Boyett v. County of Washington

FILED
United States Court of Appeals
Tenth Circuit
June 19, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
SANDRA BOYETT, individually and
as personal representative for the
Estate of RAYMOND BOYETT;
JESSICA (BOYETT) PETERSON; and
BRANDY (BOYETT) SORENSON,
Plaintiffs-Appellants, No. 06-4315
v. (D. of Utah)
COUNTY OF WASHINGTON, a (D.C. No. 2:04-CV-1173-PGC)
political subdivision of the State of
Utah; WASHINGTON COUNTY
PURGATORY CORRECTIONAL
FACILITY, a political subdivision of
the State of Utah; WASHINGTON
COUNTY SHERIFF, a political
subdivision of the State of Utah; KIRK
SMITH, Sheriff of Washington
County, individually and officially;
ROB TERSIGNI, Chief Deputy Sheriff
of Washington County, individually
and officially; FRED KEIL,
Correctional Officer, individually and
officially; RAY KOUNALIS,
Correctional Officer, individually and
officially; GENE REDFORD,
Correctional Officer, individually and
and officially; JAMES HANSON,
Nurse, individually and officially;
DESTINY HUMMER, Nurse,
individually and officially; DARRYL
McCOY, Nurse, individually and
officially; RANDY McKINNON,
Nurse, individually and officially;
DAVE PATT, Nurse, individually and
officially; SABRINA STEEL, Nurse,
individually and officially; JON
WORLTON, Clinical Social Worker,
Nurse, individually and officially,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, EBEL, and TYMKOVICH, Circuit Judges.
Raymond Boyett died in Washington County, Utah’s Purgatory
Correctional Facility a week after being arrested for failing to appear in court for
traffic offenses. Before his death, Boyett suffered from—and was treated for—a
variety of physical and mental ailments including alcoholism, liver disease,
anxiety, and depression. The instant appeal stems from a lawsuit filed by
Boyett’s surviving family members under 42 U.S.C. § 1983 alleging prison
officials caused or contributed to Boyett’s death by (1) failing to timely treat
injuries, (2) withholding medications and forcibly injecting antipsychotic drugs,
and (3) allowing him to be assaulted by unknown guards or medical personnel.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
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The district court granted summary judgment to all individual Defendants
on the basis of qualified immunity. The court also granted summary judgment to
Defendant Washington County on the claim of municipal liability. We agree with
the district court’s decisions, concluding the Boyett family has failed to
demonstrate a genuine issue of material fact about whether Defendants were
deliberately indifferent to Boyett’s serious medical needs, inflicted excessive
force, or otherwise violated his federal rights. We also affirm the district court’s
decision to decline supplemental jurisdiction over the Boyett family’s state law
claims.
Exercising jurisdiction under 28 U.S.C. § 1291, we therefore affirm.
I. Background
A. Factual Background
Boyett died in his cell at the Purgatory Correctional Facility around 5:10
a.m. on September 6, 2003. He had been detained in the facility since August 27.
While there, Boyett, age 54, was treated by nurses, a social worker, and a
physician’s assistant for various physical and mental ailments. After Boyett’s
death, Dr. Leis, the Utah state medical examiner, performed an autopsy. Dr. Leis
concluded the cause of death was occlusive coronary artery disease, with cirrhosis
serving as a contributing factor.
Boyett’s incarceration at the Purgatory Correctional Facility on August 27
was his second in the span of a week. On August 20, he had been booked into the
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facility for a DUI. Prior to booking, a doctor at the Dixie Regional Medical
Center (DRMC) examined Boyett and concluded he was healthy enough for jail.
The doctor listed alcohol intoxication and recent hernia surgery under
“Diagnosis,” and recommended Boyett continue his regular dose of the
prescription drug Methadone. After spending one day in jail, Boyett was
released.
On August 27, Boyett returned to the correctional facility after being
picked up on an arrest warrant. Boyett’s medical history chart at the facility
contained the information supplied by the doctor at the DRMC pertaining to the
recent surgery and the Methadone. The chart also indicated Boyett suffered from
dental problems, tendon problems, liver disease, hepatitis C, anxiety, and
depression. Boyett had also previously broken his neck and continued to live
with broken vertebrae. On August 27, Boyett was taking the prescription drugs
Celexa, Xanax, and Methadone.
On August 31, four days into his detention, Boyett’s health began to
deteriorate. Boyett told Correctional Officer Pitcher he was internally bleeding
and going comatose. Pitcher alerted Nurse McKinnon who, along with fellow
nurse Hanson, examined Boyett. They determined he was not internally bleeding
or lapsing into a coma.
The next day, Physician’s Assistant Steele further examined Boyett and
took a verbal medical history from him to update the facility’s files. Steele and
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Boyett discussed his recent hernia surgery, his five fractured neck vertebrae, and
his alcohol withdrawal and Methadone treatment. After conducting a physical
exam of Boyett, Steele concluded his hernia repair had healed. Steele prescribed
500 mg of Naprosyn and 25 mg of Elavil for Boyett’s neck and back pain, as well
as 0.1 mg of Clonidine to replace his prescription Methadone since Methadone
was not allowed in Utah jails.
A day later, on September 2, Boyett again asked to see medical personnel.
Boyett told Nurse Hummer he was going to die because of his liver disease.
Hummer noted that Boyett had recently seen a doctor and was taking prescribed
medications; there was nothing further she thought she could do.
