Lance v. Board of County Commissioners

FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS January 19, 2021

Christopher M. Wolpert

FOR THE TENTH CIRCUIT Clerk of Court

_________________________________

DUSTIN LANCE,

Plaintiff - Appellant,

v. No. 19-7050

CHRIS MORRIS, Sheriff of Pittsburg

County, Oklahoma, in his official

capacity; MIKE SMEAD, in his

individual capacity; DAKOTA

MORGAN, in his individual capacity;

EDWARD MORGAN, in his individual

capacity; DANIEL HARPER, in his

individual capacity,

Defendants - Appellees,

and

MCALESTER REGIONAL HEALTH

CENTER AUTHORITY, d/b/a

McAlester Regional Hospital; BOARD

OF COUNTY COMMISSIONERS OF

PITTSBURG COUNTY, OKLAHOMA;

STEPHEN SPARKS, in his individual

capacity; JOEL KERNS, former Sheriff

of Pittsburg County, in his individual

capacity,

Defendants.

_________________________________

Appeal from the United States District Court

for the Eastern District of Oklahoma

(D.C. No. 6:17-CV-00378-RAW)

_________________________________

Megha Ram, Roderick & Solange MacArthur Justice Center, Washington,

D.C. (J. Spencer Bryan and Steven J. Terrill, Bryan & Terrill Law, Tulsa,

Oklahoma, and David M. Shapiro, Roderick & Solange MacArthur Justice

Center, Chicago, Illinois, with her on the briefs), on behalf of the Plaintiff-

Appellant.

Michael L. Carr, Collins Zorn & Wagner, P.C., Oklahoma City, Oklahoma

(Taylor M. Riley, Collins, Zorn & Wagner, P.C., Oklahoma City,

Oklahoma, with him on the briefs), on behalf of the Defendants-Appellees

Chris Morris, Daniel Harper, and Dakota Morgan.

Carson C. Smith, Pierce Couch Hendrickson Baysinger & Green, L.L.P.,

Oklahoma City, Oklahoma (Robert S. Lafferrandre, Pierce Couch

Hendrickson Baysinger & Green, L.L.P. Oklahoma City, Oklahoma, with

him on the brief) on behalf of the Defendants-Appellees Edward Morgan

and Mike Smead.

David A. Russell and Emily Jones Ludiker of Rodolf & Todd, Tulsa,

Oklahoma, filed a brief on behalf of McAlester Regional Health Center.

_________________________________

Before MATHESON, BACHARACH, and McHUGH, Circuit Judges.

_________________________________

BACHARACH, Circuit Judge.

_________________________________

This case involves a denial of medical treatment for Mr. Dustin

Lance at a detention center in McAlester, Oklahoma. Mr. Lance needed

treatment for priapism (a persistent, painful erection), but he had to wait

three days for the treatment. He ultimately sued the current sheriff in his

official capacity 1 and four jail guards in their personal capacities, invoking

1

Mr. Lance also sued the former sheriff (Mr. Joel Kerns) and the

McAlester Regional Health Center Authority, but the appeal does not

address the claims against these parties.

2

42 U.S.C. § 1983 and the Fourteenth Amendment’s Due Process Clause.

The district court granted summary judgment to the defendants.

We affirm in part and reverse in part. Like the district court, we

conclude that one of the jail guards, Edward Morgan, has qualified

immunity because he didn’t violate Mr. Lance’s constitutional right to

medical care. But we conclude that qualified immunity was unavailable to

the three other jail guards: Mike Smead, Dakota Morgan, and Daniel

Harper. Finally, we conclude that the sheriff, Chris Morris, was not

entitled to summary judgment in his official capacity because the

factfinder could reasonably determine that the county’s policies had

violated Mr. Lance’s constitutional right to medical care.

1. Mr. Lance’s Priapism and Permanent Injuries

The parties attribute the priapism to a pill that Mr. Lance obtained

from another inmate. He took the pill on a Thursday evening and awoke the

next morning with an erection that would not go away.

After awaking, Mr. Lance used his cell’s intercom to call Edward

Morgan, admitting consumption of another person’s pill and stating that

the pill had caused an erection that would not go away.

According to the plaintiff, Edward Morgan responded by stating that

he would put Mr. Lance in lockdown for taking the pill in violation of jail

policy. But no one came to put Mr. Lance in lockdown, so he called again;

this time, he requested medical attention.

3

Over the next three days, Mr. Lance made more requests for medical

care, reporting a persistent erection, an intense pain, and a need for

medical treatment.

2. Mr. Lance’s Trip to the Hospital After Three Days of Intense

Pain

The three-day period ended on a Monday when the detention center’s

nurse came on duty. She examined Mr. Lance’s engorged penis and saw

that it was purple and might be permanently damaged. Alarmed, she asked

jail guards to take Mr. Lance to a local hospital. At the hospital, an

emergency physician examined Mr. Lance and provided medication. But

the medication did not help, and the physician said that Mr. Lance needed

to go to another hospital about 90 miles away.

