g., Lindsey v. Hyler, 918 F.3d
1109, 1113 (10th Cir. 2019) (citing Medina v. Cram, 252 F.3d 1124, 1128 (10th
Cir. 2001)). We have described this burden as “heavy,” in large part because our
qualified-immunity inquiry “is designed to spare a defendant not only
unwarranted liability, but [also] unwarranted demands customarily imposed upon
those defending a long drawn-out lawsuit.” Medina, 252 F.3d at 1128 (quoting
Wilson v. Layne, 526 U.S. 603, 609 (1999) (quotation marks omitted)).
Here, the plaintiff has failed to allege plausibly a clearly established
constitutional violation against any of the six individual defendants other than
Officer Chavez.
In making that determination, we look to the FAC and not the proposed
SAC. As we explain below, a de novo review reveals the district court should not
have denied the plaintiffs’ motion to amend the complaint to add a separate claim
against the county for municipal liability. The district court did not, however, err
in denying the motion with regard to allegations against the various individual
plaintiffs.
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As that court noted, the plaintiffs specifically argued in their motion to
amend that their proposed amendments to Count II—i.e. the count alleging
individual liability—were not “substantive amendments,” clarifying that “while
the paragraphs under Count II are partly rewritten, they contain only allegations
previously set forth in the operative complaint.” App., Vol. 1 at 135. That is, the
plaintiffs themselves explicitly denied that the SAC would in any way cure
deficiencies in the FAC with respect to the allegations in Count II. The district
court was under no obligation to consider an argument that the movant not only
did not raise but explicitly discredited and disowned.
Because any argument that the district court erred in denying the motion to
amend with regard to Count II of the complaint is waived, we do not consider the
allegations made in the SAC as opposed to the allegations made in the FAC.
1. Constitutional Violation
In assessing the plaintiff’s contention that the individual defendants
violated Ortiz’s Fourteenth Amendment rights, we apply the two-part Eighth
Amendment inquiry when a pretrial detainee alleges deliberate indifference to
serious medical needs. 1 E.g., Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.
2009) (citing Garcia v. Salt Lake Cty., 768 F.2d 303, 307 (10th Cir. 1985)). This
1
We also endorse Judge Bacharach’s rejection of the argument that
Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), requires us to conduct only an
objective inquiry.
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exercise requires both an objective and a subjective inquiry. Id. (citing Callahan
v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006)).
The objective inquiry asks whether “the harm suffered rises to a level
sufficiently serious to be cognizable under the Cruel and Unusual Punishment
Clause of the Eighth Amendment.” Id. (quoting Mata v. Saiz, 427 F.3d 745,
752–53 (10th Cir. 2005) (quotation marks omitted)). The subjective inquiry, in
turn, asks whether “the defendants knew [the detainee] faced a substantial risk of
harm and disregarded that risk, by failing to take reasonable measures to abate it.”
Id. (quoting Callahan, 471 F.3d at 1159 (quotation marks omitted)).
a. Objective Inquiry
As we have observed, “[a] medical need is sufficiently serious ‘if it is one
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.’” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (quoting
Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999)). No Tenth Circuit
authorities have concluded that heroin withdrawal presents a “sufficiently
serious” medical need. 2 But the absence of precedent “on all fours” need not
2
Looking primarily to out-of-circuit authorities, Judge Bacharach’s
opinion fashions a reasonable case that symptoms associated with heroin
withdrawal present a “sufficiently serious” medical need. We do, however, note
that three of these cases deal with alcohol withdrawal. See Lancaster v. Monroe
(continued...)
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foreclose this conclusion. We assume—without deciding this question—that the
severe opioid withdrawal Ortiz experienced does satisfy our requirements for a
“sufficiently serious” medical need. We now turn, then, to whether the plaintiffs
alleged the individual defendants knew that Ortiz was experiencing such serious
withdrawal and disregarded that fact.
b. Subjective Inquiry
With respect to the subjective component of our Eighth Amendment
inquiry, we begin by noting the Supreme Court has insisted upon actual
knowledge: “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.” Farmer v. Brennan, 511 U.S. 825, 837 (1994) (emphases
added). It is true a “factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.” Id. at 842. But our
precedent effectively cabins this exception by requiring that such risks present
themselves as “obvious” to the so-called “reasonable man.” See Mata, 427 F.3d
at 752 (citing Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001)).
2
(...continued)
Cty., 116 F.3d 1419, 1425 (11th Cir. 1997); Thompson v. Upshur Cty., 245 F.3d
447, 457 (5th Cir. 2001); Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009).
The fourth addresses withdrawal from methadone. See Foelker v. Outagamie
Cty., 394 F.3d 510, 511–13 (7th Cir. 2005).
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We have previously held that unconsciousness presents such an “obvious”
risk. See Garcia, 768 F.2d at 308. We have likewise held that “a gangrenous
hand or a serious laceration” would also present an “obvious” risk. See Self v.
Crum, 439 F.3d 1227, 1232 (10th Cir. 2006) (citing Oxendine v. Kaplan, 241 F.3d
1272, 1279 (10th Cir. 2001)). But—in the case whose circumstances most nearly
match those of this case—we have held that “characteristics . . . common to many
intoxicated individuals” do not present an “obvious” risk. See Martinez, 563 F.3d
at 1091.
In our view, frequent vomiting alone does not present an obvious risk of
severe and dangerous withdrawal. See id. For clarity, as further explained below,
we agree that the bloody vomiting Officer Chavez allegedly knew of does present
an obvious risk. After all, blood would imply to a reasonable detention official
that there is an actual internal injury. But since the complaint limits this
allegation to Officer Chavez, we see no reason to export allegations of this
knowledge onto the other individual defendants.
With this framework in mind, we consider whether the complaint plausibly
alleges that the six individuals at issue—Officer Chavez, Officer Valdo, Nurse
Robinson, Officer Lopez, Officer Garcia, and Corporal Gallegos—knew that Ortiz
“faced a substantial risk of [serious] harm and disregarded that risk, by failing to
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take reasonable measures to abate it.” See id. at 1088 (quoting Callahan, 471
F.3d at 1159 (quotation marks omitted)).
i. Officer Chavez
According to the FAC, Officer Chavez observed Ortiz on January 4 when
the latter “appeared sick and vomited numerous times.” App., Vol. 1 at 27. The
FAC further alleges: “Mr. Ortiz informed Officer Chavez that he was withdrawing
from heroin and was ‘throwing up blood.’” Id. The presence of blood in vomit
makes the presence of a serious medical need more plausible and more obvious.
In our view, taking the allegations as true, a jury could conclude the seriousness
of the medical risks associated with vomiting blood would be obvious to any
reasonable observer. See Mata v. Saiz, 427 F.3d at 752 (citing Garrett, 254 F.3d
at 950).
ii. Officer Valdo
The complaint alleges Officer Valdo met with Ortiz approximately one day
after arriving at ADF in order to assign him a housing unit. It further alleges that,
at the time of the meeting, Ortiz appeared “severely ill” and requested to be
housed in “safe keeping.” App., Vol. 1 at 28. The complaint does not suggest
what symptoms Ortiz was exhibiting that would have made Officer Valdo suspect
he was “severely ill,” nor does it explain how a request for being housed in “safe
keeping” implies a medical need. Given the sparsity of the allegations, we cannot
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conclude the FAC plausibly alleged that Officer Valdo knew that Ortiz “faced a
substantial risk,” let alone disregarded it.
iii. Nurse Robinson
The complaint alleges that Nurse Robinson knowingly disregarded a
substantial risk of serious harm because she conducted a deficient intake and
failed to implement a withdrawal protocol for Ortiz. But so, too, does it
acknowledge that Nurse Robinson offered Ortiz a kick kit, which contained
medication selected to mitigate symptoms associated with withdrawal.
Although the complaint also alleges that Ortiz never received these
medications, it does not allege that Nurse Robinson was responsible for this
failure. Under current law, we do not believe the risk posed by these
circumstances would have been obvious to Nurse Robinson.
We accordingly conclude the complaint does not plausibly allege that Nurse
Robinson disregarded a substantial risk of serious harm to Ortiz.
iv. Officer Lopez
The complaint alleges only that Officer Lopez knew Ortiz had vomited in
his cell and exhibited other common signs of withdrawal. Absent something
more—like knowledge of bloody vomit—the complaint does not plausibly allege
deliberate indifference to serious withdrawal. See Martinez, 563 F.3d at 1091(concluding that “characteristics . . . common to many intoxicated individuals”
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were not “obvious symptoms indicating a risk of serious harm”). We accordingly
conclude the complaint does not plausibly allege that Officer Lopez disregarded a
substantial risk of serious harm to Ortiz.
v. Officer Garcia
The complaint alleges neither that Officer Garcia actually saw Ortiz in
distress nor that Ortiz ever sought medical assistance from Officer Garcia. We
accordingly conclude the complaint does not plausibly allege that Officer Garcia
disregarded a substantial risk of serious harm to Ortiz. 3
vi. Corporal Gallegos
In much the same vein, the complaint details no specific allegations
regarding Corporal Gallegos’s awareness of Ortiz’s illness. Nor can we impute
actual knowledge of Ortiz’s medical needs upon Corporal Gallegos from the
complaint’s spare observation that he heard Ortiz “pushing” and “making noises”
on the toilet. We accordingly conclude the complaint does not plausibly allege
that Corporal Gallegos disregarded a substantial risk of serious harm to Ortiz.
* * *
3
The dissent contends that Ortiz’s death—which transpired 25 minutes
after the complaint alleges Officer Garcia had seen him last—“was neither quick
nor quiet,” and that his “medical distress would have been obvious.” Bacharach
Op. at 30. The complaint, however tells us only that Ortiz died from a massive
internal hemorrhage. Absent some legal or medical authority that indicates
otherwise, speculation alone cannot impute knowledge of a constitutional
dimension upon Officer Garcia.
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In sum, the complaint does not plausibly allege that Officer Valdo, Nurse
Robinson, Officer Lopez, Officer Garcia, or Corporal Gallegos consciously
disregarded Ortiz’s serious medical needs.
2. Clearly Established Law
We next consider whether any plausibly alleged constitutional violations
satisfy our rigorous standards for “clearly established” law. Officer Chavez’s
alleged conduct did violate clearly established law. Conversely, even if the
complaint had properly alleged constitutional violations against the other
individuals, we would still conclude the relevant violations nonetheless failed to
satisfy our standards.
The Supreme Court has explained “[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, 136 S. Ct. 305, 308
(2015) (citations and quotation marks omitted). Although we need not “require a
case directly on point,” it is nonetheless the case that “existing precedent must
have placed the statutory or constitutional question beyond debate.” Id. (citations
and quotation marks omitted).
This requirement reflects the Court’s recognition that qualified immunity is
meant to “protect[] all but the plainly incompetent or those who knowingly violate
the law.” Id. (citations and quotation marks omitted). The Supreme Court has
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“repeatedly told courts . . . not to define clearly established law at a high level
of generality.” Id. (citations and quotation marks omitted). And the Court has
likewise emphasized “[t]he dispositive question is whether the violative nature of
particular conduct is clearly established.” Id. (citations and quotation marks
omitted) (emphasis in original). Such an inquiry “must be undertaken in light of
the specific context of the case, not as a broad general proposition.” Id. (citations
and quotation marks omitted).
