Young v. Glanz

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OKLAHOMA

CHRISTINE WRIGHT, as Special )

Administrator of the Estate of Lisa )

Salgado, deceased, et al., )

)

Plaintiffs, )

) Case No. 13-CV-315-JED-JFJ

v. )

)

STANLEY GLANZ, et al., )

)

Defendants. )

OPINION AND ORDER

Before the Court is the summary judgment motion of defendants Stanley Glanz,

who was formerly the Tulsa County Sheriff, and Vic Regalado, the current Tulsa County

Sheriff (Doc. 251), as to the claims of plaintiff, Christine Wright (now known as Christine

Hamilton). Former Sheriff Glanz is sued in his individual capacity, and Sheriff Regalado

is sued in his official capacity. The Court has considered the motion, the plaintiff’s

response (Doc. 316), the defendants’ reply (Doc. 348), and supplemental briefs (Doc. 505,

516 and 524) that were filed as to the sheriffs’ summary judgment motion.

I. Background

Lisa Salgado died on June 28, 2011 after being booked into the David L. Moss

Criminal Justice Center (the Jail) three days earlier. Ms. Salgado reported a history of

cardiac and other medical problems and that she had recently been hospitalized. During

her three days at the Jail before Ms. Salgado died, she reported and was observed exhibiting

symptoms including chest pain, vomiting, nausea, weakness, and hyperventilation. Jail

personnel did not seek emergency treatment for her until she was found in her cell

unresponsive, cold to the touch, with grayish-colored skin.

Plaintiff brings claims under the state constitution and 42 U.S.C. § 1983, alleging

that Jail medical staff violated Ms. Salgado’s constitutional rights by deliberate

indifference to her serious medical needs and that former Sheriff Glanz was deliberately

indifferent in knowingly maintaining a deficient medical system at the Jail, which caused

the underlying constitutional violation. Plaintiff also sues current Sheriff Regalado in his

official capacity as a result of the alleged unconstitutional medical system. Sheriffs Glanz

and Regalado move for summary judgment.

II. Summary Judgment Standards

Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “[S]ummary judgment will not lie if the

dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The

courts thus must determine “whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must prevail as a

matter of law.” Id. at 251-52. The non-movant’s evidence is taken as true, and all

justifiable and reasonable inferences are to be drawn in the non-movant’s favor. Id. at 255.

The court may not weigh the evidence and may not credit the evidence of the party seeking

summary judgment and ignore evidence offered by the non-movant. Tolan v. Cotton, 572

U.S. 650, 656-57 (2014) (per curiam). Instead, the court must view the evidence in the

light most favorable to the non-moving party. Id. at 657.

III. The Record Facts

The factual record with respect to Ms. Salgado’s symptoms and death at the Jail is

summarized in the Court’s order entered April 3, 2020 (Doc. 527) and is incorporated

herein. The summary judgment record also includes significant evidence that, between

2007 and Ms. Salgado’s death in 2011, former Sheriff Glanz, who at the time was

responsible for the Jail’s medical care system, was repeatedly informed of medical

understaffing, inadequate training, poor follow-up, and resulting bad health outcomes.

These include a 2007 audit by the National Commission on Correctional Health Care

(NCCHC), which reported findings that inmate health needs were not timely addressed, a

2009 mock audit and report by Elizabeth Gondles, Ph.D., and a 2010 NCCHC report.

For her report, Dr. Gondles reviewed documents, toured the Jail, and interviewed

Jail medical and detention personnel. Dr. Gondles’s report, which was provided to the Jail

administrator, identified numerous issues with the Jail’s health care system, including

understaffing of medical personnel, deficiencies in doctor coverage, lack of health services

oversight and supervision, training failures, nursing shortages, failure to provide timely

health appraisals, and hundreds of health-related problems in the prior year. (Doc. 316-

29). Dr. Gondles recommended “substantial changes” at the Jail after she noted certain

numerous failures to comply with mandatory health standards and concluded that “[m]any

of the health service delivery issues outlined in this report are a result of the lack of

understanding of correctional healthcare issues by jail administration and contract

oversight and monitoring of the private provider.” (Id. at 7, 22). Gondles recommended

that the Jail establish a department of health services, which would employ a professional

to oversee health services deliver and monitor the competency of the health staff and

adequacy of the health delivery system. (See id. at 4). Sheriff Glanz did not follow Dr.

