Estate of Tomas Beauford v. Correct Care Solutions ( 2022 )

Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 25, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ESTATE OF TOMAS BEAUFORD;
TIFFANY MARSH, personally and as
representative of the estate of Tomas
Beauford,
Plaintiffs - Appellants,
v. No. 21-1010
MESA COUNTY, COLORADO;
CORRECT CARE SOLUTIONS, LLC;
CORRECTIONAL HEALTHCARE
COMPANIES, INC.; CORRECTIONAL
HEALTHCARE PHYSICIANS, P.C.;
CORRECTIONAL HEALTHCARE
MANAGEMENT, INC.; SHERIFF MATT
LEWIS, in his official capacity; DEPUTY
PETER M. DALRYMPLE; DEPUTY
RICHARD D. PERKINSON; NURSE
RENEE WORKMAN; NURSE VELDA
HAVENS; NURSE AUDRA KEENAN;
NURSE JEANNE ANNMARIE SCHANS;
MICHAEL LEFEBRE, in his official and
individual capacities; DR. KURT
HOLMES, in his official and individual
capacities,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:16-CV-00851-DDD-GPG)
_________________________________
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 2
David A. Lane (Darold W. Killmer, Michael Fairhurst, and Andy McNulty with him on
the briefs), Killmer, Lane & Newman, LLP, Denver Colorado, for Plaintiffs – Appellants
Jacob Z. Goldstein (Eric P. Schoonveld, Theodore C. Hosna, and Casey Kannenberg with
him on the brief), Hall Prangle & Schoonveld, LLC, Chicago, Illinois, for CHC
Defendants – Appellees
Andrew B. Clauss (Chris W. Brophy with him on the brief), Dinsmore & Shohl LLP,
Denver, Colorado, for Mesa County Defendants – Appellees
_________________________________
Before McHUGH, MURPHY, and ROSSMAN, Circuit Judges.
________________________________
ROSSMAN, Circuit Judge.
_________________________________
After midnight on April 16, 2014, Tomas Beauford suffered a fatal epileptic
seizure in his cell while in pretrial custody at the Mesa County Detention Facility
(“MCDF”). The administrator of Mr. Beauford’s estate sued various Mesa County
and medical defendants1 in federal district court in Colorado under 42 U.S.C. § 1983alleging they were deliberately indifferent to Mr. Beauford’s serious medical needs in
violation of the Fourteenth Amendment. The district court granted summary
judgment to all defendants. Exercising jurisdiction under 28 U.S.C. § 1291, we
reverse the district court’s grant of summary judgment to Deputy Dalrymple, and
1
Mr. Beauford’s Estate sued Mesa County, Colorado; Sheriff Matt Lewis, in
his official capacity; and Deputies Richard D. Perkinson and Peter M. Dalrymple
(collectively “Mesa County Defendants”). The Estate also sued the private healthcare
companies that contracted with MCDF to provide medical services to inmates,
including Correct Care Solutions, LLC; Correctional Healthcare Companies, Inc.;
Correctional Healthcare Physicians, P.C.; and Correctional Healthcare Management,
Inc. (“CHC,” and collectively, “Entity Medical Defendants”), as well as the nursing
staff, physician, and mental health supervisor who oversaw Mr. Beauford’s care
(“Individual Medical Defendants”).
2
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 3
accordingly, we also reverse the grant of summary judgment to the Mesa County
Defendants on the Estate’s entity liability claim under Monell v. Department of
Social Services of New York, 436 U.S. 658 (1978). The district court’s order is
otherwise affirmed.
I. Background
A. Factual Background2
Mr. Beauford was a 24-year-old Black male who suffered from epilepsy. He
also had a severe intellectual disability and several mental health disorders, including
bipolar disorder, paranoid schizophrenia, attention hyperactivity disorder, and
oppositional defiant disorder. Mr. Beauford’s IQ was 52, and he functioned at the
level of a five- or six-year-old child.
Mr. Beauford was prescribed many medications, including anti-seizure
medicine, which he had a history of refusing. Mr. Beauford also had an implanted
Vagus Nerve Stimulator (“VNS”) to control his epilepsy. A VNS is a “bodily implant
that interferes with a seizure by sending a shock through the nervous system.” Aplt.
App. vol. 12 at 3292. The device “has a microprocessor that automatically stimulates
2
These facts derive from our de novo review of the appellate record. The
Estate filed a 30-volume appendix. But it appears volumes 14-30 are complete copies
of witness depositions, which were never submitted in their entirety to the district
court. Thus, we limit our review of the record to the materials in volumes 1-13,
which include those portions of deposition testimony presented to the district court.
See Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015) (“Although
our review of the record is de novo, we conduct that review from the perspective of
the district court at the time it made its ruling, ordinarily limiting our review to the
materials adequately brought to the attention of the district court by the parties.”)
(quoting Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1223 (10th Cir. 2008)).
3
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 4
the vagus nerve every few minutes,” and it also can be activated by a magnetic
bracelet. Id. It is undisputed that, at the time he was arrested, Mr. Beauford had a
VNS bracelet, but it was not with him when he died.
1. Mr. Beauford’s 2014 Detention at MCDF
On March 1, 2014, Mr. Beauford was arrested on charges of assault and
unlawful sexual contact and booked into MCDF. He was housed alone in a single
cell, located either in the booking area or in an administrative segregation area called
Cedar Pod.
Mesa County contracted with a private company—defendant CHC—to provide
medical services to inmates at MCDF. Defendant Dr. Kurt Holmes oversaw CHC’s
medical care services and defendant Michael LeFebre was the mental health
supervisor at MCDF. CHC also employed defendant nurses Velda Havens, Audra
Keenan, Jeanne Schans, and Renee Workman. Each of these defendants cared for
Mr. Beauford in some capacity while he was detained at MCDF.3
During his detention, Mr. Beauford refused medications about fifty percent of
the time. The defendant nurses encouraged him to take his medicine by offering his
favorite snacks, such as Taco Bell burritos and Sprite. Dr. Holmes and Mr. LeFebre
knew Mr. Beauford at times refused medication, including his anti-seizure medicine.
But they took no action other than to advise the nurses they should continue to offer
medication and to entice Mr. Beauford to take it.
3
Mr. Beauford had previously been detained at MCDF for about a month in
late 2013, but that detention is not the subject of this appeal.
4
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 5
Mr. Beauford’s physical and mental condition deteriorated at MCDF. On
March 20, Mr. LeFebre visited Mr. Beauford and marked his clinical status as
“poor.” Aplt. App. vol. 6 at 1718-19. The nursing staff logs reported Mr. Beauford
had developed a sore from spending so much time lying in bed in the same position.
He sometimes refused to eat. Mr. Beauford struggled to get dressed, sit up, stand, or
use the restroom on his own. He was sometimes found to be wet with urine. The jail
guards frequently called for the nurses to change Mr. Beauford’s clothes and bring
him a new adult diaper. The nurses often observed Mr. Beauford struggle—or
outright refuse—to verbalize his wants and needs. During his approximately
six-week detention, Mr. Beauford suffered documented seizures on March 1, 3,
and 18 and April 15. See Aplt. App. vol. 10 at 2778.
2. The Night of April 15-164
By the evening of April 15, Mr. Beauford had been refusing all medications,
including his anti-seizure medicine, for the past three days. That evening and through
the early morning of April 16, defendant Deputies Dalrymple and Perkinson were on
4
A written summary of MCDF’s video surveillance footage recorded on the
night of April 15 and the early morning hours of April 16 is part of the appellate
record, but the video itself is not. The video summary provides precise timestamps of
the events at issue in this appeal. See Aplt. App. vol. 8 at 2383. The video summary
appears to be consistent with the other record evidence, but there is a slight
difference—about a two-minute discrepancy—between some of the times
documented in the video-summary timestamps and the time of events described by
the deputies in their interviews and depositions. Any discrepancy in the times
reported and documented is minor, so it does not impact our analysis of the merits.
Unless otherwise noted, we rely on the times reported by the deputies, as the district
court did, and look to the video summary to fill in any gaps.
5
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 6
duty in Cedar Pod, along with Nurse Workman. Officers on the night shift conducted
inmate security checks every half hour as required by MCDF policy. The exact time
of each security check was recorded in the jail’s computer system. While one officer
performed the security check, the other officer staffed the pod station. Officers also
assisted the on-duty nurse with medication rounds and took inmate head counts.
Deputies Dalrymple and Perkinson each conducted security checks from
6:00 p.m. to 7:20 p.m. on April 15 and observed no issue with any inmate. Aplt. App.
vol. 8 at 2282-83. During a security check at 7:50 p.m., Deputy Perkinson stepped
into Mr. Beauford’s cell to pick up a dinner tray. He observed Mr. Beauford grunting
underneath his blanket. Deputy Perkinson thought Mr. Beauford was probably
masturbating and otherwise “seemed normal,” so he did not talk to him. Id. at 2283.
“[A]ll seemed okay” with Mr. Beauford during the next security check at 8:20 p.m.
Id.
Around 8:40 p.m., Deputy Perkinson and Nurse Workman were on medication
rounds when they came to Mr. Beauford’s cell and observed him “on the bed, and
completely covered by a blanket.” Id. Deputy Perkinson first thought Mr. Beauford
might be masturbating again. But “due to how he was shaking” and knowing that Mr.