Rather than go to the second hospital, the guards returned Mr. Lance

to the McAlester jail. When they returned, jail officials obtained a judicial

order releasing Mr. Lance on his own recognizance. His father came to the

jail that afternoon and later drove Mr. Lance to the second hospital,

arriving at about 7:15 p.m.

After they arrived, a urologist operated. But Mr. Lance suffered

permanent injuries, which will probably include impotence for the rest of

his life.

4

3. Mr. Lance’s Claims Against the Sheriff and Jail Guards

For the claims against the jail guards, Mr. Lance alleged denial of

medical care under the Fourteenth Amendment’s Due Process Clause based

on a failure to timely respond to requests for medical treatment. For the

claims against the sheriff, Mr. Lance alleged the adoption of policies

violating his constitutional right to medical treatment for serious medical

needs.

The jail guards and sheriff moved for summary judgment. The sheriff

denied a constitutional violation, and the four jail guards urged qualified

immunity. The district court granted the motions for summary judgment.

4. The Standard of Review

For these rulings, we engage in de novo review. Talley v. Time, Inc.,

923 F.3d 878, 893 (10th Cir. 2019). Summary judgment is required when

“the movant shows that there is no genuine dispute as to any material fact

and that the movant is entitled to judgment as a matter of law.” Estate of

Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (quoting Fed. R. Civ.

P. 56(a)). We consider the evidence in the light most favorable to Mr.

Lance and draw all reasonable inferences in his favor. Id.

5. The Four Jail Guards’ Defense of Qualified Immunity

Drawing reasonable inferences in favor of Mr. Lance, we consider

whether he created a genuine issue of material fact on qualified immunity

for the jail guards.

5

A. The Elements of Qualified Immunity

Because the jail guards asserted qualified immunity, the burden fell

on Mr. Lance. Estate of Ceballos v. Husk, 919 F.3d 1204, 1212–13 (10th

Cir. 2019). To meet that burden, Mr. Lance needed to show the violation of

a constitutional or statutory right and the clearly established nature of that

right. Donahue v. Wihongi, 948 F.3d 1177, 1186 (10th Cir. 2020).

B. Violation of the Constitutional Right to Medical Care

The Fourteenth Amendment’s Due Process Clause entitles pretrial

detainees to the same standard of medical care that the Eighth Amendment

requires for convicted inmates. Strain v. Regalado, 977 F.3d 984, 989

(10th Cir. 2020). Under that standard, jail guards cannot act with

deliberate indifference to a pretrial detainee’s serious medical needs. Id.

To establish a violation of this right, a pretrial detainee must satisfy

objective and subjective prongs of the test. Id. 2

(1) The Objective and Subjective Prongs

The objective prong is satisfied if the medical need is sufficiently

serious. Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006). A medical

need is sufficiently serious if

• a physician directed further treatment after diagnosing the

condition or

2

Mr. Lance argues that Kingsley v. Hendrickson, 576 U.S. 389 (2015)

abolished the subjective component for claims of denial of due process by

denial of medical care for pretrial detainees. We recently rejected that

argument in Strain v. Regalado, 977 F.3d 984, 993 (10th Cir. 2020).

6

• the need for a doctor’s attention would be obvious to a lay

person.

Clark v. Colbert, 895 F.3d 1258, 1267 (10th Cir. 2018). Medical delays can

be sufficiently serious if they cause substantial harm, such as “permanent

loss[] or considerable pain.” Requena v. Roberts, 893 F.3d 1195, 1216

(10th Cir. 2018) (quoting Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir.

2001)).

In district court, the jail guards conceded satisfaction of the

objective prong because the priapism had constituted a sufficiently serious

medical need. 3 But the parties disagree on the subjective prong, which

turns on the defendant’s state of mind. Mata v. Saiz, 427 F.3d 745, 751

(10th Cir. 2005). To satisfy this prong, the plaintiff must show that the

defendant

• was aware of a substantial risk of serious harm and

• chose to disregard that risk.

3

Several jail guards testified that priapism is a serious medical

condition that requires treatment. For example, Mr.Smead acknowledged

“that if somebody had an erection that wouldn’t go away[,] delaying

medical care could expose that inmate to medical or bodily harm.”

Appellant’s App’x vol. II, at 593. Similarly, Mr. Dakota Morgan admitted

that a prolonged erection warrants medical attention. Appellant’s App’x

vol. III, at 631–32. And Mr. Harper admitted that “medical would need to

be called” if a detainee experienced a prolonged, painful erection.

Deposition of Daniel Harper, Lance v. Pittsburg Cty. Bd. of Cty. Comm’rs,

No. 6:17-cv-00378-RAW (E.D. Okla. 2019), ECF No. 172, Ex. 17, at 48–

49.

