Hice

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

LISA M. HICE, )

LEANN D. HOFF, )

as Co-Administrators of the )

Estate of Marvin G. May, )

Deceased, )

)

Plaintiffs, )

)

v. ) Case No. CIV-24-119-JD

)

TURN KEY HEALTH CLINICS, )

LLC, et al., )

)

Defendants. )

REPORT AND RECOMMENDATION

On January 25, 2022, Decedent Marvin G. May was booked into the

Custer County Jail as a pretrial detainee. Doc. 1, at 4. Upon booking, Mr. May

was 74 years old with a recorded past medical history of diabetes mellitus,

chronic obstructive pulmonary disease (COPD), and cardiovascular disease. Id.

Before and during his detention, Mr. May suffered from various ailments

including dementia, high blood pressure, a worsening bed sore, fecal

incontinence, and difficulty walking. Id. at 6; Doc. 156, at 12. On March 18,

2022, Mr. May fell out of his bunk and was transported to the emergency room

where he was pronounced dead. Doc. 1, at 9. The Co-Administrators of his

Estate brought this action under 42 U.S.C. § 1983 alleging Defendants

deprived Mr. May of medical care in violation of his rights under the

Fourteenth Amendment of the U.S. Constitution and Oklahoma law. Id. at 3-

4, 36-41. United States District Judge Jodi W. Dishman referred this matter

to the undersigned Magistrate Judge for initial proceedings consistent with 28

U.S.C. § 636(b)(1)(B), (C). Doc. 3.

Before the Court is Defendant Advanced Practice Nurse (APRN) Tamara

Carey’s Motion for Summary Judgment, Doc. 139. Plaintiffs filed a response,

Doc. 156, and Defendant APRN Carey replied, Doc. 179. So the matter is at

issue.1 The undersigned recommends the Court deny Defendant APRN Carey’s

motion for summary judgment.

I. Legal standards.

A 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 of fact is material

if under the substantive law it is essential to the proper disposition of the

claim.” Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016)

(internal quotation marks and citation omitted). A dispute about a material

fact is genuine “if the evidence is such that a reasonable jury could return a

1 Citations to a court document are to its electronic case filing designation

and pagination. Except for capitalization, quotations are verbatim unless

otherwise indicated.

2

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986); see also Doe v. Univ. of Denver, 952 F.3d 1182, 1189 (10th Cir. 2020)

(explaining that a dispute over a material fact is genuine “if a rational jury

could find in favor of the nonmoving party on the evidence presented” (citation

omitted)). In applying this standard, the Court “‘review[s] the facts and all

reasonable inferences those facts support[ ] in the light most favorable to the

nonmoving party.’” Doe, 952 F.3d at 1189 (quoting Evans v. Sandy City, 944

F.3d 847, 852 (10th Cir. 2019)). “In reviewing the facts, at summary judgment,

the party who bears a burden of proof on an issue bears the burden of

production rather than the burden of persuasion.” Markley v. U.S. Bank Nat’l

Ass’n, 59 F.4th 1072, 1080 (10th Cir. 2023).

II. Background.

Turn Key Health Clinics, LLC (Turn Key) contracted with the Custer

County Sheriff’s Office (Custer County) and the Board of County

Commissioners of Custer County to provide certain medical care and

treatment to inmates and detainees at the Custer County Jail. Doc. 139, at 5.

The contract requires Turn Key to provide twelve hours of weekly on-site

nursing services by a Registered Nurse (RN) or a Licensed Practical Nurse

(LPN). Id. Ex. 1, at 4. The contract also requires a physician or mid-level

3

provider to hold a weekly patient clinic either in-person or via telemedicine. Id.

Turn Key was responsible for ensuring 24/7 availability of an on-call physician

or mid-level provider for “emergency consultation.” Id.

During the relevant dates, Defendant APRN Carey worked as a Turn

Key employee and provided telehealth medicine to inmates at the Jail once a

week. Doc. 139, at 6; Doc. 156, at 6. She was responsible for taking calls from

thirteen or fourteen separate facilities, one of which was Custer County. Doc.

155, Ex. 3, at 31-32, 35, 51.2 She testified she was “overwhelmed” by the call

situation, which was part of the reason she resigned from her position with

Turn Key. Id. at 51.

