Opposition Brief — Martinez v. Beggs (No. 09-87)

No. 09-87 Ronee:

Dun The

Supreme Court of the Anited States

GINGER MARTINEZ, individually and

as Personal Representative of the

Estate of Kenneth Wayne Ginn,

Petitioner,

DeWAYNE BEGGS, as Sheriff of Cleveland County;

DAVID EPPS; KEVIN BRANDON; CLEVELAND

COUNTY BOARD OF COUNTY COMMISSIONERS;

TOMMY EDWARDS; GILBERT KIRKLAND,

Respondents.

.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

6

BRIEF IN OPPOSITION

*

DAVID W. LEE

Counsel of Record for Respondents

LEE LAW CENTER, PC.

6011 N. Robinson Avenue

Oklahoma City, OK 73118-7425

(405) 848-1983

Fax: (405) 848-4978

CKLE LAW BRIEF PRINTING CO (800) 225-6964

IR CALL COLLECT (402 42-2831

bo

COUNTER-STATEMENT OF

QUESTIONS PRESENTED

Whether the County can be held liable under 42

U.S.C. § 1983 when there has been no underlying

violation of the United States Constitution by its

officers.

Whether the County Officers and the County

were deliberately indifferent to Decedent’s seri-

ous medical needs when he was arrested, and

then booked into the County jail, and then later

died of a heart attack.

Whether the County Officers and the County had

notice that Decedent had a serious medical need,

whether an inference could be drawn that a

substantial risk of serious harm existed and

whether they actually drew the inference.

TABLE OF CONTENTS

Page

COUNTER-STATEMENT OF QUESTIONS PRE-

SEN’ T Ea) »~:<<ssvesseeeneeealemenaiieses Tire envessoeess i

TABLE CoP Br cc cccccccccccese ili

COUNTER-STATEMENT OF THE CASE............. 1

REASONS FOR DENYING THE PETITION ....... 3

I. THERE IS NO CONFLICT BETWEEN

THE COURTS OF APPEAL WITH RE-

GARD TO THE REQUIREMENT THAT

THERE BE AN UNDERLYING CONSTI-

TUTIONAL VIOLATION BEFORE A

COUNTY OR MUNICIPALITY CAN BE

HELD LIABLE UNDER 42 U.S.C. §1983.. 3

Il. THE COURT OF APPEALS AND THE

DISTRICT COURT CORRECTLY HELD

THAT SUMMARY JUDGMENT SHOULD

BE GRANTED IN FAVOR OF THE

COUNTY OFFICERS AND THE COUNTY;

THERE WAS NO DELIBERATE INDIF-

FERENCE TO ANY SERIOUS MEDICAL

NEED INVOLVING DECEDENTGINN.... 8

CON CLUB cccent a icersscescescccssccee. 16

TABLE OF AUTHORITIES

Page

CASES

Adams v. Auburn Hills, 336 F.3d 515 (6th Cir.

SIE F sisiinsassccsVonsasadencasuaieangianieumeer tans eee aaa ca 6

Bukowsky v. City of Akron, 326 F.3d 702 (6th

GaRIK SPD ucsscdalvenscaseveatedaveces ues ieeaneuscinauarecetaetadeieeaees 7

Cagle v. Sutherland, 334 F.3d 980 (11th Cir.

I sacscsickesnonoepusseks ea cumple eae ieesnea aaa acanttnen cada arene 6

Camuglia v. City of Albuquerque, 448 F.3d

Re ee Sis BE knee avax ek caencenanincodene secant 6

Case v. Eslinger, 555 F.3d 1317 (11th Cir. 2009)......... 4

City of Los Angeles v. Heller, 475 U.S. 796

CI ivivscasccntargusccscespceee ee oa eee 4

Cook ex rel. Tessier v. Sheriff of Monroe County,

GOB Fe BOOS CAGE CA, Fis sess evcsvcksvcenicsssvarssssenec 6

Estate of Hocker v. Walsh, 22 F.3d 995 (10th

ET ED ics insenddnseaspotsuiabeusesuaesteea see aan 10

Estate of Larsen ex rel. Sturdivan v. Murr, 511

Pe ES CEG Ci, Be ia Siicsstactetticrereretcreeiscnans 5

Farmer v. Brennan, 511 U.S. 825 (1994) ...... 9,10

Findlay v. City of Tulsa, 561 P.2d 980 (Okla.

