Stella v. Davis County

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

CYNTHIA STELLA and the ESTATE OF

HEATHER MILLER, MEMORANDUM DECISION AND

ORDER RE QUALIFIED IMMUNITY

Plaintiffs,

v. Case No. 1:18-cv-00002-JNP-DBP

DAVIS COUNTY, SHERIFF TODD District Judge Jill N. Parrish

RICHARDSON, MAVIN ANDERSON, and Magistrate Judge Dustin B. Pead

JAMES ONDRICEK,

Defendants.

At trial, the court reserved the question of Marvin Anderson’s entitlement to qualified

immunity until the jury returned its findings of fact and verdict. After considering the jury’s

findings of fact along with the arguments made by both parties regarding qualified immunity

prior to and at trial, the court finds that Anderson is not entitled to qualified immunity for the

following reasons.

BACKGROUND

This case stems from a death in Davis County Jail. Plaintiffs filed a complaint alleging

three claims against Defendants: (1) that the individual Defendants were deliberately indifferent

to Miller’s serious medical need in violation of the United States Constitution; (2) that Davis

County ignored a substantial risk of harm to Miller in violation of the United States Constitution;

and (3) that all four Defendants subjected Miller to unnecessary rigor in confinement in violation

of the Utah Constitution.

On January 11, 2019, Defendants filed a cross-motion for partial summary judgment

seeking, in part, dismissal of the federal claims on grounds of qualified immunity. The court

denied Plaintiffs’ motion for summary judgment and granted in part and denied in part

Defendants’ motion for summary judgment. See ECF No. 60. The court determined that

Richardson and Ondricek were entitled to qualified immunity on the federal claims, but that

questions of fact remained as to Anderson’s qualified immunity. Specifically, the court stated that

“the question of whether Nurse Anderson was aware of the risk that Miller was seriously injured

and needed to be monitored, but chose to ignore it, is hotly disputed.” Id. at 21-22. Accordingly,

the court found that Nurse Anderson was not entitled to qualified immunity at the summary

judgment stage.

Anderson filed an interlocutory appeal to the Tenth Circuit, arguing that he was, in fact,

entitled to qualified immunity. ECF No. 79 at 3. The Tenth Circuit dismissed the appeal, holding

that it “lack[ed] jurisdiction to consider [Anderson’s] sole adequately briefed argument, because

it raises only an issue of evidence sufficiency.”1 Id.

In preparation for the trial, both parties briefed the question of how the court should

handle qualified immunity at trial. Defendants argued that because the court found a contested

issue of fact material to the subjective component of the deliberate indifference claim, the court

must instruct the jury on qualified immunity and allow the jury to decide the question of

qualified immunity itself. See ECF No. 209 at 6-7. Plaintiffs countered that the court should

1 Specifically, the Tenth Circuit characterized “the thrust of Anderson’s argument in his briefs” as

that “the evidence did not suffice to establish his awareness of the need for greater attention to

Ms. Miller—that is, the requisite state of his mind.” ECF No. 79 at 7. But the Tenth Circuit

rejected this appeal, noting that “[s]uch an argument, of course, is precisely what is barred from

consideration on interlocutory appeal by Johnson.” Id.

submit special interrogatories to the jury to establish the facts, but that the court should

ultimately decide the legal question of qualified immunity. See ECF No. 135 at 15-16.

After considering the parties’ arguments, and the Tenth Circuit’s position that “allowing

the jury to decide qualified immunity almost always generates an issue on appeal” and therefore,

“that the better approach is for the court to submit special interrogatories to the jury to establish

the facts,” Gonzales v. Duran, 590 F.3d 855, 860 (10th Cir. 2009), the court added the following

two questions to the verdict form:

• Do you find by a preponderance of the evidence that Anderson was aware

that Miller faced a substantial risk of serious harm or is there enough

circumstantial evidence to support an inference that Anderson failed to

verify or confirm a strongly suspected serious risk to Miller?

