The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JUDY LYNN PRINCE, )
Administrator of the Estate of )
WAYNE BOWKER, Deceased, )
)
Plaintiff, )
)
v. ) Case No. CIV-18-201-RAW
)
SHERIFF OF CARTER COUNTY, )
in his official capacity, et al., )
)
)
)
)
)
)
Defendants. )
ORDER
Before the court is the motion of defendant Kimberly Miller for summary judgment.1
Wayne Bowker (“Bowker”) began incarceration in the Carter County Detention Center
(“CCDC”) on March 23, 2016 while awaiting trial for possession of cocaine. He died in
custody on June 30, 2016. At the time of Bowker’s incarceration, Miller was employed as
a nurse employed by the CCDC. Plaintiff brings claims against her pursuant to 42 U.S.C.
§1983, the “remedial vehicle for raising claims based on the violation of [federal]
constitutional rights.” Brown v. Buhman, 822 F.3d 1151, 1161 n.9 (10th Cir.2016).
Summary judgment is appropriate “if the movant shows that there is no genuine
1The complaint spells defendant’s name thus. In the
briefing, the spelling “Kimberlee” is sometimes used.
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Rule 56(a) F.R.Cv.P. A dispute is genuine when the evidence is such that a reasonable jury
could return a verdict for the nonmoving party; a fact is material when it might affect the
outcome of the suit under the governing substantive law. See Bird v. W. Valley City, 832
F.3d 1188, 1199 (10th Cir.2016). The court must view all evidence and draw reasonable
inferences therefrom in the light most favorable to the nonmoving party. Sawyers v. Norton,
962 F.3d 1270, 1282 (10th Cir.2020).
The court will relate the facts generally, although the task has been difficult. First,
plaintiff has not strictly complied with Rule 56 and Local Civil Rule 56.1(c). See Bennett
v. Carter County, 2019 WL 1671979 n.2 (E.D.Okla.2019)(describing similar lack of
compliance). For her part, defendant has asserted what medical records state in support of
her statement of undisputed facts. The actual medical records themselves, however, are often
not presented. Instead, throughout much of movant’s principal brief, movant cites to the
deposition [#35-2] of Bowker’s mother (the plaintiff in this case) in which pertinent portions
of medical records (or other documents) were read to her by counsel. This is not an
appropriate presentation either.2
2By way of example of the difficulty, movant asserts
“Bowker’s medical records show he had previously been diagnosed
as having cardiomegaly, or an enlarged heart.” (#135 at page 7
of 30 in CM/ECF pagination, ¶3). Movant cites to the deposition
transcript and #135-11, which was evidently an exhibit during the
deposition. The exhibit does not support the statement, although
the witness agreed (without contemporaneous objection) that the
exhibit she was shown so stated. Plaintiff asserts in her
response brief “Defendant provides no competent evidence that
2
Upon initial booking on March 23, 2016, Bowker identified various medical conditions
(asthma, a heart condition, high blood pressure, bipolar disorder, an anxiety disorder,
seizures, and shortness of breath.) He did not mention that he used a CPAP machine at night.
He did not mention any history of cardiomegaly (enlarged heart). “Jail policy at all relevant
times stated that medical care was to be delivered by a licensed physician and through the use
of trained health care personnel . . . However, Carter County Jail had no licensed physician
on staff, and instead had hired licensed registered nurse Kim Miller. She did not regularly
review medication logs, although she had access to the logs and the Jail Entry Log.” Bennett,
2019 WL 1671979 at *2.3 Nurse Miller also had no specific mental health training. (#152-7
Bowker was previously diagnosed with ‘cardiomegaly.’” (#153 at
page 6 of 30, ¶¶2-3). Upon the court’s review, an exhibit to
another defendant’s motion for summary judgment (#136-5) is a
medical record indicating Bowker had cariodmegaly in 2015. This
court takes judicial notice. See Murphy v. Sandoval Co., 2019 WL
8881629 n.1 (D.N.M.2019).
On another occasion, defendant presents as an undisputed
material fact that “[d]uring a telephone conversation with Bowker
on May 3, 2016, Plaintiff told him she was trying to sort out his
medication and he told her ‘don’t even worry about it, it’s not
that big a deal.’” (#135 at page 9 of 30, ¶11). Citation is again
made to the deposition, in which counsel reads the purported
statement by Bowker. The court does not adopt this asserted
undisputed fact.