The plaintiff contends “the fact that the officials were shown to have
disregarded the plaintiff’s serious medical need was sufficient to establish that
they knew they violated [his] rights.” Aplt. Br. 43. Bearing in mind the Supreme
Court’s insistence upon both specificity and fair notice, we disagree. See
Mullenix, 136 S. Ct. at 308. Where prior cases establish the “obviousness” of a
medical need, conscious disregard of that need alone may suffice. But as we
discussed above, the only individual defendant who consciously disregarded
Ortiz’s serious medical need was Officer Chavez.
a. Nurse Robinson
We have held that need for medical treatment is “obvious” when “a medical
professional completely denies care although presented with recognizable
symptoms which potentially create a medical emergency.” Self, 439 F.3d at 1232.
But the complaint never alleges that Nurse Robinson was presented with
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recognizable symptoms that might create a medical emergency. Nor does it
contend that she completely denied Ortiz care.
Upon intake, the complaint alleges Ortiz informed Nurse Robinson that he
would suffer withdrawal from his heroin addiction. The complaint does not
allege he presented any symptoms of illness to Nurse Robinson, let alone
symptoms that might indicate a medical emergency. Moreover, the complaint
concedes she offered to provide Ortiz with a kick kit, which contained a number
of medications designed to ameliorate the symptoms associated with withdrawal.
Although—for reasons that remain unclear—he never received this medication,
we cannot read the complaint to conclude that Nurse Robinson completely denied
Ortiz necessary medical care.
In the absence of authorities that would alert Nurse Robinson to the fact
that her failure to complete all intake forms and her apparent failure to ensure
Ortiz actually received the kick kit amounted to a violation of Ortiz’s
constitutional rights, we conclude the complaint does not plausibly allege that she
breached clearly established law.
b. Corporal Gallegos and Officers Valdo, Lopez, and Garcia
No Tenth Circuit authorities support the conclusion that Officer Valdo,
Officer Lopez, Officer Garcia, and Corporal Gallegos violated Ortiz’s clearly
established right to medical treatment. Nor can we read out-of-circuit authorities
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that address medical conditions other than withdrawal from heroin to place the
lawfulness of their conduct “beyond debate.” See Mullenix, 136 S. Ct. at 308. 4
No authority, in our view, clearly establishes with the requisite degree of
specificity that the officers violated Ortiz’s constitutional right to medical care
for symptoms associated with heroin withdrawal. See id. (emphasizing that “[t]he
dispositive question is whether the violative nature of particular conduct is
clearly established”(emphasis in original) (quotation marks omitted)). In the
absence of such authorities, we conclude the complaint does not plausibly allege
Corporal Gallegos or Officers Valdo, Lopez or Garcia breached clearly
established law.
4
The dissent cites (1) Taylor v. Hughes, 920 F.3d 729, 733 (11th Cir.
2019), where the Eleventh Circuit denied summary judgment where guards
withheld treatment from a detainee who claimed he had been hit by a car prior to
his arrest; and (2) Westlake v. Lucas, 537 F.2d 857, 859 (6th Cir. 1976), where
the Sixth Circuit denied a motion to dismiss when guards denied an inmate
treatment for a bleeding ulcer. In our view, neither case provides fair notice that
frequent vomiting alone constitutes a serious medical need. Nor does the Eighth
Circuit’s decision in Vaughn v. Gray, 557 F.3d 904, 909 (8th Cir. 2009), where
prison officials had mistakenly attributed a detainee’s repeated vomiting to the
ingestion of shampoo, rather than the heart attack that ultimately killed him.
Although this decision might clearly establish a constitutional right to medical
care for repeated vomiting, no matter the cause, within the Eighth Circuit, we
cannot endorse the suggestion that one out-of-circuit authority has “placed [this]
statutory or constitutional question beyond debate.” See Mullenix, 136 S. Ct. at
308 (citations and quotation marks omitted).
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c. Officer Chavez
That said, Officer Chavez’s conduct did violate clearly established law by
consciously disregarding obvious symptoms not just of heroin withdrawal but of a
serious internal injury. Far before Officer Chavez interacted with Ortiz, we held
“[t]he relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Holland v. Harrington, 268 F.3d
1179, 1186 (10th Cir. 2001) (quotation marks omitted). And we had held that
“[a] prison official’s deliberate indifference to an inmate’s serious medical needs
is a violation of” the detainee’s rights. Mata, 427 F.3d at 745; see also Sealock,
218 F.3d at 1210-11 (holding a prison officer plausibly violated a detainee’s
rights by not addressing the detainee’s symptoms even when he knew they might
be related to a heart attack). Thus, prior to January 2016, it was clearly
established that when a detainee has obvious and serious medical needs, ignoring
those needs necessarily violates the detainee’s constitutional rights. Officer
Chavez’s inaction in the face of Ortiz’s bloody vomiting therefore violated clearly
established law.
B. Leave to Amend
Finally, we consider whether the district court properly rejected the
plaintiffs’ request for leave to amend the complaint. We review the district
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court’s denial of leave to amend for an abuse of discretion. Cohen v. Longshore,
621 F.3d 1311, 1313 (10th Cir. 2010). Although district courts enjoy discretion,
they “should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2);
Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (reiterating that courts
should grant leave to amend when an amended complaint could “yield a
meritorious claim”). Thus, “when denial is based on a determination that
amendment would be futile, our review for abuse of discretion includes de novo
review of the legal basis for the finding of futility.” Miller ex rel. S.M. v. Bd. of
Educ. of Albuquerque Pub. Sch., 565 F.3d 1232, 1249 (10th Cir. 2009).
In this case, the plaintiffs sought leave to amend to add a Monell claim
under § 1983 against Santa Fe County for its allegedly deficient medical intake
protocol. See Monell, 436 U.S. at 690 (providing that plaintiffs may sue local
governing bodies directly under § 1983 for constitutional violations pursuant to a
body’s policy, practice, or custom). The district court concluded that amendment
would be futile because the plaintiffs could not state a Monell claim without a
viable claim against an individual defendant. But that blanket justification does
not square with circuit precedent holding that municipal liability under Monell
may exist without individual liability. 5 Garcia v. Salt Lake Cty., 768 F.2d 303,
5
We determine above that the complaint plausibly alleges only that Officer
Chavez—who had nothing to do with intake protocol—violated Ortiz’s clearly
established right to medical treatment.
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310 (10th Cir. 1985) (“Monell does not require that a jury find an individual
defendant liable before it can find a local governmental body liable.”). Indeed,
we concluded in Garcia that even where “the acts or omissions of no one
employee may violate an individual’s constitutional rights, the combined acts or
omissions of several employees acting under a governmental policy or custom
may violate an individual’s constitutional rights.” Id. Thus, in light of Garcia,
the district court’s legal basis for its finding of futility is contrary to our circuit’s
precedent.
But that does not end the inquiry. Although the district court’s finding of
futility is not consistent with Garcia, the proposed amended complaint must still
allege facts that, under Garcia and Monell, plausibly state a cause of action
against Santa Fe County. To state a claim against the County, the plaintiffs must
allege facts showing: (1) an official policy or custom, (2) causation, and (3)
deliberate indifference. Schneider v. City of Grand Junction Police Dep’t, 717
F.3d 760, 769 (10th Cir. 2013). The plaintiffs’ proposed amendment alleges: (1)
Santa Fe County maintained an unconstitutional custom of failing to treat
detainees for withdrawal, which resulted in a deficient medical intake protocol,
(2) that custom caused Ortiz’s injury, and (3) the County’s actions (or inaction)
stemmed from deliberate indifference. Although we are not sure whether the
plaintiffs can prove each of those elements at trial or even survive summary
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judgment, they allege sufficient facts supporting each element for their claim to
proceed past the motion-to-dismiss stage.
The plaintiffs pleaded facts indicating that Ortiz never received or did not
take the kick kit withdrawal medications. That allegation supports the plaintiffs’
claim that the jail had a process problem—even though we cannot pin the failure
to administer the kick kit on any one individual. The plaintiffs also pleaded that
three other inmates at the same jail recently experienced withdrawal-related
deaths. And a 2003 Department of Justice study put Santa Fe County on notice
about deficiencies in the jail’s “intake medical screening, assessment, and referral
process.” App., Vol. 1 at 183–84. The plaintiffs further allege that these
deficiencies contributed to Ortiz’s death. Finally, the plaintiffs alleged that the
jail previously provided Ortiz with deficient intakes over the course of eight
separate incidents of incarceration at the jail. Altogether, the allegations of
intake failures preceding Ortiz’s death and past process failures sufficiently state
a Monell claim at this early stage in the proceedings. See Barney v. Pulsipher,
143 F.3d 1299, 1307 (10th Cir. 1998) (“The deliberate indifference standard may
be satisfied when the municipality 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.”). Thus, we
conclude that the proposed amendment would not be entirely futile in this case.
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Of course, we cannot determine from the face of the proposed amendment
whether the plaintiffs will be able to substantiate their Monell claim. But “a well-
pleaded complaint may proceed even if it strikes a savvy judge that actual proof
of those facts is improbable, and that a recovery is very remote and unlikely.”
Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quotation
marks and citations omitted)). So we conclude—given the low threshold for
amendment and low bar for surviving a motion to dismiss—the plaintiffs alleged
enough to explore their Monell claim in the discovery process. See id. (observing
that “granting a motion to dismiss is a harsh remedy which must be cautiously
studied, not only to effectuate the spirit of the liberal rules of pleading but also to
protect the interests of justice” (quotation marks, alterations, and citation
omitted)). We thus vacate the district court’s denial of leave to amend and
remand for further proceedings consistent with this Order.
III. Conclusion
In sum, we conclude the complaint does not plausibly allege that Nurse
Robinson, Officer Valdo, Officer Lopez, Officer Garcia, and Corporal Gallegos
each violated Ortiz’s clearly established constitutional right to medical care for
acute symptoms related to his withdrawal from heroin addiction. It does,
however, plausibly allege a claim against Officer Chavez, so we vacate the
dismissal with regard to him. We further conclude the district court abused its
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discretion in denying the plaintiffs leave to amend because they could plausibly
state a claim for Monell liability. Our case law permits a plaintiff to bring a
Monell claim even where there is no individual liability, and the plaintiffs’
allegations satisfy pleading requirements.
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No. 19-2039, Quintana, et al. v. Santa Fe County Board of Commissioners,
et al.
BACHARACH, J., concurring in part and dissenting in part.
Mr. Ricardo Ortiz was arrested for stealing a handbag and booked
into Santa Fe County’s detention facility. When he was booked, Mr. Ortiz
had a heroin addiction and expected to experience severe withdrawal. And
he did. As Mr. Ortiz’s withdrawal spiraled, officials allegedly failed to
provide treatment. He died three days later.
On behalf of Mr. Ortiz’s estate, the plaintiffs sued six employees of
the detention facility, invoking 42 U.S.C. § 1983 1 and alleging that the
employees had violated the Fourteenth Amendment’s Due Process Clause
by exhibiting deliberate indifference to Mr. Ortiz’s serious medical needs.
After an initial amendment, the plaintiffs moved to amend the complaint a
second time, adding allegations against the employees and a § 1983 claim
against Santa Fe County.
In this appeal, we must credit the allegations in the proposed second
amended complaint and construe all reasonable inferences favorably to the
plaintiffs. See pp. 6–7, below. After doing so, we must answer two
questions:
1. Would these allegations state a valid claim against the six
employees for denial of Mr. Ortiz’s constitutional right to
medical care?
1
The plaintiffs also asserted a state-law claim against Santa Fe
County, but this claim is not involved in the appeal.
2. Would these allegations state a valid § 1983 claim against
Santa Fe County?
I would answer “yes” to both questions.
I. Mr. Ortiz’s Detention and Death
Mr. Ortiz entered the detention facility in January 2016, and Nurse
Anne Robinson conducted a medical intake. During the intake, Mr. Ortiz
looked ill (according to another inmate) and told Nurse Robinson that he
would soon go into withdrawal. Nurse Robinson arranged for a doctor to
order medications, but Mr. Ortiz allegedly didn’t receive them.