Beauford was an epileptic, Deputy Perkinson “had a second thought that
Mr. Beauford may be seizing.” Id. Deputy Perkinson and Nurse Workman entered
Mr. Beauford’s cell and discovered he was having a seizure. Nurse Workman turned
Mr. Beauford on his side and sat with him through the duration of the seizure, which
6
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 7
lasted five more minutes. Deputy Perkinson and Nurse Workman then left Mr.
Beauford’s cell at 8:49 p.m. to finish medication rounds. Id. at 2383.
At 9:01 p.m., Deputy Dalrymple performed another security check. Id. He
looked into Mr. Beauford’s cell and saw him lying on his bed shaking with his eyes
open. Deputy Dalrymple said nothing to Mr. Beauford and continued on to complete
his check of other inmates. When interviewed by an MCDF officer a few hours after
Mr. Beauford died, Deputy Dalrymple said he reported the shaking to Deputy
Perkinson, who had assured him that, according to Nurse Workman, Mr. Beauford
would be “fine.” Id. at 2282. At his deposition, Deputy Dalrymple likewise testified
he had reported the shaking to someone but was uncertain whether he told Deputy
Perkinson or Nurse Workman. Id. at 2311.
Deputy Perkinson and Nurse Workman returned to Mr. Beauford’s cell at 9:21
p.m. Id. at 2284, 2383. Mr. Beauford refused to let Nurse Workman take his vitals
and asked them to leave. Nurse Workman assured Deputy Perkinson that Mr.
Beauford would be fine and she did not instruct the deputies to conduct extra
monitoring of Mr. Beauford.
The deputies completed more security checks about every half-hour over the
next several hours, and each time, observed Mr. Beauford laying on his bed, reading
7
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 8
or sleeping. After doing a security round at 10:15 p.m., Deputy Perkinson moved off
Cedar Pod to other duties, leaving Deputy Dalrymple as the only officer on the pod.5
During his security check at 11:55 p.m., Deputy Dalrymple saw Mr. Beauford
laying on the floor of his cell, facedown, with his head under his desk. Id. at 2281,
2310. Deputy Dalrymple used his flashlight to illuminate Mr. Beauford and watched
him for a few moments. He knew Mr. Beauford often slept in unusual positions in his
cell and believed Mr. Beauford was breathing because he saw Mr. Beauford’s covers
rising and falling. Id. at 2282. Deputy Dalrymple then finished his security check and
returned to the pod officer station.
On his next security round at around 12:15 a.m.,6 Deputy Dalrymple observed
Mr. Beauford lying motionless in the same position on the floor of his cell. This time,
however, Deputy Dalrymple “could not tell for sure” if Mr. Beauford was breathing.
Id. at 2282-83. After completing his security check, Deputy Dalrymple alerted
medical personnel he had observed Mr. Beauford lying on the floor of his cell.
“About ten minutes passed between Deputy Dalrymple’s observation and his call to
5
Deputy Dalrymple took a lunch break around this time, so two other
deputies—including one deputy trainee—oversaw Cedar Pod and did the security
checks at 11:00 p.m. and 11:30 p.m. They did not note any concerns about
Mr. Beauford or any other inmate; neither officer is named as a defendant in this
case.
6
The parties rely on Deputy Dalrymple’s recollection that the time was
“about” 12:15 a.m., but the video summary documents this event at 12:17 a.m.
Compare Aplt. App. vol. 8 at 2282 with 2383.
8
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 9
the [MCDF] medical staff.” Aplt. App. vol. 12 at 3293. Around 12:25 a.m.,7 Deputy
Dalrymple and Nurse Workman entered Mr. Beauford’s cell and found him
unresponsive.
Nurse Workman retrieved a medical kit while Deputy Dalrymple started CPR
and other staff called 911. Deputies moved Mr. Beauford into the “dayroom area
outside the cell door in order to have room for resuscitation.” Aplt. App. vol. 6
at 1548. Nurse Workman used a portable defibrillator and deputies performed chest
compressions until paramedics arrived. These rescue efforts were unavailing.
Mr. Beauford was pronounced dead at approximately 2:45 a.m. on April 16, 2014.
Aplt. App. vol. 7 at 1924. An autopsy concluded Mr. Beauford suffered “[s]udden
unexpected death in epilepsy.” Id. at 1926; see also id. at 1923. Toxicology tests
showed low blood concentrations of four anti-seizure medications.