On September 3, Boyett complained to Purgatory staff about his liver,
hepatitis, insomnia, and general health. Officer Jessop and his supervisor
concluded that because no nurses were then on duty, they could only make a log
entry of the incident. Later that same day, Boyett injured himself in a fall down a
flight of stairs. Officer Keil was first on the scene and did not notice any
bleeding or other obvious injuries. Nurse McCoy also responded and treated
Boyett for a small cut on his arm. Boyett was transferred to a medical
observation cell, where he could receive more attention from the nursing staff.
McCoy stated Boyett fell as a result of becoming dizzy. This could have resulted
from Boyett taking more than his prescribed dose of Clonidine. Medical logs
show that at 11:58 p.m., Boyett told officers he had fallen for a second time. But
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when Nurse Hanson responded, he determined Boyett had not fallen; Boyett
simply wanted someone to check on him.
The next day, Boyett submitted an inmate request form seeking a liver
transplant from his mother. 1 Boyett was also observed banging his head against
the door of his cell during the swing shift (3:00 p.m. – 11:00 p.m.). Because of
these disturbing actions, Nurse Hanson injected Boyett with 100 mg of Thorazine,
an antipsychotic. Hanson determined Boyett was a danger to himself and would
be calmed by the injection.
On September 5, Officer Redford checked on Boyett in his medical
observation cell. Redford determined Boyett’s mental condition was deteriorating
and notified the facility’s licensed clinical social worker, Jon Worlton. Worlton
reviewed Boyett’s medical history, interviewed Boyett, and spoke with Boyett’s
wife on the telephone. Worlton determined Boyett was psychotic and should be
given additional injections of Thorazine. A few hours later, when Officer
Kounalis noticed a bloody spot on the back of Boyett’s head, he and Officer
Redford took Boyett to the infirmary for medical treatment.
Nurse Hanson determined Boyett’s head laceration was not serious and
washed the wound with clean water. After consultation with Worlton, Hanson
also injected Boyett with a second 100 mg of Thorazine to prevent Boyett from
1
Boyett’s inmate request form stated, “I need a request to have my
mother’s liver transplanted into me and then bury my mother here in LaVerkin,
UT.” R., Vol. 5 at 1549.
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harming himself. At 7:45 p.m., Nurse Hummer injected Boyett with a third dose
of Thorazine. Staffers then transported Boyett to a suicide watch cell in the
booking area of the facility, leaving only a suicide gown and a mattress in the
cell.
Early the next morning, at approximately 5:10 a.m., Officer Vernon noticed
Boyett lying on the floor and not moving. The officer opened the cell and found
Boyett was dead.
Dr. Leis, Utah’s Deputy Chief Medical Examiner, conducted an autopsy on
Boyett’s body 24 hours later. Boyett’s left anterior descending coronary artery
was 90% occluded. Dr. Leis concluded the cause of death was occlusive coronary
artery disease, with cirrhosis contributing significantly to death. The autopsy
report also found Boyett’s drug and medication levels were within normal limits.
Also shortly after Boyett’s death, Washington County Sheriff Kirk Smith
began an investigation into the circumstances surrounding the death. FBI agents
provided additional assistance. It is not clear from the record, however, what
additional information—if any—the investigation revealed.
B. Procedural History
The Boyett family brought several causes of action against Washington
County and county employees who came into contact with Boyett during his
incarceration. Plaintiffs sought damages for federal civil rights violations and
state law torts Defendants allegedly committed before and after Boyett’s death.
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The principal claims were that jail officials failed to provide adequate medical
care, used excessive force, and operated under defective supervisory policies.
In this appeal, the Boyett family challenges: (1) the district court’s grant of
summary judgment to individual Defendants on the basis of qualified immunity;
(2) the district court’s grant of summary judgment on municipal liability; and (3)
the district court’s dismissal of the state law claims.
II. Qualified Immunity
A. Standard of Review
The district court granted qualified immunity to Defendants on the Boyett
family’s claims of deliberate indifference to medical needs, excessive force, and
supervisory liability. We review the grant of qualified immunity de novo. See,
e.g., Serna v. Colo. Dep’t of Corrs., 455 F.3d 1146, 1150 (10th Cir. 2006).
Officials granted qualified immunity have immunity from suit and from the
concomitant burdens of litigation. See Saucier v. Katz, 533 U.S. 194, 200–01
(2001). To overcome a grant of qualified immunity, plaintiffs must satisfy a
heavy two-part burden by showing: (1) “the defendant’s actions violated a
constitutional or statutory right” and (2) “the right was clearly established at the
time of the defendant’s unlawful conduct.” Serna, 455 F.3d at 1150 (quoting
Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)). Plaintiffs must “go
beyond the pleadings and designate specific facts so as to make a showing
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sufficient to establish the existence of an element essential to [their] case.”
Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000).
The threshold inquiry in every qualified immunity case is: “Taken in the
light most favorable to the party asserting the injury, do the facts alleged show
the officer[s’] conduct violated a constitutional right?” Saucier, 533 U.S. at 201;
see also Williams v. Berney, 519 F.3d 1216, 1220 (10th Cir. 2008) (“Only if the
plaintiff can show a constitutional violation do the courts ask whether the
constitutional right was clearly established.” (quotation omitted)). If no
constitutional right has been violated, our inquiry necessarily ends.