During Mr. Ortiz’s first day in the facility, his supervising officer
was Officer Dylan Chavez. Mr. Ortiz vomited in front of Officer Chavez
and told him that the vomit was bloody.
The following morning, Mr. Ortiz met with Officer Anthony Valdo.
Officer Valdo was responsible for assigning an appropriate housing unit.
The next day, Officer Tyler Lopez worked in Mr. Ortiz’s housing
unit. Officer Lopez allegedly saw vomit on the floor and watched Mr. Ortiz
dry heaving.
That night, Officer Leonard Garcia came on duty. According to
another inmate, Mr. Ortiz groaned throughout the night.
Officer Garcia and Corporal Cristobal Gallegos contend that they
checked on Mr. Ortiz the next morning and saw that he was not in distress.
For example, Corporal Gallegos states that he was not alarmed after
2
passing Mr. Ortiz’s cell and hearing him pushing and making noises on the
toilet. And Officer Garcia asserts that he saw Mr. Ortiz minutes later.
Within 26 minutes of this alleged interaction with Officer Garcia,
Mr. Ortiz died. His corpse was found in a cell covered with blood and
feces.
II. The District Court’s Rulings
The six employees sought dismissal of the first amended complaint
for failure to state a valid claim, urging qualified immunity based on a lack
of factual allegations reflecting the violation of a clearly established
constitutional right. The plaintiffs objected to dismissal and requested
leave to file a second amended complaint. The amendment would have
supplemented the allegations against the six employees and added a § 1983
claim against the county for an unconstitutional custom and failure to train
staff.
The district court granted the defendants’ motion to dismiss and
denied the motion for leave to amend on the ground that amendment would
have been futile. In disallowing the amendment, the court acknowledged
that the changes would not have prejudiced the defendants. The plaintiffs
appeal the district court’s dismissal and denial of leave to file a second
amended complaint.
3
III. The Denial of Leave to Amend the Allegations Against the Six
Employees Based on Futility
In my view, the proposed second amended complaint sets forth a
valid constitutional claim against each of the six employees. I would thus
reverse the dismissal and the denial of leave to file the second amended
complaint.
A. The Relevance of the Second Amended Complaint
As a threshold issue, we must consider whether to examine the first
amended complaint or the second amended complaint. I would consider the
allegations in the second amended complaint.
The district court concluded that the proposed second amended
complaint was “not the product of the Plaintiffs’ desire to cure
deficiencies.” Appellants’ App’x, vol. 2 at 376. The majority also declines
to consider the second amended complaint, reasoning that “the plaintiffs
themselves explicitly denied that the [second amended complaint] would in
any way cure deficiencies.” Majority Op. at 7. But the plaintiffs didn’t idly
propose the amendments; instead, the plaintiffs proposed these
amendments to cure any perceived shortcomings in the first amended
complaint.
As the majority points out, the plaintiffs did argue that the added
details had already been encompassed in the first amended complaint. But
the plaintiffs recognized that the employees had argued that gaps existed in
4
the allegations. So the plaintiffs said that they had rewritten the allegations
to “summarize” or “better clarify” their allegations. Appellants’ App’x,
vol. 1 at 131. The plaintiffs also stressed that these clarifications were
designed to strengthen their claims against the six employees. For example,
the plaintiffs argued to the district court that
 “[t]he proposed Second Amended Complaint . . . attempts to
resolve Defendants’ various issues with the operative
[complaint]” and
 “Plaintiffs have taken Defendants’ issues with the operative
Complaint seriously, and the proposed Second Amended
Complaint . . . attempt[s] to clarify allegations that Defendants
have either asserted they find obscure, or that Defendants
purport to have interpreted differently than Plaintiffs
intended.”
Id. at 128–29 (footnotes omitted). On appeal, the plaintiffs similarly
maintain that the second amended complaint “enhanced” the claims against
the individual defendants by making “more explicit” and “emphasiz[ing]”
allegations encompassed in the first amended complaint. Appellants’
Opening Br. at 19–21.
Given the plaintiffs’ explanation for the additional allegations, the
six employees haven’t questioned the need to consider the second amended
complaint. The employees instead try to rebut the substance of the second
amended complaint. See Appellees’ Resp. Br. at 38 (responding to
allegations in the second amended complaint). Yet the majority insists—
sua sponte—that we should completely disregard the proposed
5
amendment’s additional allegations against the six employees. I would
instead follow the lead of the six employees and consider those allegations.
B. The Standard of Review
We review the denial of leave to amend a complaint for an abuse of
discretion. Cohen v. Longshore, 621 F.3d 1311, 1313 (10th Cir. 2010).
Though district courts enjoy discretion, they must “freely give leave [to
amend a complaint] when justice so requires.” Fed. R. Civ. P. 15(a)(2).
Leave should be granted when an amendment would “yield a meritorious
claim.” Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001). When the
denial was based on futility, we conduct “de novo review of the legal basis
for the finding of futility.” Miller ex rel. S.M. v. Bd. of Educ. of
Albuquerque Pub. Schs., 565 F.3d 1232, 1249 (10th Cir. 2009).
In conducting de novo review, we consider why the district court
regarded amendment as futile. The court reasoned that the second amended
complaint would not survive a motion to dismiss for failure to state a valid
claim. Dismissal for failure to state a valid claim would have been proper
only if the second amended complaint had lacked “enough facts to state a
claim to relief that [had been] plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
As the majority observes, the threshold is “low . . . for amendment
and . . . for surviving a motion to dismiss.” Majority Op. at 22. For
example, if the six employees had moved to dismiss the second amended
6
complaint, the court would have needed to view all well-pleaded factual
allegations as true and all reasonable inferences in the light most favorable
to the plaintiffs. Wyoming v. U.S. Dep’t of Interior, 839 F.3d 938, 942
(10th Cir. 2016).
Viewing the second amended complaint’s allegations in this light, we
must consider whether the six employees would enjoy qualified immunity.
When qualified immunity is asserted, the plaintiffs must show that the
defendants violated a constitutional or statutory right that was clearly
established. Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir.
2014).
To decide whether the second amended complaint would have
satisfied this burden, we would consider
 whether the plaintiffs adequately alleged that the six employees
had violated Mr. Ortiz’s constitutional right to medical care
and
 whether that constitutional right had been clearly established at
the time of Mr. Ortiz’s detention.
C. The Employees’ Assertion of Qualified Immunity
I conclude that (1) the second amended complaint adequately alleged
that the six employees had violated Mr. Ortiz’s constitutional right to
medical care and (2) the constitutional right had been clearly established.
7
1. Violation of the Constitutional Right to Medical Care
We must first consider whether the plaintiffs’ allegations in the
second amended complaint entailed a constitutional violation. Saucier v.
Katz, 533 U.S. 194, 201 (2001).
County employees can incur civil liability under 42 U.S.C. § 1983for violating pretrial detainees’ constitutional right to medical care. Barrie
v. Grand Cty., 119 F.3d 862, 867–68 (10th Cir. 1997). This right is
violated when county employees act with deliberate indifference to
detainees’ medical needs. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
The test for liability consists of objective and subjective prongs. Sealock v.
Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). 2
The objective prong is satisfied if the prisoner’s medical need was
“sufficiently serious.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)
(quoting Farmer, 511 U.S. at 834). A medical need is sufficiently serious
if it was “diagnosed by a physician as mandating treatment or . . . [was] so
obvious that even a lay person would easily recognize the necessity for a
doctor’s attention.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.
2000) (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999)).
2
The subjective prong has been altered for at least some claims
involving pretrial detainees. See pp. 36–39, below. But we apply the
subjective prong as it was clearly established at the time of Mr. Ortiz’s
detention. See id.8
The subjective prong addresses the defendant’s state of mind. Mata,
427 F.3d at 751. Under this prong, we ask whether the defendant
 was aware of a substantial risk of serious harm and
 knowingly disregarded that risk.
See Martinez v. Garden, 430 F.3d 1302, 1304–05 (10th Cir. 2005) (aware
of a “substantial risk of serious harm” (quoting Riddle v. Mondragon, 83
F.3d 1197, 1204 (10th Cir. 1996))); Martinez v. Beggs, 563 F.3d 1082,
1089 (10th Cir. 2009) (knowingly disregards the risk). A plaintiff may
prove awareness of a substantial risk through circumstantial evidence that
the risk was obvious. Farmer v. Brennan, 511 U.S. 825, 842 (1994).
The second amended complaint satisfies both prongs of the test for
deliberate indifference as to each employee.
a. Objective Prong
The parties agree that the plaintiffs have satisfied the objective
prong. But the parties differ on how they define the medical need. In my
view, the medical need involved Mr. Ortiz’s frequent and bloody vomiting.
The defendants assert that the medical need involved a
gastrointestinal hemorrhage, which ultimately led to Mr. Ortiz’s death. But
the gastrointestinal hemorrhage followed frequent vomiting, which itself
could satisfy the objective prong if it was serious enough. See Mata v.
Saiz, 427 F.3d 745, 753–54 (10th Cir. 2005) (concluding that chest pain
9
was sufficiently serious to satisfy the objective prong independently of a
subsequent heart attack).
The second amended complaint alleges that Mr. Ortiz was severely ill
and frequently vomited (sometimes vomiting blood) throughout his time in
detention. Appellants’ App’x, vol. 1 at 159, 163–64, 171 (vomiting on
different days); id. at 160, 168 (vomiting blood); id. at 160, 162 (severe
illness). From these allegations, the fact finder could reasonably infer a
serious medical need. See Al-Turki v. Robinson, 762 F.3d 1188, 1193 (10th
Cir. 2014) (stating that pain satisfied the objective prong when the inmate
collapsed, vomited, and suffered severe abdominal pain over a period of
five hours); accord Scinto v. Stansberry, 841 F.3d 219, 231–32 (4th Cir.
2016) (concluding that a reasonable jury could find an objectively serious
medical need based on allegations involving “extreme pain in [the
inmate’s] stomach, . . . throwing up vomit and blood [and] becom[ing]
incontinent”).
Other courts have concluded that severe withdrawal symptoms can
constitute an objectively serious harm. The Eleventh Circuit, for example,
has repeatedly held that “alcohol withdrawal is a serious or urgent medical
problem that requires immediate medical attention.” Lancaster v. Monroe
Cty., 116 F.3d 1419, 1425–26 (11th Cir. 1997), overruled in part on other
grounds by LeFrere v. Quezada, 588 F.3d 1317, 1318 (11th Cir. 2009). The
Second Circuit agrees. See Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir.
10
2009) (noting the lack of a dispute that severe withdrawal from alcohol had
constituted a serious medical condition), overruled in part on other
grounds by Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). And the
Fifth Circuit regards delirium tremens (rapid onset of confusion, shaking,
and hallucinations attributable to withdrawal from alcohol) as a serious
medical need. Thompson v. Upshur Cty., 245 F.3d 447, 457 (5th Cir. 2001).
Just as withdrawal from alcohol can constitute a serious medical need
when the symptoms are severe, so too can withdrawal from opiates like
heroin. See Foelker v Outagamie Cty., 394 F.3d 510, 511–13 (7th Cir.
2005) (concluding that delirium and other symptoms of a forced
withdrawal from methadone created a serious medical need). Indeed, the
six employees concede that serious withdrawal symptoms could satisfy the
objective prong. See Oral Arg. at 20:00–:06 (“[I] agree that withdrawal, if
serious enough, can meet that objective constitutional threshold under the
first prong.”). I thus conclude that Mr. Ortiz’s frequent and bloody
vomiting could plausibly satisfy the objective prong.