3The Bennett decision deals with somewhat similar claims
involving the CCDC and an inmate named Michael Manos. Miller was
not a party to that case. Plaintiff in the case at bar seeks to
rely on the language that “Nurse Miller failed to do anything
with regard to Manos’ treatment or care, including never
reviewing the medication logs or assessing Manos.“ Id. at *14. In
context, the statement is reciting plaintiff’s contentions in
that case, and this court does not view it as a factual finding.
3
at page 7 of 22, ll.11-20).
Because Miller was not a doctor, she could not prescribe medications. Therefore, to
be administered a prescription, a prisoner either needed to bring the medication with him
when he was booked or the family needed to bring in the medication (and only in sealed
“blister packs”). Obviously, this led to inconsistent administration of medications.
Alternatively, the CCDC effectively “outsourced” the problem by sending the inmate to the
Emergency Room, where the ER physician could order a prescription.
On April 13 , 2016, Bowker completed a Medical Request Form. He complained that
he was having a difficult time breathing at night, saying he did not have his “pills or my air.”
Miller received the form on April 15, 2016. She determined that Bowker needed a CPAP
machine and made contact with Bowker’s mother for delivery. Miller instructed officers to
transport Bowker to the Emergency Room, but Bowker refused to go.
After delay, Bowker’s medications were delivered to the CCDC, beginning on May
13, 2016. Some prescriptions terminated in June, 2016 and others Bowker began refusing
to take. The parties have devoted some portion of their briefing to the issue of medicine.
This is a serious issue regarding the operation of the jail itself. In the case at bar, however,
plaintiff’s expert does not state the failure to receive or the refusal to take medication caused
or contributed to Bowker’s death. (#135-6 at pages 42-43 of 52).4
4Plaintiff’s expert does make the general statement that
“the failure to provide medical care resulted in [Bowker’s] death
within reasonable medical certainty,” (Id. at page 43 of 52,
ll.12-15), but addresses provision of specific medications as a
4
On May 18, 2016, Bowker had a rash and was sent by CCDC staff to the Mercy
Hospital Emergency Room. He was treated and discharged. Bowker submitted medical
request forms complaining of loss of balance and dizziness on May 28, 2016 and June 3,
2016. Miller believes she was on vacation and did not see the forms until June 6, 2016.
Upon seeing the forms, she immediately sent Bowker to the Emergency Room again. The
ER doctor concluded Bowker was getting too much of one of his medications and lowered
the dosage. Movant represents that the ER doctor concluded: “at this time, I feel the patient
is safe for discharge. Symptoms have improved.” Again, this statement was read to plaintiff
during her deposition, but she appeared to concur that the reading was accurate. (#135-2 at
page 43 of 57, ll.19-24).5
On June 11, 2016, Bowker was sent to the Mercy Hospital Emergency Room a third
time, this time with complaints of chest pain. He again was treated and released. Miller was
advised that Bowker was acting helpless and defecating on himself, and she went to check
on him on June 29, 2016. She asked him why he was defecating on himself and he
responded “I can’t. I can’t.”6 Miller did not believe Bowker needed to be transported to the
discrete issue.
5The record does reflect an ER physician’s observations (on
6/11/2016) that “This could all be psychosomatic” and “I do not
feel that [Bowker] needs an emergent neurological evaluation.”
(#142-7 at page 8 of 13).
6There is testimony that Bowker defecated on himself on
“about” a daily basis for “the last week or two” he was at the
jail. (#152-15 at page 5 of 12, ll.10-23). Miller interpreted
the fecal incontinence as possibly related to Bowker’s bipolar
disorder, but not as an emergency. (#135-4 at pages 31-32 of
5
ER at that time because his behavior did not appear to be life-threatening. (#135-4 at page
30 of 34, ll.1-4). An officer reported later that day that Bowker stood and walked to get his
food tray, ate his food, and even asked other inmates for additional food.
On June 29, Miller called Judge Carson Brooks, who had presided over a competency
hearing for Bowker a few days earlier. Miller was exploring whether to get Bowker released
early from the CCDC so that he could obtain additional medical treatment. Judge Brooks
told Miller that Bowker had appeared normal in his court appearance.
