Spray v. Board of County Commissioners of Oklahoma County

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

WILLIAM RAY SPRAY, JR., and )

RHONDA JEAN SPRAY, individually )

and as Personal Representatives of the )

Estate of Sindi Lucille Spray, deceased, )

)

Plaintiffs, )

)

v. ) No. CIV-20-1252-R

)

BOARD OF COUNTY COMMISSIONERS )

OF OKLAHOMA COUNTY, in its )

Official Capacity as Governing Body of )

the County of Oklahoma County, )

)

Defendant. )

ORDER

Sindi Spray was booked into the Oklahoma County Detention Center on December

13, 2018, at 10:30 a.m. She died three days later from a perforated duodenal ulcer that was

leaking fluid into her abdominal cavity. In the hours immediately preceding her death, Ms.

Spray appeared to be in pain and was unable to walk on her own. Although jail staff

observed and were notified of the changes in her condition, she did not receive any medical

attention for these symptoms. Ms. Spray’s parents, as personal representatives of her estate,

brought this action under 42 U.S.C. § 1983 alleging that the deprivation of medical care

violated the Fourteenth Amendment of the U.S. Constitution. Defendant Board of County

Commissioners of Oklahoma County now moves for summary judgment on this claim. The

matter is fully briefed and at issue [Doc. Nos. 50, 64, 69].

FACTUAL BACKGROUND

A. Ms. Spray’s Medical Treatment and Death

Ms. Spray was booked into the Oklahoma County Detention Center on December

13, 2018, at 10:30 a.m. in connection with a bench warrant that was issued after she failed

to appear at a preliminary hearing.1 She was screened by medical personnel at the jail at

the time of booking. She reported that she was a heroin addict and was experiencing

withdrawal symptoms, including cold, chills, sweating, running nose, restlessness, and

back pain. Def. Ex. 9. The jail screening report indicates that the “Continuity of Care Plan”

for Ms. Spray was “withdrawal/detox monitoring” and she was prescribed some

medications to assist in the withdrawal. Id.; Pl. Ex. 22.

While incarcerated at the jail, Ms. Spray was administered medications and her

blood pressure and pulse rate were taken at least once a day. Def. Ex. 11; Pl. Ex. 22. On

the morning of December 16th – the day of her death – Ms. Spray was taken to the jail

medical clinic after complaining of shortness of breath. Def. Ex. 12. At the clinic, she was

seen by Shirley Reisch, a registered nurse. Id. In her chart note,2 Nurse Reisch wrote that

Ms. Spray complained of shortness of breath, body aches, and pain when breathing; Ms.

Spray felt like she was over the worst of her heroin withdrawal but still felt really bad; and

Ms. Spray had a steady gait, no signs of distress, and no difficulty breathing. Id. After this

visit, Ms. Spray walked from the medical clinic to her cell without assistance. Pl. Ex. 16.

1 Defendant’s Statement of Undisputed Material Facts repeatedly states that Ms. Spray was

arrested and booked into the jail in August 2018, but the evidentiary materials show the

date as December 13, 2018.

2 The jail records indicate that the chart note was entered after Ms. Spray died. Def. Ex. 12.

That afternoon, at approximately 12:30 p.m., medical assistant Ginger Vann,

accompanied by detention officer Corporal Alexis Breshers, began making the rounds for

the noon time med pass, where medications are distributed to inmates in their cells. Pl. Ex.

22; Ex. 25 at 40, Ex. 26 at 62. When Ms. Vann arrived at Ms. Spray’s cell, Ms. Spray

leaned against the wall, slid down to the floor, and reported that her stomach hurt and her

legs were not working. Ms. Spray took her medications while seated on the floor and had

to be helped up to get back into the cell.3 Ms. Vann testified that Ms. Spray could not walk,

“she knew she needed help[,]” and she “obviously” needed to go to the hospital. Pl. Ex. 25

at 37, 42-44, 69. Ms. Spray’s cellmate similarly testified that Ms. Spray slid down to the

floor, complained about stomach pain, and had to be helped back inside the cell. Pl. Ex. 24

at 48-53. Cpl. Breshers also observed that Ms. Spray slid down to the floor and scooted

across the cell to get her medications. Pl. ex. 26 at 62, 69-70.