The majority assumes, without deciding, that “severe opioid
withdrawal” could satisfy the objective prong. Majority Op. at 9 (emphasis
in original). But the majority concludes that frequent vomiting alone
doesn’t constitute a serious medical need.
Though the majority discounts the severity of “run-of-the-mill”
withdrawal, a fact finder could reasonably find a serious medical need
11
from frequent vomiting associated with heroin withdrawal. Three medical
experts explain the early effects of withdrawal from heroin:
From 6 to 12 hours after stopping heroin . . . , symptoms appear,
such as craving for the substance, anxiety, irritability,
depression, yawning, sneezing, lacrimation, rhinorrhoea,
salivation, sweating, shivering and gooseflesh. The pupils dilate,
there are muscle cramps, anorexia, diarrhoea and vomiting.
I.A. Liappas, F.A. Jenner & B. Vicente, Review Article, Withdrawal
Syndromes, 21 J. Royal Coll. Physicians London 214, 215 (1987). The
vomiting itself can lead to “severe medical complications like dehydration”
that could result in death. Thomas R. Kosten & Louis E. Baxter, Effective
Management of Opioid Withdrawal: A Gateway to Opioid Dependence
Treatment, 28 Am. J. on Addictions 55, 59, 61 (2019). And the plaintiffs
allege that Mr. Ortiz’s withdrawal led to his death from irritation and
tearing of his esophageal lining. Appellants’ App’x, vol. 1 at 171. Given
the plaintiffs’ allegations, the frequent vomiting would satisfy the
objective prong.
The employees present three reasons for us to focus on the
gastrointestinal hemorrhage rather than the frequent or bloody vomiting:
1. In district court, the plaintiffs did not preserve an argument
that the medical need involved frequent vomiting.
2. The plaintiffs do not present any plausible factual allegations
regarding bloody vomiting.
3. The plaintiffs do not allege that any of the employees realized
the frequency of Mr. Ortiz’s vomiting.
12
Appellees’ Resp. Br. at 32–33. Each argument fails.
First, the plaintiffs adequately preserved their argument that the
medical need consisted of frequent vomiting. The second amended
complaint repeatedly refers to the employees’ alleged failure to provide
treatment when they saw Mr. Ortiz “in the throes of severe illness.”
Appellants’ App’x, vol. 1 at 158; see id. at 159 (“Mr. Ortiz’ Display of
Severe Withdrawal Symptoms . . . Goes Unaided and Unmonitored”); id. at
160 (“Staffers Observe Mr. Ortiz in Severe Heroin Withdrawal, but Fail to
Monitor or Assist Him”); id. at 177–78 (“multiple Individual Defendants
observed [Mr. Ortiz] to be severely ill; and failed to perform critical
follow-up monitoring”).
The plaintiffs also presented these allegations in the first amended
complaint. See Appellants’ App’x, vol. 1 at 26–28, 37. Opposing dismissal
of the first amended complaint, the plaintiffs characterized Mr. Ortiz’s
symptoms as sufficient to satisfy the objective prong. Id. at 94–95. The
plaintiffs thus preserved their argument on frequent vomiting by
 focusing in both the first and second amended complaints on
the symptoms of Mr. Ortiz’s illness and
 relying again on these symptoms when opposing the motion to
dismiss.
Second, the plaintiffs adequately allege that Mr. Ortiz suffered
frequent bouts of vomiting, sometimes with blood. The second amended
complaint contains seven pertinent allegations:
13
1. “Inmate Ronnie Montano – who was housed with Mr. Ortiz
during his initial intake on January 4 and who later shared
a cell in the Alpha Unit with him for ‘approximately one
day’ afterward – later informed investigators that . . . Mr.
Ortiz ‘appeared sick and “vomited” numerous times’ all
over the floor, bed, and toilet.” Id. at 159.
2. On January 4, “Mr. Ortiz informed Officer Chavez that he
was withdrawing from heroin and was ‘throwing up
blood.’” Id. at 160.
3. “Mr. Ortiz’ heroin withdrawal symptoms steadily
worsened throughout the next two days of his confinement
. . . .” Id.
4. On January 6, “[Mr. Ortiz’s] cellmate, Ronnie Montano,
told Officer Lopez that Mr. Ortiz was sick and had vomited
in the cell . . . .” Id. at 163.
5. “Officer Lopez . . . personally observed Mr. Ortiz ‘dry
heaving’ in his cell in the Alpha Unit at an unspecified
time on January 6, 2016, and also saw vomit on the floor.”
Id.
6. “According to Officer Lopez, Mr. Ortiz was ‘very quiet,’
when not excessively vomiting” on January 6. Id.
7. “Significant vomiting from heroin withdrawal caused
irritation and tearing of Mr. Ortiz’ esophageal lining that
resulted in ‘bleeding into the stomach and intestines,’
which resulted in his death.” Id. at 171.
These allegations indicate that Mr. Ortiz was frequently vomiting,
sometimes with blood.
Third, the extent of the employees’ knowledge relates to the
subjective prong of deliberate indifference, not the objective prong. The
objective prong considers only whether the alleged injury “is sufficiently
serious,” not whether the defendants knew about the injury. Mata v. Saiz,
14
427 F.3d 745, 753 (10th Cir. 2005). So the second amended complaint
adequately alleges a severe medical need involving frequent and bloody
vomiting.
b. Subjective Prong
The resulting issue is whether the second amended complaint
satisfies the subjective prong.
If we credit the allegations in the second amended complaint, Mr.
Ortiz experienced “serious harm” consisting of frequent, bloody vomiting
and other severe symptoms of withdrawal. 3 See pp. 9–15, above. Given the
plaintiffs’ burden at the pleading stage, they must plausibly allege that a
substantial risk of serious harm was obvious to a reasonable person in each
employee’s position.
If we credit the allegations in the second amended complaint and
draw all reasonable inferences in favor of the plaintiffs, each employee
3
The majority concedes that “a jury could conclude the seriousness of
the medical risks associated with vomiting blood would be obvious to any
reasonable observer.” Majority Op. at 11. But because frequent vomiting is
itself a serious harm, see p. 9, above, the proper subjective inquiry is
whether
 each employee had actual knowledge of Mr. Ortiz’s frequent or
bloody vomiting or
 a substantial risk of frequent or bloody vomiting would have
been obvious to a reasonable person in the defendant’s shoes.
See p. 9, above.
15
would have been aware of a substantial risk of serious harm and knowingly
disregarded that risk.
i. Nurse Robinson
The first employee to see Mr. Ortiz was Nurse Robinson, who
conducted the intake. During the intake, Nurse Robinson allegedly failed to
complete many of the required procedures and to make various
assessments. The allegations against Nurse Robinson in the second
amended complaint satisfy the subjective prong.
(a) Awareness of a Substantial Risk of Serious Harm
These allegations suffice in part because they showed Nurse
Robinson’s awareness of a substantial risk of serious harm. While
conducting the intake, Nurse Robinson allegedly
 had access to records showing a prior diagnosis of Hepatitis C
and
 learned that Mr. Ortiz was a heroin user.
And Mr. Ortiz allegedly informed Nurse Robinson that he would undergo
withdrawal. Indeed, Nurse Robinson concedes that she expected Mr. Ortiz
to suffer withdrawal symptoms.
Aware of Mr. Ortiz’s impending withdrawal, Nurse Robinson would
have presumably understood the obvious risk that Mr. Ortiz could suffer
serious symptoms. Indeed, the protocols existed because of this risk. Given
these protocols and Nurse Robinson’s awareness of the impending
16
withdrawal, one could reasonably infer that she was aware of an obvious
risk to Mr. Ortiz. See Mata v. Saiz, 427 F.3d 745, 757 (10th Cir. 2005)
(stating that internal protocols supply circumstantial evidence that a
prison’s “health care gatekeeper knew of a substantial risk of serious
harm”); see also Estate of Miller ex rel. Bertram v. Tobiasz, 680 F.3d 984,
990 (7th Cir. 2012) (concluding that “[i]f the circumstances suggest that
the defendant–official being sued had been exposed to information
concerning the risk and thus ‘must have known’ about it, then such
evidence could be sufficient” to show actual knowledge (quoting Sanville
v. McCaughtry, 266 F.3d 724, 737 (7th Cir. 2001))). And if Nurse
Robinson would have been aware of the obvious risk, one could reasonably
infer that she would have recognized the potential for serious harm.
Sanville, 266 F.3d at 737.
The defendants argue that Mr. Ortiz did not display withdrawal
symptoms during the intake. But this assertion entails a factual dispute.
The plaintiffs allege that another inmate saw Mr. Ortiz looking sick during
his intake, Mr. Ortiz said that he would experience withdrawal, and Nurse
Robinson knew that Mr. Ortiz suffered from Hepatitis C. Given these
allegations, Nurse Robinson would have plausibly recognized a substantial
risk of serious harm.
The majority questions the obviousness of the risk from Nurse
Robinson’s knowledge of an impending withdrawal. But the second
17
amended complaint also alleges that Mr. Ortiz’s medical needs would have
been obvious to Nurse Robinson based on her awareness of Mr. Ortiz’s
impending withdrawal and his affliction with Hepatitis C. For example, the
plaintiffs allege that a national expert had stated that a licensed medical
professional like Nurse Robinson “would understand that not referring an
inmate suffering from heroin withdrawal – especially one with a serious,
chronic condition like Hepatitis C – to the medical unit would be to expose
the inmate to the substantial risk of serious harm, including the risk of
death.” Appellants’ App’x, vol. 1 at 157. Together, the allegations in the
second amended complaint adequately show Nurse Robinson’s awareness
of a substantial risk of serious harm.
(b) Knowing Disregard of a Risk of Serious Harm to Mr. Ortiz
The second amended complaint also contains allegations showing
that Nurse Robinson knowingly disregarded the risk to Mr. Ortiz. Martinez
v. Beggs, 563 F.3d 1082, 1089 (10th Cir. 2009).
The second amended complaint alleges that
 Nurse Robinson conducted a deficient intake and failed to
implement a withdrawal protocol and
 the protocol required monitoring and reassessment.
Nurse Robinson downplays these allegations as criticism of her paperwork.
But the plaintiffs allege that Nurse Robinson failed to complete any of the
18
required intake procedures even though she had expected Mr. Ortiz to
experience severe withdrawal and knew that he suffered from Hepatitis C.
Nurse Robinson also denies deliberate indifference by arguing that
she arranged for a doctor to order medication. But the plaintiffs allege that
Nurse Robinson failed to take any steps to administer the medication 4 or to
implement a protocol for withdrawal.
In the majority’s view, the plaintiffs don’t allege that Nurse
Robinson was responsible for the failure to administer the medication. But
the majority is mistaken. The plaintiffs allege that Nurse Robinson gave a
false account about the medication. According to the plaintiffs, Nurse
Robinson said that Mr. Ortiz had taken the medication, see Appellants’
App’x, vol. 1 at 158, even though Officer Chavez had told investigators
that Mr. Ortiz refused to take any of the medication. Id.Apart from this inconsistency, the plaintiffs allege that Nurse
Robinson failed to devise a treatment plan, which would have ensured that
Mr. Ortiz received the required medication. Id. at 155. We can reasonably
4
Nurse Robinson relies on her statement that Mr. Ortiz received his
first dose of medication and assumes that Mr. Ortiz declined to take the
subsequent doses. But the plaintiffs allege that Mr. Ortiz did not receive
any of the medication, citing inconsistencies between the employees’
statements and security videos. Because we view these allegations in the
light most favorable to the plaintiffs, see pp. 6–7, above, we may
reasonably infer that Mr. Ortiz did not receive any of the medication.
