Young v. Glanz

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OKLAHOMA

DEBORAH YOUNG, as Special Administrator )

of the Estate of Gwendolyn Young, deceased, )

)

Plaintiff, )

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

v. )

)

STANLEY GLANZ, et al., )

)

Defendants. )

OPINION AND ORDER

Before the Court are the defendants’ summary judgment motions as to the claims of

plaintiff Deborah Young. (See Doc. 466, 468, 469). The plaintiff responded (Doc. 493,

491, 492), and the defendants replied (Doc. 501, 500, 498). The Court has also considered

supplemental briefs (Doc. 505, 516, 519, 520) on the summary judgment motions.

I. Background

Gwendolyn Young was detained in the David L. Moss Criminal Justice Center (the

Jail) from October 16, 2012 until February 8, 2013, when she was found dead in her cell.

During her time at the Jail, Ms. Young notified staff that she was diabetic, had a history of

stroke, hypertension, and urinary tract infections. About a week before her death, Ms.

Young began complaining of stomach pain and vomiting. On January 28, 2013, her blood

pressure was taken and was low, at 99/71. The next day, a nurse noted that Ms. Young had

refused her food tray because it upset her stomach. Ms. Young continued to report stomach

pain on February 3, 2013. The following day, her blood pressure was very low, at 80/64,

with a fast heart rate of 106. Ms. Young reported stomach pain for the third day in a row

on February 5, 2013, she refused her medications, and she indicated that the pain was

worsening.

In the early afternoon of February 6, 2013, Ms. Young reported that she had been

throwing up blood. Jail staff reportedly looked at some vomit in the cell, and commented

that there was “not enough blood” and that the vomit looked like Kool-Aid. Ms. Young

refused her medication again later that afternoon. On the morning of February 7, detention

staff reported to nursing staff that Ms. Young had not eaten for three days and had

complained of vomiting blood for three days. No medical care was provided in response,

and no physical examination or vital signs were recorded.

Ms. Young continued to report illness, weakness, and vomiting on the evening of

February 7, 2013. Just before midnight, housing Sergeant Byrd was called to Young’s cell

and was informed by a detention officer that Ms. Young “ha[d] not eaten or drank anything

in three days” and that she had “been throwing up everything.” Byrd took Young to the

medical unit. The nurse told Byrd that Ms. Young likely had the flu, but instructed Byrd

to take Ms. Young back to the housing unit without any treatment.

At approximately 6:48 a.m. on February 8, 2013, Ms. Young banged on the glass of

her cell and reported that she was having difficulty breathing. A few minutes later, a nurse

arrived, and Ms. Young told her that she wanted to go to the hospital. The nurse replied

that she was “o.k.” and did not need to go to the hospital. The nurse told Ms. Young to

take her medications, and then left her in her cell. Within a few minutes, a detention officer

found Ms. Young on the floor of her cell. The detention officer called a medical emergency.

Sergeant Byrd and three nurses responded. Byrd informed one of the nurses that Ms.

Young had not eaten or drank anything for three days because she could not keep anything

down and kept vomiting. The nurse noted that Young also had not been taking her

medications. Byrd told the nurse that “something is wrong with inmate Young beside her

not taking her medication.” Byrd later testified that it was “obvious” that something was

wrong with Ms. Young.

Another detention officer, Corrie King, observed that Ms. Young was not

responding to nurses’ questions and did not move off of the floor to the gurney. A nurse

then grabbed Ms. Young’s arms and started to drag her across the floor of the cell. At

approximately 7:05 a.m., Ms. Young collapsed after nurses attempted to lift her off the

floor onto her feet. She also fell to the ground while waiting for medical staff to lower the

stretcher. Ms. Young was subsequently placed on the gurney and taken to the medical unit.

Medical staff determined that Ms. Young should take Prilosec 20 mg. Ms. Young was

returned to her cell at around 8:05 a.m. At the time she was taken to her cell, she appeared

incoherent and was not responsive. Corporal D’Souza was concerned that something was

wrong with Ms. Young, but deferred to higher ranking officers that she was not going to

the hospital.

Detention Officer Aaron Sherman also observed that Ms. Young was not talking or

complying with directives. D’Souza and another detention officer assisted in moving Ms.

Young from the gurney to her bunk, and Ms. Young was then left in her cell at around 8:16

a.m.1 It does not appear that medical staff checked on Ms. Young in her cell from 8:16

until 10:03 a.m., when she was found in her cell unresponsive, with no pulse or respirations.

The Jail Medical Director, Dr. Adusei, noted that she had “already expired” by the time he

entered her cell.