7

See Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005) (aware of a

“substantial risk of serious harm” (quoting Riddle v. Mondragon, 83 F.3d

1197, 1204 (10th Cir. 1996))); Martinez v. Beggs, 563 F.3d 1082, 1089

(10th Cir. 2009) (disregards the risk). A plaintiff may prove awareness of a

substantial risk through circumstantial evidence that the risk was obvious.

Farmer v. Brennan, 511 U.S. 825, 842–43 (1994).

On this prong, the district court reached different conclusions for the

four jail guards. For Edward Morgan, the court concluded that Mr. Lance

had not satisfied the subjective prong. For three other guards (Mike Smead,

Dakota Morgan, and Daniel Harper), the court concluded that the factfinder

could reasonably infer awareness of a substantial risk of serious harm and

knowing disregard of that risk.

In this appeal, Mr. Lance argues that the district court

• erroneously assessed the evidence on Edward Morgan and

• properly analyzed the evidence involving the other guards.

In contrast, the other guards maintain that a factfinder could not

reasonably infer awareness of a substantial risk and knowing disregard of

that risk.

(2) Edward Morgan

After taking the pill, Mr. Lance awoke with an erection that would

not subside. Concerned, he called the control tower. According to Mr.

Lance, Edward Morgan answered. Mr. Lance said that he had taken a pill

8

and developed an erection that would not go away. But he did not complain

of pain or say that he needed to see a doctor or nurse.

Later that day, Mr. Lance made more calls to the control tower,

reporting considerable pain and asking for medical treatment. But Mr.

Lance testified that the other calls had involved other guards, and there is

no evidence that Edward Morgan had heard those calls. Because Edward

Morgan had been contacted only once and given only limited information,

the district court concluded that he had not acted with deliberate

indifference.

On appeal, Mr. Lance argues that the factfinder could reasonably

infer deliberate indifference from

• jail administrators’ recommendation for sergeants, such as

Edward Morgan, to move around in the booking area and pods,

• Edward Morgan’s presence in the control tower (where he

conducted sight checks) on Friday and Saturday nights, and

• repeated calls to the tower from Mr. Lance and other detainees.

We reject these arguments, for a claim of deliberate indifference cannot be

based on speculation about what Edward Morgan might have seen or heard.

See Quintana v. Santa Fe Cty. Bd. of Comm’rs, 973 F.3d 1022, 1031 & n.3

(10th Cir. 2020); see also Self v. Crum, 439 F.3d 1227, 1235 (10th Cir.

2006) (rejecting an argument based on speculation that a defendant had a

culpable state of mind). Mr. Lance’s arguments entail only speculation

about Edward Morgan’s awareness of the condition.

9

According to Mr. Lance, he had only one conversation with Edward

Morgan. In that conversation, Mr. Lance did not provide enough

information to suggest a serious medical need; and he cannot avoid

summary judgment with speculation that he or other detainees might have

had other conversations with Edward Morgan.

Apart from speculation, Mr. Lance lacked evidence about what

Edward Morgan might have seen. For example, Mr. Lance points out that

guards sometimes entered the pods. But the summary-judgment record

doesn’t contain any evidence suggesting that Edward Morgan had entered

the pods when working the late shift on Friday or Saturday night.

We addressed a similar gap in the complaint in Quintana v. Santa Fe

Cty. Bd. of Comm’rs, 973 F.3d 1022 (10th Cir. 2020). There a guard saw an

inmate who was allegedly suffering from a severe illness. Id. at 1030

(discussing the dismissal of a claim against Officer Valdo). But we upheld

the dismissal because the complaint hadn’t identified symptoms that the

guard would have seen. Id.

Here too we have only speculation that Edward Morgan might have

entered the pods and seen Mr. Lance suffering from priapism. But the

summary-judgment record contains no evidence on

• whether Edward Morgan entered the pods,

• whether he would have seen Mr. Lance, or

10

• whether Edward Morgan’s observation would have reflected the

intensity or duration of Mr. Lance’s pain.

Mr. Lance also relies on Edward Morgan’s presence in the tower on

Friday and Saturday nights. For example, Mr. Lance presents statements

that

• he strolled the dayroom with a visible erection and

• his pain was obvious.

From the tower, Edward Morgan might have seen into the dayroom if there

had been adequate lighting. But Mr. Lance presented no evidence about

• the lighting in the dayroom during Edward Morgan’s shifts on

Friday and Saturday nights or

• Mr. Lance’s possible presence in the dayroom on Friday and

Saturday nights.

We thus conclude that Edward Morgan’s job responsibilities—

moving around the facility and conducting sight checks from the control

tower during the night shifts—do not show knowledge about Mr. Lance’s

priapism and need for treatment.

Mr. Lance also argues that Edward Morgan

• was in the tower from 11:00 on Friday night until 6:00 on

Saturday morning and

• must have received a call from Mr. Lance during that time

because Mr. Lance later testified that he had called the tower

every shift to report pain and request medical attention.