On January 25, 2022, Mr. May was transferred to the Jail from the

Canadian County Jail. Doc. 139, at 6. On January 27, 2022, Defendant LPN

Stacia Unruh conducted a Medical Intake on Mr. May. Id. She recorded his

vital signs, including his temperature, blood pressure, respiratory rate, pulse,

and oxygen saturation. Id. She reviewed his medical history, evaluated his

2 Plaintiffs reference the exhibits attached to their response to Defendant

Sheriff’s motion for summary judgment, Doc. 155, interchangeably in their

responses to Defendants’ motions for summary judgment. For ease of

reference, the undersigned will refer to the exhibits attached to Doc. 155 where

the same arguments are made or where identical evidence is cited amongst the

parties.

4

general appearance, behavior, level of consciousness, breathing, and his

mobility. Id. LPN Unruh noted his gait was “stable” and made no notation that

Mr. May needed a cane or wheelchair at that time. Doc. 155, Ex. 12, at 3.

On February 2, 2022, an inmate notified Defendant Officer Julie Warnke

that Mr. May had not eaten in several days and refused to shower. Doc. 155,

Ex. 17 (Jail Incident Report). The inmate filed a sick call request and a

grievance form seeking help for Mr. May, noting: “this old man marvin may

hasnt eaten in 9 days or showered he needs real medical attention asap,” Doc.

155, Ex. 33, at 1. Similarly, the inmate wrote “weve told staff and they aint

done shit this old man marvin hasn’t eaten or showered in days he needs real

medical help . . .” Doc. 155, Ex. 34, at 1.

To each, Jail Officer Angie Schmidt responded that “We’re going to move him

to booking til the nurse comes in tomorrow so that we can watch him.” Doc.

155, Ex. 33, at 2 & Ex. 34, at 1. Officer Warnke had Mr. May moved to his own

cell in the “booking area,” “to be monitored for his behavior and eating habits”

and advised that “[h]e is to be offered a protein shake with every meal &

5

charted on ODIS if he eats his meal or drinks his share per Lt. [Martha]

Stanford.” Doc. 155, Ex. 17.3

On February 3, 2022, Defendant APRN Carey conducted a Chronic Care

Provider visit with Mr. May via telemedicine. Doc. 139, at 6-7. While

Defendant APRN Carey assessed Mr. May’s orientation, obtained his medical

history, changed his medication prescriptions, and scheduled a follow-up

appointment 90 days later, LPN Unruh gathered objective information from

Mr. May onsite. Id. at 7.

Officer Warnke’s Jail Incident Report notes state Mr. May was brought

via wheelchair for the visit. Doc. 155, Ex. 18. She and LPN Unruh “encouraged

him to drink a protein shake and he refused to drink it but [he] drank some

water.” Id.

After the visit, Officer Warnke noted that Defendant APRN Carey stated

that Mr. May’s

Mental condition appeared to be deteriorating rapidly and that

when she had seen him at the previous county he was transported

around via wheelchair at that facility also. [LPN Unruh and

Officer Warnke] let [APRN Carey] know that he was moved to

booking yesterday because he wasn’t eating or showering while he

was in the dorm housing. [APRN] Carey said that she wanted to

3 Lieutenant Martha Stanford, a non-defendant, supervised Officer

Warnke. Doc. 155, Ex. 20, at 4.

6

notify Adult Protective Services about his well being due to his

deteriorating mental state.

Id. Defendant APRN Carey’s chronic care note stated:

Pt present for initial CC visit. Provider is familiar with pt

due to being transferred from Canadian Co. Pt denies

concerns in treatment plan. Per officer, pt has not eaten or

showered in 7 days. Pt report being “fine”. Denies fatigue,

chills, fever, or any abnormalities at this time. Provider is

aware of pts worsening Alzheimer disease.

. . . .

Pt unable to ambulate safely alone; assistance needed via

wheelchair[.]

Doc. 139, Ex. 2, at 35-36. Defendant APRN Carey’s February 3, 2022 chronic

care note also documented that Mr. May suffered from hypertension,

hyperlipidemia, COPD, diabetes mellitus, and rheumatoid arthritis. Id. at 35;

Doc. 155, Ex. 3, at 10-12. She set another visit for 90 days later, which she

testified was typical, because this was Mr. May’s follow-up visit after her initial

telehealth visit with him while he was in Canadian County’s jail. Doc. 139, Ex.