B. Deliberate Indifference to Serious Medical Needs
1. Legal Framework
The Eighth Amendment provides prisoners the right to be free from cruel
and unusual punishments. This right is violated if prison officials show
“deliberate indifference to an inmate’s serious medical needs.” Mata v. Saiz, 427
F.3d 745, 751 (10th Cir. 2005). A prison official does not violate this standard,
however, “unless the official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also
draw the inference.” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Thus, to make out a
constitutional deprivation under the deliberate indifference standard, plaintiffs
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must prove two elements: (1) objectively, the inmate’s medical needs were
“sufficiently serious,” and (2) subjectively, the prison official acted with a
“sufficiently culpable state of mind.” Id. at 1230–31; see also Mata, 427 F.3d at
751.
A medical need is sufficiently serious if it “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, 218 F.3d
at 1209 (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999)). A prison
official has a sufficiently culpable state of mind if the official “knows of and
disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837;
see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (concluding “a complaint that
a physician has been negligent in diagnosing or treating a medical condition” does
not show deliberate indifference).
In cases involving allegations of missed diagnoses or delayed treatment,
plaintiffs may establish liability by showing:
(1) a medical professional recognizes an inability to treat the patient
due to the seriousness of the condition and his corresponding lack of
expertise but nevertheless declines or unnecessarily delays referral, e.g.,
a family doctor knows that the patient needs delicate hand surgery
requiring a specialist but instead of issuing the referral performs the
operation himself; (2) a medical professional fails to treat a medical
condition so obvious that even a layman would recognize the condition,
e.g., a gangrenous hand or a serious laceration; [or] (3) 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
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that medical protocol requires referral or minimal diagnostic testing to
confirm the symptoms, sends the inmate back to his cell.
Self, 439 F.3d at 1232 (citations omitted).
With these principles in mind, we turn to Plaintiffs’ allegations of
deliberate indifference.
2. Application
Plaintiffs claim the officer and nurse Defendants were deliberately
indifferent to Boyett’s serious medical needs during his time in the Purgatory
facility. They point to a plethora of acts and omissions by Defendants: (a) failure
to supply a qualified medical provider; (b) failure to provide the medicine and
care prescribed by Boyett’s treating physicians prior to incarceration; (c) failure
to respond to symptoms and complaints regarding internal bleeding; (d) failure to
respond to falls and seizures on September 3; (e) failure to treat Boyett’s head
laceration; (f) improper injection of antipsychotic medication; and (g) failure to
prevent Boyett’s death. 2
2
Plaintiffs’ brief is far from a model of clarity; nevertheless, we have
attempted to discern the main arguments. We believe any additional
claims—such as Defendants’ failing to follow medical conditions imposed upon
the jailing of Boyett, failing to provide adequate and proper medication, and
failing to examine Boyett’s medical records (Aplt. Br. 28)—are encompassed
within the seven broad claims we have laid out above.
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We address the claims in order.
a. Failure to supply a qualified medical provider
Plaintiffs have not shown how any individual officer or nurse failed to
supply a qualified medical provider to Boyett. As a preliminary matter, there is
no per se requirement that a jail provide its inmates around-the-clock access to a
medical doctor. While jailers are ultimately responsible for their inmates’
medical needs, Farmer v. Brennan, 511 U.S. at 833–34, they can provide that care
in a variety of ways, including access to trained personnel such as guards in the
first instance, nurses, and physicians’ assistants. The Eighth Amendment requires
nothing more as a general matter. See, e.g., Hoptowit v. Ray, 682 F.2d 1237,
1253 (9th Cir. 1982) (en banc) (reversing lower court’s order that a penitentiary
must hire two medical doctors to meet minimum standards of prison medical care
under the Eighth Amendment); McCord v. Maggio, 910 F.2d 1248, 1250 (5th Cir.
1990) (noting state prison officials retain “wide discretion in the operation of
prison facilities”). While access to a medical doctor may be necessary in certain
situations, e.g., Sealock, 218 F.3d at 1210–11, no constitutional violation occurs
unless medical care is intentionally or recklessly denied. E.g., Estelle, 429 U.S.
at 104–05 (discussing prison guards “intentionally denying or delaying access to
medical care or intentionally interfering with the treatment once prescribed”).
Here, Washington County supplied qualified nurses, a licensed clinical
social worker, and a licensed physician’s assistant to provide immediate medical
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care to inmates. All of these individuals acted in accordance with the dictates of
the Eighth Amendment by promptly and diligently assessing Boyett’s medical
condition and taking reasonable steps in light of their evaluations. The record is
replete with examples of correctional officers notifying the nursing staff about
Boyett’s medical needs in a timely manner. Those nurses promptly responded to
the calls and treated Boyett in a professional way. Physician’s Assistant Steele
and Licensed Clinical Social Worker Worlton also supplied timely medical care to
Boyett. In fact, over a six-day period (August 31 to September 5), Boyett was
examined by at least six different staffers with medical training on no less than
eight separate occasions. These officials conducted examinations, treated
wounds, and administered medications based on their diagnoses.
In short, Plaintiffs have not demonstrated the existence of a genuine issue
of material fact pointing to deliberate indifference by any Defendant in failing to
provide a qualified medical provider to Boyett.
b. Failure to provide the medicine and care prescribed by Boyett’s treating
physicians prior to incarceration
Plaintiffs contend the decision by Washington County officials to take
away Boyett’s prescription Methadone when he entered the facility violated his
rights. 3 Boyett’s doctor had prescribed the Methadone to treat his alcohol
3
Boyett was also taking Celexa and Xanax before he entered the
Washington County facility. Plaintiffs have failed to show whether these were
prescribed by Boyett’s doctor and, if so, whether they were taken away by
(continued...)