Concerned about Ms. Spray’s condition, Ms. Vann helped Ms. Spray fill out a sick

call request. Pl. Ex. 25 at 56. Ms. Vann testified that she took the request to Nurse Reisch

in the clinic and told her that Ms. Spray’s stomach hurt, she couldn’t walk, and she “needs

to be sent out” to the hospital. According to Ms. Vann, Nurse Reisch responded by stating

“she’s fine” and that she had already seen Ms. Spray for a breathing treatment that morning.

Pl. Ex. 25 at 37, 47-50.

3 A video recording from the jail [Doc. No. 64-17] shows Ms. Spray sitting on the floor

and being helped back into her cell. However, the view of Ms. Spray’s cell is obscured by

a column.

Ms. Vann also testified that she told Cpl. Breshers that Ms. Spray needed to be sent

out to the hospital. Id. at 48. Cpl. Breshers’ acknowledged that Ms. Vann told her to keep

an eye on Ms. Spray because she was not walking, and her testimony suggests that she did

not know whether Ms. Spray’s condition was reported to the medical clinic. Cpl. Breshers

conceded that Ms. Spray could have received additional medical attention. Pl. Ex. 26 at 58,

70, 74; Pl. Ex. 32.

Jail records indicate that the 2:00 p.m. sight check of Ms. Spray’s floor was not

completed. Pl. Ex. 45 at 9. Around 3:30 that afternoon, Cpl. Breshers delivered a mat to

the cell and observed Ms. Spray lying down. Cpl. Breshers conducted a sight check of the

pod during the 4:00 p.m. hour but her report indicates that she did not look in Ms. Spray’s

cell during the sight check. Ms. Spray’s cellmate testified that no one looked in the cell

during the sight check. Pl. Ex. 32; Ex. 26 at 73-74, 77; Ex. 24 at 117.

At around 4:56 p.m., detention officers were notified to respond to Ms. Spray’s cell

because an inmate was having trouble breathing. Cpl. Breshers arrived at the cell several

minutes later, called for help, and began chest compressions. Pl. Ex. 32. Ms. Spray’s

cellmate testified that she beat on the cell door and called for help for forty minutes before

anyone responded. Pl. Ex. 24 at 64. However, she also testified that she believed Ms. Spray

was dead when she found her on the floor.4 Def. Ex. 33 at 61-62 It was subsequently

4 Plaintiffs do not dispute that Ms. Spray was found dead when she was discovered by her

cellmate. See Def. Undisputed Fact No. 22. Accordingly, the delay in responding to the

cell could not have caused a constitutional violation and any facts related to this delay are

not material.

determined that Ms. Spray died from a perforated duodenal ulcer that was leaking fluid

into her abdomen. Def. Ex. 18.

B. The Oklahoma County Detention Center

Each floor of the Oklahoma County Detention Center has four pods with 50 cells.

Typically, only one detention officer is assigned to the floor at any given time. Pl. Ex 44 at

73. Detention officers are expected to conduct hourly sight checks of each cell. Pl. Ex. 58.

Although detention officers testified that a sight check cannot be completed in under four

minutes, the jail records include numerous entries showing sight checks taking less than 4

minutes. Pl. Ex. 25 at 25-27; Ex. 44 at 68-71; Ex. 45. There is also testimony that the jail

medical personnel would routinely ignore sick call requests or throw them in the trash, that

jail medical staff and detention officers complained that inmates were not being seen by

medical personnel, and that the jail has been understaffed for a long time. Pl. Ex. 25 at 55,

57-60, 63-65; Pl. Ex. 42 at 123:16-22; Pl. Ex. 44 at 73.

STANDARD

“The court shall grant summary judgment 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). “An issue is ‘genuine’ if there is sufficient evidence on each

side so that a rational trier of fact could resolve the issue either way.... An issue of fact is

‘material’ if under the substantive law it is essential to the proper disposition of the claim.”

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Importantly, at this stage, the court’s role

is not “to weigh the evidence and determine the truth of the matter,” but to 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.” Anderson, 477

U.S. at 249–52. “The evidence of the non-movant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Id. at 255.