11

For this argument, Mr. Lance relies on testimony about unclear log entries

and speculation that Edward Morgan entered the tower about 2:30 a.m. But

Mr. Lance admits that he talked only once with Edward Morgan and didn’t

complain of pain or ask for medical help.

Because Mr. Lance failed to satisfy the subjective prong, the district

court properly granted summary judgment to Edward Morgan.

(3) Mike Smead

On the two days after Mr. Lance took the pill, Mr. Mike Smead

worked from 6:00 a.m. to 6:00 p.m. Mr. Lance testified that

• he had told Mr. Smead about taking the pill, the existence of a

prolonged erection, and the need to see the nurse,

• he had shown his penis to Mr. Smead a couple of times and

complained about the condition whenever he saw Mr. Smead,

• Mr. Smead had seen Mr. Lance with his pants off and Mr.

Lance explained that he was tucking his pants underneath his

groin to diminish the pain when sitting down, and

• Mr. Smead had snickered when he saw Mr. Lance’s erection.

In addition to this testimony, Mr. Lance points to the nurse’s account of

her discussion with Mr. Smead on Monday. The nurse had asked Mr.

Smead why he had not reported the condition, and he responded: “I thought

he [Mr. Lance] was just playing.” Appellant’s App’x vol. II, at 565.

Mr. Smead argues that this evidence doesn’t show deliberate

indifference because

12

• he didn’t know when a prolonged erection would become a

medical emergency,

• Mr. Lance hadn’t described the duration or cause of the

priapism, and

• there was no indication that the symptoms were alarming when

Mr. Smead had seen Mr. Lance.

But Mr. Lance satisfies the subjective prong through reports of pain, his

repeated requests for medical treatment, and other detainees’ insistence

that the need for medical attention was obvious. See McCowan v. Morales,

945 F.3d 1276, 1292 (10th Cir. 2019) (concluding that the subjective prong

was satisfied when a detainee repeatedly complained that he was in

excruciating shoulder pain and the officer disregarded the complaints for

about two hours); see also Mata v. Saiz, 427 F.3d 745, 755 (10th Cir.

2005) (concluding that a prisoner can satisfy the subjective prong through

evidence of pain caused by a delay in obtaining medical treatment).

Mr. Smead points out that he might not have recognized the severity

of Mr. Lance’s condition. But other detainees stated that Mr. Lance was

obviously continuing to suffer pain throughout the weekend. From the

other detainees’ accounts, “a factfinder [could] conclude that a [jail]

official knew of a substantial risk from the very fact that the risk was

obvious.” Farmer v. Brennan, 511 U.S. 825, 842 (1994).

We addressed a similar issue in Rife v. Oklahoma Department of

Public Safety, 854 F.3d 637 (10th Cir. 2017). There a detainee alleged

13

deliberate indifference to serious medical needs consisting of stomach

pain. Id. at 641–42, 652. The guards argued that they hadn’t known of the

pain because the detainee did not complain. Id. at 652. But another

detainee stated under oath that the plaintiff had groaned loudly, had

repeatedly complained, and had displayed obvious pain. Id. Given this

sworn account, we reversed the award of summary judgment to the jail

guards even though they had denied knowledge of the plaintiff’s pain. Id.

The same is true here because

• three detainees stated under oath that Mr. Lance had obviously

experienced pain throughout the weekend and

• Mr. Lance testified that he had reported his pain to Mr. Smead.

Given these sworn statements, Mr. Smead’s denial of awareness does not

justify summary judgment.

* * *

Like the district court, we conclude that a reasonable factfinder could

infer that Mr. Smead had been aware of a substantial risk of serious harm

and had knowingly disregarded that risk.

(4) Dakota Morgan

Among the jail guards was Mr. Dakota Morgan, who manned the

control tower on Friday afternoon. Mr. Lance stated that he had called the

control tower that afternoon and reported “[his] persistent erection, [his]

need for medical attention[,] and the considerable pain [he] was

14

experiencing.” Appellant’s App’x vol. III, at 660. While in the control

tower, Dakota Morgan would have conducted sight checks of the pod where

Mr. Lance was housed.

Given this evidence, the district court concluded that a reasonable

factfinder could infer that Dakota Morgan had been aware of a substantial

risk and had knowingly disregarded that risk. We agree.

In arguing to the contrary, the defendants

• point out that Mr. Lance couldn’t remember talking to Dakota

Morgan,

• discount the statements from other detainees that Mr. Lance

appeared to be in pain, and

• contrast Mr. Lance’s behavior when suffering from priapism

with readily observable symptoms like “collapsing, vomiting,

paleness, sweating or a repeatedly stated belief [that] his

condition was life threatening.”

