Hardy v. Rabie

Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 1

FILED

United States Court of Appeals

Tenth Circuit

PUBLISH

August 4, 2025

UNITED STATES COURT OF APPEALS

Christopher M. Wolpert

FOR THE TENTH CIRCUIT Clerk of Court

_________________________________

RALPH MARCUS HARDY,

Plaintiff - Appellee,

v. No. 24-1138

RABIE, Deputy; DEHERRERA,

Detention Specialist,

Defendants - Appellants,

and

TWO UNKNOWN MASKED

DEPUTIES; ADAMS COUNTY, a

municipality; RICHARD

REIGENBORN, Sheriff, in his

individual capacity; GENE CLAPS,

Sheriff, in his official capacity;

OVERMYER, Deputy, ADA

Coordinator,

Defendants.

_________________________________

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 1:22-CV-02843-WJM-MDB)

_________________________________

Michael A. Sink (Kerri A. Booth, with him on the briefs), Adams County

Attorney’s Office, Brighton, Colorado, for Defendants-Appellants.

Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 2

Kevin E. Jason, NAACP Legal Defense & Educational Fund, Inc., New York,

New York (Samuel Spital and Arielle Humphries, NAACP Legal Defense &

Educational Fund, Inc., New York, New York, and Christopher Kemmitt,

Molly Cain, and Kacey Mordecai, NAACP Legal Defense & Educational Fund,

Inc., Washington, D.C., with him on the brief), for Plaintiff-Appellee.

_________________________________

Before MATHESON, BACHARACH, and FEDERICO, Circuit Judges.

_________________________________

FEDERICO, Circuit Judge.

_________________________________

In 2021, Ralph Marcus Hardy was housed as an inmate at Adams

County Detention Facility (ACDF) in Colorado. During this time, he was

confined to a wheelchair. He alleges that after falling from his wheelchair

and suffering serious injury, jail officials refused to assist him despite his

repeated requests for medical attention.

Two of these jail officials, Deputy Dennis Rabie and Detention

Specialist Daniel DeHerrera, moved to dismiss Hardy’s claims against them

on the grounds that they had qualified immunity. The district court held

that Hardy plausibly alleged that Deputy Rabie and Detention Specialist

DeHerrera violated his clearly established Fourteenth Amendment rights,

and thus that they are not entitled to qualified immunity. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

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I

A

The facts of this case are presented as alleged by Hardy in the light

most favorable to him, giving him the benefit of every reasonable inference

therefrom. See Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002). In

September 2022, Hardy was an inmate at ACDF on pretrial detention.

During this time, he was confined to the use of a wheelchair.1

On September 22, Hardy fell out of his wheelchair in his cell. He was

attempting to get around a barrier to the toilet in his cell and fell as he tried

to transfer himself. Hardy was then unable to pick himself back up from the

floor because of an “injury in his lower back, which is permanent in nature.”

Aplt. App. I at 24. Hardy’s cellmate pressed an “emergency distress button”

in the cell designed to call for help. Id. Hardy alleges that his cellmate

pressed the button three times over a period of 30 to 45 minutes, but no

help arrived.

Detention Specialist DeHerrera was on duty at the time in a control

tower and received signals from the emergency distress button. Instead of

notifying deputies of an emergency or responding himself, Detention

1 Hardy alleges that he was forced to use a wheelchair because of

injuries sustained after two unknown sheriff’s deputies attacked him. This

claim has not been raised on appeal.

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Specialist DeHerrera allegedly ignored the emergency distress signals

coming from Hardy’s cell. Hardy was later told by another jail official,

Deputy Chavez (not named as a defendant), that Detention Specialist

DeHerrera’s unit does not respond to emergency distress calls because

“some inmates abuse the buttons, and they are not going to spend their

entire shift chasing buttons.” Id. at 26.

Hardy alleges that he “remained [on] the floor of his cell for nearly an

hour, or more in severe pain, and suffering, and had degradingly soiled

himself because of the pain and inability to move.” Id. at 24. After it became

clear that jail officials were not coming, Hardy’s cellmate helped him back

into his wheelchair. However, Hardy states that this “[put] him in more

pain” and that he was placed back in a “contorted seated position in the

wheelchair.” Id. at 24–25. As such, the efforts of Hardy’s cellmate caused

him to be “further injured[.]” Id.

Roughly ninety minutes after he fell, Deputy Rabie came to Hardy’s

cell as an escort for the inmate porters who were bringing him dinner.

Deputy Rabie opened the cell door and “found [Hardy] in the same contorted

position and in extreme pain.” Id. at 25. Deputy Rabie asked what had

happened to him, and Hardy explained that he had fallen and “verbally

declared a medical emergency.” Id. Deputy Rabie did not take Hardy to

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receive medical care, and instead told him to “file a grievance” before closing

his cell. Id.

After an unspecified amount of time, there was a “shift change” and

Deputy Chavez came by Hardy’s cell with a nurse to pass out evening

medication. Deputy Chavez and the nurse then rendered medical attention.

B

Hardy filed this action pro se under 42 U.S.C. § 1983 against multiple

defendants including Deputy Rabie and Detention Specialist DeHerrera in

their individual and official capacities.2 In this appeal, we are only asked to

consider Hardy’s deliberate indifference claims with respect to Deputy

Rabie and Detention Specialist DeHerrera.