4, at 17. She also recalled Mr. May being in a wheelchair in Canadian County.

Doc. 155, Ex. 3, at 18.

Officer Warnke testified she presumed that Defendant APRN Carey

called Adult Protective Services after the February 3, 2022 telehealth visit

because APRN Carey told LPN Unruh she wanted to contact Adult Protective

7

Services. Doc. 155, Ex. 11, at 12, 23. Officer Warnke also testified she had “seen

forms come through” from Adult Protective Services. Id. at 23.

A February 3, 2022 email from Oklahoma Human Services to the

Oklahoma Department of Health relayed concerns from an Adult Protective

Services screener that Mr. May was not allowed to use a cane in jail, had

“worsening” Alzheimer’s, and that the “Reporter” (Defendant APRN Carey)

from the Custer County Jail “feels [Mr. May] needs to be in a nursing home,”

but “not in jail.” Doc. 155, Ex. 2, at 2-3; Doc. 156, at 11. The screener wrote that

“[t]he staff at the jail [reported] that [he] has not eaten or showered in 7 days”

and “no one is telling him to, ” and he “has been incarcerated for at least 2-3

months, maybe longer, but too long from a medical standpoint,” and that “they

do not think this is an appropriate placement.” Doc. 155, Ex. 2, at 3. In her

deposition, Defendant APRN Carey confirmed the accuracy of the contents of

the email as the summary of the report she gave to Adult Protective Services.

Doc. 155, Ex. 3, at 19-20.

In reviewing that report, Defendant APRN Carey testified that it was

her medical assessment that Mr. May “did not belong in jail.” Id. at 25-26. And

that he had been incarcerated for two to three months or longer, and that this

was “too long from a medical standpoint.” Id. at 26. She testified that while his

8

Alzheimer’s symptoms were worsening, she did not believe he was in “acute

distress” yet. Id. at 22. She also testified that Alzheimer’s is a progressive

disease and Mr. May’s condition would only deteriorate and get worse. Id. at

29-30. She testified that she did not follow up with LPN Unruh after the

telemedicine visit to ensure that she was continuously monitoring Mr. May’s

condition. Id. at 51.

On February 11, 2022, LPN Unruh saw Mr. May’s wound on his right

hip and entered a Wound Care Note, and got an order from Defendant APRN

Carey to apply antibiotic ointment to the wound. Doc. 156, at 12; Doc. 139, Ex.

2, at 32, 40 & Ex. 4, at 12. Defendant APRN Carey recalled giving this verbal

order. Doc. 139, Ex. 4, at 19.

On March 17, 2022, Officer Warnke filed a Jail Incident Report noting

Mr. May refused to “set up” for a blood pressure check, and that he told her he

was “fine” and “okay.” Doc. 139, Ex. 2, at 55. She noticed a pair of “soiled orange

clothes,” and she encouraged him to take a shower. Id. Mr. May refused. On

March 18, 2022, Mr. May had fallen out of his bed and was discovered

unresponsive. Id. at 56. The officers tried to revive him with an ammonia pack

but this had a “limited response.” Id. at 57. Officers called for an ambulance.

Id. at 56.

9

The Medical Examiner listed Mr. May’s probable cause of death as

“Coronavirus Disease 2019 (COVID-19) Pneumonia Sequalae.” Doc. 155, Ex, 4,

at 19. Plaintiff’s expert, Dr. Justin Berk, will testify that “the evidence does

not indicate that COVID-19 was a cause of Mr. May’s death.” Id. “Rather, Mr.

May’s profile─starvation, dehydration, lactic acidosis, nutritional deficiencies,

hypotension—is tragically aligned with textbook examples of preventable

death due to neglect of basic medical needs.” Id.

III. Deliberate indifference to Mr. May’s medical needs.

Defendant APRN Carey argues that Plaintiff cannot show that any

failure to transfer Mr. May to an outside facility rises to the level of a

constitutional violation. Doc. 139, at 13. Under the Fourteenth Amendment’s

Due Process Clause, pretrial detainees are entitled to the degree of protection

against denial of medical attention which applies to convicted inmates under

the Eighth Amendment. Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127,

1136 (10th Cir. 2023) (citing Paugh v. Uintah Cnty., 47 F.4th 1139, 1153–54

(10th Cir. 2022); Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)).