On June 30, 2016, at 1:02 a.m., a detention officer conducted a “site check” (or
perhaps “sight check”) and saw Bowker sitting on the toilet, looking up at the detention
officer. Upon a second check at 2:09 a.m., an officer found Bowker unresponsive. CPR was
performed and an ambulance was called. Bowker was transported to the ER, where he was
pronounced dead at 2:55 a.m.
Plaintiff’s expert asserts Bowker “didn’t die of caridiomegaly.” (#152-16 at page 18
of 19, l.25). He found the cause of death to be “multifactorial.” (#135-6 at page 11 of 52,
l.6).7 The various possibilities he explores are adequately summarized by movant. See #135
34). Plaintiff’s expert opines that it should have obvious
Bowker needed “psychiatric stabilization and medical
evaluations.” (#152-16 at page 16 of 19, ll.14-16), although
plaintiff’s expert does not frame this observation directly as to
Miller.
7The question posed was “what was the cause of death for Mr.
Manos?” (i.e., the inmate in the Bennett litigation), but the
expert clarified he was answering as to Bowker. (Id. at page 14
of 52, ll. 14-16).
6
at pages 12-13 of 30, ¶30.8 The expert opined that the jail staff “did good” in sending
Bowker to the ER three times within a six-week period (#135-6 at page 48 of 52 ll.17-20) but
that the staff was “deliberately indifferent to the need for access to medical screening and
emergency stabilization by the 29th and very likely prior. I just don’t have enough data.” Id.
at ll. 12-15).
In this case, Miller asserts qualified immunity. Where a defendant asserts qualified
immunity at the summary judgment stage, the burden shifts to the plaintiff to show that (1)
the defendant violated a constitutional right, and (2) the constitutional right was clearly
established. Kapinski v. City of Albuquerque, 964 F.3d 900, 905 (10th Cir.2020). If, and only
if, the plaintiff meets this two-part test does a defendant then bear the traditional burden of
the movant for summary judgment. Id. When a defendant has moved for summary judgment
based on qualified immunity, the court still views the facts in the light most favorable to the
non-moving party and resolves all factual disputes and reasonable inferences in its favor.
Henderson v. Glanz, 813 F.3d 938, 952 (10th Cir.2015).
As to the second prong, a clearly established right is one that is sufficiently clear that
every reasonable official would have understood that what he or she is doing violates that
right. Quintana v. Santa Fe Bd. of Comm., 2020 WL 5087899, *5 (10th Cir.2020). Although
courts do not require a case directly on point, nonetheless existing precedent must have
8Plaintiff states “Defendant misstates Dr. Sobel’s opinions”
(#153 at page 17 of 30, ¶30) but does not so demonstrate. See
also #161 at pages 4-5 of 12.
7
placed the statutory or constitutional question beyond debate. Id. The dispositive question
is whether the violative nature of particular conduct is clearly established. Id. at *6
(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.
The Tenth Circuit has stated that “there is little doubt that deliberate indifference to
an inmate’s serious medical need [violates] a clearly established constitutional right.” Mata
v. Salz, 427 F.3d 745, 749 (10th Cir.2005). This abstract language calls to mind the principle
that a clearly established right should not be defined at a high level of generality. See White
v. Pauly, 137 S.Ct. 548, 552 (2017). In Estate of Vallina v. Petrescu, 757 Fed.Appx. 648
(10th Cir.2018), the court stated “[t]his general recitation of the deliberate indifference
standard cannot provide a source of clearly established law that controls in this case because
the statement of law is insufficiently particular to the facts at hand.” Id. at 650. See also
Toler v. Troutt, 631 Fed.Appx. 545, 547 (10th Cir.2015)(“If such a general statement of the
constitutional violation that must be clearly established were sufficient, qualified immunity
would almost never be granted.”).
Rather, the pertinent statement appears to be that it is clearly established that a
deliberate indifference claim will arise when a medical professional completely denies care
although presented with recognizable symptoms which potentially create a medical
emergency 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. See Al-Turki
8
v. Robinson, 762 F.3d 1188, 1194 (10th Cir.2014).
The court concludes that plaintiff has failed to meet her burden of demonstrating the
existence of a clearly established right. Miller did not completely deny care but, on the
contrary, sent Bowker to the ER on three separate occasions. Bowker’s final decline seems
to have been rapid, taking place over 24-48 hours, and manifesting itself (even in previous
days) in fecal incontinence. The court agrees with movant that “there was no clearly
established constitutional or statutory right that would have required a medical professional
to immediately transfer an inmate exhibiting symptoms of mental illness to the hospital.”