COPRU, FA BIE Pecan acc seisansnccksa conection 14

Graves v. Thomas, 450 F.3d 1215 (10th Cir.

BED x xisen since suuee vio naedcaesaneceseiaiasauen eae a ae ee 6

Hall v. County of Nemaha, 509 F. Supp. 2d 821

CED, TG, BIO T Ds saxeconsssasccsvincorece renal ee ee 11

iv

TABLE OF AUTHORITIES — Continued

Page

Hines v. Henson, 293 Fed. Appx. 261 (5th Cir.

MIEN TD as xischsis 4s ed taliban ald pha i enaeel erica co aenseatiaiiedaneaneit 10

Jenkins v. Bartlett, 487 F.3d 482 (7th Cir. 2007)......... 5

Jennings v. City of Stillwater, 383 F.3d 1199

I, SII «hares cikcs couse coeeevarscnssensas A camnaianwinosaecasnes 6

Kiser v. City of Huron, 219 F.3d 814 (8th Cir.

RRR ALR et on Ma Reo aR EN TENE eRe UG De sat OR te ae TONE S 7

Livsey v. Salt Lake County, 275 F.3d 952 (10th

CO EN cass cies Sadana as bose vnsnensiccincteeceseanar on cemaminesenneen 7

Long v. City and County of Honolulu, 511 F.3d

Be A Se as Ca cicseciccd sscpasccencanndnd cdaticksiaceesnns vend 5

Martinez v. Beggs, 563 F.3d 1082 (10th Cir.

IED s.cxukvipstidanuticdiace cas anebexasbwadsesiacssademelcemes tid passim

Mecham v. Frazier, 500 F.3d 1200 (10th Cir.

sSNPs On Ree PIE De 5 MEI er eren Aes RIOR U ET ere eR 5

Patrick v. Lewis, 397 F.Supp. 2d 1134 (D.

I sre a anal eaten aoe ueieaiae 11

Proffitt v. Ridgway, 279 F.3d 503 (7th Cir.

ET nsx nica cae evoasnseeetcamcaavaraben usta wane aseiinceeaasares 7

Scott v. Clay County, 205 F.3d 867 (6th Cir.

SIN ins ss tiskinkce tipiccusancnrtinnnsenilesuak tas anoma tanamee cmneubend 7

Segal v. City of New York, 459 F.3d 207 (2d Cir.

PTE scckiiiciisavndccsh abnqsunguiiontacabiauiicg ile saasausaulabe biasasaeee ise tt+0site 5

Trigalet v. City of Tulsa, 239 F.3d 1150 (10th

NE Bs ds did casas ai iraubu ead asec seeupautaceaasunaseenceesstbetes 7

Woodward v. Correctional Medical Services,

re ee 0 ee i, ED ose van cdien ves vaceasesvcosaiisanseces 6

TABLE OF AUTHORITIES — Continued

Page

STATUTES

Pe Ne Te ONE is cia visnsckvvessasaseuvddvsacecustsbennencest passim

OKLAHOMA STATUTES

Ce OR EF ROS OO acs vevecvcicencicesinconcacstsensets 14

a ae ae ee B.D y ¢ ee ereeeenrer er srerererre: 13

1

COUNTER-STATEMENT OF THE CASE

Petitioner Martinez, individually and on behalf

of the estate of her father, brought this lawsuit under

42 U.S.C. § 1983, and the Oklahoma Governmental

Tort Claim Act, Okla. Stat. tit. 51, §§ 151-172, against

Respondents DeWayne Beggs, Sheriff of Cleveland

County, Kevin Brandon, David Epps, James Bullard,

Tommy Edwards, and Gilbert Kirkland (“County

Officers”), and the Board of County Commissioners of

Cleveland County (“County”), regarding the death of

Kenneth Wayne Ginn (“Ginn”) in the Cleveland

County Detention Center (“CCDC”).

Ginn was arrested on the charge of public

intoxication and placed in the CCDC on May 2, 2006.