B. Procedural History
In 2016, the Estate filed the underlying lawsuit alleging8 (1) § 1983 claims
against all defendants for violations of Mr. Beauford’s Fourteenth Amendment right
to adequate medical care; (2) a § 1983 claim against all defendants for violation of
Mr. Beauford’s Fourteenth Amendment right to life without due process of law
7
Again, the parties rely on Deputy Dalrymple’s estimate that this happened
around 12:25 a.m. but the video summary shows it occurred at 12:28 a.m. Compare
Aplt. App. vol. 8 at 2282 with 2383.
8
The operative complaint is the Estate’s third amended complaint.
9
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 10
against all defendants;9 (3) a claim against Mesa County for violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132; (4) a wrongful death
claim against the Medical Defendants premised on medical negligence; and (5) a
state-law survival claim against all defendants.
The Mesa County Defendants moved for summary judgment on all claims
asserted against them. The Medical Defendants moved for summary judgment on the
§ 1983 medical-care claims, and Nurse Havens also moved for summary judgment on
the medical negligence claim asserted against her.
The district court granted the Mesa County Defendants’ summary judgment
motion in its entirety. The court concluded Deputies Perkinson and Dalrymple were
entitled to qualified immunity on the Estate’s deliberate indifference claim because
(1) the Estate failed to show the deputies violated Mr. Beauford’s Fourteenth
Amendment rights, and (2) no clearly established law put the deputies on notice that
they could not rely on Nurse Workman’s medical advice or that Deputy Dalrymple
“needed to immediately call for help after seeing Mr. Beauford on the floor of his
cell.” Aplt. App. vol. 12 at 3306-07 (district court’s emphasis). The district court also
granted summary judgment to the County on the Estate’s ADA and Monell claims.
9
The Estate advances no appellate challenge to the district court’s summary
judgment ruling on the claim of deprivation of life without due process of law.
Accordingly, we consider it waived. See State Farm Fire & Cas. Co. v. Mhoon,
31 F.3d 979, 984 n.7 (10th Cir. 1994) (explaining appellant’s failure to raise issue in
opening brief waives the point).
10
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 11
The district court granted in part the Medical Defendants’ motion.10 Finding
the Medical Defendants ineligible for qualified immunity, the district court then
determined there was insufficient evidence to show the Individual Medical
Defendants were deliberately indifferent to Mr. Beauford’s serious medical needs.
And because none of the Individual Medical Defendants committed a constitutional
violation, the district court further found the Entity Medical Defendants could not be
liable under Monell.
The district court certified its interlocutory order for immediate review under
Federal Rule of Civil Procedure 54(b), rendering the order final and appealable. See
HCG Platinum, LLC v. Preferred Prod. Placement Corp., 873 F.3d 1191, 1199 n.7
(10th Cir. 2017) (noting the district court’s judgment ripened into a final and
appealable order when the district court subsequently certified the judgment as final
under Rule 54(b)). This appeal followed.
II. Discussion
A. Standard of Review
We review the grant of summary judgment de novo, and apply the same legal
standard used by the district court under Federal Rule of Civil Procedure 56(c). Allen
v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). Summary judgment is appropriate
10
The district court denied Nurse Havens’s motion for summary judgment on
the Estate’s medical negligence claim against her. The court also granted summary
judgment in favor of the Mesa County Defendants on the Estate’s state-law survival
claim, holding that “‘survival’ isn’t a separate cause of action under Colorado law,”
and that in any event, the Estate had made no argument regarding that claim.
Aplt. App. vol. 12 at 3329 n.12. The Estate does not challenge this ruling on appeal.
11
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 12
if “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)). A disputed fact is
“material” if it might affect the outcome of the suit under the governing law, and the
dispute is “genuine” if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The summary judgment standard requires us to construe the facts in the light
most favorable to the nonmovant and to draw all reasonable inferences in its favor.11
See Lance v. Morris, 985 F.3d 787, 793 (10th Cir. 2021). We do not have to accept
versions of the facts contradicted by objective evidence, such as video surveillance
footage. See Scott v. Harris, 550 U.S. 372, 380 (2007). “To defeat a motion for
summary judgment, evidence, including testimony, must be based on more than mere
speculation, conjecture, or surmise.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir.
2006) (citation omitted). “Unsubstantiated allegations carry no probative weight in
summary judgment proceedings.” Id. (citation omitted).
11
The Estate seems to suggest reversal is warranted solely because the district
court misapplied the summary judgment standard. This contention is articulated only
in a conclusory manner in argument headings and otherwise not meaningfully
advanced in the Estate’s appellate briefing. Accordingly, we do not consider it. See
Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (“[P]erfunctory
[allegations of error that] fail to frame and develop an issue [are] [in]sufficient to
invoke appellate review.”). Even if the Estate had appropriately framed and
developed this argument, we would reject it. Though we conclude the district court
erred in granting summary judgment to Deputy Dalrymple based on qualified
immunity, we otherwise discern no error in the district court’s application of the
summary judgment standard.