Hardy claimed that Deputy Rabie and Detention Specialist

DeHerrera were deliberately indifferent to his medical needs under the

Fourteenth Amendment’s right to due process. Deputy Rabie and Detention

Specialist DeHerrera filed motions to dismiss under Federal Rule of Civil

2 In his amended and operative complaint, Hardy made four different

claims in total against various defendants: (1) failure to protect and

excessive force against Adams County, the current and former sheriffs, and

two unknown deputies; (2) deliberate indifference and cruel and unusual

punishment against Adams County, the sheriffs, Deputy Rabie, Detention

Specialist DeHerrera, and Deputy Jennifer Overmyer; (3) discrimination in

violation of Title II of the Americans with Disabilities Act (ADA) against

Adams County, the sheriffs, and Deputy Overmyer; and (4) retaliation in

violation of the First Amendment against Adams County and the sheriffs.

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Procedure 12(b)(6), arguing that they are entitled to qualified immunity.

The magistrate judge recommended denying their motion to dismiss,

finding that Hardy’s complaint sufficiently alleged that both defendants

acted with deliberate indifference. Over defendants’ objections, the district

court adopted the recommendations of the magistrate judge with respect to

the motion to dismiss claims against Deputy Rabie and Detention Specialist

DeHerrera. Deputy Rabie and Detention Specialist DeHerrera then filed

this timely appeal.

II

We review de novo the district court’s denial of a Rule 12(b)(6) motion

to dismiss based on qualified immunity. See Wilson v. Montano, 715 F.3d

847, 852 (10th Cir. 2013). “Dismissal of a pro se complaint for failure to

state a claim is proper only where it is obvious that the plaintiff cannot

prevail on the facts he has alleged and it would be futile to give him an

opportunity to amend.” Gaines, 292 F.3d at 1224 (quoting Curley v. Perry,

246 F.3d 1278, 1281 (10th Cir. 2001)). “In determining whether a dismissal

is proper, we must accept the allegations of the complaint as true and

construe those allegations, and any reasonable inferences that might be

drawn from them, in the light most favorable to the plaintiff.” Gaines, 292

F.3d at 1224. To state a claim, the plaintiff’s “[f]actual allegations must be

enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp.

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v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not

suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

“In addition, we must construe a pro se appellant’s complaint

liberally.” Gaines, 292 F.3d at 1224. Nonetheless, this court has “repeatedly

insisted that pro se parties follow the same rules of procedure that govern

other litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,

840 (10th Cir. 2005) (quoting Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.

1994)).

III

“The doctrine of qualified immunity shields government officials . . .

from liability for damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person

would have known.” Buck v. City of Albuquerque, 549 F.3d 1269, 1277 (10th

Cir. 2008) (quoting Boles v. Neet, 486 F.3d 1177, 1180 (10th Cir. 2007)). “A

§ 1983 defendant’s assertion of qualified immunity is an ‘affirmative

defense [that] creates a presumption that the defendant is immune from

suit.’” Truman v. Orem City, 1 F.4th 1227, 1235 (10th Cir. 2021) (alteration

in original) (quoting Est. of Smart by Smart v. City of Wichita, 951 F.3d

1161, 1168 (10th Cir. 2020)). “To survive a motion to dismiss based on

qualified immunity,” the burden is on the plaintiff to “allege sufficient facts

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that show—when taken as true—the defendant plausibly violated his

constitutional rights, which were clearly established at the time of

violation.” Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012).

Deputy Rabie and Detention Specialist DeHerrera argue both that

(1) Hardy has failed to allege facts showing that they violated his

constitutional rights, and (2) even if his rights were violated, those rights

were not clearly established. We consider each of these issues in turn.

A

We first ask whether Hardy’s constitutional rights were violated. Jail

officials violate a detainee’s constitutional rights through deliberate

indifference whenever they knowingly ignore a “substantial risk of serious

harm” to an inmate. Farmer v. Brennan, 511 U.S. 825, 828–29 (1994).

“Deliberate indifference has objective and subjective components.”

Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). To meet the

objective component, the harm suffered must be “sufficiently serious” to

implicate the Eighth Amendment’s prohibition of cruel and unusual

punishment.3 Id. Under the subjective component, “the [inmate] must show

3 As a pretrial detainee, Hardy is not protected by the Eighth

Amendment’s prohibition of cruel and unusual punishment, but he

nonetheless has the same rights through the Fourteenth Amendment Due

Process Clause. See Garcia v. Salt Lake Cnty., 768 F.2d 303, 307 (10th Cir.

1985).

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that the defendants knew he faced a substantial risk of harm and

disregarded that risk, by failing to take reasonable measures to abate it.”

Id. (internal quotation marks and citation omitted).

1

“A medical need is considered sufficiently serious to satisfy the

objective prong if 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) (quoting Oxendine v. Kaplan, 241 F.3d

1272, 1276 (10th Cir. 2001)). Where, as here, an inmate is alleging that they

were harmed by a delay in eventual medical treatment, the objective

component of harm “may be satisfied by lifelong handicap, permanent loss,

or considerable pain.” Id. at 1193 (quoting Garrett v. Stratman, 254 F.3d

946, 950 (10th Cir. 2001)). Thus, this standard can be satisfied merely by

“an intermediate injury, such as the pain experienced while waiting for

treatment and analgesics.” Id. (citation omitted).

Hardy did not describe any specific injuries sustained from his fall,

nor does he name any subsequent treatment by a doctor. His complaint is

sparse and fails to describe any long-term consequences resulting from the

fall. The only indications of harm are his descriptions of dealing with

“severe pain” and discomfort and his generic statements that he was

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“further injured” and sustained an “injury in his lower back, which is

permanent in nature.” Aplt. App. I at 24–25. Still, Hardy plausibly alleges

that he suffered extreme, though temporary, pain because of his fall.