• Do you find by a preponderance of the evidence that Anderson

consciously failed to take reasonable measures to address the substantial

risk of harm to Miller despite his knowledge of a substantial risk of

serious harm?

The jury answered both questions in the affirmative. ECF No. 236 at 2. With those findings of

fact in mind, the court now addresses the legal issue of Anderson’s qualified immunity.

LEGAL STANDARD

“Defendants who are unsuccessful in having a lawsuit dismissed on qualified immunity

grounds before trial may reassert the defense at trial or after trial.” Mick v. Brewer, 76 F.3d 1127,

1134 (10th Cir. 1996); see also Maestas v. Lujan, 351 F.3d 1001, 1009 (10th Cir. 2003) (“[T]he

law is clear the defendant can reassert his qualified immunity claims at and after trial when the

factual disputes have been resolved.” (cleaned up and citation omitted)); Cassady v. Goering,

567 F.3d 628, 634 (10th Cir. 2009) (“[W]e have allowed defendants to reassert qualified

immunity claims post-trial where there were factual disputes requiring a jury determination.”).

However, “[w]hen a qualified immunity defense is pressed after a jury verdict, the

evidence must be construed in the light most hospitable to the party that prevailed at trial.”

Iacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir. 1999); see also Marshall v. Columbia Lea Reg’l

Hosp., 474 F.3d 733, 739 (10th Cir. 2007) (adopting Iacobucci’s standard); Ortiz v. Jordan, 562

U.S. 180, 184 (2011) (“After trial, if defendants continue to urge qualified immunity, the decisive

question, ordinarily, is whether the evidence favoring the party seeking relief is legally sufficient

to overcome the defense.”).

ANALYSIS

To overcome a qualified immunity defense, Plaintiffs must show “(1) a violation of a

constitutional right, and (2) that the right was clearly established.” Prince v. Sheriff of Carter

Cnty., 28 F.4th 1033, 1043 (10th Cir. 2022). It is clearly established that a jail official’s deliberate

indifference to a pretrial detainee’s serious medical needs violates the Due Process Clause of the

Fourteenth Amendment. Id. Accordingly, the court need only consider whether Anderson

violated that clearly established right.

“In considering whether the plaintiff was treated with deliberate indifference, we consider

the objective severity of the harm suffered as well as the subjective mental state of the defendant

with respect to such harms.” Id. at 1043-44. “The objective component examines whether the

medical condition or harm claimed by the inmate was ‘sufficiently serious’ to be cognizable

under the Cruel and Unusual Punishment Clause.” Id. at 1044 (quoting Martinez v. Beggs, 563

F.3d 1082, 1088 (10th Cir. 2009)). The subjective component “considers whether the defendant

knew of and disregarded the serious risk to the inmate’s health” Id. (citing Mata v. Saiz, 427 F.3d

745, 751 (10th Cir. 2005)). “In other words, the focus of the objective component is the

seriousness of the plaintiff’s alleged harm, while the focus of the subjective component is the

mental state of the defendant with respect to the risk of that harm.” Id.

I. OBJECTIVE COMPONENT

The objective component asks whether Miller suffered a “sufficiently serious” harm. See

Martinez, 563 F.3d at 1088. A medical condition is “sufficiently serious” when “the condition

‘has been diagnosed by a physician as mandating treatment or is so obvious that even a lay

person would easily recognize the necessity for a doctor’s attention.’” Al-Turki v. Robinson, 762

F.3d 1188, 1192-93 (10th Cir. 2014) (citation omitted).