DISCUSSION

Plaintiffs’ Amended Complaint5 asserts that the Board of County Commissioners of

Oklahoma County failed to provide Ms. Spray with constitutionally adequate medical care

in violation of the Fourteenth Amendment. To succeed on this claim, Plaintiffs must

demonstrate (1) a violation of Ms. Spray’s constitutional rights and (2) that a policy or

custom of the defendant was the moving force behind the constitutional violation. Layton

v. Bd. of Cnty. Comm'rs of Oklahoma Cnty., 512 F. App'x 861, 868 (10th Cir. 2013).

Defendant argues that Plaintiffs’ claim fails as a matter of law at both steps.

I. Underlying Constitutional Violation

The Fourteenth Amendment’s Due Process Clause affords a pretrial detainee

protection against deliberate indifference to a substantial risk of serious harm. Burke v.

Regalado, 935 F.3d 960, 991-92 (10th Cir. 2019). “Deliberate indifference contains both

an objective and subjective component.” Lucas v. Turn Key Health Clinics, LLC, 58 F.4th

1127, 1136 (10th Cir. 2023). The objective component is satisfied “if the deprivation is

sufficiently serious—that is, if it is one that has been diagnosed by a physician as mandating

5 Defendant cites to the Complaint in its summary of Plaintiffs’ claims. See Def. Br. at 4.

However, the Complaint was superseded by the filing of Plaintiffs’ Amended Complaint.

See Franklin v. Kansas Dep't of Corr., 160 F. App'x 730, 734 (10th Cir. 2005).

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

necessity for a doctor's attention.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th

Cir. 2002) (quotation marks and citation omitted). Here, Defendant concedes for the sake

of its summary judgment motion that the objective component is met.

The subjective component of deliberate indifference is satisfied if

the official knows of and disregards an excessive risk to inmate health or

safety. The official must be aware of the facts from which the inference of a

substantial risk of serious harm could be drawn and also draw that inference.

A plaintiff need not show that a prison official acted or failed to act believing

that harm actually would befall an inmate, but rather that the official merely

refused to verify underlying facts that he strongly suspected to be true, or

declined to confirm inferences of risk that he strongly suspected to exist.

Whether a prison official had the requisite knowledge of a substantial risk is

a question of fact subject to demonstration in the usual ways, including

inference from circumstantial evidence such as whether the risk was obvious.

An official disregards risk when he fails to take reasonable measures to abate

the risk.

Lucas, 58 F.4th at 1137 (quotation marks and citations omitted).

Plaintiffs have presented sufficient evidence from which a reasonable juror could

conclude that jail staff6 subjectively perceived an excessive risk to Ms. Spray’s health and

6 Defendant asserts, and Plaintiffs do not dispute, that the medical personnel at the jail were

employees of Turn Key Health Clinics, LLC and not the Oklahoma County Detention

Center. See Def. Br. at 9 n.5. Defendant’s brief also repeatedly argues it cannot be liable

because there is no evidence that a county employee acted with deliberate indifference. To

the extent Defendant means to argue that the county cannot be liable for the actions of Turn

Key employees that were working in the jail, the Court perceives two problems with such

an argument. First, there is evidence that at least one detention officer failed to take

appropriate action after observing Ms. Spray’s deteriorating condition and being told she

needed to go to the hospital. Second, the Tenth Circuit has held that constitutional

violations by jail medical contractors can form the basis of a claim against the county.

Burke v. Regalado, 935 F.3d 960, 996-97, n.17 (10th Cir. 2019) (“For municipal liability,

courts have held entities liable for the actions of independent contractors.”); see also

Layton, 512 F. App'x at 871 (reversing grant of summary judgment because county could

failed to take reasonable measures to abate that risk. First, there is evidence showing that

jail staff actually inferred that Ms. Spray was facing a substantial risk of serious harm.

During the noon med pass on December 16th, Ms. Vann and Cpl. Breshers both observed

that Ms. Spray was in pain and could not walk. According to Ms. Vann, it was obvious that

Ms. Spray needed to go to the hospital and she conveyed this to Nurse Reisch and Cpl.