Defendants concede that, accepting all of Hardy’s allegations as true,

Detention Specialist DeHerrera’s actions caused Hardy sufficiently serious

harm to meet the objective prong because he spent ninety minutes in pain

before Deputy Rabie arrived. However, they argue that Deputy Rabie’s

actions cannot be tied to “any meaningful delay in receiving medical

treatment” and thus he did not objectively violate Hardy’s constitutional

rights. Reply Br. at 13–14. “Certainly, not every twinge of pain suffered as

the result of delay in medical care is actionable.” Sealock v. Colorado, 218

F.3d 1205, 1210 (10th Cir. 2000). We must determine whether Hardy has

pleaded sufficiently serious pain to present an objective harm related to

Deputy Rabie’s actions.

Our case law on this subject generally concerns painful events that

last for hours or days. See McCowan v. Morales, 945 F.3d 1276, 1291 (10th

Cir. 2019) (“[The plaintiff] does assert that [the defendant’s] delay in getting

[the plaintiff] to the detention center resulted in [the plaintiff] suffering up

to several hours of excruciating pain.”); Al-Turki, 762 F.3d at 1193 (“This

severe pain and fear of death lasted for several hours, during which Plaintiff

was provided with neither the medical treatment that could have reduced

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his pain nor the medical diagnosis that could have removed his fear of

death.”); Sealock, 218 F.3d at 1210 (“The pain and suffering imposed by [the

defendant’s] failure to get him treatment lasted several hours.”); Mata v.

Saiz, 427 F.3d 745, 754 (10th Cir. 2005) (“In the present case, [the plaintiff]

presented evidence that she did in fact suffer severe pain for several days.”).

Hardy’s complaint alleges that when Deputy Rabie opened his cell

door, he found Hardy “in extreme pain.” Aplt App. I at 25. The complaint

does not describe what happened between Deputy Rabie closing his cell door

and him getting assistance from Deputy Chavez “[a]fter the shift change[.]”

Id. at 26. However, he does state that Deputy Rabie “left [Hardy] in pain

and suffering” implying that his pain was ongoing during this unspecified

amount of time. Id. Even in the absence of a specific timeline, it is

reasonable to infer from the alleged facts that some meaningful amount of

time passed between shift changes. And under our standard of review, we

must construe “any reasonable inferences” that might be drawn from

Hardy’s allegations “in the light most favorable to” him. Gaines, 292 F.3d

at 1224.

There is no precise amount of suffering that makes a delay in medical

care actionable. Whether pain and suffering are sufficiently serious for a

deliberate indifference claim depends on context, and “[e]ven a brief delay

[in medical treatment] may be unconstitutional.” Mata, 427 F.3d at 755. We

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read Hardy’s complaint to demonstrate much more than a mere “twinge of

pain” from Deputy Rabie’s actions, Sealock, 218 F.3d at 1210, and so he has

sufficiently pleaded objective harm. See Mata, 427 F.3d at 753 (“[T]he

purpose [of the objectivity component] is to limit claims to significant, as

opposed to trivial, suffering[.]”).

Further, our case law has described objective harm in multiple ways.

Objective harm has been characterized as either “(1) the alleged harm to

the prisoner or (2) the prisoner’s symptoms at the time of the prison

employee’s actions.” Id. The latter is not about the ultimate harm or risk of

harm, but how that harm would appear to an objective observer. See Prince

v. Sheriff of Carter Cnty., 28 F.4th 1033, 1045 (10th Cir. 2022) (“Yet because

we conclude that [the plaintiff’s] earlier symptoms should prompt a

layperson to seek immediate medical attention, the risk of death was an

incorrect inquiry.”).

Regardless of the actual amount of time in pain caused by the delay,

Hardy alleged that he displayed signs of extreme pain and suffering that

would be obvious to a layperson in Deputy Rabie’s position. Jail officials are

not given a free pass to deliberately ignore an inmate’s serious medical

needs simply because a shift change was forthcoming that allowed another

jail official to come by and render medical attention later. See Al-Turki, 762

F.3d at 1194 (“The main flaw in Defendant’s argument is that she is

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focusing on the facts we now know about the duration and cause of

Plaintiff’s pain, while the pertinent question for determining her

entitlement to qualified immunity depends on the facts that were known at

the time.”). As such, Hardy has made a sufficient showing of objective harm.

2

Because the objective prong has been met for both defendants, we now

consider whether Detention Specialist DeHerrera was subjectively aware of

a serious risk of harm to Hardy. The subjective component requires a

defendant to “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. Defendants argue that Detention

Specialist DeHerrera could not have subjectively known that Hardy was at

any risk of harm.