19
infer that the creation of a treatment plan would have ensured availability
of Mr. Ortiz’s medication.
In the second amended complaint, the plaintiffs adequately allege
that Nurse Robinson’s actions directly resulted in the failure to provide
Mr. Ortiz with medication or any other treatment. Given these allegations,
Nurse Robinson could incur liability even if she had arranged for a doctor
to order medication. See Estate of Miller ex rel. Bertram v. Tobiasz, 680
F.3d 984, 990 (7th Cir. 2012) (holding that a nurse acted with deliberate
indifference even though she referred an inmate to another medical unit
and noted that the inmate should be taking psychiatric medication).
* * *
In my view, the second amended complaint adequately alleges a
constitutional violation by Nurse Robinson.
ii. Officer Chavez
On Mr. Ortiz’s first day in detention, his supervising officer was
Officer Chavez. The allegations against Officer Chavez satisfy the
subjective prong.
(a) Awareness of a Substantial Risk of Serious Harm
The allegations suffice in part because they show Officer Chavez’s
awareness of a substantial risk of serious harm. The second amended
complaint alleges that Officer Chavez
20
 saw Mr. Ortiz “experiencing symptoms of severe heroin
withdrawal” and
 was told by Mr. Ortiz that he had vomited blood.
Appellants’ App’x, vol. 1 at 159–60. Because vomiting blood can
constitute a serious harm, see pp. 9–15, above, these allegations show
Officer Chavez’s awareness of a substantial risk of that harm.
Officer Chavez argues that as a detention officer, he was “entitled to
defer to the professional medical judgment of medical personnel in the care
and treatment of detainees.” Appellees’ Resp. Br. at 45–46. But this
argument requires us to disregard other allegations in the second amended
complaint. For example, the plaintiffs allege that Mr. Ortiz’s condition
spiraled downward during his detention. Despite this downward spiral, the
second amended complaint does not suggest that Officer Chavez consulted
with medical staff or relied on a medical assessment. And the plaintiffs
allege that Officer Chavez had been trained to recognize the need for
immediate emergency medical attention for inmates vomiting blood during
withdrawal.
Together, the allegations in the second amended complaint
adequately allege Officer Chavez’s awareness of a severe medical need.
21
(b) Knowing Disregard of a Risk of Serious Harm to Mr. Ortiz
The plaintiffs also adequately allege that Officer Chavez knowingly
disregarded Mr. Ortiz’s medical need.
In the second amended complaint, the plaintiffs allege that Officer
Chavez told the next shift about Mr. Ortiz’s condition, but didn’t take any
other steps to help Mr. Ortiz or refer him to the medical unit. Reporting
Mr. Ortiz’s condition would not necessarily constitute a reasonable
measure to avert the harm. See Harper v. Lawrence Cty., 592 F.3d 1227,
1235 (11th Cir. 2010) (holding that the defendant was not entitled to
summary judgment when he had informed the next shift and another
official about medical issues but had not taken “any steps to actually
secure immediate medical attention”), abrogated on other grounds by
Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010). So the plaintiffs
adequately allege that Officer Chavez knowingly disregarded a risk of
serious harm.
* * *
In my view, the second amended complaint adequately alleges a
constitutional violation by Officer Chavez. 5
5
The majority concludes that the first amended complaint stated a
valid claim against Officer Chavez. I agree. But the majority has
disregarded the plaintiffs’ effort to supplement their allegations against
Officer Chavez.
22
iii. Officer Valdo
Roughly one day after arriving at the detention unit, Mr. Ortiz met
with Officer Valdo, who was responsible for selecting the appropriate
housing unit. In the second amended complaint, the plaintiffs adequately
allege that Officer Valdo violated the subjective prong.
(a) Awareness of a Substantial Risk of Serious Harm
The plaintiffs allege that during the interaction with Officer Valdo,
Mr. Ortiz had a “severely ill appearance” and requested housing in “safe
keeping.” Appellants’ App’x, vol. 1 at 161. The second amended complaint
also alleges that Officer Valdo
 was aware of Mr. Ortiz’s diagnosis of Hepatitis C and
 knew from experience and Mr. Ortiz’s ill appearance that he
needed immediate medical assistance to prevent “an excessive
risk of serious harm.”
Id.The plaintiffs further allege that Officer Chavez had informed later
shifts of Mr. Ortiz’s condition. We must view these allegations and
reasonable inferences favorably to the plaintiffs. See pp. 6–7, above. Doing
In my view, the district court erred in disallowing additional
allegations even though the existing allegations had stated a valid claim
against Officer Chavez. The district court disallowed additional allegations
on the ground that amendment would have been futile. Given our
unanimous conclusion that the existing allegations sufficed for a valid
claim against Officer Chavez, the additional allegations would obviously
not have been futile.
23
so, we can reasonably infer that Officer Chavez’s report had reached
Officer Valdo. See Bistline v. Parker, 918 F.3d 849, 888 n.20 (10th Cir.
2019) (applying the plausibility standard and making a “reasonable
assumption” based on facts from a complaint); see also Sepúlveda-Villarini
v. Dep’t of Educ., 628 F.3d 25, 30 (1st Cir. 2010) (“A plausible but
inconclusive inference from pleaded facts will survive a motion to dismiss
. . . .”).
Together, the allegations in the second amended complaint plausibly
establish that Officer Valdo recognized a substantial risk of serious harm.
(b) Knowing Disregard of a Risk of Serious Harm to Mr. Ortiz
The plaintiffs also adequately allege that Officer Valdo knowingly
disregarded this risk. The second amended complaint alleges that Officer
Valdo failed to authorize medical treatment for Mr. Ortiz despite
knowledge of his medical distress. The plaintiffs thus adequately allege
that Officer Valdo knowingly disregarded a risk of serious harm to Mr.
Ortiz.
* * *
In my view, the second amended complaint adequately alleges a
constitutional violation by Officer Valdo.
24
iv. Officer Lopez
On Mr. Ortiz’s third day in detention, Officer Lopez was on duty.
The plaintiffs have adequately alleged that Officer Lopez satisfied the
subjective prong.
(a) Awareness of a Substantial Risk of Serious Harm
The plaintiffs adequately allege that Officer Lopez was aware of a
substantial risk of serious harm. Officer Lopez allegedly
 knew that Mr. Ortiz was withdrawing from heroin,
 knew that Mr. Ortiz was ill and vomiting in his cell,
 observed vomit on the floor,
 saw Mr. Ortiz “dry heaving,”
 saw Mr. Ortiz “look[] sick,” quietly staring with a blank look,
 recognized the progression of Mr. Ortiz’s symptoms to the
point that he had become severely ill, and
 could recognize the need for immediate medical attention for
inmates experiencing illness and vomiting from opiate
withdrawal.
These allegations showed that the risk of serious harm was obvious
to Officer Lopez, suggesting his awareness of the risk. See Scinto v.
Stansberry, 841 F.3d 219, 232 (4th Cir. 2016) (“Plaintiff’s testimony that
his cell ‘reeked’ and his face exhibited visible signs of illness, as well as
his contemporaneous account of his symptoms create a genuine factual
dispute about whether his need for medical attention was so obvious that
25
an official observing the scene would have . . . inferred that such a
substantial risk was present.”).
Officer Lopez argues that frequent vomiting may be a “common”
characteristic of withdrawal. But a medical need may be severe even when
it is common. Heart attacks may be common, but they are undoubtedly
serious.
The majority contends that the plaintiffs don’t allege that Officer
Lopez knew about Mr. Ortiz’s condition. But the allegations in the second
complaint could reasonably entail awareness of Mr. Ortiz’s condition. For
example, we can reasonably infer that Officer Chavez’s report of Mr.
Ortiz’s serious condition reached Officer Lopez. And the plaintiffs allege
that Officer Lopez observed Mr. Ortiz’s distress. Together, these
allegations indicate that Officer Lopez was aware of an obvious risk to Mr.
Ortiz.
In arguing to the contrary, the majority cites Martinez v. Beggs, 563
F.3d 1082 (10th Cir. 2009). But Martinez involved different circumstances
and a different burden of proof. There Mr. Ginn was arrested for public
intoxication and died of a heart attack while in custody. Martinez, 563 F.3d
at 1084. But the court held that the risk of a heart attack had not been
obvious because Mr. Ginn lacked symptoms suggesting an imminent heart
attack. Id. at 1091. The Court explained that “there was no evidence that
[Mr.] Ginn was in pain or distress.” Id. at 1090.
26
Our facts are different. The plaintiffs allege that Mr. Ortiz was
frequently vomiting, sometimes with blood, over the course of three days.
Indeed, the majority concedes that the fact finder could reasonably infer
that Mr. Ortiz’s distress was obvious and required medical attention. And
the plaintiffs allege that Officer Lopez knew that Mr. Ortiz was ill. In
Martinez, the record contained no evidence that the defendant had known
of the inmate’s pain or distress. Id.Our case differs not only factually but also procedurally. Martinez
addressed an award of summary judgment, id. at 1084; and we are at the
motion-to-dismiss stage, addressing only the adequacy of the plaintiffs’
allegations about Officer Lopez’s awareness of Mr. Ortiz’s condition. See
Barton v. Taber, 820 F.3d 958, 967 (8th Cir. 2016) (stating that the
plausibility standard “is a highly deferential standard, as opposed to that at
the summary judgment stage”); Davis v. Howard, 561 F.2d 565, 570 (5th
Cir. 1977) (distinguishing cases because they had originated on motions
for summary judgment rather than motions under Rule 12(b)(6)).
Given these factual and procedural differences, Martinez does not
suggest futility of the second amended complaint. If we credit the
allegations in the second amended complaint, Officer Lopez would have
recognized a substantial risk of serious harm to Mr. Ortiz.
27
(b) Knowing Disregard of a Risk of Serious Harm to Mr. Ortiz
In the second amended complaint, the plaintiffs also allege facts
showing that Officer Lopez knowingly disregarded this risk. Despite
recognizing Mr. Ortiz’s need for medical attention, Officer Lopez
allegedly failed to obtain any medical help or to do anything to treat Mr.
Ortiz’s symptoms. The plaintiffs thus adequately allege that Officer Lopez
knowingly disregarded a risk of serious harm to Mr. Ortiz.
* * *
In my view, the second amended complaint adequately alleges a
constitutional violation by Officer Lopez.
v. Officer Garcia
Two days after arriving at the detention facility, Mr. Ortiz interacted
with Officer Garcia. The second amended complaint shows Officer
Garcia’s awareness of a substantial risk of serious harm and knowing
disregard of that risk.
(a) Awareness of a Substantial Risk of Serious Harm
The plaintiffs allege that (1) another inmate heard Mr. Ortiz
experiencing violent illness throughout the night, (2) Officer Chavez
reported Mr. Ortiz’s condition to the next shift, (3) Officer Garcia saw Mr.
Ortiz sitting on the toilet, breathing hard, “lying on his bed in the fetal
position,” and “in the throes of severe illness,” and (4) Officer Garcia saw
28
Mr. Ortiz “vomiting and defecating blood[] at 8:20 a.m.” Appellants’
App’x, vol. 1 at 165, 167–68.
According to the second amended complaint, Officer Garcia
maintains that he had asked Mr. Ortiz if he was okay and Mr. Ortiz
responded with a hand gesture, which Officer Garcia interpreted as a
“yes.” But the plaintiffs allege that motion-activated security videos show
no sign of an officer approaching Mr. Ortiz’s cell when Officer Garcia says
that the two men interacted.