12
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 13
We review summary judgment orders deciding qualified immunity questions
differently from other summary judgment decisions. See Nelson v. McMullen,
207 F.3d 1202, 1205-06 (10th Cir. 2000) (“This difference arises from the unique
nature of qualified immunity, which is designed to protect public officials from
spending inordinate time and money defending erroneous suits at trial.”). The
doctrine of qualified immunity shields government officials from liability where
“their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a
defendant asserts qualified immunity at summary judgment, the burden shifts to the
plaintiff, who must demonstrate on the facts alleged that (1) the defendant’s actions
violated his or her constitutional or statutory rights, and (2) the right was clearly
established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d
1101, 1107 (10th Cir. 2009). “If, and only if, the plaintiff meets this two-part test
does a defendant then bear the traditional burden of the movant for summary
judgment—showing ‘that there are no genuine issues of material fact and that he or
she is entitled to judgment as a matter of law.’” Gutteridge v. Oklahoma, 878 F.3d
1233, 1239 (10th Cir. 2018) (quoting Nelson, 207 F.3d at 1206).
In the final analysis, even when qualified immunity is at issue, “the defendant
still bears the normal summary judgment burden of showing that no material facts
remain in dispute that would defeat the qualified immunity defense.” Olsen v. Layton
Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002). “When the record shows an
13
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 14
unresolved dispute of historical fact relevant to this immunity analysis, a motion for
summary judgment based on qualified immunity should be ‘properly denied.’” Id.
at 1312 (quoting Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th Cir. 1991)).
B. Constitutional Right to Adequate Medical Care for Pretrial Detainees
The right to custodial medical care is well settled. See generally Estelle v.
Gamble, 429 U.S. 97 (1976). “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.” Lance, 985 F.3d at 793; see also Clark
v. Colbert, 895 F.3d 1258, 1267 (10th Cir. 2018) (explaining the Eighth Amendment
includes “an entitlement to a certain minimum standard of medical care while
incarcerated”). “Although pretrial detainees are protected under the Due Process
Clause rather than the Eighth Amendment, this Court applies an analysis identical to
that applied in Eighth Amendment cases brought pursuant to § 1983.” Olsen, 312
F.3d at 1315.
Prison officials violate the Constitution when they act with “deliberate
indifference to an inmate’s serious medical needs.” Mata v. Saiz, 427 F.3d 745, 751
(10th Cir. 2005). “The deliberate indifference standard lies ‘somewhere between the
poles of negligence at one end and purpose or knowledge at the other.’” Id. at 752(quoting Farmer v. Brennan, 511 U.S. 825, 836 (1994)). The contours of
constitutional liability under the deliberate-indifference standard are familiar: there is
both an objective and a subjective component. See Farmer, 511 U.S. at 834. “[T]he
focus of the objective component is the seriousness of the plaintiff’s alleged harm,
14
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 15
while the focus of the subjective component is the mental state of the defendant with
respect to the risk of that harm.” Prince v. Sheriff of Carter Cnty., 28 F.4th 1033,
1044 (10th Cir. 2022).
To satisfy the objective component, the plaintiff must produce evidence that
the prisoner’s medical need was “sufficiently serious.” Farmer, 511 U.S. at 834(citation omitted). “A medical need is sufficiently serious if it is one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a
lay person would easily recognize the necessity for a doctor’s attention.” Sealock v.
Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (internal quotation marks omitted).
A delay in medical care can also be sufficiently serious if “the delay resulted in
substantial harm.” Mata, 427 F.3d at 751. “The substantial harm requirement may be
satisfied by lifelong handicap, permanent loss, or considerable pain.” Id. (internal
quotation marks omitted).
The subjective prong requires a plaintiff to establish that a prison official had
“a sufficiently culpable state of mind.” Farmer, 511 U.S. at 834 (internal quotation
marks omitted). “In prison-conditions cases that state of mind is one of deliberate
indifference to inmate health or safety.” Id. (internal quotation marks omitted).
Deliberate indifference means “the official knows of and disregards an excessive risk
to inmate health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Id. at 837.
15
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 16
“Whether a prison official had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways, including inference from
circumstantial evidence, and a factfinder may conclude that a prison official knew of
a substantial risk from the very fact that the risk was obvious.” Mata, 427 F.3d at 752(citation omitted). “This is so because if a risk is obvious so that a reasonable man
would realize it, we might well infer that the defendant did in fact realize it.” Id.(brackets and internal quotation marks omitted). But “prison officials who actually
knew of a substantial risk to inmate health or safety may be found free from liability
if they responded reasonably to the risk, even if the harm ultimately was not averted.”