(#161 at 9).
In the interest of thoroughness, the court now “considers whether the facts taken in
the light most favorable to plaintiff show that the defendant’s conduct violated a
constitutional right.” Poolaw v. Marcantel, 565 F.3d 721, 728 (10th Cir.2009). Elementary
principles of humanity embodied in the Eighth Amendment establish the government’s
obligation to provide medical care for those whom it is punishing by incarceration. Chapman
v. Santini, 805 Fed.Appx. 548, 553 (10th Cir.2020). Prison officials betray that obligation by
acting with deliberate indifference to an inmate’s serious medical needs. Id.
Deliberate indifference has both an objective and a subjective component. Id. To
satisfy the objective component, a prisoner must prove that the alleged deprivation was
sufficiently serious. Id. The subjective component requires that a defendant act with a
sufficiently culpable state of mind. Id. A defendant has the necessary state of mind if he or
9
she knew an inmate faced a substantial risk of harm and disregarded that risk. Id. An inmate
need not prove the defendant had actual knowledge of the danger or actually intended that
harm befall the inmate. Id. Rather, it is enough that circumstantial evidence supports an
inference that a defendant failed to verify or confirm a risk that he or she strongly suspected
to exist. Id. Medical care includes psychological and psychiatric care. Holden v. GEO
Group Private Prison Contractors, 767 Fed.Appx. 692, 694 (10th Cir.2019).
Bowker was a pretrial detainee. The constitutional protection against deliberate
indifference to a pretrial detainee’s serious medical condition springs from the Fourteenth
Amendment’s Due Process Clause. Sawyers, 962 F.3d at 1282. In evaluating such claims,
the court applies the analysis identical to that applied in Eighth Amendment cases. Id.9
Stated at a high level of generality, deliberate indifference to an inmate’s serious
medical need violates a clearly established constitutional right. Estate of Booker v. Gomez,
745 F.3d 405, 433 (10th Cir.2014). This principle also clearly applies to pretrial detainees
through the Due Process Clause of the Fourteenth Amendment. Id.
9In Kingsley v. Henrickson, 576 U.S. 389 (2015), the Supreme
Court held that the Eighth Amendment standard for excessive force
claims brought by prisoners, which requires that defendants act
maliciously and sadistically to cause harm, does not apply to
Fourteenth Amendment excessive force claims brought by pretrial
detainees. The circuits are split on whether Kingsley alters the
standard for conditions of confinement and inadequate medical
care. Plaintiff asks this court to rule that it does. Absent a
Tenth Circuit decision applying Kingsley to inadequate medical
care claims, this court will continue to apply existing
precedent. See, e.g., Parks v. Taylor, 2020 WL 1271587
(W.D.Okla.2020).
Even should Kingsley be applicable, the court does not find
movant’s actions were “objectively unreasonable.”
10
Regarding the objective component, a medical need is considered sufficiently serious
to satisfy this prong if the condition 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. Sawyers, 962 F.3d at 1283. Precision is required because “[h]ow the
sufficiently serious medical need is defined will affect whether a defendant’s deliberate
indifference was the cause of that harm.” Paugh v. Uintah County, 2020 WL 4597062, *24
(D. Utah 2020).10 The case at bar, however, is marked by lack of precision on this point. In
her opening brief, defendant states “it is not entirely clear what harm the Plaintiff has
identified to satisfy” this component. (#135 at page 20 of 30 in CM/ECF pagination).
The Tenth Circuit has spoken of the “ultimate harm” being sufficiently serious.
Martinez v. Beggs, 563 F.3d 1082, 1088-89 (10th Cir.2009). If that is the defined harm in the
case at bar, the question is easily answered by noting that Bowker ultimately died. The Tenth
Circuit holds that death “[is], without doubt, sufficiently serious to meet the objective
component.” Burke v. Regalado, 935 F.3d 960, 962 (10th Cir.2019). That defined harm,
however, places the heavy burden on plaintiff to demonstrate that Miller was deliberately
indifferent to the risk that Bowker would die.
On the other hand, the Tenth Circuit has also said the serious medical need test can
be met by the “intermediate harm,” considering the inmate’s symptoms “presented at the time
10The risk prison officials ignored must be the risk
plaintiff claims. Bruner-McMahon v. Jameson, 566 Fed.Appx. 628,
633 (10th Cir.2014). Accordingly, the burden of specificity is
on the plaintiff.