Gondles’s recommendations.

Following the 2010 NCCHC audit of the Jail’s health services, the NCCHC placed

the Jail on probationary status. (Doc. 316-34 at 1 [p. 00069]). The 2010 audit report

identified numerous serious deficiencies with the Jail’s health services program. The report

noted several inmate deaths in the prior year, with poorly performed mortality reviews, a

failure to identify problems and implement corrective actions, physicians’ failure to

document reviews of medical health assessments and conduct clinical chart reviews to

determine if clinically appropriate care was implemented, and a failure to conduct timely

diagnostic testing and specialty consultations. (Doc. 316-34). Glanz testified that he did

not remember reading the complete report, but his practice was to typically read the first

two or three pages of such reports. (See Doc. 316-24 at 5-6 [Dep. pp. 140-141]).

In the months prior to Ms. Salgado’s death, other inmates died from cardiac arrest

after alleged delays in emergency treatment. (Doc. 316-32). One inmate died on March

12, 2010, after documented chest pain over the prior week’s time. The Jail’s internal

medical auditor determined that delay in calling for an ambulance may have contributed to

the inmate’s death. (See id. at 2). Another inmate died on June 17, 2010 after going into

cardiac arrest. (Id.). The Jail’s auditor found that there were “several standard of care

issues in the care of this inmate,” which included a lack of monitoring after considerable

risk of continued rise in her [potassium] which could lead to cardiac arrest.” (Id.). On

December 14, 2010, another inmate died from cardiac arrest. (Id. at 3). The inmate had a

history of heart attacks and had been prescribed Metoprolol. The inmate apparently did

not receive the prescription while at the Jail because the medical staff failed to follow up

on the prescription. The Jail’s internal medical auditor noted that “[i]f [the] inmate had

been on this medicine, his chances of having a fatal cardiac event would have been

significantly decreased.” (Id.).

On October 28, 2010, Assistant District Attorney Andrea Wyrick wrote an email to

Josh Turley, the Tulsa County Sheriff’s Office’s Risk Manager, to voice Wyrick’s concerns

about the Jail’s medical services. (Doc. 316-33). Wyrick wrote, “This is very serious,

especially in light of the three cases we have now – what else will be coming? It is one

thing to say we have a contract with CHMO to cover medical services and they are

indemnifying us . . . [I]t is another to ignore any and all signs we receive of possible issues

or violations of our agreement with them for services in the jail. The bottom line is, the

Sheriff is statutorily . . . obligated to provide medical services.” (Id.).

Despite receiving notice of significant issues with the medical care system at the

Jail, then-Sheriff Glanz could not identify any changes made as a result of the issues that

were repeatedly identified in external and internal audits. The evidence, construed in

plaintiff’s favor, would support a finding that Sheriff Glanz did not make any discernible

changes to the medical delivery system despite knowledge of serious failures that placed

inmates like Ms. Salgado at risk. (See, e.g., Doc. 316-8 at ¶ 9; Doc. 316-24 at 8-9 [Dep. pp.

162-163]; Doc. 316-33).

IV. Discussion

A. Underlying Constitutional Violation

The Sheriffs first argue that there was no underlying violation of Ms. Salgado’s

constitutional rights because there is no evidence of deliberate indifference to a serious

medical need. (Doc. 251 at 28, 39). Glanz and Regalado both assert that “the medical staff

at the jail was not indifferent and did not disregard the risk of a fatal medical condition”

(id. at 29), that no medical staff violated any clearly-established constitutional rights (id. at

36), and “the medical records do not demonstrate any individual at the jail was indifferent

to the care and treatment of Salgado while she was in the medical unit” (id. at 39).