Farmer, 511 U.S. at 844.
C. Analysis
The district court concluded Mr. Beauford’s epilepsy was a sufficiently serious
medical condition that satisfied the objective component of the
deliberate-indifference inquiry. The parties do not dispute this determination on
appeal. Our analysis thus focuses on the Estate’s contentions of error surrounding the
subjective prong of the deliberate-indifference standard. We consider first the
Estate’s argument that the district court erred by concluding Deputies Perkinson and
Dalrymple—the individual defendants who asserted a qualified immunity defense—
did not violate Mr. Beauford’s Fourteenth Amendment rights on the night of his
death. We then consider the Estate’s arguments about the subjective prong as it
applies to the challenged conduct of the Individual Medical Defendants, who are
16
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 17
ineligible for qualified immunity. See Tanner v. McMurray, 989 F.3d 860, 874
(10th Cir. 2021).12
1. Deputy Perkinson is entitled to qualified immunity, but the district court
erred in granting summary judgment to Deputy Dalrymple.
Deputies Perkinson and Dalrymple were both on duty at MCDF the night
Mr. Beauford died. We affirm the district court’s ruling granting summary judgment
to Deputy Perkinson, but we cannot reach the same conclusion with respect to
Deputy Dalrymple.
a. Deputy Perkinson
The district court ruled that Deputy Perkinson was entitled to qualified
immunity because the Estate’s deliberate indifference claim against him was not
supported by sufficient evidence. Deputy Perkinson sought the assistance of Nurse
Workman, the district court explained, and reasonably relied on her medical expertise
to treat and assess Mr. Beauford’s condition. On appeal, the Estate argues reversal is
required because Deputy Perkinson failed to summon medical attention when it was
obvious Mr. Beauford needed emergency care. We are not persuaded.
12
The district court, relying on Richardson v. McKnight, 521 U.S. 399 (1997),
rejected the assertion of qualified immunity by the Individual Medical Defendants.
Aplt. App. vol. 12 at 3308-10. While acknowledging our court had not yet reached
the question, the district court found it compelling that “every other circuit to address
the issue has determined that McKnight precludes the application of qualified
immunity to private medical professionals hired to work in a prison.” Id. at 3310. The
parties have not challenged this ruling on appeal and for good reason. Six months
after the district court entered its amended summary judgment order, we decided
Tanner v. McMurray, 989 F.3d 860, 874 (10th Cir. 2021), and like our sister circuits,
held qualified immunity is not available to private medical professionals employed
full-time in a detention facility.
17
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 18
The Estate’s contentions of error regarding Deputy Perkinson involve three
specific incidents on the night of Mr. Beauford’s death. First, the Estate argues
Deputy Perkinson was deliberately indifferent for “fail[ing] to check on or even ask
[Mr.] Beauford what was happening during the 7:50 p.m. [security] check” when he
observed Mr. Beauford grunting under his blanket. Aplt. Opening Br. at 50.
To satisfy the subjective inquiry, the Supreme Court requires actual
knowledge: “the official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Farmer, 511 U.S. at 837 (emphases added). A “factfinder may conclude
that a prison official knew of a substantial risk from the very fact that the risk was
obvious.” Id. at 842. But this exception requires that such risks present themselves as
obvious to the so-called “reasonable man.” See Mata, 427 F.3d at 752 (citing Garrett
v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001)). Viewing the evidence in the light
most favorable to the Estate, it would not have been “obvious” to Deputy Perkinson
at 7:50 p.m. that Mr. Beauford was having a seizure and required emergency medical
care such that a reasonable jury could infer deliberate indifference. See id.Hours after Mr. Beauford died, Deputy Perkinson was interviewed and said
only that Mr. Beauford was “under his blanket and grunting.” Aplt. App. vol. 8
at 2283. The Estate contends that, according to Deputy Perkinson’s observation, Mr.
Beauford was obviously experiencing a seizure. While it is possible Deputy
Perkinson witnessed a seizure at 7:50 p.m., the Estate has pointed to no evidence
showing Deputy Perkinson believed Mr. Beauford was seizing or otherwise drew the
18
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 19
inference Mr. Beauford faced a substantial risk of serious harm to his health or
safety. See Farmer, 511 U.S. at 837; cf. Martinez v. Beggs, 563 F.3d 1082, 1088
(10th Cir. 2009) (“The Supreme Court [has] cautioned that ‘an inadvertent failure to
provide adequate medical care’ does not rise to a constitutional violation.” (quoting
Estelle, 429 U.S. at 105-06)). Thus, the Estate has not carried its burden to show that
Deputy Perkinson’s failure to check on Mr. Beauford during the 7:50 p.m. rounds
amounted to deliberate indifference.