Soon after the last alleged interaction, Officer Garcia allegedly found
Mr. Ortiz “lying naked across his bed, ‘with his body half off,’” with
brownish “fluid all over the floor and walls of the cell.” Id. at 166. His
boxer shorts were oozing blood and feces, with “blood trails . . . on his
face, coming out of his mouth, his upper arms and shoulders, his rear end,
and his lower legs and feet.” Id. at 169.
Officer Garcia stresses that the plaintiffs do not allege that Mr. Ortiz
requested medical care. But the alleged events would have alerted Officer
Garcia to Mr. Ortiz’s distress even without a request for medical help. See
p. 43, below (discussing a similar argument relating to the lack of an
allegation that Mr. Ortiz had requested medical help). And the plaintiffs
allege that Officer Garcia obtained training to recognize the need for
immediate medical assistance for inmates withdrawing from heroin. Given
this training, a fact finder could reasonably infer that Officer Garcia would
29
have recognized a serious medical need even if Mr. Ortiz had not requested
treatment.
In the second amended complaint, the plaintiffs point out that Officer
Garcia denied awareness of Mr. Ortiz’s distress, stating that (1) he had
checked on Mr. Ortiz three times and (2) Mr. Ortiz had “never presented
any sign of discomfort or distress.” Appellants’ App’x, vol. 1 at 165. But
Officer Garcia’s statements conflict with other allegations in the second
amended complaint, which refer to sounds of Mr. Ortiz’s violent illness
throughout the night. See Taylor v. Hughes, 920 F.3d 729, 733 (11th Cir.
2019) (reversing summary judgment for officials when the guards claimed
that the detainee had “seemed fine,” but other detainees had heard
moaning, cries of pain, and pleas for medical help).
Even if Officer Garcia had checked on Mr. Ortiz, he died within 25
minutes of the alleged interaction in a cell engulfed in blood and feces,
suggesting that his death was neither quick nor quiet. The extreme disarray
in the cell suggests that Mr. Ortiz’s medical distress would have been
obvious to Officer Garcia. And if the medical distress had been obvious,
Officer Garcia presumably would have recognized a substantial risk of
serious harm.
In the majority’s view, the plaintiffs have not alleged in the first
amended complaint that Officer Garcia saw Mr. Ortiz in distress. But the
majority has disregarded these allegations in the second amended
30
complaint. There, for example, the plaintiffs allege that Officer Garcia
“observed Mr. Ortiz violently ill in his cell, vomiting and defecating
blood.” Appellants’ App’x, vol. 1 at 168.
The majority appears to recognize the significance of this allegation,
but disregards it based on the plaintiffs’ characterization of their
additional allegations as clarification. See pp. 4–6, above. The defendants
had argued that the allegations in the first amended complaint were too
“vague.” Appellants’ App’x, vol. 1 at 68. But the plaintiffs disagreed with
the defendants’ narrow reading of the first amended complaint. To
eliminate any doubt, the plaintiffs expressly alleged in the second amended
complaint that Officer Garcia had seen Mr. Ortiz “vomiting and defecating
blood.” Id. at 168.
The majority elsewhere acknowledges the significance of an
allegation that one of the officers had seen blood in the vomit:
The presence of blood in vomit makes the presence of a serious
medical need more plausible and more obvious. In [the
majority’s] view, taking the allegations as true, a jury could
conclude the seriousness of the medical risks associated with
vomiting blood would be obvious to any reasonable observer.
Majority Op. at 11.
Though the majority recognizes that seeing blood in the vomit would
render Mr. Ortiz’s distress “obvious to any reasonable observer,” the
majority disregards this allegation because the plaintiffs called their
changes “clarifying.” We should not disregard admittedly critical
31
allegations based on a distorted interpretation of the plaintiffs’
characterization of their changes—particularly when the majority
recognizes that the additional allegation regarding the observation of
bloody vomit would satisfy the subjective prong.
The fact finder could rely not only on the bloody vomit but also on
the inconsistencies between the security footage, Officer Garcia’s account,
and Mr. Ortiz’s obvious distress in the minutes before he died. See Gaston
v. Coughlin, 249 F.3d 156, 166 (2d Cir. 2001) (concluding that an inmate’s
statement that officers had actual knowledge of inhumane conditions
created a factual dispute for summary judgment because the statement had
been “premised on the assertion that those men ‘made daily rounds’ of [the
unit]”); see also Grajales v. Puerto Rico Ports Authority, 682 F.3d 40, 47
(1st Cir. 2012) (“[F]or pleading purposes, knowledge is inferable from
other allegations.”).
In my view, the plaintiffs’ allegations in the second amended
complaint support a reasonable inference that Officer Garcia was aware of
a substantial risk of serious harm.
(b) Knowing Disregard of a Risk of Serious Harm to Mr. Ortiz
The plaintiffs also adequately allege that Officer Garcia knowingly
disregarded a risk of serious harm. In the second amended complaint, the
plaintiffs allege that Officer Garcia did nothing to avert the harm. This
32
alleged inaction could constitute knowing disregard of a risk of serious
harm to Mr. Ortiz.
* * *
In my view, the second amended complaint adequately alleges a
constitutional violation by Officer Garcia.
vi. Corporal Gallegos
Corporal Gallegos passed Mr. Ortiz’s cell three days after his arrival
at the detention facility. The allegations against Corporal Gallegos in the
second amended complaint suffice under the subjective prong.
(a) Awareness of a Substantial Risk of Serious Harm
These allegations suggest Corporal Gallegos’s awareness of a
substantial risk of serious harm. According to the second amended
complaint, Corporal Gallegos heard Mr. Ortiz “pushing” and “making
noises on the toilet.” Appellants’ App’x, vol. 1 at 166. The plaintiffs also
allege that Mr. Ortiz’s symptoms had advanced to the point that he “was
audibly, seriously ill” while Corporal Gallegos was on duty. Id. If these
allegations are credited, the sounds presumably would have alerted
Corporal Gallegos to Mr. Ortiz’s distress. Corporal Gallegos didn’t just see
and hear the signs of distress; he also presumably received Officer
Chavez’s report on Mr. Ortiz’s medical distress. See pp. 23–24, above.
The plaintiffs also allege that Mr. Ortiz died within 37 minutes after
Corporal Gallegos had passed the cell. When Mr. Ortiz’s corpse was found,
33
his cell was covered with feces, vomit, and blood. Given these allegations,
a fact finder could reasonably infer that the risk would have been obvious
to Corporal Gallegos when he saw Mr. Ortiz minutes before his death in a
cell drenched in feces, vomit, and blood.
Corporal Gallegos also allegedly knew that Mr. Ortiz was
experiencing withdrawal from heroin. And Corporal Gallegos allegedly had
been trained “to recognize the signs of an inmate in need of immediate
medical attention, a category that includes withdrawing inmates . . . who
are suffering from symptoms of gastrointestinal illness.” Appellants’
App’x, vol. 1 at 166–67.
These allegations plausibly suggest that Corporal Gallegos was aware
of a substantial risk of serious harm.
(b) Knowing Disregard of a Risk of Serious Harm to Mr. Ortiz
The second amended complaint also alleges that Corporal Gallegos
failed to obtain any medical assistance for Mr. Ortiz or take any reasonable
steps to avert the harm. These allegations suggest that Corporal Gallegos
knowingly disregarded the risk of serious harm to Mr. Ortiz.
* * *
In my view, the second amended complaint adequately alleges a
constitutional violation by Corporal Gallegos.
34
2. The Existence of a Clearly Established Constitutional Right
I would conclude that the second amended complaint adequately
alleges a constitutional violation by each of the six employees. So even if
the first amended complaint had been deficient, these deficiencies would
have been cured in the second amended complaint. The resulting issue is
whether that constitutional right was clearly established at the time of Mr.
Ortiz’s detention. I would answer “yes.”
a. Determining the Existence of a Clearly Established Constitutional
Right
A right is clearly established when “[t]he contours of the right [were]
sufficiently clear that a reasonable official would understand that what he
is doing violates that right.” Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir.
2008) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). This
inquiry is designed “to ensure that . . . officers are on notice their conduct
is unlawful.” Saucier v. Katz, 533 U.S. 194, 206 (2001).
Adequate notice to reasonable officials can come from Supreme
Court precedent, a Tenth Circuit opinion on point, or the weight of
authority from other circuits. Medina v. City & Cty. of Denver, 960 F.2d
1493, 1498 (10th Cir. 1992). Precedent must be particularized to the facts
rather than defined at a “high level of generality.” Apodaca v. Raemisch,
864 F.3d 1071, 1076 (10th Cir. 2017). But “general precedents may clearly
establish the law when the defendant’s conduct ‘obvious[ly]’ violates the
35
law.” Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per
curiam)).
b. The Clearly Established Law During Mr. Ortiz’s Detention
We must determine the contours of the constitutional right that was
clearly established during Mr. Ortiz’s detention. The plaintiffs argue that
the district court misapplied the subjective prong in light of the Supreme
Court’s opinion in Kingsley v. Hendrickson, ___ U.S. ___, 135 S. Ct. 2466(2015). 6 There the Supreme Court held that for excessive-force claims by
pretrial detainees, the test for deliberate indifference was objective rather
than subjective. 135 S. Ct. at 2475–76. But Kingsley did not clearly apply
to pretrial detainees’ claims of inadequate medical care, so the district
court did not err in applying the subjective prong for purposes of qualified
immunity.
Though Kingsley modified the test for deliberate indifference for
pretrial detainees’ claims of excessive force, the scope of this modification
did not become clear until after Mr. Ortiz had died. At the time of his
detention, no circuit court had applied Kingsley outside of the excessive-
force context.
6
The plaintiffs concede the need to show plain error. But the district
court did not err in applying the subjective prong for purposes of qualified
immunity, so we need not consider whether an error would have risen to
the level of “plain error.”
36
Absent such case law, the objective test of deliberate indifference
could have been clearly established only if Kingsley itself had spelled out
its applicability outside of the excessive-force context. Kingsley, however,
had not spoken to this question.
Circuit courts have thus disagreed over its reach. For example, after
Mr. Ortiz’s detention, some circuits have concluded that Kingsley extends
beyond excessive-force claims, effectively abrogating the subjective prong
of deliberate indifference whenever pretrial detainees claim a denial of due
process. 7 But other circuits have limited Kingsley to excessive-force
claims. 8 This circuit split suggests that Kingsley did not definitively settle
the issue.
7
The Second, Seventh, and Ninth Circuits have applied Kingsley to
various claims by pretrial detainees. See Darnell v. Pineiro, 849 F.3d 17,
35–36 (2d Cir. 2017) (applying Kingsley to a claim involving conditions of
confinement and indicating that the same objective test for deliberate
indifference applies to all claims involving the Fourteenth Amendment’s
Due Process Clause); Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir.
2018) (applying Kingsley to all Fourteenth Amendment claims involving
pretrial detainees); Gordon v. Cty. of Orange, 888 F.3d 1118, 1124–25 (9th
Cir. 2018) (stating that Kingsley applies to a pretrial detainee’s claims
involving deficient medical care).
8
The Fifth, Eighth, and Eleventh Circuits have declined to extend
Kingsley beyond excessive-force claims. See Alderson v. Concordia Par.
Corr. Facility, 848 F.3d 415, 419 n.4 (5th Cir. 2017) (declining to apply
Kingsley because the Fifth Circuit had continued to apply a subjective
standard post-Kingsley); Whitney v. City of St. Louis, 887 F.3d 857, 860
n.4 (8th Cir. 2018) (“Kingsley does not control because it was an excessive
force case, not a deliberate indifference case.”); Dang ex rel. Dang v.