Hardy only alleged that Detention Specialist DeHerrera was in a

control tower where he would have seen that the emergency call button was

pressed three times in Hardy’s cell. Although many details are missing, this

allegation is still sufficient to show subjective awareness of a serious risk of

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harm.4 Deliberate indifference does not always require a direct refusal to

give an inmate medical attention. A jail official exhibits deliberate

indifference if he “knows that his role in a particular medical emergency is

solely to serve as a gatekeeper for other medical personnel capable of

treating the condition, and if he delays or refuses to fulfill that gatekeeper

role due to deliberate indifference[.]” Sealock, 218 F.3d at 1211. According

to Hardy, Deputy Chavez told him that Detention Specialist DeHerrera

chose not to respond to signals from emergency buttons.5 As such, he has

4 There is an inherent information asymmetry in cases such as this

where an inmate cannot know what is happening outside of their cell. We

maintain our pleading standards even in such cases on the understanding

that “[n]ot only do prisoners ordinarily know what has happened to them;

but they will have learned how the institution has defended the challenged

conduct when they pursue the administrative claims that they must bring

as a prerequisite to filing suit.” Gee v. Pacheco, 627 F.3d 1178, 1185 (10th

Cir. 2010). Hardy has pursued administrative remedies and describes

speaking to Deputy Chavez about the incident in his pleading. As such, his

placement of Detention Specialist DeHerrera as the one monitoring the

emergency call buttons appears to be more than mere speculation.

5 Defendants argue that “[a]s a non-deputy stationed in the tower,

[Detention Specialist DeHerrera] would never be called upon to leave the

tower to ‘chase[e] buttons.’” Op. Br. at 35–36. But they do not offer any

support for this statement, and we lack a Martinez report that might allow

us to better understand ACDF operations. See Hall v. Bellmon, 935 F.2d

1106, 1112 (10th Cir. 1991) (A Martinez report “aids the court in its broad

reading of the pro se litigant’s pleadings . . . by supplementing a plaintiff’s

often inadequate description of the practices that he contends are

unconstitutional.”). Hardy’s complaint states that he learned from Deputy

Chavez that Detention Specialist DeHerrera did not respond to buttons, and

so the allegation is not conclusory.

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alleged facts showing that Detention Specialist DeHerrera served as a

gatekeeper to medical care by monitoring the emergency call buttons, and

that he chose not to fulfill that duty.6

Seeing an emergency button go off from a cell multiple times

reasonably indicates that some kind of emergency requiring a response is

happening in that cell. See Velez v. Johnson, 395 F.3d 732, 736 (7th Cir.

2005) (“For one thing, [the inmate] pushed an ‘emergency call button,’ a

clear indication that an emergency was at hand.”). That is not to say that

ignoring an emergency button always constitutes subjective awareness of a

serious risk of harm. If, for instance, Hardy or his cellmate had a known

history of abusing his emergency call button and pressing it at random,

Detention Specialist DeHerrera might have inferred that a button being

6 Defendants urge us to extend Lance v. Morris, where we found that

one defendant in a control tower who spoke with an inmate about a medical

issue did not display deliberate indifference when he refused to get him

medical attention. 985 F.3d 787, 794–96 (10th Cir. 2021). But in that case,

unlike here, the defendant was able to speak with the prisoner, and the

prisoner did not initially request medical attention or describe any pain. Id.

at 795. (“According to [the plaintiff], he had only one conversation with [the

defendant]. In that conversation, [the plaintiff] did not provide enough

information to suggest a serious medical need[.]”). But later on, the plaintiff

spoke to a different defendant in the control tower and requested medical

attention. Id. at 797. This court found that the second defendant in Lance

was subjectively made aware of a substantial risk of serious harm. Id. Here,

Detention Specialist DeHerrera only knew that Hardy’s cell was signaling

for some kind of emergency distress, and he had no reason to presume there

was not an actual emergency.

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pressed in that cell did not indicate an actual medical emergency. But

nothing in Hardy’s complaint would lead us to believe that type of history

was present here. We can also reasonably infer that Detention Specialist

DeHerrera would have seen that the button was pressed if he was in fact in

the control tower. And Hardy has alleged that Detention Specialist

DeHerrera ignored the signal both because help never arrived and because

Deputy Chavez told him so. As such, Hardy has sufficiently pleaded that

Detention Specialist DeHerrera was subjectively aware of a serious risk of

harm and nonetheless refused to fulfill his role as a gatekeeper to medical

care.

3

As for Deputy Rabie, Defendants argue that it would not have been

clear to him that Hardy needed medical attention. Deputy Rabie did not

know that the emergency button had been pressed and only came by Hardy’s

cell to bring him dinner. Defendants argue that by this time, Hardy was

sitting down in his wheelchair again and had been cleaned up by his

cellmate, and thus it would not be clear that he had fallen. Hardy’s

complaint frames things differently.

Hardy repeatedly states that he was “obviously in pain” and sitting in

a “contorted position” and that “anyone [would] see that [Hardy] was

injured in some way[.]” Aplt. App I at 25–26. To support this factual picture,

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Hardy alleges that Deputy Rabie did in fact ask, “what happened to him.”

Id. at 25. Hardy responded that he had fallen out of his wheelchair and

“verbally declared a medical emergency[.]” Id.

According to the complaint, Deputy Rabie was independently aware

that something was wrong, Hardy said he was having a medical emergency,

and Hardy explained why he was having an emergency. Further, Deputy

Rabie had no way of knowing that Hardy would be seen by a nurse after the

shift change, so that fact could not have affected his subjective perception.

See Mata, 427 F.3d at 756 (“Events occurring subsequent to [a] complete

denial of medical care . . . have no bearing on whether [a defendant] was

deliberately indifferent at the time she refused to treat [a plaintiff].”).

Taking these alleged facts in the light most favorable to Hardy, as we must,

we conclude that Deputy Rabie was subjectively aware of a serious risk of

harm and then “disregarded that risk, by failing to take reasonable

measures to abate it.” Callahan, 471 F.3d at 1159.