Deputy Perkinson recognized more troubling physical signs one hour later
while on medication rounds with Nurse Workman. At that time, Mr. Beauford was in
his cell and still “on the bed, and completely covered by a blanket.” Aplt. App. vol. 8
at 2283. Deputy Perkinson’s “first thought was Mr. Beauford was again
masturbating, however due to how he was shaking [Deputy] Perkinson had a second
thought that Mr. Beauford may be seizing.” Id. (emphasis added). Deputy Perkinson
and Nurse Workman entered Mr. Beauford’s cell and discovered he was having a
seizure. They stayed with Mr. Beauford until his seizure ended. And they both
returned to check on him about thirty minutes later.
The Estate argues that despite observing Mr. Beauford suffer “an over-five-
minute seizure, combined with an unusually long postictal [or, recovery] state,”
Deputy Perkinson was deliberately indifferent because he “did not transport [Mr.]
Beauford for emergent medical treatment at a hospital.” Aplt. Opening Br. at 50. The
Estate also maintains Deputy Perkinson “unreasonably rel[ied] on [Nurse]
19
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 20
Workman’s obviously deficient advice for the care of [Mr.] Beauford when it was
clear [he] needed emergency medical attention.” Id.The district court rejected this deliberate indifference claim, reasoning that
Deputy Perkinson “recognized a potential risk, asked the medical health professional
what to do about it, and followed her advice. Whether [he] might have done more
doesn’t alter the fact that what [he] did do is not a constitutional violation.” Aplt.
App. vol. 12 at 3304. We agree.
Prison officials generally may rely on the advice and course of treatment
prescribed by medical personnel. See McRaven v. Sanders, 577 F.3d 974, 981
(8th Cir. 2009) (“[A] prison official may rely on a medical professional’s opinion if
such reliance is reasonable.”); Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir.
2006) (“Except in the unusual case where it would be evident to a layperson that a
prisoner is receiving inadequate or inappropriate treatment, prison officials may
reasonably rely on the judgment of medical professionals.”) (citation omitted). Here,
the evidence, viewed in the light most favorable to the Estate, shows Nurse Workman
took the lead in providing medical care to Mr. Beauford, while Deputy Perkinson
helped securely hold him on the bed and “calm him down.” Aplt. App. vol. 5 at 1390.
They stayed with Mr. Beauford “until the seizure was over. And then when [Nurse
Workman] decided it was okay to leave, [they] exited the cell.” Id. at 1390. When
Deputy Perkinson returned later with Nurse Workman to check on Mr. Beauford,
they found him uncooperative. Mr. Beauford said, “something to the effect [of] ‘no,
leave me alone, let me go back to sleep.’” Aplt. App. vol. 8 at 2284. Deputy
20
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 21
Perkinson performed two more security checks before rotating off Cedar Pod; both
times Mr. Beauford was lying on his bed with the light off in his cell and did not
appear to be “in any type of medical distress.” Id.
As the district court correctly determined, this series of events does not evince
deliberate indifference by Deputy Perkinson to Mr. Beauford’s serious medical needs
sufficient to satisfy the subjective component of the Eighth Amendment inquiry.
Sealock, 218 F.3d at 1209. Deputy Perkinson alerted Nurse Workman to Mr.
Beauford’s “shaking” out of concern that Mr. Beauford may be seizing. Aplt. App.
vol. 8 at 2283. As a result, Mr. Beauford actually received medical care during a
critical time. That his condition worsened hours later does not mean Deputy
Perkinson acted with deliberate indifference at 8:40 p.m.
Finally, the Estate contends Deputy Perkinson acted with deliberate
indifference by failing to relay to medical personnel that, as Deputy Dalrymple
reported, Mr. Beauford was shaking at 9:00 p.m. Again, we disagree. The video
surveillance footage shows Nurse Workman checking on Mr. Beauford after Deputy
Dalrymple’s security round. Aplt. App. vol. 8 at 2383. Even if Deputy Perkinson
failed to relay the report as the Estate contends, this was immaterial under the
circumstances.
21
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 22
The district court correctly determined the Estate failed to establish a
constitutional violation. Thus, we affirm the grant of summary judgment to Deputy
Perkinson under the first prong of the qualified immunity analysis.13
b. Deputy Dalrymple
The district court also granted summary judgment to Deputy Dalrymple,
concluding he, too, was entitled to qualified immunity on the Estate’s deliberate
indifference claim. We agree with the Estate that the district court erred. The Estate
has carried its burden to meet the two-part qualified immunity test, see Gutteridge,
878 F.3d at 1238, and Deputy Dalrymple’s motion for summary judgment based on
qualified immunity should have been denied.
i. Constitutional Violation
As the district court acknowledged, there was a “ten-minute delay between
when [Deputy Dalrymple] saw Mr. Beauford lying on the floor of his cell at 12:15
a.m. and when he alerted the nursing staff to this fact.” Aplt. App. vol. 12 at 3304.