The plaintiff filed this action, asserting claims under state law and 42 U.S.C. § 1983,

alleging that Dr. Adusei, CHC, and former Sheriff Stanley Glanz were deliberately

indifferent to Ms. Young’s serious medical needs. The defendants 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

1 There is video from various angles showing the time that Ms. Young was outside of

her cell and taken to the medical unit. (See Doc. 491-14). The Court has reviewed the

video. The video shows Ms. Young’s fall in the hallway while waiting to be put on the

gurney. In addition, Ms. Young appeared to show serious discomfort while in the medical

unit, with an elevated respiratory rate, and she appeared to have difficulty walking.

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. Deliberate Indifference under § 1983

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).

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 Ms. Young

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

could find upon the record evidence that Ms. Young 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 pain, vomiting due to hyponatremia).

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, the record evidence would support a finding that

Jail detention and medical staff were deliberately indifferent to Ms. Young’s serious

medical needs. Ms. Young’s condition worsened over the course of a week to the point that

she was in respiratory distress, could not eat or drink, vomited for days, fell, was extremely

weak, and was left in her cell after being incoherent and unresponsive to questions and

directions. Despite days of reportedly vomiting blood, refusing medications, not eating or

drinking, complaining of respiratory distress, falling, and being observed in an incoherent

state, Ms. Young was not taken to a hospital for the emergency medical care she needed.

Detention staff were concerned that something was obviously wrong with Ms. Young, but

did not call for her to be transported to the hospital, and nursing staff also refused to call

for emergency care. Her condition included objective symptoms from which a jury could

infer that Jail staff were aware of an obvious substantial risk to Ms. Young’s health and

life, but failed to take appropriate action to obtain necessary medical care to save her life.

A jury could also reasonably find that the delay in seeking treatment caused her 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).

There is evidence from which a factfinder may infer that Jail medical and detention

staff were deliberately indifferent by observing critical symptoms that clearly called for

emergency medical care, but they prevented Ms. Young from obtaining the emergency

medical evaluation and treatment she needed. There is also evidence that, despite Ms.

Young’s chronic health conditions and significant evidence of acute illness, Dr. Adusei

never saw or examined Ms. Young until she was already dead, although there is evidence

that he was aware of her deterioration and symptoms.2

2 Dr. Adusei argues that he cannot be liable because Ms. Young had not been

diagnosed with a subdural hematoma. That argument is unpersuasive, because Ms.

Young’s symptoms were objectively and obviously serious. In the face of obvious

symptoms of a need for emergency medical care, and her request to go to the hospital after

vomiting and being unable to eat or drink for days, Ms. Young was prevented from

obtaining the emergency medical care, diagnosis, and treatment that she needed.

In summary, there are factual issues precluding summary judgment, as the evidence

would support a finding that medical and jail staff were deliberately indifferent to Ms.

Young’s serious medical needs in this case.

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 Young or direct

and contemporaneous knowledge of her treatment” and (2) there was no underlying

deliberate indifference. (Doc. 469 at 32-33). 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 Ms. Young.

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 2010 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 Ms. Young 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. The County’s 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. Young

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. Young’s constitutional rights, and (3) Glanz’s maintenance of

the policy was deliberately indifferent to serious medical needs of inmates. See 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. Young’s. See id. at

1001.

D. State Constitutional Claims against Sheriff Regalado

Plaintiff also asserts a claim for alleged violations of Ms. Young’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.

E. CHC’s § 1983 Liability

CHC argues that it cannot be held liable because there is no evidence that would

support a finding that its medical staff was deliberately indifferent to Ms. Young’s serious

medical needs. As noted above, the evidence construed in the plaintiff’s favor, would

support a finding that medical staff were deliberately indifferent in refusing to obtain

emergency medical care for Ms. Young after she exhibited obvious symptoms of a

seriously deteriorating condition and need for emergency medical care.

CHC further argues that it cannot be held liable under Monell because it did not

make the policies for the Jail. The municipal liability principles in Monell v. New York City

Dep’t of Social Servs., 436 U.S. 658, 691 (1978), extend to private companies that contract

to provide services on behalf of governmental entities. See, e.g., Dubbs v. Head Start, Inc.,

336 F.3d 1194, 1216 (10th Cir. 2003) (Monell extends to “private entities acting under

color of state law”); Carr v. El Paso Cnty, Colo., 757 F. App’x 651, 655 (10th Cir. 2018)

(unpublished).

Under Monell, to survive summary judgment, plaintiff must supply record evidence

of the following: (1) the existence of a CHC policy or custom by which the plaintiff 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).