B

Now that we have determined that Hardy’s constitutional rights were

violated, we consider whether these rights were clearly established. To

overcome qualified immunity, a right must be clearly established such that “a

reasonable official would understand that what he is doing violates that right.”

Truman, 1 F.4th at 1235 (citation omitted). “A right is clearly established when

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a Supreme Court or Tenth Circuit decision is on point, or if the clearly

established weight of authority from other courts shows that the right must be

as the plaintiff maintains.” Id. (citation and internal quotation marks omitted).

However, we need not find “precisely the same facts, and a prior case need not

be exactly parallel to the conduct here for the officials to have been on notice

of clearly established law.” Id. (citation omitted). What we look for is whether

“courts have previously ruled that materially similar conduct was

unconstitutional, or if ‘a general constitutional rule already identified in the

decisional law [applies] with obvious clarity to the specific conduct’ at issue.”

Buck, 549 F.3d at 1290 (alteration in original) (quoting United States v. Lanier,

520 U.S. 259, 271 (1997)).

As a threshold matter, Deputy Rabie and Detention Specialist

DeHerrera argue that Hardy can only demonstrate clearly established law

based on four cases that he cited to the district court.7 They argue that the

magistrate judge and the district court improperly relied on four additional

cases that were never raised by Hardy, and that our analysis is similarly

7 Quintana v. Santa Fe Cnty. Bd. of Commissioners, 973 F.3d 1022

(10th Cir. 2020); Al Turki v. Robinson, 762 F.3d 1188 (10th Cir. 2014); Est.

of Booker v. Gomez, 745 F.3d 405 (10th Cir. 2014); Mata v. Saiz, 427 F.3d

745, 754 (10th Cir. 2005).

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confined.8 Although plaintiffs bear the burden of showing that their rights

were clearly established, see Buck, 549 F.3d at 1277, that does not mean that

courts must blind themselves to relevant law once that argument is made.

Indeed, in Elder v. Holloway, the Supreme Court held that a plaintiff did not

need to put relevant cases into the district court record for those cases to be

considered on appeal when deciding whether the law was clearly established.

510 U.S. 510, 515 (1994).

Although Elder concerned the Ninth Circuit limiting the scope of its own

review, the principle applies equally to the proper scope of the district court’s

review. Whether a legal right is clearly established “presents a question of

law[.]” Id. at 516. “A court engaging in review of a qualified immunity

judgment should therefore use its ‘full knowledge of its own [and other

relevant] precedents.’” Id. (alteration in original) (quoting Davis v. Scherer, 468

U.S. 183, 192 n.9 (1984)). Hardy has not waived any argument with respect to

qualified immunity, and so, reviewing de novo, we will consider all relevant

precedent. See Cortez v. McCauley, 478 F.3d 1108, 1122 n.19 (10th Cir. 2007)

(“While it is true that Plaintiffs should cite to what constitutes clearly

established law, we are not restricted to the cases cited by them.”); Cox v.

8 Prince v. Sheriff of Carter Cnty., 28 F.4th 1033 (10th Cir. 2022);

Lance, 985 F.3d 787; Burke v. Regalado, 935 F.3d 960 (10th Cir. 2019);

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

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Glanz, 800 F.3d 1231, 1247 (10th Cir. 2015) (looking for case law not raised by

the plaintiff to determine whether her rights were clearly established “[i]n the

interest of thoroughness”).

Availing himself of our entire case law on appeal, Hardy raises numerous

on-point cases that apply to his circumstances. We conduct a brief survey of

the case law here, starting with Sealock, where we held that prison officials

violate an inmate’s constitutional rights when they deliberately ignore

requests for necessary medical attention and cause that inmate significant

pain and suffering. 218 F.3d at 1209. In that case, the plaintiff woke up in the

middle of the night and complained to prison officials of “a crushing pain in his

chest” and said that he “might be having a heart attack.” Id. at 1208. Prison

officials could see the plaintiff “was sweating, vomiting[,] and appeared very

pale[,]” but told him that they wouldn’t take him to a hospital because it was

“snowing outside and it would take time to warm up the prison van for

transportation.” Id. at 1208, 1210. The plaintiff was eventually treated for a

heart attack and made a full recovery, but this court still found that the official

who refused to take him to a hospital overnight acted with deliberate

indifference. Id. at 1210.

The Tenth Circuit has since applied this principle to cases where

plaintiffs suffered from less obvious instances of illness, but still experienced

significant pain due to a delay in requested medical care. In Mata, the plaintiff

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went to a prison infirmary in the evening because she was feeling severe chest

pain. 427 F.3d at 750. The nurse on duty did not give her a medical assessment

and told her to return the next morning when the infirmary was open. Id. This

court found that the nurse “refused to fulfill her duty as gatekeeper in a

potential cardiac emergency.” Id. at 758.

In Olsen v. Layton Hills Mall, a plaintiff told jail officials when being

booked that he had OCD and needed medication to avoid panic attacks. 312

F.3d 1304, 1310 (10th Cir. 2002). His medication was taken from him, and

when he informed a jail official that he was having a panic attack and

requested help, the official did nothing in response. Id. This court refused to

grant the official qualified immunity on summary judgment, finding that he

“may have known of—and disregarded—an excessive risk to [the plaintiff’s]

health.” Id. at 1317.