Sheriff, Seminole Cty., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017) (noting
37
After Mr. Ortiz’s death, we applied Kingsley outside of the
excessive-force context in Colbruno v. Kessler, 928 F.3d 1155 (10th Cir.
2019). Colbruno involved a conditions-of-confinement claim, and we held
that Kingsley had eliminated the need for a pretrial detainee to show an
intent to punish. 928 F.3d. at 1163.
According to the plaintiffs, Colbruno shows that Kingsley abrogated
the need for pretrial detainees to satisfy a subjective test for deliberate
indifference. But Colbruno did not address Kingsley in the discussion of a
clearly established right. See id. at 1163, 1165–66 (examining the
applicability of Kingsley, but not discussing whether Kingsley had clearly
established the law prior to the alleged violation). And even after Mr.
Ortiz’s detention, many Tenth Circuit opinions before Colbruno had
expressly declined to address Kingsley’s applicability to pretrial detainees
outside of excessive-force cases. 9
that Kingsley applied to an excessive-force claim but not to a claim of
inadequate medical treatment).
9
See, e.g., Clark v. Colbert, 895 F.3d 1258, 1269 (10th Cir. 2018)
(declining to “revisit the applicable law” because the plaintiff argued only
that Kingsley had “‘held open the possibility that an objective-only
standard should apply’ . . . [y]et he [did] not argue that Kingsley actually
displaced any precedent”); Perry v. Durborow, 892 F.3d 1116, 1122 n.1
(10th Cir. 2018) (declining to address the applicability of Kingsley because
the parties had not briefed the issue and resolution of the issue would not
affect the outcome of the appeal); Estate of Duke ex rel. Duke v. Gunnson
Cty. Sheriff’s Office, 752 F. App’x 669, 673 n.1 (10th Cir. 2018)
(unpublished) (declining to consider the Kingsley issue because both
parties agreed on the use of the subjective standard); Crocker v. Glanz, 752
38
Given the existence of a circuit split and our circuit’s frequent
avoidance of the issue even after Mr. Ortiz’s detention, we conclude that
Kingsley itself did not clearly establish a purely objective test for all
pretrial detainees’ claims of deliberate indifference. So even if Kingsley
applies to medical-care claims, the six employees would have lacked notice
of a purely objective test for deliberate indifference. 10 Given the lack of
notice, the clearly established right in January 2016 included a subjective
test for deliberate indifference.
c. Application to the Employees’ Conduct During Mr. Ortiz’s
Detention
The second amended complaint adequately alleges that the six
employees violated Mr. Ortiz’s clearly established constitutional right to
medical care. These allegations would defeat qualified immunity if the six
employees had moved to dismiss the second amended complaint.
F. App’x 564, 569 (10th Cir. 2018) (unpublished) (declining to consider
the applicability of Kingsley because it had not been raised in district court
and would not affect the substantial-rights prong under the plain-error
test).
10
The plaintiffs urge us to clarify the applicability of Kingsley even if
it does not affect the outcome. But as discussed, Kingsley did not clearly
apply to medical-care claims at the time of Mr. Ortiz’s detention. I
wouldn’t expound on an issue that’s immaterial to the outcome.
39
i. Nurse Robinson
Urging qualified immunity, Nurse Robinson points to a lack of
precedent stating that intake deficiencies would violate a pretrial
detainee’s constitutional rights. But a lack of precedent is not fatal here.
In our circuit, a claim is actionable when the need for medical
treatment is obvious. The need for treatment is obvious when
a medical professional completely denies care although
presented with recognizable symptoms which potentially create
a medical emergency, e.g., a patient complains of chest pains and
the prison official, knowing that medical protocol requires
referral or minimal diagnostic testing to confirm the symptoms,
sends the inmate back to his cell.
Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006) (citing Mata v. Saiz,
427 F.3d 745, 755–59 (10th Cir. 2005), and Sealock v. Colorado, 218 F.3d
1205, 1211–12 (10th Cir. 2000)).
In the second amended complaint, the plaintiffs adequately allege
that Nurse Robinson failed to address an obvious need for medical
treatment. The plaintiffs do not allege just “mistakes in filling out forms,
making a diagnosis or predicting future possible complications.”
Appellees’ Resp. Br. at 41. Rather, the plaintiffs allege that Nurse
Robinson failed to address an obvious need for medical treatment. See pp.
16–20, above.
The plaintiffs’ allegations indicate that Nurse Robinson
 knew that Mr. Ortiz was addicted to heroin and had been
diagnosed with Hepatitis C,
40
 expected him to suffer withdrawal,
 knew that the medical protocol required intake assessments and
continued monitoring, and
 failed to take steps to make sure that Mr. Ortiz received any
treatment.
Her inaction in the face of an obvious medical risk would inherently
violate a clearly established constitutional right. See, e.g., Phillips v.
Roane Cty., 534 F.3d 531, 545 (6th Cir. 2008) (noting that the law is
clearly established that “where the circumstances are clearly sufficient to
indicate the need of medical attention for injury or illness, the denial of
such aid constitutes the deprivation of constitutional due process” (quoting
Estate of Carter v. City of Detroit, 408 F.3d 305, 313 (6th Cir. 2005)));
Orlowski v. Milwaukee Cty., 872 F.3d 417, 422 (7th Cir. 2017). For
example, in Orlowski v. Milwaukee County, the Seventh Circuit stated:
The violation alleged by [the plaintiffs] is “clearly established”
if [the two correctional officers] had fair and clear warning that
their alleged actions (or inaction) would be constitutionally
offensive. We find that, assuming the facts most favorable to [the
plaintiffs], they did. Correctional officials have long been
warned that they cannot ignore an inmate’s known serious
medical condition. . . . Where a duty imposed by law is obvious
to a reasonable officer, we consider it “clearly established.” . . .
Here, the [plaintiffs’ evidence] indicates that [the inmate]
presented obvious symptoms of a serious medical condition. So,
if we accept these facts as true, any reasonable officer would
know he had a duty to seek medical attention. If [the correctional
officers] chose to do nothing despite this duty, they violated
“clearly established” Eight [sic] Amendment law.
872 F.3d at 422 (citations & footnote omitted).
41
I agree with the Seventh Circuit’s reasoning. Because a fact finder
could reasonably infer that Mr. Ortiz had obviously needed medical
attention, nurses couldn’t reasonably think that the Constitution would
permit them to do nothing. So if a nurse chose not to respond to an obvious
medical need, the nurse would have violated a clearly established
constitutional right. Id.
According to the plaintiffs, Nurse Robinson simply arranged for
medications without taking any steps to ensure delivery to Mr. Ortiz or to
complete the required protocols for inmates facing withdrawal. If we credit
these allegations, as required, Nurse Robinson’s inaction would have
violated a clearly established constitutional right.
ii. Officer Chavez, Officer Valdo, Officer Lopez, Officer Garcia, and
Corporal Gallegos
The other five employees also deny violating a clearly established
right, pointing to a lack of precedents with analogous facts. But prior to
Mr. Ortiz’s detention, circuit courts had often characterized similar
conduct as unconstitutional. See, e.g., Taylor v. Hughes, 920 F.3d 729, 733
(11th Cir. 2019) (holding that guards may have violated the constitutional
rights of a detainee who had “spent several hours moaning, crying out in
pain, and begging for medical help”); Westlake v. Lucas, 537 F.2d 857, 859
(6th Cir. 1976) (holding that a complaint adequately stated a claim under
Fed. R. Civ. P. 12(b)(6) when jail officials were aware of a prisoner’s
42
ulcer, but did not allow a medical examination even after he had begun
vomiting blood).
The defendants try to distinguish these opinions, pointing out that
Mr. Ortiz
 didn’t ask for medical assistance,
 experienced withdrawal, and
 allegedly declined to take withdrawal medication.
Each argument fails.
First, Mr. Ortiz’s constitutional right does not turn on whether he
asked for medical assistance. A request for assistance could affect a fact
finder’s conclusions on the obviousness of the medical need, but a request
is not necessary to establish the defendant’s recognition of a medical need.
See Youmans v. Gagnon, 626 F.3d 557, 566 n.12 (11th Cir. 2010) (per
curiam) (“A person is not required to request medical care to prevail on a
claim of deliberate indifference to a serious medical need.”); see also
McCaster v. Clausen, 684 F.3d 740, 748 (8th Cir. 2012) (concluding that
correctional officers could incur liability for deliberate indifference even
though the ill prisoner had not personally requested medical help).
Second, Mr. Ortiz had a constitutional right to treatment for his
serious medical need even though the need stemmed from heroin
withdrawal. See Vaughn v. Gray, 557 F.3d 904, 909 (8th Cir. 2009)
(concluding that even if the defendants had attributed a prisoner’s
43
vomiting to his ingestion of shampoo, the defendants could have
recognized a need for medical attention). And other courts of appeals have
concluded that the need for medical attention was obvious in similar
situations. See Harper v. Lawrence Cty., 592 F.3d 1227, 1237 (11th Cir.
2010) (stating that prior cases “should have put any government actor on
notice that delayed or inadequate treatment of alcohol withdrawal would be
unlawful”), abrogated on other grounds by Randall v. Scott, 610 F.3d 701,
709 (11th Cir. 2010).
The majority likewise determines that a clearly established
constitutional violation is not foreclosed by withdrawal from heroin;
otherwise, the claim against Officer Chavez would fail. See Majority Op. at
18. Indeed, the majority assumes (without deciding) that Mr. Ortiz’s severe
withdrawal from opioids would have constituted a serious medical need.
Id. at 9.
Third, the second amended complaint alleges that the detention
facility’s staff didn’t supply “Mr. Ortiz with the opiate-withdrawal
medications he [had] paid for.” Appellants’ App’x, vol. 1 at 158. In
response, the employees argue that Mr. Ortiz declined the medications. But
the plaintiffs have adequately alleged contradictory accounts from the
employees, id. at 157–58, and discrepancies between these accounts and
security footage, id. at 162–63. The court can’t resolve this factual dispute
44
when assessing whether the proposed second amended complaint states a
valid claim. See p. 19 n.4, above.
The majority asserts that the cases do not offer “the requisite degree
of specificity,” contending that the cases “address medical conditions other
than withdrawal from heroin.” Majority Op. at 17. Yet the majority
concedes that for Officer Chavez, it’s enough to show that Officer Chavez
had ignored obvious and serious medical needs. Id. at 18. Why isn’t this
enough for Officer Valdo, Officer Lopez, Officer Garcia, and Corporal
Gallegos? All of them allegedly knew about the frequent vomiting, and
Officer Garcia allegedly knew that Mr. Ortiz had blood in his vomit and
feces.
The majority argues that only a few circuit cases have recognized a
constitutional violation in similar circumstances. But the majority
concedes that a fact finder could reasonably infer an obvious medical need.
See p. 15 n.3, above. Given this concession, what more did the plaintiffs
need to allege to defeat qualified immunity? Surely employees in a
detention unit didn’t need a precedent to tell them that the Constitution
prohibited them from ignoring an inmate’s frequent and bloody vomiting
over a three-day period?
The employees never made such an argument, and it would have been
remarkable if they had. Any reasonable employee would have realized that
the Constitution wouldn’t allow conscious disregard of an inmate
45
experiencing severe withdrawal symptoms and frequent vomiting
(sometimes with blood) over the course of three days.
* * *
In sum, the plaintiffs adequately allege in the second amended
complaint that
 Mr. Ortiz suffered an objectively serious medical need
consisting of frequent vomiting (sometimes with blood) and
 Nurse Robinson, Officer Chavez, Officer Valdo, Officer Lopez,
Officer Garcia, and Corporal Gallegos knowingly disregarded a
risk of serious harm to Mr. Ortiz.