In this case, Plaintiffs easily satisfy the objective component. Miller died as a result of her

medical condition. And “death, is, without doubt, sufficiently serious to meet the objective

component.” Burke v. Regalado, 935 F.3d 960, 992 (10th Cir. 2019) (quoting Martinez, 563 F.3d

at 1088) (cleaned up); see also Ernst v. Creek Cnty. Pub. Facilities Auth., 697 F. App’x 931, 933

(10th Cir. 2017) (unpublished) (“[D]eath . . . is recognized as a sufficiently serious harm to

satisfy the objective standard.”). Indeed, the Tenth Circuit has already held in this case that

“there is really no question about satisfaction of the objective component since the claim is that

Ms. Miller died as the result of Anderson’s inattention.” ECF No. 79 at 7.

Moreover, Miller’s symptoms were sufficiently serious that a layperson could have easily

recognized her need for medical attention. The video that Plaintiffs played at trial showed that

Miller needed assistance to walk from her cell to the top of the stairs. See also Rogers Tr. 101:14-

15 (“Q: And your observation was that Miller was having a hard time walking and standing? A:

Yes, sir.”); Plaintiffs’ Exh. 28 (“Miller continued to not be able to stand or walk on her own so

Nurse Marvin went and grabbed the wheelchair.”). It also showed that Miller was unable to walk

down the stairs on her own, but instead scooted down the stairs. See also Rogers Tr. 101:17-19

(“Q: [W]hen she got to the top of the stairs, she had to scoot down on her butt? A: Yes, sir.”); id.

116:16-17 (“Q: [S]he couldn’t walk down the stairs? A: No, sir.”). Finally, it showed that once

Miller reached the bottom of the stairs, she stood then fell into the wheelchair that Anderson

retrieved for her.

Indeed, Plaintiffs presented evidence that several non-medical staff at the jail recognized

that Miller needed medical attention at various junctures. First, Clerk Rogers testified that he had

no medical training at the time of the incident. See id. 99:13-14. He observed Miller immediately

after her fall and testified that he believed that Anderson should have taken Miller to the medical

unit instead of depositing her in Lima. See id. 102:15-17 (“Q: [A]s a layman you thought she

should have gone to medical? A: Sure. Yes, sir.”). Second, Deputy Lloyd, also not a member of

the medical staff, called medical after observing Miller lying naked on the ground. Instead of

coming to the cell, nurses told Deputy Lloyd to keep an eye on Miller and to let them know if

anything changed. See Lloyd Tr. 63:19-20. When Deputy Lloyd realized Anderson would not be

coming to check on Miller, he went back to check her status, including opening her cell door and

talking with her. Id. 70:11–72:14. Deputy Lloyd ultimately stated that he was not comfortable

with “[t]he way she was acting, the way she was on the ground” and so he took Miller to medical

in a wheelchair.2 Id. 71:10, 71:18-20; see also Lucius Tr. 121:13-18 (testifying that Lloyd told

him “that the nurses had told [him] not to look too much into her condition” and that “he was

concerned about that” because he believed that “she needed to go to medical right away.”).

At bottom, the Plaintiffs’ evidence establishes that Rogers and Lloyd, both lay people,

easily recognized that Miller needed medical attention at several points during the incident.

Accordingly, the court finds that Plaintiffs established the objective component of deliberate

indifference by Anderson.

2 Elsewhere, Deputy Lloyd testified that when an inmate was obviously hurt, he would take them

to medical. Lloyd Tr. 75:12-14. The jury could easily infer that Deputy Lloyd thought that Miller

was obviously hurt—in other words, that he easily recognized the necessity for medical attention

when he took Miller to the medical unit.

II. SUBJECTIVE COMPONENT

“The subjective prong of the deliberate indifference test requires the plaintiff to present

evidence of the prison official’s culpable state of mind.” Mata v. Saiz, 427 F.3d 745, 751 (10th

Cir. 2005) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). This component is “satisfied if the

official ‘knows of and disregards an excessive risk to inmate health or safety.’” Id. (quoting

Farmer v. Brennan, 511 U.S. 825, 837 (1994)). In other words, “the official must both be aware

of facts from which the inference could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference.” Farmer, 511 U.S. at 837.

