Young v. Glanz

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OKLAHOMA

ALMA MCCAFFREY, as Personal )

Representative of the Estate of Gregory )

Brown, deceased, )

)

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. 337), as to the claims of plaintiff, Alma McCaffrey, on behalf of the Estate

of Gregory Brown. 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. 388), and the defendants’ reply (Doc. 401).

I. Background

A. Mr. Brown’s medical deterioration at the jail

Gregory Brown was booked into the David L. Moss Criminal Justice Center (the

Jail) on February 17, 2012. Five days later, on February 22, Mr. Brown’s cellmate reported

that Brown had been vomiting all night, and a medical emergency was called as to Brown.

He was taken to the Jail’s medical unit. A nurse saw him and noted he had been vomiting

all night and reported tenderness on his lower right side. When the Jail doctor, Dr. Adusei,

examined Mr. Brown that afternoon, Brown reported a history of perforated gastric ulcers.

Dr. Adusei diagnosed Mr. Brown with likely renal colic. He ordered an x-ray of Brown’s

bladder, ureter, and kidneys. However, the x-ray did not reflect any masses or calcifications

indicative of kidney stones. Later that day, a Jail nurse noted that Mr. Brown was unable

to hold down any food. That evening, Mr. Brown continued to report abdominal pain, and

he was dizzy when standing.

Between February 22 and February 29, 2012, Mr. Brown was in the Jail’s medical

unit with his condition deteriorating. By the early morning of the second day in the medial

unit, Mr. Brown continued reporting abdominal pain, stated that he could “not move,” and

he voided “dark tea colored urine.” He continued to exhibit signs over the following week

that his condition was serious, declining, and emergent. Those signs included days of

critically low pulse oximeter ratings, vomiting what look like black coffee grounds or

watery dark chocolate colored emesis, abdominal distension, and urine output that was dark

and tea-colored. He could not eat. According to plaintiff’s expert, these signs are highly

suggestive of significant internal bleeding from the gastrointestinal tract.

On Sunday morning, February 26, 2012, Jail detention staff entered the following

notes into the Jail Shift Report:

AT 0954 MEDICAL STAFF WAS INFORMED BY THE DOCTOR TO

START AN IV ON INMATE BROWN. THE NURSING STAFF STATED

THAT INMATE BROWN NEEDED TO GO TO THE HOSPITAL FOR

INTER[N]AL INJUR[I]ES. AT 1002 CPT VICKERS WAS NOTIF[I]ED

AND SGT KNAUSS WAS NOTIFIED. BOTH STATED THAT THEY

CAN NOT GO AGAINST THE MEDICAL DOCTOR WEARTHER [sic]

AN INAMTE [sic] CAN GO TO THE HOSPITAL. IM BROWN WILL BE

PLACED ON 15 MINUTE CHECKS. I/M BROWN HAS REFUSED ALL

MEALS SINCE WEDNESDAY.

Plaintiff’s expert has opined that there was “no question” by that day that Mr. Brown was

in urgent need of hospital care and surgical consult.

Mr. Brown was not physically capable of attending a court appearance on February

27. A Jail nurse reported that Mr. Brown was lethargic, continuing to vomit black emesis

and suffering abdominal pain, and his abdomen was hard and distended. Mr. Brown’s lab

results that day showed abnormal results, which included ominous findings suggestive that

Mr. Brown was suffering from sepsis. That evening, Dr. Adusei noted symptoms of a

small bowel obstruction, black tarry fluid from the nasogastric tube, and continuing

abdominal distension, but he still did not send Mr. Brown to the hospital.

On February 28, 2012, Jail nursing staff continued to plead with Dr. Adusei to send

Mr. Brown to the hospital emergency room. Adusei again noted that afternoon that Mr.

Brown had a small bowel obstruction and was lethargic. Yet, again, Mr. Brown was not

sent to the hospital, and Dr. Adusei merely planned to monitor Mr. Brown and noted that

he would “consider” transferring Brown to the emergency room if he did not improve

within “the next couple of days.”