11
the prison employee has contact with the prisoner” or by the resulting harm, when (for
example) “delay by prison officials results in damage to a prisoner’s heart” or death. Kellum
v. Mares, 657 Fed.Appx. 763, 771 (10th Cir.2016).
Plaintiff presents somewhat of a moving target, citing psychosis, fecal incontinence,
death, and respiratory distress. (#153 at page 19 of 30 n.6). Plaintiff also notes that her
expert “opines, to a reasonable degree of medical certainty, that [the] proximate cause of
Bowker’s death was neglected severe acute psychosis or delirium that caused an acute
encephalopathy, with a number of contributory comorbidities,” which are listed. (Id. at page
16 of 30). In the same paragraph, the plaintiff’s expert is cited for the opinion that “Mr.
Bowker suffered an acute psychiatric decompensation and catatonia that became lethal due
to the failures to provide inmate psychiatric and medical care and access to emergency
services.” Id. (emphasis added).
The court finds that the objective component is satisfied, but with caveats. This prong
is satisfied if the defined harm (as claimed by plaintiff) is death, which is “sufficiently
serious” to satisfy this prong. Death satisfies this prong by either being characterized as
“ultimate harm” or as “resulting harm.” The court finds plaintiff has not satisfied the
objective component under the “intermediate harm” analysis, because the symptoms Mr.
Bowker presented upon initial booking and during his incarceration did not put jail
employees on notice that Mr. Bowker would suffer death.11
11On the other hand, a medical need is considered
sufficiently serious to satisfy the objective prong if the
12
The subjective component is akin to recklessness in the criminal law, where, to act
recklessly, a person must consciously disregard a substantial risk of serious harm. Bennett
v. Carter Co., 2019 WL 1671979, *5 (E.D.Okla.2019). Whether a prison official had the
requisite knowledge of a substantial risk is a question of fact subject to demonstration in the
usual ways, including inference from circumstantial evidence. Id. The fact that a serious
medical need was “obvious” could be evidence of deliberate indifference, although a prison
official may show that the obvious escaped him and avoid liability. Id.
Largely for reasons previously stated, the court finds the subjective prong is not
satisfied. Miller had previously sent Bowker to the ER on three separate occasions. She
believed his fecal incontinence was a symptom of his bipolar disorder, and there is no
evidence she believed she was confronted with impending death. The Tenth Circuit has
found deliberate indifference when jail officials confronted with serious symptoms took no
action to treat them. See Sawyers, 962 F.3d at 1283. Such is not the situation here. Miller
made a good faith effort to diagnose and treat Bowker’s medical condition. See Mata, 427
F.3d at 761. Movant is also entitled to qualified immunity based upon the first prong, lack
of a constitutional violation.
Plaintiff also brings a claim for unconstitutional conditions of confinement. Again,
condition has been diagnosed by physician as mandating treatment
or is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention. Al-Turki, 762 F.3d at
1192-93. That Bowker’s symptoms could lead to death had not been
diagnosed by a physician and was not obvious to a lay person.
13
as a pretrial detainee, plaintiff’s protections against inhumane conditions are based on the
Due Process Clause of the Fourteenth Amendment, but the Eighth Amendment standard
provides the benchmark for such claims. See Craig v. Eberly, 164 F.3d 490, 495 (10th
Cir.1998). A pretrial detainee must be afforded humane conditions of confinement by
ensuring basic necessities of adequate food, clothing, shelter, and medical care and
reasonable measures to guarantee safety. Ledbetter v. City of Topeka, 318 F.3d 1183, 1188
(10th Cir.2003). Prison officials violate this standard when they are deliberately indifferent
to an inmate’s serious medical needs. See Sealock v. Colorado, 218 F.3d 1205, 1209 (10th
Cir.2000).
Miller asserts qualified immunity as to this claim as well. The court employs the same
analysis described above and finds plaintiff has failed to demonstrate both (1) violation of
a constitutional right and (2) that the constitutional right (stated at the proper level of
specificity) was clearly established.
In the alternative, movant seeks dismissal of the punitive damages claim against her.
The substantive claims being dismissed, this claim too is necessarily dismissed.
It is the order of the court that the motion of Kimberly Miller for summary judgment
(#135) is hereby granted.
14
IT IS SO ORDERED this 21st day of SEPTEMBER, 2020.
15