On the medical providers’ summary judgment motions, the Court determined that

the record evidence could support a jury finding of subjective indifference:

Here, construed in plaintiff’s favor, the record evidence would support

a finding that Dr. Washburn and Nurse Metcalf were deliberately indifferent

to Ms. Salgado’s serious medical needs. Ms. Salgado reported a history of

heart attack and issues with cholesterol and hypertension, among other

ailments. She complained of very severe chest pain, nausea, vomiting,

extreme weakness, and she was rubbing her chest in pain. An EKG,

nitroglycerin, and aspirin were ordered by Dr. Washburn, which indicates a

suspected cardiac etiology. She was administered at least two EKGs, one of

which was abnormal and the other indicated borderline with abnormal

findings. After Ms. Salgado died, nursing staff reported that she had been

“vomiting regularly.” A jury could infer that Dr. Washburn and other medical

staff were aware of an obvious substantial risk to Ms. Salgado’s health.

In addition, it is clear there were concerns that Ms. Salgado’s

symptoms were cardiac in nature. She had a history of cardiac issues, and

her symptoms were consistent with a heart problem. Testing was ordered,

but the record is devoid of credible evidence that medical staff even read the

results or acted upon them. The results of the EKGs shown in the record

were borderline and abnormal, but those results were not uploaded into the

medical system until long after Ms. Salgado died, and it is not clear that Dr.

Washburn ever considered the abnormal results. Ms. Salgado continued to

report chest pain, vomiting, and nausea at least through June 27, 2011, when

Nurse Metcalf recorded a check from around 7:00 a.m. that morning. (Doc.

318-2 at 6).

The records thus indicate that she had been suffering serious cardiac

symptoms for at least two, and perhaps three, days. The EKGs were taken

on June 25 or June 26, 2011, Ms. Salgado complained of off-the-scale chest

pain on June 26, 2011, and she continued to suffer chest pain, vomiting, and

nausea at least until June 27, 2011. Yet, there were no further documented

checks on June 27 or June 28, 2011, before she was found unresponsive,

extremely cold, and grayish in color, in her cell after 7:00 p.m. on June 28,

2011. She was not sent to a hospital, and Dr. Washburn did not bother to

record anything about Ms. Salgado’s two or three days of cardiac symptoms.

Indeed, his only notation, which was entered the day after she died, did not

mention the EKG or cardiac symptoms, and it is not clear that he even saw

her on the day he claimed to have seen her.

While Dr. Washburn and CHC attempt to characterize the medical

care as merely involving “an incorrect judgment call and/or . . . inadequate

treatment” (see Doc. 246 at 2), a reasonable jury could find on this record

that Washburn and other CHC staff were deliberately indifferent to Ms.

Salgado’s serious medical needs. While providing little care for her serious

symptoms, which continued over at least two days until her death, medical

staff also did not refer her to outside medical personnel who could have

helped her. It is unclear from CHC’s inconsistent and incomplete medical

records that any actual care was provided for Ms. Salgado’s cardiac systems

on the day she died. Dr. Washburn’s testimony would further support a

finding that he was advised two or three times on the last day of Ms.

Salgado’s life that she “was crashing,” but she was not sent to a hospital.

(Doc. 527 at 13-15). The evidence presents an issue of fact upon which a reasonable jury

could find that Jail medical staff were deliberately indifferent to Ms. Salgado’s

constitutional rights.

The defendants’ argument that the law was not clearly established is also unavailing.

At the time Ms. Salgado was experiencing medical problems and pain at the Jail, the law

was clearly established that jail medical staff violate the constitutional rights of an inmate

by deliberate indifference to serious medical needs, including preventing an inmate from

receiving necessary emergency medical care or delaying treatment of a serious condition

where there is pain or risk of death. See Estelle v. Gamble, 429 U.S. 97 (1976); Sealock v.