Aplt. App. at 101.’ Ginn was 49 years old at the time

of his death. When Ginn was arrested, even though

he did not appear to be injured in any way, Kirkland,

the first deputy on the scene offered him medical

assistance, but Ginn declined his offer. Aplt. App. at

92; 101. At the time of his arrest and incarceration,

Ginn appeared to be intoxicated, was belligerent and

combative with the deputies, did not appear to be

injured, recognized persons around him, and he was

able to walk. Aplt. App. at 92; 101; 108. Although

intoxicated, Ginn was cognizant of his surroundings

and his circumstances, and was argumentative with

’ Aplit. App. at __, refers to the record filed in United

States Court of Appeals in this case.

2

the deputies regarding the fact that he had been

arrested. Aplt. App. at 93; 108-109.

Ginn was taken by Kirkland to the CCDC. Apit.

App. at 93-94. After his arrival at the CCDC, Ginn

was able to walk into the building with the assistance

of jailers. Ginn never complained to Kirkland of any

injury or illness, and he did not appear at any time to

be injured or ill. Aplt. App. at 92; 94; 96; 101.

When Ginn was placed in his cell at the CCDC,

Ginn was able to follow the instructions of the jailers.

Aplt. App. at 120. When the jailers left Ginn, he was

conscious. Aplt. App. at 120.

Approximately three hours after he was placed in

a CCDC receiving cell, he was found unconscious and

determined to be dead. Aplt. App. at 126-127. The

Medical Examiner determined that the cause of death

was “[sludden heart attack due to coronary artery

disease.” Aplt. App. at 134. At the time of the autopsy,

Ginn’s blood alcohol level was .32. Aplt. App. at 135.

In order to recover under 42 U.S.C. § 1983

against any of the County Officers, or the County,

Martinez was required to show that the officers were

deliberately indifferent to Ginn’s serious medical

needs, and that this was the cause of his death. The

District Court correctly held that Martinez failed to

do this.

In its Order of January 24, 2008, the District

Court granted summary judgment in favor of all

Defendants. On April 21, 2009, the Tenth Circuit

3

upheld the granting of summary judgment in favor

of all County Officers, and the County. Martinez v.

Beggs, 563 F.3d 1082 (10th Cir. 2009).

+

REASONS FOR DENYING THE PETITION

I. THERE IS NO CONFLICT BETWEEN THE

COURTS OF APPEAL WITH REGARD TO

THE REQUIREMENT THAT THERE BE

AN UNDERLYING CONSTITUTIONAL VIO-

LATION BEFORE A COUNTY OR MUNICI-

PALITY CAN BE HELD LIABLE UNDER

42 U.S.C. § 1983.

Petitioner Martinez brought this lawsuit under

42 U.S.C. § 1983 against County Officers DeWayne

Beggs, Sheriff of Cleveland County, Kevin Brandon,

David Epps, James Bullard, Tommy Edwards, and

Gilbert Kirkland, and under the Oklahoma

Governmental Tort Claim Act, Okla. Stat. tit. 51,

§§ 151-172, against the Board of County Commis-

sioners of Cleveland County (“County”) regarding the

death of Kenneth Wayne Ginn (“Ginn”) in the

Cleveland County Detention Center (“CCDC”) on May

2, 2006.

In this case, Martinez v. Beggs, 563 F.3d 1082,

1091 (10th Cir. 2009), the Tenth Circuit held that the

sheriff and county were not liable because there was

no showing of any underlying constitutional violation

by any of its officers. The court of appeals also held

that Sheriff Beggs could not be held liable in his

A

individual capacity or for implementing county

policies or for the actions of county officers under a

theory of supervisory liability, when there was no

violation of Ginn’s constitutional rights. Jd. at 1092.

With regard to the plaintiff’s claim that the

county may still be liable for a “systemic injury”

caused by the interactive behavior of several govern-

ment officials, each of whom may be acting in good

faith, the court held that even under this theory, a

municipality cannot be held liable for constitutional

violations where there was no underlying constitu-

tional violation by any of its officers. Jd. at 1092.

In her Petition at 14, Petitioner claims that

courts have split on the question of whether a county

(or a municipality) can be held liable for violating a

person’s constitutional rights when there is no under-

lying constitutional violation by any of its officers.

