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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2009

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0781%3A2. Public record. Not legal advice.