Plaintiff has presented sufficient evidence to demonstrate the existence of a fact

issue preventing summary judgment on the Monell claim against CHC. Based on the

record evidence, construed in plaintiff’s favor at this stage, a reasonable jury could find

that, in the years prior to Ms. Young’s death in 2013, CHC maintained a policy and custom

of failing to provide medical care in response to serious medical needs of Jail inmates,

failing to provide proper training and supervision regarding emergent medical conditions,

and continuing to adhere to a constitutionally deficient system of care for detainees with

serious medical needs. In the three years before Ms. Young, died, there were systemic,

repeated, and documented failures to deliver appropriate healthcare, which specifically

included delay in seeking emergency medical care for inmates with symptoms warranting

emergency treatment, resulting in deaths of other inmates under CHC’s care. CHC was

also aware of other documented failures, which were cited in audits in 2009 and 2010 as

including a failure to comply with mandatory health standards, understaffing of medical

personnel, deficiencies in doctor coverage, a lack of health services oversight and

supervision, failure to provide training, delays in delivery of health care, and improper

documentation of health services. The evidence here would support a finding that CHC

continued its failure to provide adequate medical care and failed to address documented

deficiencies, which amounted to a custom that was the moving force behind the

deliberately indifferent failure of medical staff to provide or obtain timely and appropriate

treatment for Ms. Young. CHC’s Motion for Summary Judgment (Doc. 468) as to

plaintiff’s § 1983 claim is thus denied.

F. State Law Claims against Dr. Adusei and CHC

With respect to plaintiff’s state law negligence claims, Dr. Adusei and CHC argue

that they are immune from liability under the Oklahoma Governmental Tort Claims Act

(GTCA). The GTCA provides tort immunity to “the state, its political subdivisions, and all

of their employees acting within the scope of their employment.” Okla. Stat. tit. 51, §

152.1(A); see also Okla. Stat. tit. 51, § 163(C) (tort actions may not be brought against “an

employee of the state or political subdivision acting within the scope of his employment”).

The statute defines employees to include “licensed medical professionals under contract

with city, county, or state entities who provide medical care to inmates or detainees in the

custody or control of law enforcement agencies.” Okla. Stat. tit. 51, § 152(7)(b)(7).

The Oklahoma Supreme Court has stated that, “[g]enerally speaking, the staff of a

healthcare contractor at a jail are ‘employees’ who are entitled to tort immunity under the

GTCA by virtue of sections 152(7)(b), 153(A), and 155(25).” Barrios v. Haskell Cty. Pub.

Facilities Auth., 432 P.3d 233, 236 fn.5 (Okla. 2018). However, the court specifically noted

that it had “not been asked whether Turn Key Health, LLC or its staff are ‘employees’

under section 152(7)(b), but ha[d] assumed they are for purposes of answering the

questions certified to [the Oklahoma Supreme Court].” Id. Based on that strong indicator,

federal district judges in this state have recently extended the footnote in Barrios to

corporate jail medical contractors and their employees, determining them to be entitled to

immunity on state claims pursuant to the GTCA. See, e.g.,

Prince v. Turn Key Health Clinics, LLC, No. 18-CV-0282-CVE-JFJ, 2019 WL 238153, at

*9 (N.D. Okla. Jan. 16, 2019) (unpublished); Burke v. Regalado, 18-CV-231-GKF-FHM,

2019 WL 1371144, at *2–3 (N.D. Okla. Mar. 26, 2019) (unpublished); Wirtz v. Regalado,

18-CV-599-GKF-FHM, 2020 WL 1016445 (N.D. Okla. Mar. 2, 2020) (unpublished).

Based on the Supreme Court’s footnote in Barrios and the reasoning of other judges

in this District, CHC and its employees are immune from plaintiff’s tort claims pursuant to

the GTCA. Accordingly, Dr. Adusei and CHC are immune on plaintiff’s state law

negligence claim, and those defendants are entitled to summary judgment on that claim.3

3 If this Court had disposed of plaintiff’s federal claims in favor of the defendants, it

would be appropriate to decline to exercise supplemental jurisdiction over the state law

claims pursuant to 28 U.S.C. § 1367(c). See Birdwell v. Glanz, 790 F. App’x 962 (10th Cir.

2020) (unpublished). However, the federal claims have survived, and the undersigned has

adopted the reasoned approach of colleagues in this District at this time.

IV. Conclusion

The summary judgment motion (Doc. 469) of defendants Glanz and Regalado is

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

Oklahoma constitution. The summary judgment motions of CHC and Dr. Adusei (Doc.

466, 468) are denied as to the plaintiff’s § 1983 claims and are granted as to the state law

negligence claims.

SO ORDERED this 6th day of October, 2020.