More recently, in McCowan, we considered whether a police officer was

deliberately indifferent to a plaintiff’s medical needs when the plaintiff

complained of severe shoulder pain. 945 F.3d at 1280. The officer held the

plaintiff at a police station and delayed taking the plaintiff to a detention

center where he could get medical care, causing him to suffer “up to several

hours of excruciating pain.” Id. at 1291. Even though the plaintiff did not

specifically request medical care, this court found that he had plausibly alleged

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that the officer was deliberately indifferent because the plaintiff repeatedly

stated he was in severe pain. Id. at 1292.

These are only some of the many Tenth Circuit cases where we have

found that prison officials display deliberate indifference by ignoring an

inmate’s reasonable requests for medical attention. See also Burke v. Regalado,

935 F.3d 960, 994 (10th Cir. 2019) (denying qualified immunity for jail officials

who left plaintiff immobile in his cell and failed to render medical aid after

plaintiff told them he was paralyzed); Prince, 28 F.4th at 1047–48 (10th Cir.

2022) (denying qualified immunity to a nurse who did not give prescribed

medical care to an inmate). Even when inmates do not request medical

attention, it is “clearly established that when a detainee has obvious and

serious medical needs, ignoring those needs necessarily violates the detainee’s

constitutional rights.” Quintana v. Santa Fe Cnty. Bd. of Commissioners, 973

F.3d 1022, 1033 (10th Cir. 2020).

As such, we have on point precedent involving materially similar conduct

to the actions of Deputy Rabie, who spoke with Hardy, observed his condition

and symptoms, and heard him ask for medical assistance. Defendants can only

distinguish these cases by raising immaterial factual differences, such as the

fact that none of them “involve back pain from a fall that had already been

otherwise resolved.” Op. Br. at 56–57. Given the alleged facts, however, we

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have no trouble concluding that Deputy Rabie was on notice that his actions

violated Hardy’s constitutional rights.

But these cases provide fewer clear parallels when it comes to Detention

Specialist DeHerrera, who was only aware that Hardy (or his cellmate) was

pressing the cell’s emergency distress button. For Detention Specialist

DeHerrera, we look to other precedents involving remote requests for medical

help.

In Al-Turki, we considered the case of an inmate who used an intercom

in his cell to call for help. 762 F.3d at 1191. The plaintiff, who was known to

have diabetes, told a correctional officer that “he was experiencing severe pain

and nausea, and he asked to go to the medical center.” Id. That officer then

called the nurse on duty at the medical center, who said that “she would not

see [the plaintiff] because it was too late and because [his] complaint was not

an emergency.” Id. The plaintiff made two more requests for medical care, both

of which were also ignored. Id. The next morning, he passed two kidney stones

and completely recovered from his pain. Id. at 1192. This court found that the

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nurse in Al-Turki was not entitled to qualified immunity.9 Id. at 1195.

Although she could not actually observe the plaintiff, “Defendant was aware

that severe abdominal pain, particularly in someone with diabetes, may be a

sign of any number of serious, life-threatening conditions.” Id. at 1194.

Further, “Defendant was also aware that she was the only medical staff person

on duty and that her decision to ignore Plaintiff’s request for medical treatment

would leave him without medical assistance.” Id. The defendant violated the

plaintiff’s constitutional rights because she was deliberately indifferent to

what would have appeared to be a medical emergency based on the facts as she

knew them at the time. Id.

We considered another intercom case in Lance v. Morris, this time

involving an inmate who developed a painful and potentially dangerous

priapism. 985 F.3d 787, 792 (10th Cir. 2021). Over three days, the plaintiff

reported his symptoms to multiple jail officials. Id. At first, he used his

intercom to call the jail’s control tower and told one defendant “that he had

taken a pill and developed an erection that would not go away. But he did not

9 Defendants note that the correctional officer in Al-Turki was granted

qualified immunity. But any comparison between the correctional officer in

that case and Detention Specialist DeHerrera is unwarranted because the

officer in Al-Turki did contact the medical center, and thus fulfilled his

gatekeeper duties. 762 F.3d at 1191. Deputy Rabie and Detention Specialist

DeHerrera are thus more analogous to the nurse, who did nothing in

response to the plaintiff’s request for aid.

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complain of pain or say that he needed to see a doctor or nurse[,]” so the

defendant did not respond. Id. at 794. This court found that this defendant did

not act with deliberate indifference because of what he learned during the call.

Id. However, the plaintiff also called the control tower the next day while a

different defendant was on duty in the tower. Id. at 797. This time, the plaintiff

reported “his persistent erection, his need for medical attention, and the

considerable pain he was experiencing.” Id. (internal brackets and quotation

marks omitted). Based on those facts, this court refused to grant summary

judgment as to this defendant based on qualified immunity, given “the

evidence of the call” to the control tower requesting medical attention as well

as the defendant’s “view of the [plaintiff’s cell]” through a window. Id. at 798.

While these cases do not involve emergency call buttons, they

demonstrate that it is deliberate indifference for jail officials to ignore calls for

help even where those officials have limited information. The defendants in Al-

Turki and Lance had more information than Detention Specialist DeHerrera.

Both could get reports of symptoms over the intercom, and the defendant in

Al-Turki knew the plaintiff had diabetes, while the defendant in Lance could

partially see into the plaintiff’s cell. But they also had far less information than

the defendants in our other deliberate indifference cases involving jail officials

who could interact with the plaintiffs firsthand. Even so, this court determined

that they exhibited deliberate indifference by not taking further action in light

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of the information that they had available to them. According to Hardy’s

complaint, Detention Specialist DeHerrera was only able to know if the

emergency call button was pressed in Hardy’s cell, nothing more. When

Detention Specialist DeHerrera saw that it had been pressed multiple times,

Hardy claims that he chose to do nothing.