Mr. Brown was finally sent to the hospital on February 29, 2012, seven days after

first admitted to the medical unit pursuant to a “medical emergency,” and several days after

experiencing abdominal distension, hypoxia, lethargy, toxicity / signs of sepsis, vomiting

dark material and having dark tea-colored urine, experiencing fever and continuing pain.

Upon admission to the hospital, pain of 10/10 was recorded, Brown was febrile, and he

appeared toxic, malnourished and dehydrated, with tachycardia and exquisite tenderness

on the right side. Mr. Brown was diagnosed with hypoxemic respiratory distress and

systemic inflammatory response syndrome. A CT scan of Mr. Brown’s abdomen showed

“free air and free fluid consistent with bowel perforation.” Hillcrest recorded that Mr.

Brown had exhibited symptoms for the previous nine days. A hospital surgeon performed

an exploratory laparotomy, which confirmed bowel perforation and peritonitis.

After surgery, Mr. Brown had to be placed on mechanical ventilation and

hemodynamic life support, but he continued to decline due to the severity of his intra-

abdominal injuries. He was ultimately removed from life support on March 8, 2012, and

died shortly thereafter.

B. Evidence regarding the Jail’s medical system

The summary judgment record also contains evidence that, between 2007 and Mr.

Brown’s death in 2012, 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. 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.” Gondles recommended that the Jail establish a department of

health services, which would employ a professional to oversee health services delivery and

monitor the competency of the health staff and adequacy of the system. 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. 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. 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.

In the months prior to Mr. Brown’s death, other inmates died after alleged delays in

emergency treatment. The deficiencies were apparent to county lawyers. 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. 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.” The evidence indicates that Sheriff Glanz did not require changes

necessary to alleviate the substantial risks from the deficient medical system.

C. Plaintiff’s claims

Ms. McCaffrey filed this suit on behalf of Mr. Brown’s estate. She brings claims

under the 42 U.S.C. § 1983 and the state constitution, alleging that Jail staff violated Mr.

Brown’s constitutional rights by deliberate indifference to his 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. Discussion

A. Section 1983 claim for deliberate indifference to serious medical needs

Seeking summary judgment on plaintiff’s § 1983 claim, the Sheriffs first argue that

there was no underlying violation of Mr. Brown’s constitutional rights. (See Doc. 337 at

27-40). Claims under 42 U.S.C. § 1983 based upon a failure to provide medical care for

serious medical needs of inmates are judged under the “deliberate indifference to serious

medical needs” test of Estelle v. Gamble, 429 U.S. 97 (1976). As explained by the Supreme

Court:

The [Eighth] Amendment embodies “broad and idealistic concepts of

dignity, civilized standards, humanity, and decency . . . against which we

must evaluate penal measures. . . . These elementary principles establish the

government's obligation to provide medical care for those whom it is

punishing by incarceration. An inmate must rely on prison authorities to treat

his medical needs; if the authorities fail to do so, those needs will not be met.

In the worst cases, such a failure may actually produce physical “torture or a

lingering death,” . . . the evils of most immediate concern to the drafters of

the Amendment. In less serious cases, denial of medical care may result in

pain and suffering which no one suggests would serve any penological

purpose. The infliction of such unnecessary suffering is inconsistent with

contemporary standards of decency as manifested in modern legislation

codifying the common-law view that “it is but just that the public be required

to care for the prisoner, who cannot by reason of the deprivation of his liberty,

care for himself.”

We therefore conclude that deliberate indifference to serious medical

needs of prisoners constitutes the “unnecessary and wanton infliction of

pain,” . . . proscribed by the Eighth Amendment. This is true whether the

indifference is manifested by prison doctors in their response to the prisoner's

needs or by prison guards in intentionally denying or delaying access to

medical care or intentionally interfering with the treatment once prescribed.