The deliberate indifference standard contains both an objective and

subjective component. Lucas, 58 F.4th at 1136. The objective component is

satisfied if the deprivation is “sufficiently serious.” Farmer v. Brennan, 511

10

U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).

Defendant APRN Carey does not challenge the objective component of

Plaintiffs’ claim, and the Tenth Circuit has “held that ‘death [is], without

doubt, sufficiently serious to meet the objective component.’” Burke v.

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

F.3d 1082, 1088 (10th Cir. 2009)).

The subjective component is satisfied if the official “knows of and

disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at

837. A plaintiff “need not show that a prison official acted or failed to act

believing that harm actually would befall an inmate,” but only that the official

“merely refused to verify underlying facts that [s]he strongly suspected to be

true, or declined to confirm inferences of risk that [s]he strongly suspected to

exist.” Lucas, 58 F.4th at 1137 (quoting Farmer, 511 U.S. at 842, 843 n.8.).

“‘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.’” Id. (quoting Farmer, 511 U.S. at 842). “An official disregards risk

when [s]he fails to take reasonable measures to abate the risk.” Id.

11

A “factfinder may conclude that a prison official knew of a substantial

risk from the very fact that the risk was obvious.” Quintana v. Santa Fe Cnty.

Bd. Of Comm’rs, 973 F.3d 1022, 1029 (10th Cir. 2020) (quoting Farmer, 511

U.S. at 842). But this requires “that such risks present themselves as ‘obvious’

to the so-called ‘reasonable man.’” Id. (quoting Mata v. Saiz, 427 F.3d 745, 752

(10th Cir. 2005)).

The Tenth Circuit recognizes two ways to establish the subjective

component of a deliberate indifference claim against an individual defendant:

[T]he subjective component can be satisfied under two theories:

failure to properly treat a serious medical condition (“failure to

properly treat theory”) or as a gatekeeper who prevents an inmate

from receiving treatment or denies access to someone capable of

evaluating the inmate’s need for treatment (“gatekeeper theory”).

The latter theory can apply to medical professionals when the

professional knows that his or her role in a medical emergency is

solely to refer the patient to another. Even a brief delay in

treatment can be unconstitutional.

Lucas, 58 F.4th at 1137. (internal citations omitted).

A. Objective component.

As noted, Defendant APRN Carey concedes the objective component is

met, but she qualifies the harm solely as Mr. May’s death. Doc. 139, at 13-14;

see Prince v. Sheriff of Carter Cnty., 28 F.4th 1033, 1045 (10th Cir. 2022)

(concluding detainee’s “ultimate harm of death was sufficiently serious for

12

purposes of the objective component of deliberate indifference”); Burke v.

Regalado, 935 F.3d 960, 994 (10th Cir. 2019) (same). Plaintiffs also claim Mr.

May suffered from obvious, severe, and emergent medical and mental health

needs before his death which were reported to Defendant APRN Carey on

February 3, 2022. Doc. 1, at 37.

First, “[t]he objective component of deliberate indifference is met if the

‘harm suffered rises to a level of ‘sufficiently serious’ to be cognizable under the

Cruel and Unusual Punishment Clause.’” Burke, 935 F.3d at 992 (quoting

Mata, 427 F.3d at 753). “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.’” Hardy v. Rabie, 147 F.4th 1156,

1164 (10th Cir. 2025) (emphasis added) (quoting Al-Turki v. Robinson, 762

F.3d 1188, 1192-93 (10th Cir. 2014)). Where a plaintiff alleges that he was

harmed by a delay in medical treatment, the objective component of harm “can

be satisfied merely by ‘an intermediate injury, such as the pain experienced

while waiting for treatment and analgesics.’” Id. (quoting Al-Turki, 762 F.3d

at 1193).

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

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

13

the prison employee’s actions.” [Mata, 427 F.3d at 753.] The latter

is not about the ultimate harm or risk of harm, but how that harm

would appear to an objective observer. See [Prince, 28 F.4th at

1045] (“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.”).

Id. at 1165.