The requisite state of mind lies “somewhere between the poles of negligence at one end

and purpose or knowledge at the other.” Id. at 836. “The Supreme Court in Farmer analogized

this standard to criminal recklessness, which makes a person liable when she consciously

disregards a substantial risk of serious harm.” Mata, 427 F.3d at 752. “Deliberate indifference

does not require a finding of express intent to harm,” Mitchell v. Maynard, 80 F.3d 1433, 1442

(10th Cir. 1996), but rather a finding that the official “consciously disregard[ed] a substantial risk

of serious harm,” Mata, 427 F.3d at 752. Accordingly, “[a]n inmate ‘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 serious

harm.’” Id. (quoting Farmer, 511 U.S. at 842). Nor would an official “escape liability if the

evidence showed that he 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.” Farmer,

511 U.S. at 843 n.8.

A. Awareness of a Substantial Risk of Serious Harm to Miller

Here, the jury found that Anderson was either “aware of a substantial risk of serious harm

to Miller or that there was enough circumstantial evidence to support an inference that Anderson

failed to verify or confirm a strongly suspected serious risk to Miller.” ECF No. 236 at 2.

Plaintiffs offered copious evidence of this fact at trial. As noted above, Plaintiffs played a

video at trial showing that Miller was unable to walk on her own after the fall. And Anderson

recognized during his initial assessment that Miller was nauseous and dizzy to the point that she

had difficulty standing or walking on her own. See Anderson Tr. 141:18-23, 145:21-25.

Plaintiffs’ expert testified that a fall from a bunk bed onto a concrete floor, followed by

symptoms of dizziness and inability to walk is evidence of a substantial risk of serious harm.

Starr Tr. 338:16 – 339:4; 346:15-22 (“[W]ith the history of the fall, the complaints of nausea,

dizziness, weakness, shortness of breath, can’t stand up, that to me is a concerning clinical

picture . . . . I certainly would expect them to either transfer the patient to the hospital or at least

to a medical unit where they can do serial, continued, direct medical observations with some

medical staff.”). Indeed, Anderson himself testified that watching Miller scoot down the stairs

scared him because of her dizzy state. See Anderson Tr. 101:14 – 102:17. Plaintiffs also offered

evidence that, immediately following the fall, Miller “was on the ground rolling around saying

her side hurts,” Lloyd Tr. 53:25–54:1, and that she reported left side pain to Anderson. Anderson

Tr. 141:9-10. In sum, Anderson was aware that Miller fell onto a concrete floor, that she was

suffering from nausea and dizziness, that she had difficulty walking on her own, and that she was

experiencing left side pain.

Finally, right after moving Miller to Lima, Anderson scheduled a priority one doctor’s

appointment for her the next day because he recognized that “she was really sick.” Id. 154:7-8;

see also Ondricek Tr. 216:22-25 (“Q: And my point is the fact that he made the request [for a

doctor’s appointment] tells you he’s aware of a problem that needs medical attention, at least at

some point. A: That’s true.”). Together, this evidence demonstrates that Anderson was aware of a

substantial risk of serious harm to Miller, or, at minimum, that there was enough circumstantial

evidence to support an inference that Anderson failed to verify or confirm a strongly suspected

serious risk to Miller.

B. Conscious Failure to Take Reasonable Measures to Address the Substantial

Risk of Harm to Miller

The jury also found that Anderson consciously failed to take reasonable measures to

address the substantial risk of harm to Miller despite his knowledge of a substantial risk of

serious harm. ECF No. 2 at 2.

Again, the evidence presented at trial supports the jury’s factual finding. First, Plaintiffs’

experts, Dr. Starr and Nurse McQuillen, testified that Anderson did not conduct a sufficient

medical evaluation when he arrived at her cell immediately following the fall. Starr Tr. 335:20–

336:17 (referring to Anderson’s course of action as “[a]n incomplete medical evaluation”);

McQuillen Tr. 413:3-4 (“There was not a proper assessment.”). Nurse McQuillen testified that

“[a]ny time you have somebody fall, you always check the neurological signs as well as the vital

signs, and we do that right away . . . . None of that was done here.” McQuillen Tr. 413:7-15.