This is an incorrect statement. The Tenth Circuit’s

ruling in Martinez followed that of the Supreme

Court in City of Los Angeles v. Heller, 475 U.S. 796,

799 (1986) (if officer acted constitutionally, city

cannot be held liable; a municipality cannot be held

hable under § 1983 in the absence of an underlying

constitutional] violation).

The opinion of the Tenth Circuit in the present

case was also consistent with its own precedent, and

with all other courts of appeals decisions around the

country. See, e.g., Case v. Eslinger, 555 F.3d 1317,

1328 (11th Cir. 2009) (holding that the sheriff and the

city were also entitled to summary judgment because

5

§ 1983 does not authorize the award of damages

against a municipal corporation based on the actions

of one of its officers when in fact the officer inflicted

no constitutional harm); Estate of Larsen ex rel.

Sturdivan v. Murr, 511 F.3d 1255, 1264 (10th Cir.

2008) (to establish a prima facie case for failure to

train or supervise in an excessive force case, a

plaintiff must demonstrate the officers in question

exceeded the constitutional limitations on the use of

force; holding that since no constitutional violation

occurred, the estate of a person shot by the police

could not proceed on this § 1983 claim); Long v. City

and County of Honolulu, 511 F.3d 901, 907 (9th Cir.

2007) (a police officer acted reasonably in using

deadly force to shoot and kill an armed suspect who

had barricaded himself in his residence, because the

officer had probable cause to believe that the suspect

posed an immediate threat of serious physical harm

to him and other officers; therefore, the city could not

be held liable under § 1983, holding that if no consti-

tutional violation occurred, the municipality cannot

be held liable); Mecham v. Frazier, 500 F.3d 1200,

1205 n.5 (10th Cir. 2007) (if a person has suffered no

constitutional injury at the hands of the individual

police officer, the fact that the departmental regula-

tions might have authorized the use of constitu-

tionally excessive force is quite beside the point);

Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007)

(“there can be no liability under Monell for failure to

train where when there has been no violation of the

plaintiff’s constitutional rights.”); Segal v. City of

New York, 459 F.3d 207, 219 (2d Cir. 2006) (holding

6

that absent an underlying constitutional violation

arising from the dismissal of the probationary

teacher, there was no basis for a Monell liability

against the city for an alleged failure to train a

municipal investigator who prepared the report in the

teacher’s case); Graves v. Thomas, 450 F.3d 1215,

1218 (10th Cir. 2005) (stating that a municipality

may not be held liable where there was no underlying

constitutional violation by any of its officers);

Camuglia v. City of Albuquerque, 448 F.3d 1214, 1223

(10th Cir. 2006) (“‘A municipality may not be held

liable for an alleged civil rights violation where there

was no underlying constitutional violation by any of

its officers.’”); Cook ex rel. Tessier v. Sheriff of Monroe

County, 402 F.3d 1092, 1115 (llth Cir. 2005) (“A

§ 1983 claim is predicated on an alleged violation of

an underlying constitutional right.”); Jennings v. City

of Stillwater, 383 F.3d 1199, 1205 n.1 (10th Cir. 2004)

(noting that a municipality cannot be held liable for

constitutional violations unless its officers committed

a constitutional violation); Woodward v. Correctional

Medical Services, 368 F.3d 917, 929 (7th Cir. 2004)

(noting that a municipality cannot be found liable if

there is no finding that the individual officer is liable

on the underlying substantive harm); Adams uv.

Auburn Hills, 336 F.3d 515, 520 (6th Cir. 2003)

(holding that without an underlying constitutional

violation, the question of whether the officer was

entitled to qualified immunity is moot); Cagle uv.

Sutherland, 334 F.3d 980, 989 (11th Cir. 2003) (with

regard to a jail suicide, because no underlying consti-

tutional violation existed with regard to deliberate

7

indifference to a known risk of suicide, the sheriff, as

the supervisor, was entitled to summary judgment);

Bukowsky v. City of Akron, 326 F.3d 702, 712-13 (6th

Cir. 2003) (“Because the City ... can only be held

liable if there is a showing of liability on the part of

its officials, the determination that the City’s officials

did not violate the plaintiffs’ constitutional rights

resolves the claim against the City as well.”); Proffitt

v. Ridgway, 279 F.3d 503, 507 (7th Cir. 2002) (because

the officer did not violate the arrestee’s constitutional

rights, the city was in the clear as well); Livsey v. Salt

Lake County, 275 F.3d 952, 958 (10th Cir. 2001) (“A

municipality may not be held liable for the actions of

its employees if those actions do not constitute a

violation of a plaintiff’s constitutional rights.”);

Trigalet v. City of Tulsa, 239 F.3d 1150 (10th Cir.