While Defendant APRN Carey does not dispute the objective component

to the extent that the harm suffered was Mr. May’s death, the Court notes that

the delay in receiving greater medical attention is pertinent here because of

the suffering Mr. May experienced from his already extant refusal to eat, his

deteriorating mental condition, and his inability to ambulate on his own. That

persistent delay in receiving any medical treatment apart from medication

management and some applications of his prescription ointment, amounts to a

sufficiently serious medical need that also satisfies the objective component.

See Stella v. Davis Cnty., 2024 WL 4764694, at *7 (10th Cir. Nov. 13, 2024)

(“[A] delay in medical care that results in substantial harm, such as

‘considerable pain’ or death while awaiting treatment, can satisfy the objective

component.”) (quoting Paugh, 47 F.4th at 1155).

B. Subjective component.

1. Failure to properly treat.

14

On February 2, 2022, an inmate notified Officer Warnke that Mr. May

had not eaten in several days and refused to shower, Doc. 155, Ex. 17 (Jail

Incident Report), which resulted in Officer Warnke moving Mr. May to a cell

next to LPN Unruh’s office, close to the booking area. Id.; Doc. 155, Ex. 33, at

2 & Ex. 34, at 1. This way, Mr. May could be monitored for his behavior and

eating habits. Doc. 155, Ex. 17. Defendant APRN Carey was aware Mr. May

had been moved. Doc. 155, Ex. 18.

The next day was Mr. May’s medical visit with Defendant APRN Carey.

Officer Warnke’s Jail Incident Report notes state Mr. May was brought via

wheelchair for the visit. Id. She and LPN Unruh “encouraged him to drink a

protein shake and he refused to drink it but [he] drank some water.” Id.

Officer Warnke noted that Defendant APRN Carey observed Mr. May’s

Mental condition appeared to be deteriorating rapidly and that

when she had seen him at the previous county he was transported

around via wheelchair at the facility also. [LPN Unruh and Officer

Warnke] let [Defendant APRN Carey] know that [Mr. May] was

moved to booking yesterday because he wasn’t eating or showering

while he was in the dorm housing. [APRN] Carey said that she

wanted to notify Adult Protective Services about his well being due

to his deteriorating mental state.

Id.

Officer Warnke testified she was aware of the February 3, 2022

telemedicine visit with Defendant APRN Carey and presumed that APRN

15

Carey called Adult Protective Services, that Carey told LPN Unruh she wanted

to contact Adult Protective Services, and that Officer Warnke had “seen forms

come through” from Adult Protective Services. Doc. 155, Ex. 11, at 12, 23.

Defendant APRN Carey’s February 3, 2022 chronic care note

documented that Mr. May suffered from hypertension, hyperlipidemia, COPD,

diabetes mellitus, rheumatoid arthritis, and that APRN Carey knew of Mr.

May’s “worsening Alzheimer’s disease.” Doc. 139, Ex. 2, at 35; Doc. 155, Ex. 3,

at 10-12. “Per officer [Warnke]” she noted that Mr. May had not eaten or

showered in seven days. Doc. 139, Ex. 2, at 35. She noted he cannot ambulate

safely and she set another visit for 90 days. Id. at 36.

A February 3, 2022 email from Oklahoma Human Services to the

Oklahoma Department of Health relayed concerns from an Adult Protective

Services screener that Mr. May is not allowed to use a cane in jail, has

“worsening” Alzheimer’s, and reported that the “Reporter [(APRN Carey)]”

from the Custer County Jail “feels [Mr. May] needs to be in a nursing home,”

but “not in jail.” Doc. 155, Ex. 2, at 2-3. The screener wrote that “[t]he staff at

the jail [reported] that he has not eaten or showered in 7 days and no one is

telling him to,” and “has been incarcerated for at least 2-3 months, maybe

longer, but too long from a medical standpoint,” and that “they do not think

16

this is an appropriate placement.” Id. at 3. Defendant APRN Carey confirmed

the accuracy of the email as the summary of the report she gave to Adult

Protective Services. Doc. 155, Ex. 3, at 19-20.