Indeed, even Anderson admitted that his failure to take initial vital signs was improper. Anderson

Tr. 179:15-18 (“Q: In this case, had you taken -- first of all, it was the policy of the jail that you

should have taken Heather Miller’s vitals? A: Correct.”). Anderson further testified that if an

inmate falls from a bunk, he normally would take her vital signs because failing to do so creates

a “pretty obvious risk” that he might miss something important that could change his treatment

decisions. See Anderson Tr. 137:24–139:4; see also Starr Tr. 336:23-25 (noting that taking vital

signs is “a very important part of an initial assessment on a trauma patient,” in order to establish

baseline vitals for future monitoring.); McQuillen Tr. 429:4-8 (“Q: [W]hat’s the primary purpose

of the initial vital? A: That’s our baseline.”). Even Defendant’s expert, Dr. Tubbs, agreed that he

“would expect when the nurses respond to a fall, an evaluation -- vital signs would be part of that

evaluation.”3 Tubbs Tr. 11:22-23.

Second, the evidence demonstrated that Anderson did not conduct any medical

monitoring of Miller after the fall. Following Miller’s fall, Anderson placed Miller in a cell with

a bottom bunk, instead of in the medical unit. Anderson did not order any monitoring by medical

staff, nor did he conduct any himself. See Tubbs Tr. 672:17-21 (“Q: [T]here wasn’t any medical

check ordered, right? . . . A: Yes.”). Officers, not nurses, conducted periodic “checks.” But the

video shown at trial demonstrated that these “checks” consisted merely of officers walking by

the door of a cell and glancing through the cell window. The officer on duty did not open the cell

door, speak with Miller, attempt to assess her neurological condition, take vital signs, or

otherwise check on her status outside of a brief visual check. Dr. Starr testified that such a

“check” does not qualify as “medical observation.” Starr Tr. 354:13-16; see also McQuillen Tr.

458:18-21 (“That is not medical monitoring. That is, again, . . . delegating to an unlicensed

personnel a duty that wasn’t in their scope.”). Indeed, after his initial assessment and decision to

administer ibuprofen, Anderson provided no further medical care to Miller until he called an

ambulance when officers brought her to medical after they found her mostly unresponsive and

gray. Dr. Starr testified that had Anderson medically monitored Miller, then he “certainly would

3 Although not binding on Anderson, nor dispositive of the constitutional issue, Dr. Tubb’s own

protocols in jails where he serves as the medical director state that “every patient should have

their vital signs obtained if they complain of abdominal pain.” Tubbs Tr. 692: 8-10.

have seen her gradual, rather brisk deterioration, vital sign changes, clinical changes in her

behavior and her skin.” Starr Tr. 354:9-12.

Third, Plaintiffs presented evidence that Anderson did not take any serial vital signs. Dr.

Starr testified that had Nurse Anderson taken periodic vital signs, he would have observed a drop

in Miller’s blood pressure and an increase in her heart rate, which would have been evidence of

an internal injury. Id. 354:20–355:5. Specifically, Dr. Starr testified that “if she had vital signs

monitored over that three-hour period, they definitely would have seen a trend that would have

been alarming and concerning.” Starr Tr. 359:2-5.

And, fourth, when deputies identified a serious change in Miller’s condition—gray skin,

sweaty, cold to the touch, and barely responsive—and reported it to medical, Anderson never

came down to examine Miller. Lucius Tr. 121:24–122:4; Tubbs Tr. 699:24–700:15; Plaintiffs’

Exh. 28. Instead, when Deputy Lloyd called medical to report Miller’s condition the “nurses told

Lloyd not to think too hard about it.” Plaintiffs’ Tr. Exh. 28. Ultimately, deputies had to retrieve a

wheelchair and transport Miller to medical, where Anderson immediately called emergency

services after seeing Miller’s condition.