2001) (city could not be held liable under § 1983 in

the absence of a constitutional violation by police

officers; this is true even if city’s policies, training,

and supervision of other officers were uncon-

stitutional); Kiser v. City of Huron, 219 F.3d 814, 816

(8th Cir. 2000) (city could not be held liable under

§ 1983 for the alleged failure to train police officers

adequately when the underlying warrantless arrest

was supported by probable cause); Scott v. Clay

County, 205 F.3d 867, 879 (6th Cir. 2000) (court’s

ruling that no officer had deprived plaintiff of any

constitutional right defeated the claim against county

as well).

8

Il, THE COURT OF APPEALS AND THE

DISTRICT COURT CORRECTLY HELD

THAT SUMMARY JUDGMENT SHOULD BE

GRANTED IN FAVOR OF THE COUNTY

OFFICERS AND THE COUNTY; THERE

WAS NO DELIBERATE INDIFFERENCE

TO ANY SERIOUS MEDICAL NEED

INVOLVING DECEDENT GINN.

In order to recover under 42 U.S.C. § 1983

against any of the County Defendants, Martinez was

required to show that the officers were deliberately

indifferent to Ginn’s serious medical needs, and that

this was the cause of his death. The Tenth Circuit

correctly upheld the District Court’s granting of

summary judgment to County Defendants. Because

the defendants did not violate Ginn’s constitutional

rights, the court held that there was no need to

address whether those rights were clearly established

for qualified immunity purposes. Martinez v. Beggs,

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

In this case, the court of appeals held that

arresting officers and custodian officers had no reason

to suspect that the detainee, who was intoxicated,

posed a risk of heart attack and death, as required to

support the § 1983 claim that the officers violated the

Fourteenth Amendment by allegedly being deliber-

ately indifferent to the detainee’s serious medical

needs. Martinez, 563 F.3d at 1090-91. The court

observed that Ginn was asked by an officer who first

arrived at the scene, Kirkland, if he was all mght and

if he needed any medical assistance. Ginn said he was

9

all right and did not need medical assistance. /d. at

1085. The supervisor who arrived at the scene, Lt.

Barbara McSwain, told the officers she knew Ginn

personally and that Ginn was an alcoholic. Jd. at

1085. The officers told Ginn that if he did not leave

the third party’s property, they would have no choice

but to arrest him for public intoxication, but Ginn

refused to leave. Jd. He was arrested for public

intoxication.

Ginn was then taken to the Cleveland County

Detention Center. Ginn was able to walk into the

detention center with assistance from the two

receiving detention officers. Jd. at 1086-87. These two

detention officers, Brandon and Epps, took him to a

cell and Ginn complied with the request to kneel

down so his handcuffs could be removed. Brandon,

Epps and Kirkland last saw Ginn alive and resting

his arms on the cell bench. /d. at 1087. Approximately

three hours after Ginn first arrived, Brandon

returned to the receiving cell and found Ginn dead,

with his body in a kneeling position. /d. at 1087. The

cause of death was sudden heart attack due to

coronary artery disease, and that the death was

caused by heart attack rather than acute alcohol

intoxication. The medical examiner stated in her

report that the acute alcohol intoxication would be a

contributing factor to the death. /d. at 1087.

In Martinez, 563 F.3d at 1089, the Tenth Circuit

cited the case of Farmer v. Brennan, 511 U.S. 825,

834 (1994) and noted that a prison official cannot be

liable under the Eighth Amendment for denying an

10

inmate humane conditions of confinement unless the

official knows of and disregards an excessive risk to

the inmate’s health or safety. The court in Martinez

correctly applied Farmer, holding that an official

alleged to have been deliberately indifferent must be

both aware of the facts from which the inference

could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference. /d.