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withdrawal symptoms, but because Methadone is a narcotic, he was not allowed
to keep it in the jail. To replace the Methadone, Physician’s Assistant Steele
prescribed 0.1 mg of Clonidine to be taken twice daily. Steele’s prescription of
substitute medication for Boyett does not demonstrate deliberate indifference.
See Callahan v. Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006) (“[A] prison
doctor remains free to exercise his or her independent professional judgment and
an inmate is not entitled to any particular course of treatment.” (quoting Dulany v.
Carnahan, 132 F.3d 1234, 1240 (8th Cir. 1997))); Perkins v. Kansas Dep’t of
Corrs., 165 F.3d 803, 811 (10th Cir. 1999) (“[A] prisoner who merely disagrees
with a diagnosis or a prescribed course of treatment does not state a constitutional
violation.”).
Plaintiffs also complain officials inadequately treated Boyett’s hernia
repair. On August 20, Boyett’s outside doctor told Washington County officials
Boyett had undergone surgery to repair a hernia about one month before entering
the facility. Boyett also informed officers and nurses of this fact. When
Physician’s Assistant Steele conducted a physical examination of Boyett on
September 1, she determined he was healed. Even if we assume the diagnosis was
both negligent and harmful, Steele’s conduct would not rise to the level of a
constitutional violation because there is no evidence she acted with the requisite
3
(...continued)
Washington County officials. Plaintiffs have therefore waived review of any
claim with regard to these drugs.
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culpable state of mind. See Farmer, 511 U.S. at 835 (“[D]eliberate indifference
describes a state of mind more blameworthy than negligence.”). Plaintiffs have
failed to put forth evidence Steele knew of “a substantial risk of serious harm,”
and “consciously disregard[ed]” it. Self, 439 F.3d at 1231.
c. Failure to respond to symptoms and complaints regarding internal
bleeding
On August 31, at 12:49 p.m., Boyett told Officer Pitcher he thought he was
bleeding internally. Pitcher alerted Nurse McKinnon, but neither McKinnon nor
any other nurse responded. Three hours later, Boyett told Officer Ence he
thought he was hemorrhaging. Soon thereafter, Nurses McKinnon and Hanson
responded and Boyett told them he was going comatose and had spit-up blood.
After conducting a thorough examination of Boyett, McKinnon and Hanson
concluded Boyett was not lapsing into a coma or suffering from internal bleeding.
The nurses instructed Boyett to drink six to eight glasses of water per day.
Although the three-hour delay in responding to Boyett’s claims of internal
bleeding is troubling, it does not constitute deliberate indifference to a serious
medical need because the delay caused Boyett no harm. “[D]elay in medical care
can only constitute an Eighth Amendment violation if there has been deliberate
indifference which results in substantial harm.” Olson v. Stotts, 9 F.3d 1475,
1477 (10th Cir. 1993) (quotation omitted); see also Mata, 427 F.3d at 753 (noting
prisoner’s injury must be “sufficiently serious” to constitute deliberate
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indifference). Boyett was not experiencing internal bleeding or any other medical
problem at that time. The autopsy performed after Boyett’s death showed no
evidence of internal bleeding or related ailments arising from this incident.
d. Failure to respond to falls and seizures on September 3
In treating Boyett after his fall on September 3, Washington County
officials did not violate Boyett’s constitutional rights. Nurse McCoy evaluated
Boyett soon after the fall and did not discover any serious injuries. Officer Keil,
who was also on the scene, did not notice any bleeding or other injuries. Because
officials thought the fall was due to a seizure or other medical condition, they
transferred Boyett to a medical observation cell for continued monitoring. After
Boyett was moved to the observation cell, nurses determined no additional
treatment was necessary.
The Purgatory staffers’ considered medical judgments did not violate
Boyett’s constitutional rights. No Eighth Amendment violation can arise from a
situation where “a doctor merely exercises his considered medical judgment” and
“resolves the question whether additional diagnostic techniques or forms of
treatment” are required. Self, 439 F.3d at 1232; see also Estelle v. Gamble, 429
U.S. 97, 107 (1976) (“A medical decision not to order an X-ray, or like measures,
does not represent cruel and unusual punishment. At most it is medical
malpractice and as such the proper forum is the state court.”). None of the
officials involved in the decisions to move Boyett to a special cell and refrain
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from pursuing additional treatment evidenced deliberate indifference to his
medical needs. Indeed, the decision to move Boyett to a medical observation cell
evidenced concern for—not deliberate indifference to—Boyett’s health and well-
being.
e. Failure to treat Boyett’s head laceration
Officers Kounalis and Redford observed Boyett’s head laceration the
evening of September 5. The laceration likely stemmed from Boyett banging his
head against the door of his cell during the prior day’s swing shift (3:00 p.m. –
11:00 p.m.). Nurse Hanson treated Boyett’s laceration by washing it with clean
water, and determining sutures were not needed. Social worker Worlton also
evaluated Boyett at that time, and determined Boyett appeared psychotic and
should be given antipsychotic medication.
Although the Plaintiffs now complain Boyett should have been treated by a
doctor or given sutures for his head injury, these post-hoc opinions do not prove
Hanson and Worlton violated the Constitution. Because the injury was not so
serious that “even a lay person would easily recognize the necessity for a doctor’s
attention,” Sealock, 218 F.3d at 1209, Hanson and Worlton were not reckless in
their treatment. Hanson made an on-the-spot determination that the laceration did
not require sutures. “[T]he subjective component [of deliberate indifference] is
not satisfied, absent an extraordinary degree of neglect, where a [prison] doctor
merely exercises his considered medical judgment.” Self, 439 F.3d at 1232.