At bottom, Dr. Starr testified that Defendants provided Miller “little to no medical care”

after her fall. Starr Tr. 335:20-22. Dr. Starr testified that by “little to no medical care” he meant

that “there wasn’t really any concern about any serious possible injury,” and that “there wasn’t

any meaningful assessment for monitoring done to evaluate or consider the possibility that she

had any serious injury.” Id. 336:3-7. Similarly, Nurse McQuillen testified that Nurse Anderson

provided Miller “no medical care.” McQuillen Tr. 417:24–418:2.

The evidence demonstrates that Anderson failed to take reasonable measures, such as

conducting a complete initial assessment, engaging in periodic medical monitoring, completing

periodic vital sign checks, or attending to the patient when deputies called him, to address the

substantial risk of harm to Miller. Together, these factual findings demonstrate that Anderson had

a sufficiently culpable state of mind to satisfy the subjective component.4

* * *

The court thus finds that Plaintiffs have demonstrated both the objective and subjective

components of deliberate indifference as to Anderson. Therefore, the court finds that Anderson

violated Miller’s constitutional rights. And, as noted above, that right was clearly established.

Accordingly, Anderson is not entitled to qualified immunity. See Prince v. Sheriff of Carter Cnty.,

28 F.4th 1033, 1043 (10th Cir. 2022) (holding no qualified immunity available where Plaintiffs

show “(1) a violation of a constitutional right, and (2) that the right was clearly established”).

CONCLUSION

4 In crafting the jury instructions, the court encountered the question of whether to include a

causation element, i.e., that Anderson’s deliberate indifference caused Miller harm, in the

deliberate indifference instruction. On the one hand, the Tenth Circuit has held that “under

Searles, nominal damages are mandatory upon a finding of a constitutional violation.” Stoedter v.

Gates, 704 F. App’x 748, 758 (10th Cir. 2017) (unpublished) (citing Searles v. Van Bebber, 251

F.3d 869, 879 (10th Cir. 2001)). This position would suggest that a plaintiff need not establish an

actual injury in order to recover nominal damages. On the other hand, the Tenth Circuit has also

held that “[t]he prisoner must also prove that the acts performed with the culpable state of mind

caused the serious harm.” Harris v. Morales, 231 F. App’x 773, 775 (10th Cir. 2007)

(unpublished). The Third Circuit addresses this tension in the comments to its model jury

instructions, which do not include a causation element (although the Third Circuit notes that

several other circuits do include such an instruction). See Model Civil Jury Instructions, Third

Circuit, § 4.11.1 Section 1983 – Denial of Adequate Medical Care (“It is somewhat difficult to

discern from the caselaw whether harm is a distinct element of an Eighth Amendment denial-of-

medical-care claim, because courts often discuss harm (or the prospect of harm) in assessing

whether the plaintiff showed a serious medical need.”). Proceeding with caution, the court

decided to include a causation element. See Final Instruction No. 26 (“As a result of Anderson’s

deliberate indifference to the serious risk to Miller’s health and safety, Miller was harmed.”).

To the extent the jury found that Anderson knew of and disregarded a substantial risk of serious

harm to Miller, there is really no question that Miller suffered harm—death—as a result of that

deliberate indifference. Indeed, both of the expert doctors who testified at trial agreed that

Miller’s injury was survivable had she received proper medical attention. Tubbs Tr. 718:6 (“This

was a survivable injury.”); Starr Tr. 403:7-8 (“I think she would have a very high probability of

survival.”)

In conclusion, the court holds that Anderson is not entitled to qualified immunity.

DATED September 13, 2022.

BY THE COURT:

_________________________

Judge Jill N. Parrish

United States District Court