This court has established a “general constitutional rule” against

ignoring an inmate’s requests for emergency medical attention that applies

with “obvious clarity” to Detention Specialist DeHerrera’s actions. Buck, 549

F.3d at 1290. Defendants urge against finding that a rule applies with obvious

clarity “absent a high degree of factual similarity[.]” Op. Br. at 46. The

Supreme Court has indeed cautioned courts “not to define clearly established

law at a high level of generality” and to look to the “violative nature of

particular conduct[.]” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (citation

omitted). However, the question is not whether there is factual similarity, but

whether “the unlawfulness of the officer’s conduct ‘does not follow immediately

from the conclusion that [the rule] was firmly established.’” D.C. v. Wesby, 583

U.S. 48, 64 (2018) (alteration in original) (quoting Anderson v. Creighton, 483

U.S. 635, 641 (1987)).

We differ from the dissent because we consider this question in light of

the information available to Detention Specialist DeHerrera at the time he was

in the control tower. In that context, the unlawfulness of his conduct flows

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naturally from our clearly established law on deliberate indifference.

Detention Specialist DeHerrera ignored a call from an emergency distress

button that could have been “a sign of any number of serious, life-threatening

conditions.” Al-Turki, 762 F.3d at 1194. Under these circumstances, and as a

gatekeeper to medical care and emergency response, Detention Specialist

DeHerrera would have been on notice that ignoring requests for emergency

assistance was a violation of an inmate’s constitutional rights. The Tenth

Circuit has made it “sufficiently clear that every reasonable official would have

understood that” this particular conduct was unlawful.10 Mullenix, 577 U.S. at

11 (citation omitted).

IV

Neither Detention Specialist DeHerrera nor Deputy Rabie can claim

qualified immunity based on the allegations contained in Hardy’s complaint.

Accordingly, we AFFIRM the ruling of the district court and REMAND for

further proceedings consistent with this opinion.

10 We also note that the Seventh Circuit has made this same

determination regarding emergency call buttons. See Velez v. Johnson, 395

F.3d 732, 736 (7th Cir. 2005). Although we do not consider this enough to

demonstrate a clearly established weight of authority from other circuits, it

is nonetheless persuasive that our sister circuit found this constitutional

right to be clearly established based solely on the principles of deliberate

indifference outlined by the Supreme Court in Farmer v. Brennan. Id.

(citing 511 U.S. 825, 833 (1970)).

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Ralph Marcus Hardy v. Deputy Rabie and Deputy DeHerrera, No. 24-1138

BACHARACH, J., concurring in part and dissenting in part.

The district court denied the motions to dismiss by Deputies Rabie

and DeHerrera, and the majority upholds these rulings. I agree with the

district court and the majority on the claims involving Deputy Rabie, but

not those involving Deputy DeHerrera. In my view, Deputy DeHerrera’s

alleged violation of the Constitution wouldn’t have been clearly

established; and the absence of a clearly established violation would

trigger qualified immunity. So I would reverse the denial of Deputy

DeHerrera’s motion to dismiss.

1. The plaintiff must overcome qualified immunity based on his

allegations in the complaint.

Mr. Hardy claims deliberate indifference to a serious medical

condition. For this claim, the district court had to credit Mr. Hardy’s well-

pleaded factual allegations. Sanchez v. Guzman, 105 F.4th 1285, 1299

(10th Cir. 2024). These allegations state that

• Mr. Hardy fell from his wheelchair,

• his cellmate pressed the emergency button in their cell,

• Deputy DeHerrera ignored the emergency signal from

Mr. Hardy’s cell, and

• Mr. Hardy suffered serious pain while waiting for medical

attention.

Crediting these allegations, the district court needed to decide whether the

alleged facts had stated a facially plausible claim. Strain v. Regalado, 977

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F.3d 984, 989 (10th Cir. 2020). Once the district court ruled, we would

conduct de novo review. Id.

But we conduct this review against the backdrop of Deputy

DeHerrera’s assertion of qualified immunity. Given the assertion of

qualified immunity, we consider the objective reasonableness of Deputy

DeHerrera’s conduct as alleged in the complaint. Hemry v. Ross, 62 F.4th

1248, 1253 (10th Cir. 2023). For this inquiry, we consider

• whether Mr. Hardy has alleged facts that would entail a

violation of a constitutional right and

• whether this right had been clearly established.

Est. of Lockett ex rel. Lockett v. Fallin, 841 F.3d 1098, 1107 (10th Cir.

2016). A right is clearly established if the Supreme Court, the Tenth

Circuit, or the weight of out-of-circuit authority has

• held that “materially similar conduct was unconstitutional” or

• identified a rule that applies “with obvious clarity” to the facts.

Buck v. City of Albuquerque, 549 F.3d 1269, 1290 (10th Cir. 2008)

(quoting United States v. Lanier, 520 U.S. 259, 271 (1997)).

2. Our precedents wouldn’t clearly establish a constitutional

violation unless the defendant had seen or heard about a

prisoner’s medical condition.

For the claim itself, Mr. Hardy could prevail only if

• he incurred a serious medical condition and

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• Deputy DeHerrera knew of, and disregarded, an excessive risk

to health.

DeSpain v. Uphoff, 264 F.3d 965, 975 (10th Cir. 2001). As the majority

explains, Mr. Hardy plausibly alleged a serious medical condition. Maj.