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f. Improper injection of antipsychotic medication
The prison’s use of the antipsychotic drug Thorazine did not violate
Boyett’s constitutional rights. Washington County officials injected Boyett with
this antipsychotic on three occasions. Nurse Hanson administered the first 100
mg injection on September 4, after Hanson concluded Boyett appeared dangerous.
Hanson administered a second 100 mg dose on September 5 after he and Worlton
jointly determined Boyett appeared psychotic and was a danger to himself and
others. Nurse Hummer gave Boyett a third 100 mg injection of Thorazine a few
hours later on the evening of September 5.
Each of the three Thorazine injections were made pursuant to a doctor’s
standing order. While the standing order is not part of the record, Nurse Hummer
testified as to the policy’s contours. According to Hummer, Purgatory medical
staff had a standing order to inject an inmate with Thorazine when the following
three conditions were met: (1) the inmate was dangerous or threatening; (2)
injecting Thorazine was the best alternative available; and (3) an individualized
assessment of the inmate’s medical history weighed in favor of Thorazine
treatment. R., Vol. 2 at 524. The Thorazine policy exists primarily to prevent
inmates from harming themselves. The policy provides Washington County
officials the ability to quickly respond to a dangerous situation, and is
administered under the supervision of medical personnel and only given to inmates
showing signs of serious mental disturbance.
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That the policy allows Thorazine to be administered without inmate consent
does not by itself present a constitutional problem. First of all, the record does not
suggest that Boyett objected to the drug treatment or that it was administered
against his will. Moreover, as the Supreme Court has held, “given the
requirements of the prison environment, the Due Process Clause permits the State
to treat a prison inmate who has a serious mental illness with antipsychotic drugs
against his will, if the inmate is dangerous to himself or others and the treatment is
in the inmate’s medical interest.” Washington v. Harper, 494 U.S. 210, 227
(1990). This makes good sense, for where an inmate is a danger to himself or
others, an involuntary medication policy may be considerably more humane than a
policy disallowing the practice altogether. 4 Prison officials have a duty to care for
their inmate population, and using antipsychotic medications is an appropriate
medical response in certain situations. Cf. Hogan v. Carter, 85 F.3d 1113, 1118
(4th Cir. 1996) (concluding medical personnel, “acting in accordance with sound
medical judgment and with the prisoner’s best interests in mind,” may order an
emergency injection of Thorazine); Harper, 494 U.S. at 231 (“Though it cannot be
4
We note that if prison officials had not given Boyett the Thorazine
injections after witnessing his self-destructive behavior, Plaintiffs may have
alleged Defendants were deliberately indifferent in failing to protect Boyett from
himself. See Hogan v. Carter, 85 F.3d 1113, 1118 (4th Cir. 1996) (concluding if
prison doctor “had not ordered the single dose of Thorazine” to mentally
deteriorating prisoner “it is not unlikely that [doctor] would now be facing a
lawsuit by [prisoner] claiming that he was deliberately indifferent to his serious
medical needs”).
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doubted that the decision to medicate has societal and legal implications, the
Constitution does not prohibit the State from permitting medical personnel to make
the decision under fair procedural mechanisms.”). The jail’s Thorazine policy
alone does not demonstrate deliberate indifference.
Although Plaintiffs argue a medical doctor should have made the Thorazine
decision, they have not shown how this is constitutionally compelled. As we have
noted, a prison need not have physicians on site around-the-clock. See Hoptowit,
682 F.2d at 1253; Perkins, 165 F.3d at 811. It is enough that a prison make
medical personnel, including doctors, available to help with ongoing medical
needs, or meet emergencies. In light of this reality, Washington County’s policy
provides for prompt action by on-site medical staff, including nurses, licensed
clinical social workers, and physicians’ assistants. Other medical personnel,
including doctors, are available as necessary. See R., Vol. 5 at 1481 (Physician’s
Assistant Steele testifying her supervising doctor “was available by phone twenty-
four hours a day if I had a question”).
Nor do we see a constitutional violation based on the manner in which the
Thorazine was administered. Boyett’s three Thorazine injections were given in
accordance with the standing order, which required (1) a determination of
dangerousness, (2) Thorazine being the best course of action, and (3) an
individualized assessment of the inmate. There is no dispute Nurse Hanson
administered the first injection after determining Boyett posed a danger to himself.
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It also appears Hanson determined Thorazine was the best method of treatment and
an individualized assessment of Boyett’s medical history weighed in favor of
Thorazine treatment. Although strapping Boyett down to a bed or engaging in
some other treatment may also have been helpful, there is no indication Thorazine
was not the best treatment option. 5
The second and third injections also complied with the policy. The second
Thorazine injection was given by Nurse Hanson on September 5. This injection
came after consultation with Licensed Clinical Social Worker Worlton. Worlton
had spoken with Boyett’s wife regarding Boyett’s medical history and consulted
Boyett’s medical charts before determining Thorazine was the best course of
treatment. Nurse Hummer gave Boyett a third shot of Thorazine later that night.
Plaintiffs point to no record evidence sufficient to carry their burden of showing
Nurse Hummer ran afoul of the standing order.