Given the record here, there is evidence from which a reasonable juror

could conclude that Defendant APRN Carey acted with deliberate indifference

on or after February 3, 2022. Her chronic care notes outline Mr. May’s

worsening Alzheimer’s, his inability to walk without assistance, and that he

had not eaten or showered in a week. She agreed Mr. May had been in jail too

long and, from a medical standpoint, did not belong in jail. Id. at 26. She

testified he had a risk of falling. Id. at 28. She knew he had been moved close

to the booking area “because he wasn’t eating or showering.” Doc. 155, Ex. 18.

Her concerns were “worsening of those things.” Doc. 155, Ex. 3, at 28. And that

is exactly what happened without more intensive treatment outside of the

Jail’s setting. She neither attempted to follow up with Defendant Unruh, the

only medical professional physically present at the Jail, nor did she supervise

Defendant Unruh. Id. at 16-17, 51-52. She only set a follow-up telehealth visit

for Mr. May—90 days from when she observed his rapidly deteriorating

17

condition.4 See Lucas, 58 F.4th 1127, 1142 (10th Cir. 2023) (“Dr. Myers entirely

failed to monitor her afterwards to determine if his treatment plan, if it can

even be described as such, was working. Thus, Dr. Myers is not insulated from

liability by providing some initial modicum of care and then proceeding to

otherwise ignore all of Ms. Caddell’s serious medical symptoms.”).

Defendant APRN Carey also contacted Adult Protective Services to try

to arrange for care for when Mr. May was released. Her urgent efforts

underscore her concerns for his continued decline. Doc. 155, Ex. 2, at 2-3 & Ex.

3, at 19-20. And, within ten days, Mr. May was incontinent and had developed

a bed sore requiring prescription ointment, which Defendant APRN Carey

prescribed. A day later, feces got into the wound, a risk Defendant APRN Carey

would know of, given her training. Having viewed the evidence in the light

most favorable to the Plaintiffs, the undersigned concludes a genuine dispute

remains as to whether Defendant APRN Carey properly treated Mr. May. So

4 Plaintiff’s expert Dr. Berk testified that Defendant APRN Carey should

have sought a higher level of care for Mr. May on February 3, 2022. Doc. 155,

Ex. 22, at 6 (“If you’re that concerned about the care of this patient and feel

like they need a nursing home. . . . that means inherently they need a higher

level of care than what can be provided in the jail and, therefore, a higher level

of care should have been sought.”); see also Doc. 155, Ex. 4, at 8.

18

she has not established that she is entitled to judgment as a matter of law as

to deliberate indifference under the failure to properly treat theory.

2. Liability under the gatekeeper theory.

Similarly, Plaintiffs have presented sufficient evidence to allow a

reasonable fact finder to consider the objective and subjective components of

deliberate indifference under the gatekeeper theory. Defendant APRN Carey

was the only medical professional licensed to perform a medical assessment.

Doc. 155, Ex. 15, at 5-6. She testified that it was her medical judgment that

Mr. May did not belong in the Jail. Doc. 155, Ex. 3, at 25-26. Defendant APRN

Carey contacted Adult Protective Services but she did not follow up with them.

And she testified that contact was for arrangements for when he was released

from the Jail. Id. at 15. Given the information she had about Mr. May’s

worsening condition, a juror could find she was deliberately indifferent in

failing to either coordinate or seek off-site specialty care for Mr. May. Paugh,

47 F.4th at 1155; see also id. at 1160 (“[A] reasonable jury could find that [the

defendant] . . . was aware that [the inmate] was in obvious need for medical

attention, and . . . abdicated her gatekeeping role by not relay[ing] the problem

to medical staff.” (quotations omitted)).

19

IV. Recommendation and notice of right to object.

For the reasons set forth above, the undersigned recommends the Court

deny Defendant APRN Carey’s motion for summary judgment. Doc. 189.

The undersigned advises Defendant of her right to file an objection to

this report and recommendation with the Clerk of this Court on or before April

21, 2026, in accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of Civil

Procedure 72(b)(2). The undersigned further advises Defendant that failure to

make a timely objection to this report and recommendation waives the right to

appellate review of both factual and legal questions contained herein. Moore v.

United States, 950 F.2d 656, 659 (10th Cir. 1991).

This report and recommendation does not terminate the referral to the

undersigned Magistrate Judge in this matter.

ENTERED this 31st day of March, 2026.

hea _

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE

20