These employees’ alleged disregard of Mr. Ortiz’s medical need would
have violated a clearly established constitutional right. I would thus
reverse the district court’s dismissal and the denial of leave to file the
second amended complaint to supplement the allegations against the six
employees.
IV. The Denial of Leave to Amend by Adding a § 1983 Claim Against
Santa Fe County
The plaintiffs also challenge the denial of their motion to amend by
adding a § 1983 claim against Santa Fe County. The district court denied
the motion as futile, concluding that the additional claim against the
county would not survive a motion to dismiss. I disagree, as the majority
does. 11
11
Though I agree with the majority on the outcome as to this issue, our
reasoning differs.
46
A. The Standard of Review
As noted above, the district court disallowed amendment solely on
the ground of futility. So we must apply de novo review. See p. 6, above.
B. Municipal Liability
When engaging in de novo review of a futility determination, we
consider the claim that the plaintiffs wanted to add. Here the additional
claim would involve municipal liability under 42 U.S.C. § 1983. The
plaintiffs contend that Santa Fe County incurs liability based on a custom
reflecting deliberate indifference to the serious medical needs of inmates
experiencing withdrawal. 12
For this claim, the plaintiffs must allege a plausible basis to infer
 a custom or official policy,
 causation, and
 deliberate indifference.
Schneider v. City of Grand Junction Police Dep’t., 717 F.3d 760, 769, 771
n.5 (10th Cir. 2013). 13
12
The plaintiffs also allege that the county failed to adequately train its
employees to respond to medical needs. Given the adequacy of the
plaintiffs’ allegation of an unconstitutional custom, we need not address
the allegation of inadequate training.
13
The county also argues that the plaintiffs must allege a constitutional
violation by at least one individual defendant to trigger municipal liability.
For the sake of argument, I assume that the county is right. In my view, the
second amended complaint adequately alleges constitutional violations by
each of the six employees. See pp. 7–34, above.
47
The plaintiffs should have been able to amend the complaint to assert
a § 1983 claim against Santa Fe County. The second amended complaint
alleges that
 Santa Fe County maintained an unconstitutional custom of
failing to treat detainees for alcohol or narcotics withdrawal,
 the county’s custom caused Mr. Ortiz’s injury, and
 the county’s action stemmed from deliberate indifference.
1. Santa Fe County’s Alleged Custom
In the second amended complaint, the plaintiffs allege that (1) the
county acted with deliberate indifference to “the serious medical needs of
inmates suffering from alcohol and narcotics withdrawals” and (2) the
deliberate indifference was “so persistent, continuing, and widespread as to
constitute a custom.” Appellants’ App’x, vol. 1 at 183.
Plaintiffs can allege an informal custom through a “longstanding
practice or custom which constitutes the ‘standard operating procedure’ of
the local governmental entity.” Jett v. Dall. Indep. Sch. Dist., 491 U.S.
701, 737 (1989) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469,
485–87 (1986) (White, J., concurring)).
To allege an unconstitutional custom, the plaintiffs point to three
pieces of information in the second amended complaint:
1. Mr. Ortiz’s history after his prior arrests of “eight inadequate
withdrawal evaluations and no follow-up monitoring of his
withdrawal symptoms,”
48
2. the Department of Justice’s 2003 findings that the detention
facility’s “‘intake medical screening, assessment, and referral
process’ [had] violated [pretrial] detainees’ constitutional
rights, including the rights of inmates experiencing
withdrawals,” and
3. the 2015 and 2016 withdrawal-related deaths of three other
pretrial detainees involving the same facility—Dr. Thomas
Pederson, Mr. John DeLaura, and Ms. Stacy Lynn Gambler.
Appellants’ Opening Br. at 52 (quoting Appellants’ App’x, vol. 1 at 183).
Together, these allegations reflect an unconstitutional custom.
a. History of Mr. Ortiz’s Intakes
The plaintiffs rely in part on Mr. Ortiz’s history of inadequate
intakes. The county contends that Mr. Ortiz’s history of inadequate intakes
cannot contribute to liability because the past deficiencies did not cause an
injury. But the plaintiffs need not allege that every deficient intake
resulted directly in an injury. Rather, the alleged custom must have been
“maintained with deliberate indifference to an almost inevitable
constitutional injury.” Schneider v. City of Grand Junction Police Dep’t.,
717 F.3d 760, 769 (10th Cir. 2013) (emphasis added). In my view, the
plaintiffs’ allegations indicate that the improper intakes created the near
inevitability of a constitutional injury.
The county argues that Mr. Ortiz’s history of inadequate intakes does
not imply a custom because the prior intakes didn’t involve identical
failings within the intake procedure. But the county urges an unreasonable
level of specificity. The plaintiffs allege a pattern of inadequate intakes,
49
not routine disregard of one particular requirement. See Appellants’ App’x,
vol. 1 at 148–52 (detailing a lack of monitoring and incomplete, inaccurate
forms at Mr. Ortiz’s intakes between June 2013 and February 2015). The
alleged pattern of inadequate intakes could reasonably constitute a custom.
b. The DOJ Report
The plaintiffs also rely on a 2003 DOJ report, which concluded that
the facility’s intake process had violated the constitutional rights of
pretrial detainees, including those experiencing withdrawal. The county
attaches little importance to the report, arguing that (1) it is old and (2) the
detention facility was operated by a different entity when the violations
took place. The passage of time and change in operators could diminish the
persuasive value of the report. But the report could still contribute to the
existence of a custom involving deficient intakes.
c. The Withdrawal-Related Deaths of Other Pretrial Detainees
The plaintiffs also point to the withdrawal-related deaths of Dr.
Pederson, Mr. DeLaura, and Ms. Gambler. The county points out that in
each case, the withdrawal involved alcohol rather than heroin. But a fact
finder need not disregard the prior incidents just because the withdrawal-
related deaths had involved a different substance.
For Dr. Pederson, the plaintiffs allege that the intake nurse didn’t
“perform a Poly Substance Abuse Assessment ‘that would have indicated
[a] drinking and complication history and would have helped triage him
50
into the medical unit.’” Appellants’ App’x, vol. 1 at 173 (emphasis
deleted) (quoting an internal investigation conducted after Dr. Pederson’s
death). That alleged lapse resembles Nurse Robinson’s alleged failure to
perform a complete assessment for Mr. Ortiz’s heroin withdrawal. See id.at 155–56. Given the similarity in the alleged lapses, we can reasonably
infer that the intake deficiencies contributed to an unconstitutional custom
even though Dr. Pederson’s substance differed from Mr. Ortiz’s.
The county also argues that an alleged pattern of conduct based on
another substance (like alcohol) should require a correspondingly greater
“number of similar incidents . . . to show a persistent, continuing,
widespread practice.” Appellees’ Resp. Br. at 65–66. And the plaintiffs do
not allege any incidents between 2004 and 2015. At this stage, though, the
plaintiffs need only plausibly allege the existence of a custom, which was
reflected in these incidents.
2. Causation
The plaintiffs must also allege a direct causal link between the
custom and the alleged injury. Schneider v. City of Grand Junction Police
Dep’t., 717 F.3d 760, 770 (10th Cir. 2013). The plaintiffs satisfy this
51
requirement by linking Mr. Ortiz’s injury to the custom of inadequate
intakes.
The county argues that the proposed second amended complaint does
not link the three other deaths to withdrawal or deficient intakes. I
disagree.
The proposed second amended complaint adequately alleges that the
prior deaths stemmed from withdrawal. See Appellants’ App’x, vol. 1 at
173 (“Dr. Thomas Pederson collapsed and died . . . while suffering from
severe alcohol withdrawal.”); id. at 174 (“John DeLaura died of
complications from severe alcohol withdrawal.”); id. at 175 (“Stacy Lynn
Gambler was . . . suffering from . . . severe alcohol withdrawals . . . [and
subsequently] died.”).
The second amended complaint also adequately links the deaths to
the deficiencies in the intakes, for the plaintiffs allege that
 Dr. Pederson suffered because “the intake nurse [had] failed to
perform critical assessments or sign appropriate forms,” id. at
173,
 officials had denied “proper medical attention” to Mr. DeLaura,
id. at 174, and
 officials violated facility policy by improper monitoring and
treating Ms. Gambler “with only over-the-counter painkillers
and routine alcohol withdrawal medication, even as her
condition rapidly deteriorated,” id. at 175.
And the plaintiffs allege that an internal report linked Dr. Pederson’s death
to deficiencies in his intake. Id. at 173.
52
* * *
In combination, the plaintiffs’ allegations satisfy the element of
causation.
3. Deliberate Indifference
Finally, the plaintiffs must plausibly allege facts showing that the
municipal action stemmed from “‘deliberate indifference’ as to its known
or obvious consequences.” Schneider v. City of Grand Junction Police
Dep’t., 717 F.3d 760, 770 (10th Cir. 2013) (quoting Bd. of Cty. Comm’rs v.
Brown, 520 U.S. 397, 407 (1997)). A municipality is deliberately
indifferent when it “has actual or constructive notice that its action or
failure to act is substantially certain to result in a constitutional violation.”
Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998). Notice can
come from “the existence of a pattern of tortious conduct” or facts showing
that a constitutional violation is a “‘highly predictable’ or ‘plainly
obvious’ consequence of a municipality’s action or inaction.” Id. at 1307–
08 (quoting Brown, 520 U.S. at 409).
The second amended complaint alleges that the county had actual or
constructive notice. For instance, an internal report highlighted intake
deficiencies, which resulted in constitutional violations. The report also
identified actions that could prevent additional deaths from withdrawal,
including better documentation, orientation for medical personnel, and
improved procedures to designate inmates needing medical attention. This
53
internal investigation, which preceded Mr. Ortiz’s death, could have
alerted the county to a need for corrective action. 14
The 2003 DOJ report also could have given the county notice that
intake deficiencies had been commonplace. Although a private company
ran the facility at the time, the report could still render a constitutional
violation “highly predictable.” Barney, 143 F.3d at 1308 (quoting Brown,
520 U.S. at 409). We can also reasonably infer an absence of corrective
action in light of Mr. Ortiz’s death and the alleged deficiencies in his
intake.
* * *
In the second amended complaint, the plaintiffs adequately allege
deliberate indifference by Santa Fe County. The district court thus erred by
denying leave to amend by adding a § 1983 claim against the county.
V. Conclusion
In my view, the proposed second amended complaint states a valid
claim against Nurse Robinson, Officer Chavez, Officer Valdo, Officer
14
The county argues that Mr. DeLaura’s death is immaterial because it
occurred after Mr. Ortiz had died. But this argument misunderstands the
inquiry. The other incidents need not have caused Mr. Ortiz’s injury.
Instead, the other incidents must contribute to a custom that caused Mr.
Ortiz’s injury. Mr. DeLaura’s subsequent death could contribute to the
inference of an unconstitutional custom, and the preceding deaths and
reports could help establish notice.
54
Lopez, Officer Garcia, and Corporal Gallegos. Based on the plaintiffs’
allegations, a fact finder could reasonably infer that
 Mr. Ortiz’s serious risk of harm would have been obvious to
these employees and
 these employees knowingly disregarded that risk.
Their alleged inaction would have violated Mr. Ortiz’s clearly established
constitutional right, so I would reverse the dismissal and the denial of
leave to amend the allegations against the six employees.
The district court also erred in disallowing an amendment to add a
§ 1983 claim against Santa Fe County.
I would thus (1) reverse the dismissal and denial of leave to file a
second amended complaint and (2) remand for further proceedings.
55