Appellees’ (Chris Morris, Daniel Harper, & Dakota Morgan) Resp. Br. at

36–37. But Mr. Lance satisfies the subjective prong through his report of

pain and his request to see a nurse or a doctor. See McCowan v. Morales,

945 F.3d 1276, 1292 (10th Cir. 2019); Mata v. Saiz, 427 F.3d 745, 755

(10th Cir. 2005).

Even though Mr. Lance couldn’t remember talking to Dakota

Morgan, a factfinder could reasonably infer that they had talked when Mr.

Morgan was in the control tower. After all, Mr. Lance testified that he had

called the control tower on Friday afternoon, complaining of pain and

15

requesting medical treatment. And only one person manned the control

tower at any one time. On Friday afternoon, that person was Dakota

Morgan. So a reasonable factfinder could infer that Mr. Lance had

complained to Dakota Morgan about the pain.

The evidence suggests that Dakota Morgan not only responded to Mr.

Lance’s call but also saw into the pods through a large glass window

separating the tower from the common area.

See Durkee v. Minor, 841 F.3d 872, 876 (10th Cir. 2016) (rejecting a jail

guard’s summary-judgment argument that he hadn’t seen an inmate in the

visiting room partly because he could be seen through a large rectangular

window). Mr. Lance explained that any guard in the tower could see the

16

dayroom, which was only about ten yards away. And the former sheriff

testified that guards in the tower could view a surveillance video from a

camera in the pod.

Given the evidence of the call on Friday afternoon and Dakota

Morgan’s view of the dayroom, a reasonable factfinder could infer that he

had been aware of a substantial risk of serious harm and had knowingly

disregarded that risk.

(5) Daniel Harper

Another jail guard was Daniel Harper. The district court concluded

that the factfinder could reasonably infer that Mr. Harper had known about

Mr. Lance’s persistent erection, and we agree based on two facts:

1. Mr. Harper had distributed breakfast trays on Monday morning,

three days into Mr. Lance’s priapism.

2. Mr. Lance had asked for medical treatment whenever the meal

trays were delivered.

From these facts, a factfinder could reasonably infer that Mr. Lance

complained to Mr. Harper when he delivered the breakfast tray on Monday

morning. Mr. Lance has thus satisfied the subjective prong for the claim

against Mr. Harper.

C. Violation of a Clearly Established Right

Although Mr. Lance satisfied the objective and subjective prongs for

the claims against Mike Smead, Dakota Morgan, and Daniel Harper, they

17

alternatively urge qualified immunity based on the lack of a clearly

established right.

A constitutional right is clearly established if all reasonable jail

guards would have understood that their conduct had violated the

Constitution. Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam). This

understanding may arise from a precedent or weighty authority from other

courts. Halley v. Huckaby, 902 F.3d 1136, 1144 (10th Cir. 2018).

Mr. Lance argues that our precedents have clearly established a jail

guard’s constitutional obligation to obtain medical care when (1) a

detainee experiences severe pain and (2) the jail guard controls access to

medical care. For this argument, Mr. Lance relies on McCowan v. Morales,

945 F.3d 1276 (10th Cir. 2019). There a detainee repeatedly complained

that he had reinjured his shoulder and was in “excruciating” pain. Id. at

1293. An officer ignored the detainee’s complaints and waited two hours

before providing access to medical care. Id. at 1292. We denied qualified

immunity, likening the facts to Olsen v. Layton Hills Mall, 312 F.3d 1304

(10th Cir. 2002). McCowan, 945 F.3d at 1293.

In Olsen, we had concluded that qualified immunity was unavailable

for an official who ignored reports of a detainee’s mental health problems

and a panic attack. 312 F.3d at 1309, 1317. Olsen’s reasoning led the

McCowan panel to conclude that “[t]his constitutional violation [had been]

18

clearly established by August 2015,” which is when the McCowan plaintiff

had complained of shoulder pain. McCowan, 945 F.3d at 1292.

Mr. Lance also relies on another opinion involving a guard’s delay in

providing medical care to a prisoner: Sealock v. Colorado, 218 F.3d 1205

(10th Cir. 2000). There a prisoner was sweating, appeared pale, and

reported “crushing” chest pain, difficulty breathing, and vomiting. Id. at

1208. But a guard waited more than a day before sending the prisoner to

the hospital, where doctors discovered that he had suffered a major heart

attack. Id. We held that the prisoner had shown a guard’s deliberate

indifference in delaying medical treatment. Id. at 1210–11.

Finally, Mr. Lance relies on two other opinions stating that medical

delays may violate the constitution: Al-Turki v. Robinson, 762 F.3d 1188,

1195 (10th Cir. 2014) and Mata v. Saiz, 427 F.3d 745, 755 (10th Cir.

2005).

In response, the defendants make four arguments:

1. McCowan v. Morales, 945 F.3d 1276 (10th Cir. 2019), cannot

clearly establish the right because the opinion came after the

events here (December 2016).

2. Some of the cited opinions involve medical professionals and

did not supply notice of standards applicable to lay officers.