Again, nothing in the record suggests that Boyett objected to any of the
injections. Thorazine is used in institutional settings and accepted by mentally
5
See Steven K. Erickson, The Myth of Mental Disorder: Transsubstantive
Behavior and Taxometric Psychiatry, 41 Akron L. Rev. 67, 101–02 (2008)
(describing “[t]he introduction of Thorazine” as “monumental to psychiatry”
because “it brought hope to the severely mentally ill in a manner that was
manifestly obvious”); Thomas G. Gutheil, M.D. and Paul S. Appelbaum, M.D.,
“Mind Control,” “Synthetic Sanity,” “Artificial Competence,” and Genuine
Confusion: Legally Relevant Effects of Antipsychotic Medication, 12 Hofstra L.
Rev. 77, 93–97 (Fall 1983) (noting cases in which a defendant was given
Thorazine to regain cognitive functionality, sanity, and/or competency to stand
trial).
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unstable individuals in precisely Boyett’s circumstances. In fact, Plaintiffs
concede that, at least for the third treatment, “Boyett was not offensive or
combative, and in fact, he complied with the order of the jailers to sit still and
allow himself to be injected.” Aplt. Br. 22–23.
In sum, Plaintiffs have not shown how Washington County’s antipsychotic
injections policy or the injections in this case evidenced deliberate indifference to
Boyett’s medical needs. Plaintiffs have pointed to nothing in the record
suggesting Boyett objected to the medication or that the nurses unreasonably
believed that Thorazine was an inappropriate means of addressing Boyett’s
indications of mental illness.
g. Failure to prevent Boyett’s death
Finally, Plaintiffs contend prison officials deliberately failed to prevent
Boyett’s death. Purgatory officials found Boyett dead in his cell on the morning
of September 6. We have outlined above the steps taken by prison officials to
address Boyett’s medical ailments and complaints during the preceding week. On
this record, it is obvious jail officials responded reasonably to Boyett’s medical
condition prior to his death, and therefore did not violate Boyett’s constitutional
rights. “[P]rison officials who act reasonably cannot be found liable under the
Cruel and Unusual Punishments Clause.” Farmer, 511 U.S. at 844–45.
Dr. Leis, the medical examiner, concluded Boyett died of occlusive coronary
artery disease. There is no reason to believe any prison official should have been
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aware of this medical risk. Boyett had not documented the disease on his medical
history paperwork, nor had he shown any symptoms of the disease before he died.
Even if Boyett’s other medical conditions somehow contributed to his death,
Plaintiffs point to no evidence in the record that prison officials: (1) recklessly
misdiagnosed or ignored medical problems; (2) delayed providing medical
treatment; or (3) denied altogether access to medical personnel or medication. See
Self, 439 F.3d at 1232; Mata, 427 F.3d at 753. While Plaintiffs ask us to surmise
Boyett was not treated after a cell room assault perpetuated by either prison
officials or other inmates, there is no evidence of an assault or that prison officials
were aware of these injuries and failed to treat them.
* * *
In sum, Plaintiffs have failed to point to material disputed facts sufficient to
reverse the district court’s grant of summary judgment in favor of Defendants.
Plaintiffs have not shown prison officials were deliberately indifferent to Boyett’s
serious medical needs.
C. Excessive Force
1. Legal Framework
A claim arises under § 1983 if prison officials use force more excessive than
necessary to preserve safety and discipline in the prison facility. The core inquiry
for an excessive force claim is “whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.”
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Hudson v. McMillian, 503 U.S. 1, 7 (1992); see also Hovater v. Robinson, 1 F.3d
1063, 1068 (10th Cir. 1993) (“[A]n inmate has a constitutional right to be secure
in her bodily integrity and free from attack by prison guards.”).
An excessive force claim has two prongs: “(1) an objective prong that asks
if the alleged wrongdoing was objectively harmful enough to establish a
constitutional violation, and (2) a subjective prong under which the plaintiff must
show that the officials acted with a sufficiently culpable state of mind.” Smith v.
Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003). To defeat summary judgment,
plaintiffs must support their claim with more than conjecture and speculation.
E.g., Self, 439 F.3d at 1236. “Unsubstantiated allegations carry no probative
weight” in summary judgment proceedings. Phillips v. Calhoun, 956 F.2d 949,
951 n.3 (10th Cir. 1992); see also Bones v. Honeywell Int’l, Inc., 366 F.3d 869,
875 (10th Cir. 2004) (“To defeat a motion for summary judgment, evidence,
including testimony, must be based on more than mere speculation, conjecture, or
surmise.”).
2. Application
Plaintiffs contend prison officials assaulted Boyett while he was in jail.
They point to the testimony of three expert witnesses: Drs. Lara, Lovell, and
Graham to support their theory. The district court excluded evidence from those
experts based on concerns about their reliability under Rule 702 of the Federal
Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579-24-
(1993). After excluding the expert evidence, the district court concluded Plaintiffs
failed to establish an affirmative link between the prison guards and Boyett’s
injuries.
Plaintiffs’ theory is that Boyett’s rib, rectum, and head injuries were not
self-inflicted. They posit Officer Kounalis and perhaps another officer assaulted
Boyett sometime between 5:00 p.m. on September 5 and his death the next
morning. No direct evidence supports this theory; it rest entirely on (1) an expert
report theorizing the injuries could not be self-inflicted, and (2) circumstantial
inferences one of the prison guards must have been alone with Boyett and beat him
while no one else was looking. We agree with the district court the record does
not support Plaintiffs’ theory.