Breshers.

Second, Plaintiffs provide sufficient evidence showing that jail staff disregarded the

risk to Ms. Spray and manifested indifference to her obvious need for medical care. For

example, Nurse Reisch refused to provide any medical care to Ms. Spray after she was

informed that Ms. Spray’s condition had changed significantly and she needed to go to the

hospital. See Mata v. Saiz, 427 F.3d 745, 755-59 (10th Cir. 2005) (denying summary

judgment to nurse who was informed that the patient was experiencing chest pain but

“completely refused to assess or diagnose [the plaintiff’s] medical condition at all”).

Additionally, there is evidence that Cpl. Breshers – although aware of Ms. Spray’s serious

medical need – did not report her condition to anyone or adequately monitor her cell.

Brothers. v. Bd. of Cnty. Commissioners of Oklahoma Cnty., No. CIV-21-418-SLP, 2023

WL 4041854, at *8 (W.D. Okla. June 15, 2023) (finding that “a question of fact exists as

to whether the detention staff failed in their gatekeeping duties” where there was evidence

be liable for actions of contracted jail medical providers). Moreover, although Defendant

cites to a portion of the contract governing Turn Key’s operations, it did not submit a copy

of the contract. It is therefore impossible to determine the scope of authority the county

sheriff or the Board of County Commissioners continued to exercise over the medical staff.

that inmate was in obvious need of medical assistance). This is not to suggest that Plaintiffs’

evidence will carry the day at trial, but it is sufficient to create a material factual dispute.

Defendant argues that there is no evidence suggesting that detention staff thought

Ms. Spray was suffering from anything other than heroin withdrawal. This is beside the

point. Whether from heroin withdrawal or some other problem, Ms. Spray’s condition

changed on the afternoon of December 16th. There is evidence that jail staff were aware of

Ms. Spray’s changed condition, knew that it presented an excessive risk to her health, and

disregarded that risk. Defendant additionally argues that detention officers provided her

with access to medical care at every moment of need. Although Plaintiff did receive some

medical attention at the jail, whether jail personnel responded appropriately after observing

or being informed that she could not walk is disputed.

II. Municipal Policy or Custom

To succeed on a claim against a local government entity such as the Board of County

Commissioners, the plaintiff must, in addition to establishing an underlying constitutional

violation, prove that (1) a government’s official policy (2) caused the constitutional injury

and (3) the policy was enacted or maintained with the requisite state of mind, i.e. deliberate

indifference. Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th

Cir. 2013). In addition to a formal regulation or policy statement, an official policy can

include “an informal custom amounting to a widespread practice that, although not

authorized by written law or express municipal policy, is so permanent and well settled as

to constitute a custom or usage with the force of law.” Waller v. City & Cnty. of Denver,

932 F.3d 1277, 1283 (10th Cir. 2019) (quotation marks and citation omitted).

Plaintiffs have presented sufficient evidence from which a reasonable juror could

conclude that the jail maintained an informal but well-settled custom of providing deficient

medical care and supervision. There is testimony that jail medical staff would routinely

ignore sick call requests and that both medical staff and detention officers complained

about inmates not receiving medical care. The jail was consistently understaffed, only one

detention officer was assigned to each floor as a matter of course, and detention officers

routinely failed to perform their required sight checks. See Burke, 935 F.3d at 999

(describing understaffing and failure to provide timely medical care to inmates as a “policy

or custom of providing deficient medical care at the jail”).

A reasonable juror could also conclude that these deficiencies caused Ms. Spray’s

death. Although Ms. Spray exhibited a worrying change in symptoms, her sick call request

was ignored and her cell was not appropriately monitored. See Layton, 512 F. App'x at 872

(10th Cir. 2013) (“Notably, a reasonable jury could find that, had Mr. Holdstock’s cell been

monitored on a more regular basis, prompt intervention would have prevented his death.”).