3. Some of the cited opinions involved conditions more serious

than Mr. Lance’s priapism.

4. “[Mr. Lance’s] articulation of qualified immunity yoked only to

‘pain,’ severe or not, however defined, would present a host of

practical problems in the jail context.”

19

Appellees’ (Edward Morgan & Mike Smead) Resp. Br. at 30. We reject

these arguments.

First, even though McCowan v. Morales, 945 F.3d 1276 (10th Cir.

2019) came after the delay in treating Mr. Lance’s priapism, we held there

that the right had been clearly established in August 2015, before the

events involving Mr. Lance. Id. at 1294; see pp. 18–19, above.

Second, it’s not fatal that some of the cited opinions involved

medical professionals. We did address the liability of medical

professionals in Al-Turki v. Robinson, 762 F.3d 1188, 1192 (10th Cir.

2014) and Mata v. Saiz, 427 F.3d 745, 755–61 (10th Cir. 2005). But those

opinions do not vitiate the duty of lay officials. In McCowan and Olsen, we

held that lay officials (just like medical professionals) can incur liability

for delays in providing medical treatment. See pp. 18–19, above.

Third, the scope of the constitutional duty isn’t diminished just

because some of our prior opinions involved potentially life-threatening

conditions. See, e.g., Sealock v. Colorado, 218 F.3d 1205, 1208 (10th Cir.

2000) (potential heart attack). We’ve not required a life-threatening

condition to trigger a constitutional duty to provide adequate medical care.

For example, we’ve held that guards acted with deliberate indifference by

waiting two hours to treat shoulder pain even though the pain wasn’t life-

20

threatening. McCowan v. Morales, 945 F.3d 1276, 1293–94 (10th Cir.

2019); see pp. 18–19, above.

Fourth, we reject the jail guards’ argument about the impracticality

of a standard based on pain. Mr. Lance’s arguments are grounded in the

controlling law, which establishes that a delay in providing medical care

may be sufficiently serious if the delay leads to substantial pain. See pp. 7,

13–14, above.

For these four reasons, we conclude that Mr. Lance’s evidence shows

that Mike Smead, Dakota Morgan, and Daniel Harper violated a clearly

established constitutional right. The district court thus erred in granting

their motions for summary judgment.

6. The County Policies

Mr. Lance sued the sheriff based on two of the county’s policies:

1. failing to train non-medical personnel on how to respond to

medical emergencies when the nurse was off site

2. releasing detainees who needed further medical attention rather

than driving them to a second hospital

On both claims, the district court granted summary judgment to the sheriff,

reasoning that

• the county’s policy on training had been adequate and

• the sheriff had not acted with deliberate indifference by

releasing detainees needing further hospitalization because Mr.

Lance was not harmed by the delay.

We disagree with these conclusions.

21

A. Failure to Train

To recover for a failure to train, Mr. Lance needs to prove three

elements:

1. the existence of a county policy or custom involving deficient

training

2. the policy or custom’s causation of an injury

3. the county’s adoption of a policy or custom with deliberate

indifference

Waller v. City & Cty. of Denver, 932 F.3d 1277, 1283–84 (10th Cir. 2019).

On appeal, Mr. Lance contends that a factfinder could reasonably infer

satisfaction of the first and third elements. 4

On the first element, the sheriff argues that Mr. Lance failed to

identify a policy that was obvious and “closely related” to his injury. See

Lopez v. LeMaster, 172 F.3d 756, 760 (10th Cir. 1999) (setting out the test

for the first element), abrogated in part on other grounds, Brown v.

Flowers, 974 F.3d 1178, 1182 (10th Cir. 2020). We disagree.

The county adopted a policy stating that “[s]upervisors will

determine the immediacy of medical complaints and take the appropriate

action.” Appellant’s App’x vol. II, at 404. But Mr. Lance presented

4

On the second element (causation), Mr. Lance needed to show that

“the injury [would] have been avoided had the employee been trained

under a program that was not deficient in the identified respect.” City of

Canton v. Harris, 489 U.S. 378, 391 (1989). But the sheriff has never

challenged the evidence of causation on the failure-to-train claim.

22

evidence that the county hadn’t trained employees how to determine “the

immediacy of medical complaints,” particularly when medical personnel

were away from the detention center. A reasonable factfinder could infer

that this deficiency in the training was both obvious and closely related to

Mr. Lance’s injury.

The former sheriff testified that county employees had taken courses

in first aid and CPR, had shadowed more experienced employees, and had

attended monthly safety meetings. But Mr. Lance presented evidence that

the employees had obtained no training on when to call a nurse or a doctor

when one was not on site. For example, two officers (Edward Morgan and

Daniel Harper) reported that they had not obtained any training on when a

medical condition involved an emergency. Edward Morgan testified:

Q. Was there any training that you were provided in being able to

assess the inmates from a medical standpoint?