Colorado, 218 F.3d 1205, 1210-11 (10th Cir. 2000) (prison officials violate constitutional

rights when they “prevent an inmate from receiving treatment or deny him access to

medical personnel capable of evaluating the need for treatment”); Mata v. Saiz, 427 F.3d

745, 751 (10th Cir. 2005) (delay in medical care in the face of severe pain and worsening

heart condition “constitutes an Eighth Amendment violation where the plaintiff can show

the delay resulted in substantial harm”).

B. Individual Liability of Stanley Glanz

“[T]he three elements required to establish a successful § 1983 claim against a

defendant based on his or her supervisory responsibilities [are]: (1) personal involvement[,]

(2) causation, and (3) state of mind.” Schneider v. City of Grand Junction Police Dep’t,

717 F.3d 760, 767 (10th Cir. 2013); see also Dodds v. Richardson, 614 F.3d 1185, 1199

(10th Cir. 2010). The first element requires the plaintiff to “show an ‘affirmative link’

between the supervisor and the constitutional violation.” Estate of Booker v. Gomez, 745

F.3d 405, 435 (10th Cir. 2014) (quotations omitted). “The plaintiff can show such a link

by establishing ‘the [supervisor] promulgated, created, implemented[,] or possessed

responsibility for the continued operation of a policy,’ or ‘the establishment or utilization

of an unconstitutional policy or custom’ . . . provided the policy or custom resulted in a

violation of the plaintiff’s constitutional rights.” Burke v. Regalado, 935 F.3d 960, 997

(10th Cir. 2019) (quoting Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011) and

Dodds, 614 F.3d at 1199).

Under the second element, there must be evidence that “the defendant’s alleged

action(s) caused the constitutional violation by setting in motion a series of events that the

defendant knew or reasonably should have known would cause others to deprive the

plaintiff of her constitutional rights.” Burke, 935 F.3d at 997 (quoting Estate of Booker,

745 F.3d at 435). With respect to the third element, “a plaintiff can ‘establish the requisite

state of mind by showing that [a supervisor] ‘acted with deliberate indifference.’” Id.

(quoting Perry v. Durborow, 892 F.3d 1116, 1122 (10th Cir. 2018)). “[A] local government

policymaker is deliberately indifferent when he deliberately or consciously fails to act

when presented with an obvious risk of constitutional harm which will almost inevitably

result in constitutional injury of the type experienced by the plaintiff.” Id. at 998 (quoting

Hollingsworth v. Hill, 110 F.3d 733, 745 (10th Cir. 1997)).

Glanz asserts that he is entitled to qualified immunity and cannot be held under a

supervisory liability theory because (1) he “had no personal contact with Salgado or direct

or contemporaneous knowledge of [her] treatment by the medical or jail staff in June of

2011” and (2) there was no underlying constitutional violation by any individual at the jail.

(Doc. 251 at 38).1 Faced with an evidentiary record much like the summary judgment

record in this case, the Tenth Circuit determined that “a reasonable jury could conclude

that one or more of Sheriff Glanz’s subordinates violated [the decedent’s] constitutional

rights” such that supervisory liability was proper if the plaintiff demonstrated that “(1) he

1 Rather than providing a typical qualified immunity analysis, Glanz’s qualified

immunity argument is premised upon his argument that the evidence is not sufficient to

show that any subordinate violated Ms. Salgado’s rights. (See Doc. 251 at 38).

maintained a policy or custom that (2) led to the underlying constitutional violation and (3)

that he acted with deliberate indifference.” Burke, 935 F.3d at 999.

Applying that standard, the Burke court determined that the evidence was sufficient

to support the jury’s finding of Glanz’s supervisory liability. Id. The Circuit concluded

that the evidence sufficiently “showed that Sheriff Glanz maintained a policy or custom of

providing deficient medical care at the jail.” Id. The evidence supporting that

determination included the Gondles Report and the 2007 and 2010 NCCHC reports, all of

which are in the record here. Id. The Circuit determined that a “reasonable jury could find

these deficiencies [in Jail medical care] resulted in [the decedent’s] death,” such that the

causation element was also satisfied. Id. at 1000.