One of the proffered medical experts, Dr. Lara, stated Boyett died as a result
of: (1) trauma received prior to his death; (2) oversedation from major
tranquilizers of a patient with compromised liver functions; and (3) denial of basic
emergency care. Dr. Lara posited Boyett was suffering from liver failure,
traumatic injuries (i.e., chest trauma, rectal tear, and internal bleeding), and
probable overwhelming sepsis. Dr. Lara also stated videos taken of Boyett before
his death showed he was able to lift his arms and move about in a manner that
would have been impossible had Boyett been suffering from the injuries
discovered at his death.
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Another medical expert, Dr. Lovell, opined Boyett’s injuries were more
likely caused by the guards than by Boyett himself. Dr. Lovell’s expert report
stated, “The severe wound on posterior scalp is in such a position that it was more
likely than not caused by an external blow rather than a fall.” R., Vol. 11 at 3390.
Dr. Lovell also stated the linear tear in Boyett’s anus “was undoubtedly
penetration with a blunt foreign body.” Id. Nevertheless, Dr. Lovell ultimately
agreed with the medical examiner that Boyett died of “cardiac arrest.” Id. at 3391.
A former state medical examiner, Dr. Graham, performed an autopsy on
Boyett’s body more than one month after Dr. Leis’s official autopsy had been
completed. Dr. Graham’s autopsy report contained an “anatomical summary”
listing the most important findings of the autopsy. Those findings were: (1)
multiple cutaneous contusions and abrasions, including forehead, left hand, right
foreleg, right and left foot; (2) multiple rib fractures (L 8, 9, 10, 11), lacerations
(parietal pleura), and intercostal hematomas; (3) laceration (anus); (4) multiple
scalp contusions; (5) coronary artery atherosclerosis-stenosis; (6) cirrhosis of the
liver; (7) pulmonary emphysema; and (8) hematoma (omentum). R., Vol. 11 at
2766. According to Plaintiffs, the conclusion that Washington County officials
inflicted serious and deadly injury upon Boyett flows inescapably from the
medical observations of these three experts. We disagree.
Even if all three of these experts’ testimony and reports were admitted into
evidence, there would be no genuine issue of material fact regarding Defendants’
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use of excessive force. None of these experts supplies evidence tending to show
either the mechanism or perpetrator of Boyett’s injuries. Plaintiffs have failed in
their burden of showing an affirmative link between the injuries complained of and
the conduct of the Defendants. See Serna, 455 F.3d at 1152–53 (requiring plaintiff
to show an “affirmative link” between the defendant’s actions and a constitutional
violation); Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003)
(same).
Plaintiffs attempt to overcome their lack of evidence by presenting a theory
analogous to the common law notion of res ipsa loquitur. “A res ipsa loquitur
case is ordinarily merely one kind of case of circumstantial evidence, in which the
jury may reasonably infer both negligence and causation from the mere occurrence
of the event and the defendant’s relation to it.” Restatement (Second) of Torts
§ 328D, cmt. b (1965). The problem with reliance on this theory is that it can, at
most, help Plaintiffs show negligence. Plaintiffs have the burden of proving more
than negligence, however; Plaintiffs must prove force was applied to Boyett’s
body “maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7. A
finding of negligent medical care provides no help in that regard.
Evaluating all three of these experts’ testimony, along with the rest of the
evidence in the record, we conclude the expert testimony and circumstantial
evidence fail to raise a material question of fact as to whether Officer Kounalis or
another officer assaulted Boyett. The reports focus on the extent and severity of
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the injuries, while almost entirely omitting their causes (other than to suggest they
were not self-inflicted). While the injuries are undoubtedly troubling, and their
origins a mystery, the experts provide no evidence on the crucial question of
whether one of the Defendants committed them. 6 In fact, Plaintiffs point to no
evidence in the record tending to show that either Kounalis or another officer was
alone with Boyett at a time they could have committed the injuries.
In contradistinction to Plaintiffs’ unsupported theory, the record evidence
suggests Boyett was never physically abused. The evidence shows: (1) Officer
Kounalis discovered Boyett’s head injury at 5:00 p.m. on September 5; (2)
Officers Kounalis and Redford transported Boyett to the infirmary for treatment;
(3) Boyett did not complain of rib or rectum injuries to anyone at that time; (4)
Boyett was on powerful pain medication (500 mg of Naprosyn) for other ailments;
(5) Boyett was given a Thorazine injection and placed in a suicide watch cell at
7:45 p.m.; (6) the suicide watch cell, located directly behind the booking station, is
the most public place in the prison; (7) the suicide watch cell was monitored at all
times by two officers at the booking station; and (8) Boyett was observed walking
around his cell and using the toilet several times between midnight and 3:00 a.m. 7
6
Evidence in the record suggests Boyett fell down some stairs on
September 3 and may have injured his ribs and rectum then. The record also
suggests Boyett’s head wound was caused by Boyett repeatedly beating his head
against the observation cell’s wall or bars.
7
Plaintiffs suggest Defendants conspired to conceal the beating, but this
(continued...)
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The evidence does not show how any Defendant had the time or opportunity to
inflict severe wounds upon Boyett in the hours immediately preceding his death.