The court observed that the Supreme Court has

cautioned that an obvious risk cannot conclusively

establish an inference that the official subjectively

knew of the substantial risk of harm, because a

prison official may show that the obvious escaped

him. /d. at 1089.

The court of appeals stated that in a deliberate

indifference case involving a suicide, a plaintiff is

required to show that defendants were deliberately

indifferent to the specific risk of suicide, and not

merely to the risk of intoxication. Jd. at 1089. The

court of appeals’ opinion was consistent with its

previous opinions on a similar issue. See Estate of

Hocker v. Walsh, 22 F.3d 995, 1000 (10th Cir. 1994)

(holding that a jail detainee’s intoxication alone is not

sufficient to impose § 1983 liability for a subsequent

suicide; the court upheld the granting of summary

judgment in favor of Cleveland County and its sheriff

in a jail suicide case where the jail detention staff did

not know and had no reason to know of a specific risk

of suicide). It is also consistent with other federal

court holdings in this issue. See Hines v. Henson, 293

Fed. Appx. 261, 262-63 (5th Cir. 2008) (summary

11

judgment upheld where officers were unaware that

decedent had a stroke prior to his arrest, where

§ 1983 plaintiff was arrested for public intoxication,

transported to jail exhibiting signs of intoxication and

suffered a stroke after release); Hall v. County of

Nemaha, 509 F. Supp. 2d 821, 825, 833 (D. Neb. 2007)

(summary judgment denied to jailer who was aware

that arrestee had ingested methamphetamine, but

summary judgment was upheld with regard to arrest-

ing officers who were unaware of ingestion of meth-

amphetamine and arrestee acted like an intoxicated

person who appeared to suffer nothing more than a

drug induced stupor while in jail); Patrick v. Lewis,

397 F.Supp. 2d 1134, 1141-42 (D. Minn. 2005)

(overnight jailer was not deliberately indifferent to

arrestee’s serious medical needs despite knowledge of

arrestee’s intoxication where he appeared to not have

a medical need).

In the present case, the sufficiently serious sub-

jective harm that Ginn faced was heart attack and

death, not acute intoxication. Martinez, 563 F.3d at

1090. The court of appeals agreed with the district

court’s determination that there was no evidence in

the record of any symptoms or signs that indicated

that Ginn would suffer a heart attack. Jd. The court

stated that the officers subjectively knew that Ginn

was intoxicated, but there is no evidence to show that

anyone would have known that Ginn would face an

imminent heart attack or death, much less that the

individual county defendants subjectively knew that

Ginn was at risk of heart attack or death. Jd. at 1090.

12

In Martinez, the court of appeals pointed out that

Ginn was conscious, on his feet, argumentative and

cognizant that he was being arrested. /d. at 1091.

Ginn was not unconscious and showed no obvious

symptoms indicating a risk of serious harm. Jd. The

court held that nothing in the record indicated that

Ginn exhibited symptoms that would predict his

imminent heart attack or death.

As was noted, to establish deliberate indifference,

the record must show that officers knew of and

disregarded an excessive risk to Mr. Ginn’s health

and safety. The record in this case did not show facts

that from which an inference could be drawn that a

substantial risk of heart attack and death existed and

that the defendants actually draw that inference.

There was nothing to indicate that Ginn needed

medical treatment, and he declined it when it was

offered to him. Ginn did not have any medications of

any kind on his person, and he did not have any

medical ID bracelet or similar item, indicating he had

any kind of medical condition, which would have

alerted County Officers to the alleged need for

medical treatment. Furthermore, there is no case law

which, when considered with the facts discussed

above, would require County Officers to have taken

Ginn to a medical facility, in lieu of incarceration, or

to have given Ginn a breathalyzer test to determine

his level of intoxication.

When Ginn was arrested, even though he did not

appear to be injured in any way, Kirkland offered him

medical assistance, but Ginn declined his offer. Aplt.

13

App. at 92; 101. Ginn told Kirkland he was alright.

Aplt. App. at 92. Ginn displayed no external injuries.

Aplt. App. at 94. Edwards asked Ginn is he had

ingested anything except alcohol, and Ginn told him

that he had not. Aplt. App. at 103.

On the way to jail, Epps asked Ginn if he was

alright, and Ginn said that he was. Aplt. App. at 119.