Op. at 10. For Deputy DeHerrera, we may assume for the sake of argument

that he knowingly disregarded an excessive risk to Mr. Hardy’s health.

Even with that assumption, however, a constitutional violation wouldn’t be

clearly established because Mr. Hardy doesn’t allege that

• anyone discussed the fall with Deputy DeHerrera or

• Deputy DeHerrera observed Mr. Hardy.

The missing allegations resemble the circumstances in Lance v.

Morris, 985 F.3d 787 (10th Cir. 2021). There a prisoner developed a

priapism, which is a persistent, painful erection. Id. at 792. The prisoner

called the control tower, stating that he had developed an erection that

wouldn’t go away. Id. at 794. But the prisoner didn’t complain of pain or

say that he needed to see a doctor or nurse. Id. We concluded that even

though the condition was serious, the guard in the control tower hadn’t

acted with deliberate indifference in the absence of evidence about what he

might have seen or heard. Id. at 795.

Granted, we held that another officer wasn’t entitled to qualified

immunity at the summary-judgment stage given evidence that the officer

had talked to the prisoner about the priapism and could see into the cell.

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Id. at 797–98; see Maj. Op. at 24–25. Here, however, there’s no allegation

that Deputy DeHerrera saw Mr. Hardy or heard that he was in medical

distress. So this holding in Lance wouldn’t clearly show a need for medical

care when the defendant hadn’t talked to the inmate or seen into his cell.

Mr. Hardy and the district court have pointed to numerous other

cases recognizing constitutional violations. In all of these cases, however,

the defendants had either observed the injured prisoners or been told about

their medical conditions. These cases consist of

• Sealock v. Colorado, where we denied qualified immunity to

both a defendant who witnessed the symptoms of a heart attack

and a defendant who had been told the plaintiff was

experiencing chest pains, 218 F.3d 1205, 1210–12 (10th Cir.

2000),

• Olsen v. Layton Hills Mall, where we denied qualified

immunity when the plaintiff notified the official of a panic

attack, 312 F.3d 1304, 1316–17 (10th Cir. 2002),

• Mata v. Saiz, where we denied qualified immunity when a nurse

had personally observed, and spoken with, the plaintiff, 427

F.3d 745, 756–59 (10th Cir. 2005),

• Al-Turki v. Robinson, where we denied qualified immunity

when the official had been told repeatedly about the plaintiff’s

severe pain, 762 F.3d 1188, 1191 (10th Cir. 2014), 1

• Estate of Booker v. Gomez, where we denied qualified

immunity when the officials had placed the plaintiff in a

1

The majority also relies on this case, pointing to the treatment of a

prison nurse. Maj. Op. at 23–24 & n.9. But the nurse was told that plaintiff

had experienced severe abdominal pain and had requested medical care. Al-

Turki, 762 F.3d at 1191. According to the complaint, Deputy DeHerrera

had no comparable information as to the nature of the emergency request

from Mr. Hardy’s cell.

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chokehold, tasered him, and put him in a holding cell, 745 F.3d

405, 414–15, 434 (10th Cir. 2014),

• McCowan v. Morales, where we denied qualified immunity

when the plaintiff had repeatedly informed the official of a

shoulder injury, 945 F.3d 1276, 1292 (10th Cir. 2019),

• Quintana v. Santa Fe County Board of Commissioners, where

we denied qualified immunity when an official had known that

the plaintiff was vomiting blood, 973 F.3d 1022, 1030–31 (10th

Cir. 2020),

• Paugh v. Uintah County, where we denied qualified immunity

when the officials were aware of symptoms that had obviously

been serious, 47 F.4th 1139, 1157–65 (10th Cir. 2022), and

• Prince v. Sheriff of Carter County, where we denied qualified

immunity when the official had (1) heard the plaintiff using

incoherent phrases and (2) ignored a doctor’s orders concerning

the treatment, 28 F.4th 1033, 1046 (10th Cir. 2022).

In all of these cases, the prison official knew of the medical conditions by

• observing the injured or ill prisoners or

• being told about the conditions.

The same is true of the opinions that Mr. Hardy cites from other

circuits: In each opinion, the guard had either observed the prisoner in

medical distress or been told about it. See Williams v. City of Yazoo, 41

F.4th 416, 423–24 (5th Cir. 2022) (stating that the plaintiff had adequately

alleged the defendants’ knowledge of the medical condition based on what

they had been told and their knowledge of the plaintiff’s diagnosis);

Phillips v. Roane Cnty., 534 F.3d 531, 540–41 (6th Cir. 2008) (observing

that the plaintiff was being held in a cell that the officials would have

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understood as reserved for inmates undergoing medical crises); Schaub v.

VonWald, 638 F.3d 905, 915–16 (8th Cir. 2011) (holding that an official

was aware of serious medical needs when notified by a doctor).

We lack any allegations about a similar observation or statement to

Deputy DeHerrera about Mr. Hardy’s need for medical attention. To the

contrary, Mr. Hardy argues only that Deputy DeHerrera saw and ignored an

emergency notification from Mr. Hardy’s cell. But Mr. Hardy hasn’t cited

any opinions recognizing a constitutional violation without the official’s

observation or notification of a prisoner who is injured or sick. As a result,

Deputy DeHerrera’s alleged constitutional violation wouldn’t have

involved a clearly established constitutional right. And in the absence of a

clearly established right, I would reverse the denial of Deputy DeHerrera’s

motion to dismiss.

6