Regardless of how evidenced, deliberate indifference to a prisoner's serious

illness or injury states a cause of action under § 1983.

429 U.S. at 102-05 (internal citations and footnotes omitted); see also Al-Turki v. Robinson,

762 F.3d 1188, 1192 (10th Cir. 2014) (“[T]he Eight Amendment’s prohibition against cruel

and unusual punishment extends to the unnecessary and wanton infliction of pain caused

by prison officials’ deliberate indifference to serious medical needs of prisoners.”).

Prison officials violate an inmate’s constitutional rights where the officials “prevent

an inmate from receiving treatment or deny him access to medical personnel capable of

evaluating the need for treatment.” Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir.

2000). A delay in medical care also “constitutes an Eighth Amendment violation where

the plaintiff can show the delay resulted in substantial harm.” Mata v. Saiz, 427 F.3d 745,

751 (10th Cir. 2005).

These principles “appl[y] to pretrial detainees through the due process clause of the

Fourteenth Amendment.” Howard v. Dickerson, 34 F.3d 978, 980 (10th Cir. 1994).

Deliberate indifference is defined as something more than mere negligence; it requires

knowing and disregarding an excessive risk to inmate health or safety. Farmer v. Brennan,

511 U.S. 825, 837 (1994). Deliberate indifference has both objective and subjective

components. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).

1. Objective Component

The objective component is met if the harm suffered is sufficiently serious. Id. at

298. “A medical need is serious if it is ‘one that has been diagnosed by a physician as

mandating treatment or is one that is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.’” Ramos v. Lamm, 639 F.3d 559, 575 (10th

Cir. 1980); see also Al-Turki, 762 F.3d at 1192-93; Olsen v. Layton Hills Mall, 312 F.3d

1304, 1315 (10th Cir. 2002).

The Tenth Circuit has “held that ‘death [is], without doubt, sufficiently serious to

meet the objective component.” Burke v. Regalado, 935 F.3d 960, 992 (10th Cir. 2019)

(quoting Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009)). Because Mr. Brown

died, the evidence plainly supports the objective component. In addition, a reasonable jury

could find upon the record evidence that Mr. Brown experienced severe pain for days

without being taken to a hospital or receiving proper treatment, and such evidence also

independently provides support for the objective element. “When the pain experienced

during [a] delay [in medical care] is substantial, the prisoner ‘sufficiently establishes the

objective element of the deliberate indifference test.’” Kikumura v. Osagie, 461 F.3d 1269,

1292 (10th Cir. 2006) (quoting Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000)).

Numerous types of ailments and pain have been considered sufficiently serious medical

conditions within the Estelle framework. See Self v. Crum, 439 F.3d 1227, 1232 (10th Cir.

2006) (chest pain); Mata, 427 F.3d at 752-54 (severe pain and worsening of heart

condition); Kikumura, 461 F.3d at 1292-93 (severe pains, cramps, vomiting due to

hyponatremia).

2. Subjective Component

There is a genuine dispute of material facts, such that a reasonable jury could find

the subjective component is also satisfied here. The subjective component “lies

‘somewhere between the poles of negligence at the one end and purpose . . . at the other.’

. . . The Supreme Court has analogized it to criminal recklessness, to the conscious

disregard of a ‘substantial risk of serious harm.’” Blackmon v. Sutton, 734 F.3d 1237,

1244-45 (10th Cir. 2013) (quoting Farmer, 511 U.S. at 836). The inmate’s symptoms “are

relevant to the subjective component of deliberate indifference. The question is: were the

symptoms such that a prison employee knew the risk to the prisoner and chose (recklessly)

to disregard it?” Martinez, 563 F.3d at 1089. Whether the defendant 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.” Farmer, 511 U.S. at 842. The

“factfinder may conclude that a prison official knew of a substantial risk from the very fact

that the risk was obvious.” Id.

Here, construed in plaintiff’s favor as is required at this stage, the record evidence

would support a finding that Dr. Adusei and other Jail staff were deliberately indifferent to

Mr. Brown’s serious medical needs. The records indicate that Jail nurses advised both Dr.