Finally, the Burke court stated that “a reasonable jury could conclude Sheriff Glanz

was deliberately indifferent to the risk that deficient medical care would result in a

constitutional violation like the one [the decedent] suffered.” Id. The court noted evidence

“that Sheriff Glanz neglected to remedy deficient medical care,” which included the

NCCHC 2007 and 2020 audit reports and Ms. Gondles’s 2009 report. Id.

The Burke court summarized its determination as to Glanz’s supervisory liability as

follows:

It was reasonable for the jury to find (1) Sheriff Glanz was responsible for

“an unconstitutional policy or custom,” Dodds, 614 F.3d at 1199, of poor

training, inadequate staffing, and lack of urgency surrounding jail medical

care; (2) that this policy or conduct resulted in a violation of Mr. Williams’s

right to adequate medical care under the Fourteenth Amendment; and (3)

Sheriff Glanz acted with deliberate indifference toward the risk that the

policy or conduct of providing inadequate medical care would result in an

injury like Mr. Williams’s. Accordingly, the evidence was sufficient to

support the jury’s verdict against Sheriff Glanz holding him liable for

supervisory liability.

Id. at 1001. For the reasons set forth above, a reasonable jury could find upon the summary

judgment record that Glanz is liable under a supervisory liability theory. Accordingly,

summary judgment is inappropriate as to that claim.

As noted, Glanz’s qualified immunity argument is not premised upon the typical

legal analysis, but is premised upon his factual claim that there was no underlying

constitutional violation by a subordinate (see Doc. 251 at 38-39). In any event, the Court

has previously conducted the qualified immunity / clearly established law analysis on

nearly identical evidence that a jury could find constituted deliberate indifference by

Sheriff Glanz to Jail detainees’ serious medical needs. See Burke v. Glanz, 11-CV-720-

JED, 2016 WL 3951364 at **25-26 (Jul. 20, 2016) (unpublished). That analysis is adopted

here. Among other things, the law was clearly established before Ms. Salgado suffered

and died that a jail official like Mr. Glanz could be held liable for violating a pretrial

detainee’s constitutional rights under the circumstances described above. See Estelle, 429

U.S. at 104-05 (prison officials who intentionally deny or delay inmate access to medical

care violate the Eighth Amendment); Mata, 427 F.3d at 751 (delay in medical care would

violate the Eighth Amendment where the delay causes the inmate substantial harm); Dodds,

614 F.3d at 1199 (identifying bases for supervisory liability); Gonzales v. Martinez, 403

F.3d 1179, 1183 (10th Cir. 2005) (“an Eighth Amendment claimant need not show that a

prison official acted or failed to act believing that harm actually would befall an inmate; it

is enough that the official acted or failed to act despite his knowledge of a substantial risk

of harm”) (quoting Farmer, 511 U.S. at 842).

C. Municipal Liability

Plaintiff’s official capacity claim against Sheriff Regalado is an action against the

entity of which he is an agent. “This is why the official capacity claim here is effectively

a claim against Tulsa County and also why, when Sheriff Glanz left office in 2015, the

official capacity claim transferred to his successor, Sheriff Regalado.” Burke, 935 F.3d at

998. Under Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 691 (1978), to

survive Sheriff Regalado’s motion for summary judgment, the plaintiff must supply record

evidence of the following: (1) the existence of a jail policy or custom by which Ms. Salgado

was denied a constitutional right and (2) that the policy or custom was the moving force

behind the constitutional deprivation (i.e. “whether there is a direct causal link between

[the] policy or custom and the alleged constitutional deprivation”). See City of Canton v.

Harris, 489 U.S. 378, 385 (1989); Monell, 436 U.S. at 694; Bryson v. City of Okla. City,

627 F.3d 784, 788 (10th Cir. 2010) (citations omitted).

Here, as in Burke v. Regalado, 935 F.3d at 995-999, the “elements of supervisory

and municipal liability merge” because the plaintiff’s supervisory liability theory is

predicated on Sheriff Glanz’s maintenance of a policy or custom that resulted in the

constitutional violation, and that same policy or custom is a prerequisite for municipal

liability. “Accordingly, the elements for supervisory and municipal liability are the same

in this case.” Id. at 999. As noted, a reasonable jury could find upon the evidence that (1)

Sheriff Glanz “maintained a policy or custom of insufficient medical resources and

training, chronic delays in care, and indifference toward medical needs at the jail, and that

he did so knowing of an urgent need for reform,” (2) the policy or custom resulted in the

underlying violation of Ms. Salgado’s constitutional rights, and (3) Glanz’s maintenance

of the policy was deliberately indifferent to serious medical needs of inmates. Id.