There is also evidence from which a reasonable juror could conclude that Defendant

acted with deliberate indifference. “The deliberate indifference standard may be satisfied

when the municipality has actual or constructive notice that its action or failure to act is

substantially certain to result in a constitutional violation, and it consciously or deliberately

chooses to disregard the risk of harm.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th

Cir. 1998). Typically, notice is “established by proving the existence of a pattern of tortious

conduct.” Id. However, deliberate indifference may also “be found absent a pattern of

unconstitutional behavior if a violation of federal rights is a highly predictable or plainly

obvious consequence of a municipality’s action or inaction.” Id. (quotation marks and

citation omitted). A jury could reasonably conclude that a violation of a pretrial detainee’s

Fourteenth Amendment rights is a “plainly obvious consequence” of the jail’s purported

custom of ignoring requests for medical care and failing to monitor sick inmates. See Olsen

v. Layton Hills Mall, 312 F.3d 1304, 1320 (10th Cir. 2002) (holding that where there was

evidence that a constitutional violation was a plainly obvious consequence of failure to

train it was “for a jury to decide” whether municipality acted with deliberate indifference);

Winton v. Bd. of Comm'rs of Tulsa Cnty., Okl., 88 F. Supp. 2d 1247, 1269-70 (N.D. Okla.

2000) (denying county’s motion for summary judgment on failure to provide medical care

claim where there was evidence sheriff permitted an inadequate sight check practice that

“could result in a detention officer failing to timely discover an injured inmate.”). Further,

there is evidence that the jail’s staffing problems, inadequate medical care, and improper

sight checks were a pervasive problem and a topic of complaint amongst the staff,

suggesting that the decisionmakers at the jail knew (or should have known) of these

deficiencies but failed to take any remedial steps. The Court therefore concludes “the

evidence presents a sufficient disagreement to require submission to the jury” and is not

“so one-sided that [Defendant] must prevail as a matter of law.” Anderson 477 U.S. at 249-

52.

To avoid this outcome, Defendant argues there is no causal connection between any

alleged constitutional violation and the conduct of the Board of County Commissioners

because the Board has no express statutory authority to act in operating the Oklahoma

County Detention Center.7 Under Oklahoma law, “[e]very county, by authority of the board

of county commissioners and at the expense of the county, shall have a jail or access to a

jail in another county for the safekeeping of prisoners lawfully committed.” Okla. Stat. tit.

57, § 41. Although the county sheriff is the officer charged with keeping the jail, see Okla.

Stat. tit. 19, § 513, the county, through its board of county commissioners, “may be liable

on the basis that [the sheriff] is a final policymaker with regard to its jail, such that his

actions may fairly be said to be those of the municipality.” Lopez v.LeMaster, 172 F.3d

756, 763 (10th Cir. 1999) (quotation marks and citation omitted); abrogated in part on other

grounds by Brown v. Flowers, 974 F.3d 1178; see also Layton, 512 F. App'x at 871 (“The

County may also be liable on the basis that [Sheriff Whetsel] is a final policymaker with

regard to its jail….”) (internal quotation marks omitted, brackets in original); Edelen v. Bd.

of Comm'rs of Bryan Cnty., 266 P.3d 660, 665 (Okla. Civ. App. 2011) (“First, the

Commissioners may not defeat their potential liability by claiming the Sheriff is in charge

of and is the official policy-maker for the county jail.”).

Plaintiffs have presented evidence from which it could be inferred that the practice

at the jail was to ignore sick call requests and perform incomplete sight checks, the county

7 Judge Cauthron, who was previously assigned to this case, rejected a similar argument

when she denied Defendant’s motion to dismiss. See Memorandum Opinion and Order

dated July 27, 2021 [Doc No. 22]. Defendant does not specifically request that the Court

reconsider this Order. Additionally, the Court finds Defendant’s reliance on Meade v.

Grubbs, 841 F.2d 1512 (10th Cir. 1988) and its progeny unpersuasive because Meade

involved individual capacity claims against specific county commissioners, as opposed to

a municipal liability claim. Id. at 1527-29. See also duBois v. Bd. of Cnty. Comm'rs of

Mayes Cnty., Oklahoma, No. 12-CV-677, 2014 WL 4810332, at *6-9 (N.D. Okla. Sept.