A. No, sir, none.

Q. Are the jailers allowed to independently determine whether a

medical issue is serious?

. . . .

A. Yes.

Q. Okay. And you’d agree that there’s no training that provides

them the ability to assess somebody independently, right?

A. Correct. Yes, sir.

Q. Would that be the same for the sergeant also?

23

A. Yes.

Appellees’ (Daniel Harper, Dakota Morgan, & Chris Morris) Supp. App’x

at 144. 5 Given this evidence, the factfinder could reasonably infer that the

county had provided deficient training on how to detect a medical

emergency.

On the third element, the plaintiff must show deliberate indifference.

See p. 22, above. Deliberate indifference can exist when a county fails to

train jail guards on how to handle recurring situations presenting an

obvious potential to violate the Constitution. Allen v. Muskogee, 119 F.3d

837, 842 (10th Cir. 1997). But how can we tell, after the fact, that a

5

In responding to the summary-judgment motion, Mr. Lance also

submitted this deposition testimony from Stephen Sparks on the lack of

training:

Q. Are the individual jailers allowed to independently

determine whether somebody is going through a serious

medical event?

A. No.

Q. And why not?

. . . .

[A.]: Because we didn’t have the proper training to determine

whether it was a serious emergency or not.

Deposition of Stephen Sparks, Lance v. Pittsburg Cty. Bd. of Cty.

Comm’rs, No. 6:17-cv-00378-RAW (E.D. Okla. 2019), ECF No. 172, Ex.

18, at 27. But this deposition excerpt does not appear in the appellate

appendices.

24

problem would recur often enough to require training? See Carr v. Castle,

337 F.3d 1221, 1230 (10th Cir. 2003) (discussing “the omniscience of

hindsight” to determine whether additional training could have helped

police officers in an encounter). Given the difficulty of answering after the

fact, the Second Circuit Court of Appeals has devised a three-part test:

1. [T]he county’s policymakers know “‘to a moral certainty’ that

[their] employees will confront a given situation.”

2. “[T]he situation either presents the employee with a difficult

choice of the sort that training or supervision will make less

difficult.”

3. “[T]he wrong choice . . . will frequently cause the deprivation

of a citizen’s constitutional rights.”

Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir. 1992) (quoting

City of Canton v. Harris, 489 U.S. 378, 390 n.10 (1989)); see also Okin v.

Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 440 (2d Cir.

2009) (same test).

We are persuaded by the logic of this test, for it provides a sensible,

workable way to determine whether a particular problem is likely to recur

enough to alert county officials to an obvious deficiency in the training. In

applying the three-part test, we conclude that a factfinder could reasonably

infer deliberate indifference.

First, a factfinder could reasonably determine that county

policymakers had known “to a moral certainty” that jail guards would need

to independently assess detainees’ medical conditions. The only medical

25

professional on site was a nurse, who worked 8–5 during the workweek.

But medical emergencies will obviously occur sometimes on evenings and

weekends, when the nurse was off duty. Given the inevitability of medical

emergencies after hours, jail guards would frequently need to decide

whether a medical condition warranted an after-hours call to the nurse.

Second, a factfinder could reasonably determine that training would

have helped jail guards make the difficult decision of whether to call the

nurse when she was off duty. The defendants themselves underscore the

difficulty of deciding whether to call the nurse when detainees complain of

pain after hours and on weekends. For example, Edward Morgan and Mike

Smead argue on appeal:

A generalized and inherently private and subjective sensation,

like pain, is difficult to posit as a “condition” of which others

are to be aware . . . . Pain is also variable with limited passage

of time and variable with individuals, in terms of pain tolerance

and anxiety or reaction to pain.

Appellees’ (Edward Morgan & Mike Smead) Resp. Br. at 30.

Given the difficulty of assessing the seriousness of a pain complaint,

jail guards were directed to notify the shift sergeant whenever a medical

problem arose that might require the nurse’s involvement. Appellant’s

App’x vol. III, at 644; see also Appellees’ (Chris Morris, Daniel Harper, &

Dakota Morgan) Resp. Br. at 50 (arguing on appeal that “jailers were

required to submit [detainees’] medical request form[s] up their chain-of-

command, i.e., to their shift sergeant”).

26

But the sergeants themselves lacked training on how to make the

difficult decision of whether to contact the nurse. For example, Mr. Smead

was a sergeant who urged summary judgment based in part on his own lack

of medical knowledge on whether a condition would constitute a medical

emergency:

[Mr. Smead] 6 was a Sergeant, a shift supervisor jailer, and not a

medical professional. He cannot be imputed with medical

knowledge. Apart from the obvious medical emergencies, such

as excessive bleeding or someone unconscious, it was not his

decision whether something constituted a medical emergency or

required medical care. He was not certain on the timeframe of

when a persistent erection could become harmful or a medical

emergency.