Adusei and Jail detention staff that Mr. Brown needed to go to the emergency room, but

Mr. Brown was not sent to the emergency room. His symptoms, including continuing

abdominal pain, distended abdomen, low pulse oximeter readings, dizziness, coffee-

ground-like vomit, dark urine, and signs of sepsis were objective symptoms from which a

jury could infer that Dr. Adusei and other staff were aware of an obvious substantial risk

to Mr. Brown’s health and life.

Mr. Brown had reported a history of perforated ulcer, for a week he exhibited signs

of gastrointestinal distress and potential perforation, and his symptoms did not subside, but

got worse while he was denied access to emergency hospital care. The evidence supports

a finding that he was hypoxic, potentially septic, he continued suffering abdominal pain

and distension, could not eat, repeatedly vomited dark emesis, had dark tea-colored urine,

and was lethargic. Even after Dr. Adusei believed he was toxic and had a small bowel

obstruction, he still did not immediately send Mr. Brown to the hospital. Nursing staff

implored him to authorize Mr. Brown’s transport to the hospital, but Dr. Adusei refused

until Mr. Brown’s condition deteriorated significantly. In addition, Jail detention staff

refused to send Mr. Brown to the emergency room even after nurses alerted them that he

should be sent to the emergency room.

While the defendants attempt to characterize the medical care as merely involving

an incorrect diagnosis (see Doc. 337 at 44), a reasonable jury could find on this record that

Dr. Adusei and other Jail staff were deliberately indifferent to Mr. Brown’s serious medical

needs. A reasonable jury on this evidence could determine that Mr. Brown experienced

significant pain, exhibited symptoms that even a layperson would recognize as requiring

emergency hospital care, and that he did so for several days without being sent to a hospital.

A jury could also reasonably find that the delay in seeking treatment contributed to his

death.

The Tenth Circuit has held that deliberate indifference may be found where an

inmate is prevented “from receiving treatment” or is denied “access to medical personnel

capable of evaluating the need for treatment.” Burke, 935 F.3d at 993 (quoting Sealock,

218 F.3d at 1211). If the official delays or refuses to fulfill that gatekeeper role due to

deliberate indifference, then he “may be liable for deliberate indifference.” Id. Thus,

deliberate indifference has been found where inmates exhibited serious symptoms but

officials took no action to treat them. Id.; Sealock, 218 F.3d at 1210-11 (deliberate

indifference to severe chest pain by refusing to take inmate to hospital).

Here, construed in the plaintiff’s favor, there is evidence from which a factfinder

may infer that Dr. Adusei and other Jail nurses and detention staff were deliberately

indifferent by observing critical symptoms that clearly called for emergency medical care,

but they prevented him from obtaining the emergency medical evaluation and treatment he

needed.

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 Brown or direct

or contemporaneous knowledge of [his] treatment by the medical or jail staff” and (2) there

was no underlying constitutional violation by any individual at the Jail. (Doc. 337 at 41).

However, the evidence, construed in plaintiff’s favor, would support a finding that Sheriff

Glanz received notice of significant failures of the medical care system at the Jail, but did

not make discernible changes to alleviate the substantial risks to inmates like Mr. Brown.

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 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.

Glanz’s qualified immunity argument is not premised upon the typical legal

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

constitutional violation by a subordinate. 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,

before Mr. Brown suffered and ultimately died following a delay in emergency medical

treatment, the law was clearly established 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 Mr. Brown

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 Mr. Brown’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 Mr. Brown’s. See id. at

1001.

D. State Constitutional Claims

Plaintiff also asserts a claim for alleged violations of Mr. Brown’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 the 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.

IV. Conclusion

For the foregoing reasons, the Sheriffs’ summary judgment motion (Doc. 337) is

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

Oklahoma constitution.

SO ORDERED this 30th day of September, 2020.