The same evidence that would support those findings as to the supervisory liability

claim against Glanz prevents summary judgment as to the official capacity claim against

Sheriff Regalado. See id. at 999-1001. “Sheriff Glanz – then the Tulsa County official

charged with managing the jail – furthered a ‘policy or custom’ . . . of deficient medical

care at the jail characterized by inadequate training, understaffing, and chronic delays” and

“[a] reasonable jury could find his continuous neglect of these problems ‘was the moving

force behind the injury alleged.’” Id. (citations omitted). “And as explained above, Sheriff

Glanz acted with deliberate indifference toward the risk that the policy or custom of

providing inadequate medical care would result in an injury” like Ms. Salgado’s. See id.

at 1001.

D. State Constitutional Claims

Plaintiff also asserts a claim for alleged violations of Ms. Salgado’s rights under the

Oklahoma Constitution, Art. II, §§ 7 and 9. Those articles are the state’s counterparts to

the Eighth and Fourteenth Amendments to the United States Constitution. The plaintiff

asserts that her state constitutional claim is appropriate under Bosh v. Cherokee Cnty. Bldg.

Auth., 305 P.3d 994 (Okla. 2013). In Bosh, the Oklahoma Supreme Court recognized a

private right of action by a pretrial detainee for excessive force under Okla. Const. art. II,

§ 30.

Bosh did not recognize the claim asserted by plaintiff in this case. See id. Moreover,

since Bosh, the Oklahoma Supreme Court has continued to narrow its holding. See, e.g.,

Perry v. City of Norman, 341 P. 3d 689, 692-93 (Okla. 2014); Barrios v. Haskell Cty. Pub.

Fac. Auth’y, 432 P.3d 233 (Okla. 2018) (declining to extend Bosh to inmate denial of

medical claims under the Oklahoma constitution and stating “even if not barred by

sovereign immunity . . . it is doubtful that such claims would exist in the Oklahoma

common law”). The federal courts in Oklahoma have also recently declined to extend Bosh

to other constitutional claims. See Dodson v. Cty. Comm’rs of Mayes Cty., 18-CV-221-

TCK-FHM, 2019 WL 2030122 (N.D. Okla. May 8, 2019); Burke v. Regalado, 18-CV-231-

GKF-FHM, 2019 WL 1371144, *3 (Mar. 26, 2019); Snow v. Board of County

Commissioners of the County of McClain, Civ-14-911-HE, 2014 WL 7335319, at *3 (W.D.

Okla. Dec. 19, 2014); Payne v. Oklahoma, CIV-15-10-JHP, 2015 WL 5518879, at **3-4

(E.D. Okla. Sept. 17, 2015).

The federal courts typically decline to expand state law to an extent not addressed

by the state’s highest court. See Schrock v. Wyeth, Inc., 727 F.3d 1273, 1284 (10th Cir.

2013). As the Oklahoma Supreme Court noted in Barrios, “expanding tort remedies for

constitutional violations is now a ‘disfavored judicial activity.’” Barrios, 432 P.3d at 240

(quoting Ziglar v. Abbasi, __ U.S. __, 137 S. Ct. 1843 (2017)). Accordingly, plaintiff’s

claim under the state constitution is subject to summary judgment.

V. Conclusion

For the foregoing reasons, the Sheriffs’ summary judgment motion (Doc. 251) is

denied as to the plaintiff’s § 1983 claims and is granted as to her claim under the

Oklahoma constitution.

SO ORDERED this 14th day of May, 2020.