Appellant’s App’x vol. I, at 200 (citation omitted). And Mr. Smead argues

on appeal that “[i]n 2016, [he], as a layperson sergeant, did not have an

informed or medically correct understanding of how long an erection could

persist before it was harmful or a medical emergency.” Appellees’ (Edward

Morgan & Mike Smead) Resp. Br. at 4–5 (citing Appellees’ (Edward

Morgan & Mike Smead) Supp. App’x at 133); see also id. at 20 (Mr. Smead

arguing on appeal that he “did not know how long an erection could persist

before it thereby became a medical emergency”).

6

The motion says “Morgan” rather than “Smead,” but the name

reflects a typographical error. The motion was Mike Smead’s, not Edward

Morgan’s. The same counsel represented both Mike Smead and Edward

Morgan, and a similar statement appears in Edward Morgan’s motion for

summary judgment.

27

Third, a factfinder could reasonably determine that the jail guards’

lack of training would frequently lead to disregard of serious pain

complaints, violating detainees’ constitutional right to medical care. Here,

for example, Mr. Smead testified that he would regard a lengthy erection as

a medical issue after one or two days. Mr. Smead’s standard departs from

the medically informed view, for the urologist testified that medical

attention was necessary when Mr. Lance’s erection had persisted for four

hours. Even the former sheriff admitted that he would “want to joke about”

a detainee’s priapism lasting multiple days. Appellees’ (Daniel Harper,

Dakota Morgan, & Chris Morris) Supp. App’x at 97. A factfinder could

thus reasonably infer that constitutional violations would frequently occur

because jail guards would mistakenly choose not to call the nurse when

detainees complain of a subjective sensation like pain.

For these reasons, we conclude that the district court erred in

granting summary judgment to the sheriff on the failure-to-train claim.

B. The Policy Requiring Release Before Further

Hospitalization

Mr. Lance also challenges the grant of summary judgment on his

claim involving the county’s policy on release before further

hospitalization. Mr. Lance maintains that he presented evidence on each of

the three elements: (1) a county policy or custom, (2) causation, and

(3) deliberate indifference. Waller v. City & Cty. of Denver, 932 F.3d

28

1277, 1283–84 (10th Cir. 2019); see p. 22, above. The sheriff challenges

the existence of evidence on each element.

For the first element, the plaintiff points to evidence that a physician

directed guards to take Mr. Lance directly to a hospital about 90 miles

away, where a urologist was waiting to operate. The county argues that this

evidence conflicts with the physician’s discharge form. But this conflict

creates a fact issue, which we must resolve favorably to Mr. Lance on

summary judgment. See Part 4, above.

Mr. Lance also presents evidence of the policy itself, explaining that

the county would not allow transfers of detainees from one medical facility

to another. The county instead required detainees to be returned to the

detention center for release on their own recognizance.

For the second element, Mr. Lance observes that this policy delayed

needed treatment from a specialist. After unsuccessful treatment at the

local hospital, county employees returned Mr. Lance to the detention

facility at about 1:00 p.m. Roughly 6 hours later, Mr. Lance finally arrived

at the second hospital. Mr. Lance testified that his pain had intensified

during this 6-hour period.

For the third element, Mr. Lance contends that the policy showed

deliberate indifference. We agree. The factfinder could reasonably infer

that delays in specialized treatment would inevitably result from the

county’s policy. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1318 (10th

29

Cir. 2002) (stating that a municipality is deliberately indifferent when it

obtains actual or constructive notice that an action is substantially certain

to cause a constitutional violation and the municipality chooses to

disregard this risk).

The sheriff disagrees, arguing that the county had policies in place to

ensure appropriate medical care from outside sources. For this argument,

the sheriff cites testimony from the nurse that

• she did not believe that Mr. Lance had needed immediate

transportation to the second hospital and

• officials decided on a case-by-case basis whether to release

inmates from the jail.

The sheriff’s argument does not support the grant of summary

judgment. Although the policy may have been applied differently in other

circumstances, a factfinder could reasonably attribute the delay in Mr.

Lance’s treatment to the decision to release him rather than take him to the

second hospital. See Ramos v. Lamm, 639 F.2d 559, 577–78 (10th Cir.

1980) (upholding a finding of deliberate indifference based partly on

deficiencies in the prison’s resources for transporting prisoners to civilian

medical facilities). Mr. Lance languished in pain while he waited for

transportation to the second hospital. That pain resulted directly from the

jail guards’ refusal to drive Mr. Lance to the second hospital.

* * *

30

We conclude that the district court erred in granting summary

judgment to the sheriff on the claim involving a policy requiring release

before further hospitalization.

7. Conclusion

We affirm the grant of summary judgment to Edward Morgan in his

individual capacity. But we reverse the grant of summary judgment on

• the individual-capacity claims against Mike Smead, Dakota

Morgan, and Daniel Harper; and

• the official-capacity claim against Chris Morris.

31