29, 2014).

sheriff acquiesced to these practices, and he knew or should have known of the risks posed

by these practices. The county, via suit against the Board, may be liable for the sheriff’s

actions (or inaction) with respect to these policies and customs at the jail. Further, given

that there is testimony reflecting that jail medical personnel ignored sick call requests on a

daily basis, “it is at least arguable that the County’s willingness to continue employing [the

medical contractor], without sufficient oversight or quality control, could be evidence of

deliberate indifference.” Layton, 512 F. App'x at 871 n.8.

III. Defendant’s Motion to Strike

Defendant separately moves to strike several exhibits to Plaintiffs’ response to

Defendant’s motion for summary judgment. “[T]he proper mechanism for challenging an

opposing party’s evidence is to make an objection under Rule 56(c)(2) rather than to file a

motion to strike.” Lee v. Burwell, No. CV 16-366, 2018 WL 4964547, at *1 n.1 (D.N.M.

Oct. 15, 2018); see also Fed. R. Civ. P. 56, 2010 Advisory Committee Notes (“There is no

need to make a separate motion to strike.”). However, for the sake of efficiency, the Court

will construe Defendant’s motion as making an objection.

Defendant objects to a 2021 letter from the jail’s medical contractor to the jail

complaining about insufficient staffing levels and a 2023 report from an Oklahoma County

Grand Jury related to an investigation of the jail.8 Generally, however, only deficiencies

occurring prior to a constitutional violation can “help [the plaintiff] demonstrate the

requisite direct causal link between the municipal action and the deprivation of federal

8 Although the grand jury report references the 2008 DOJ investigation and Memorandum

of Understanding, the report primarily focuses on issues occurring after 2018.

rights.” Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1289 (10th Cir. 2019) (quotation

marks and citation omitted). Accordingly, the Court is not persuaded that these documents

are relevant and will exclude them at the summary judgment stage.

Defendant also objects to a report issued by the Department of Justice in 2008

concerning conditions at the jail and a Memorandum of Understanding approved by the

Board of County Commissioners that outlines the county’s obligations regarding the jail.

The DOJ report and MOU identify some of the same deficiencies that are involved in this

case – namely insufficient staffing resulting in a lack of supervision of detainees and

inadequate access to medical care. Pl. Ex. 46 at 4-5, 13-14. Although these documents are

too remote in time to establish what conditions were like in the jail during 2018, they may

be relevant to whether county officials knew of the risks associated with certain practices

and yet failed to take any remedial action. For example, although the DOJ report indicated

that staffing only one or two detention officers per floor compromises inmate safety and

that sight checks are not conducted as frequently as needed, there is evidence that the jail

continued to assign only one detention officer per floor and that detention officers were not

performing sight checks. In the Court’s view, Defendant’s prior knowledge of the risks

associated with staffing only one detention officer per floor may have some bearing on

whether Defendant acted with deliberate indifference in this matter. Accordingly, the DOJ

report and MOU are admissible for the limited purpose of showing that Defendant was

aware of the risks associated with certain practices at the jail. Further, the Court believes

the documents can be properly authenticated or admitted under a hearsay exception.

Defendant next raises an objection to several exhibits showing that the County failed

to pay a medical contractor that worked in the jail. This medical contractor was not

involved in Ms. Spray’s care and there is no evidence that the County failed to pay the

medical contractor involved in this lawsuit. The Court is therefore not persuaded that these

exhibits are relevant and will exclude these exhibits at the summary judgment stage.

Last, Defendant objects to Plaintiffs’ use of deposition testimony from Sheriff

Taylor because he was not listed as a witness. Plaintiffs were permitted to amend their

witness list to add Sheriff Taylor and Defendants’ objection is therefore denied.

CONCLUSION

Construing the facts in the light most favorable to Plaintiffs, the Court concludes

that there are material factual disputes that preclude summary judgment on Plaintiffs’

Fourteenth Amendment claim. Accordingly, Defendant’s Motion for Summary Judgment

is DENIED. Defendants’ Motion to Strike is GRANTED in part and DENIED in part.

IT IS SO ORDERED this 23" day of August 2023.

UNITED STATES DISTRICT JUDGE

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