In sum, the Boyett family has not pointed to sufficient record evidence to
support their theory Officer Kounalis or another Defendant inflicted fatal injuries
on Boyett the night of September 5. At the summary judgment stage, Plaintiffs
must point to facts that show a particular Defendant caused the injuries with a
culpable state of mind. See, e.g., Bones, 366 F.3d at 875 (“To defeat a motion for
summary judgment, evidence, including testimony, must be based on more than
mere speculation, conjecture, or surmise.”). They have failed to do so here.
D. Supervisory Liability
To hold a supervisor liable under § 1983, a plaintiff must show the
supervisor’s deliberate, intentional conduct amounted to a violation of plaintiff’s
constitutional rights. Government officials are not vicariously liable for the
misconduct of their subordinates. “There is no concept of strict supervisor
liability under § 1983.” Serna, 455 F.3d at 1151 (quoting Jenkins v. Wood, 81
F.3d 988, 994 (10th Cir. 1996)). The supervisor must be “personally involved” in
the constitutional violation. Id.
7
(...continued)
theory of group liability is not supported by the record. Instead, the record shows
extensive attention to Boyett’s medical needs for the entire period of his
incarceration. The jail-house documentation that exists shows Boyett was
monitored throughout the evening of his death, and no one had the opportunity to
assault him while he was in the prison’s suicide watch cell.
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Plaintiffs have failed to present any evidence Sheriff Smith or Chief Nurse
Patt used excessive force or evidenced deliberate indifference rising to the level
of a constitutional violation. They have not even attempted to show how these
county supervisors were personally involved in any constitutional violation.
Accordingly, we affirm the grant of summary judgment in favor of both
supervisor Defendants. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (noting summary judgment is appropriate when nonmovant “fails to make
a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial”).
III. Municipal Liability
Municipalities are not vicariously liable for the misconduct of their
employees. Municipal liability may be imposed under § 1983 only if the
municipality itself is responsible for the constitutional violation. City of Canton
v. Harris, 489 U.S. 378, 385 (1989). As relevant here, a municipality may be
responsible for a constitutional violation when: (1) individuals with final
decision-making authority for the municipality create an unconstitutional policy
or practice, or (2) the municipality’s failure to train its employees reflects a
deliberate indifference to constitutionally protected rights. See id. at 389. In
either case, the municipality must be the “moving force behind the constitutional
violation.” Id. (alterations omitted).
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Plaintiffs base their claims of municipal liability on two Washington
County policies. Neither violates the Constitution.
The first policy is the county’s supposed policy or practice of refusing to
treat the wounds and ailments of Purgatory Correctional Facility inmates. There
is no evidence of this policy or practice. Instead, the county’s policy was to have
a full-time nursing staff, as well as a part-time physician’s assistant, on site at the
facility. Other medical personnel, including Steele’s supervising physician, were
on call. In light of our conclusion that county employees appropriately evaluated
and treated all of Boyett’s known ailments while he was incarcerated, this policy
cannot support a claim of municipal liability.
The second policy is the county’s allegedly unconstitutional decision to
allow Purgatory officials to inject inmates with Thorazine in unknown amounts
and frequency and without keeping adequate records. Plaintiffs’ claim fails
because they have not shown that—if in fact a policy to underreport exists—the
policy was causally related to Boyett’s injuries. See, e.g., Harris, 489 U.S. at 391(noting that “for liability to attach . . . the identified deficiency in a city’s training
program must be closely related to the ultimate injury”).
Boyett died either of a combination of trauma, broken ribs, and lack of
medical treatment (Plaintiffs’ theory) or a heart attack (Dr. Leis’s conclusion). In
neither case was the injection of an antipsychotic medication a cause of his
injuries or death. Indeed, Dr. Leis’s uncontroverted autopsy report showed no
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elevated levels of any medications or other drugs in Boyett’s body, and none of
Plaintiffs’ expert witnesses opined that Thorazine directly caused Boyett’s death.
Nor do any of the Plaintiffs’ allegations, even if true, point to a policy of
deliberate indifference to Boyett’s serious medical needs. Plaintiffs have thus
failed to meet the threshold standard of culpability and causation required to hold
the county liable. Carr v. Castle, 337 F.3d 1221, 1231 (10th Cir. 2003)
(recognizing plaintiffs seeking to impose municipal liability must prove a
municipal policy “actually caused” their injuries); Lopez v. LeMaster, 172 F.3d
756, 760 (10th Cir. 1999) (holding plaintiff “must prove that the [county’s]
deficiency in training actually caused his jailer to act with deliberate indifference
to his safety”).
Plaintiffs’ two claims against Washington County fail for an additional,
independent reason: the lack of a constitutional violation by any of the county’s
employees. Without proof of an underlying constitutional violation by a county
employee, there can be no county liability based on a county policy. See City of
Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam) (“If a person has
suffered no constitutional injury at the hands of the individual police officer, the
fact that the departmental regulations might have authorized the use of
constitutionally excessive force is quite beside the point.”); Estate of Larsen ex
rel. Sturdivan v. Murr, 511 F.3d 1255, 1264 (10th Cir. 2008) (“[W]ithout the
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predicate constitutional harm inflicted by an officer, no municipal liability
exists.”).
IV. State Law Claims
The district court declined to exercise supplemental jurisdiction over the
Plaintiffs’ state law claims. By failing to specifically point to any error in the
district court’s decision, they have waived review of this issue on appeal. See,
e.g., Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995) (noting
appellant has the burden of drawing this court’s attention to error below and court
will not manufacture a party’s arguments on appeal).
V. Conclusion
For the reasons set forth above, we AFFIRM the district court’s decision.
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
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