When they arrived at the jail, Ginn was awake. Upon

arriving at the jail, Ginn attempted to kick Brandon

as Ginn was getting out of the car. Aplt. App. at 114.

When Ginn was placed in his cell at the CCDC,

Ginn was able to follow the instructions of the jailers.

When the jailers left Ginn, he was conscious. Aplt.

App. at 115; 120. He never requested medical

assistance from any jailer. Aplt. App. at 116; 120.

Ginn was conscious at the time of arrest and at

the time he was placed in the jail cell. Aplt. App. at

119-120. Ginn made no complaints of pain or distress

or of a heart condition, and displayed no sign of

heaving ingested drugs. Ginn had no breathing

problems, no mental health issues, and had no medical

identification or medicine on his person. There were no

complaints from Mr. Ginn of any pain or distress.

Aplt. App. at 120; 126. Ginn made no request for

assistance. Aplt. App. at 94; 96. Ginn had no signs of

external injuries. Aplt. App. at 94. The officers did not

know what Ginn’s blood alcohol level was.

Ginn had no serious health condition of which

any officer was aware. Ginn never vomited and never

exhibited choking. There were no signs that Ginn

14

would suffer a heart attack, or that he was in any

pain or distress. Ginn never grabbed his heart area,

or complained of numbness in his arms. There was no

indication that Ginn was mentally ill. There was no

mention by Ginn of any previous heart condition.

Ginn never said he was sick. Ginn was merely

intoxicated. When the officers left the cell, Ginn was

conscious. Aplt. App. at 120.

The Tenth Circuit correctly held that to be liable

under 42 U.S.C. § 1983, the officers must be aware of

the facts from which an inference could be drawn that

a substantial risk of serious harm exists, and they

must also actually draw the inference. Martinez, 563

F.3d at 1089. In this case, there was nothing to show

that officers were aware that Ginn faced a

substantial risk of a heart attack and required

medical attention.

Martinez has also contended that the County

Officers should have ascertained Ginn’s level of

intoxication when he was brought to the CCDC. How-

ever, under Oklahoma law, evidence of the alcohol

concentration of a persen’s breath or blood is not

required to arrest or charge that person for public

intoxication. Okla. Stat. tit. 47, §§ 751-754; Findlay v.

City of Tulsa, 561 P.2d 980, 984-85 (Okla. Crim. App.

1997) (holding that a defendant arrested for public

intoxication was not entitled to a breathalyzer or

blood test). Therefore, Ginn was not given a

breathalyzer to determine the level of his intoxication

since he was arrested for public intoxication. Aplt.

App. at 109-110.

15

The persons present at the scene of the arrest

had significant training and experience with regard

to handling medical issues. Lt. McSwain had been a

hospital Naval corpsman for six years and an EMT in

New York state for ten years. Aplt. App. at 107.

Kirkland was a twenty-one year Marine Corps

veteran. Aplt. App. at 91; 228. Kirkland had been a

drug abuse counselor in the Marines for approxi-

mately the last 1¥2 years he was in the Marine Corps.

Aplt. App. at 229-230. The Sheriff’s office provided

CPR and first aid classes to its officers. Aplt. App. at

261.

Furthermore, the persons who came in contact

at the jail with Ginn, County Officers Brandon and

Epps, were experienced with certifications and exten-

sive training. Aplt. App. at 113; 118. And Brandon

had first aid training in the United States military

and served two tours of duty and had training as a

certified Combat Life Saver. Aplt. App. at 261.

The decision of the Tenth Circuit was correct, and

this Court should deny this Petition.

+ -

16

CONCLUSION

The Petition is unfounded, and there is no sound

basis to grant it. County Officers and the County

respectfully request that the Petition be denied.

Respectfully submitted,

DAvID W. LEE

Counsel of Record

LEE LAW CENTER, P.C.

6011 N. Robinson Avenue

Oklahoma City, OK 73118-7425

(405) 848-1983

Fax: (405) 848-4978

Email address:

leelawok@swbell.net

Attorneys for Respondents

DeWayne Beggs, Kevin Brandon,

David Epps, Board of County

Commissioners of Cleveland

County, Tommy Edwards, and

Gilbert Kirkland

Dated: August 24, 2009