The district court excused Deputy Dalrymple’s delay in calling for medical help,
however, reasoning “the mere fact that an officer observes a prisoner laying on the
floor in the middle of the night is not, itself, enough to make it obvious to any lay
person that immediate medical attention is required.” Id. The district court concluded
the Estate had failed to show a constitutional violation.
13
Under these circumstances, we need not reach the Estate’s allegation of error
concerning the second prong of qualified immunity as applied to the claim against
Deputy Perkinson. See Pearson, 555 U.S. at 236 (courts may address either prong of
the qualified immunity test first).
22
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 23
The Estate contends the district court erred in its deliberate-indifference
analysis by focusing only on the “mere fact” that Deputy Dalrymple observed
Mr. Beauford motionless on the floor of his cell. As the Estate points out, Deputy
Dalrymple waited ten minutes to summon medical assistance even though, at
approximately 12:15 a.m., he was unsure if Mr. Beauford was breathing. The district
court’s failure to account for this fact and view it in the light most favorable to the
nonmovant, the Estate argues, is reversible error. We agree.
During the 11:55 p.m. security check, Deputy Dalrymple looked into
Mr. Beauford’s cell and noticed the light was shut off. Deputy Dalrymple used his
flashlight to illuminate Mr. Beauford and watched him for a few moments. He
observed Mr. Beauford lying on the floor, facedown, with his head under his desk. In
an interview statement given shortly after Mr. Beauford’s death, Deputy Dalrymple
said he was not concerned at the time about Mr. Beauford’s sleeping position because
“he ha[d] seen Mr. Beauford sleep in strange positions both on the floor and bed” so
it was not “that unusual for him.” Aplt. App. vol. 8 at 2282. He also stated he
“believe[d] he saw Mr. Beauford’s covers rising and falling indicating breathing.” Id.At about 12:15 a.m., Deputy Dalrymple conducted his next security round. He
“only waited about 15 minutes”—instead of the usual 30 minutes—so he could
“double check” on Mr. Beauford. Id. When interviewed on the night of Mr.
Beauford’s death, Deputy Dalrymple stated that, around 12:15 a.m., he looked inside
Mr. Beauford’s cell and “did not see any movement.” Id. He “knocked on the door
trying to get a response, but did not get any.” Id. At this time, Deputy Dalrymple
23
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 24
“could not tell for sure if Mr. Beauford was breathing or not, so he returned to his
officer station and got on the intercom trying to raise Mr. Beauford with negative
results.” Id. at 2282-83. Deputy Dalrymple said he “then got on the radio and asked
for the nurse and another deputy to respond to help his check on Mr. Beauford.” Id.
Approximately ten minutes later, at 12:25 a.m.,14 Deputy Dalrymple returned with
Nurse Workman, and together they entered Mr. Beauford’s cell.
Deputy Dalrymple’s deposition testimony, however, suggests he may have
thought Mr. Beauford was breathing at 12:15 a.m.:
I decided to, at the time, you know, because of what happened earlier and
with what Deputy Perkinson experienced with [Mr. Beauford] and previous
briefings before, hearing that he had had medical events, I thought I would
look into it a little bit more, which was why I did another security check
starting at 12:15, you know, and walked around.
And noticed that Mr. Beauford, as I came to his cell, he was in the same
position. I used my flashlight, thought that, you know, he was—and it
looked like his chest was rising and falling. He wasn’t uncontrollably
shaking.
So I even knocked on the door a couple times. “Mr. Beauford?”
“Mr. Beauford?” Got no response. It’s not uncommon for inmates when
they sleep, that they sleep hard and they don’t hear you initially. So I
continued on to finish the security check. Which prompted me to contact
the nursing staff.
Because I was not there to observe him when he had his medical event with
Deputy Perkinson, I contacted the medical staff and said, Okay, what’s
normal? You know, is this normal, or is this not normal? So I deferred to
Nurse [Workman].
...
14
The video summary shows Deputy Dalrymple and Nurse Workman entered
Mr. Beauford’s cell at 12:28 a.m. Aplt. App. vol. 8 at 2383.
24
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 25
I go back with Nurse [Workman]. We go back to the cell. She looks in, and
automatically—and looked at me and says, Start—muttered, Oh, shit, start
CPR compressions.
Aplt. App. vol. 8 at 2310.
The focus of the subjective component of the deliberate indifference inquiry is
the mental state of the defendant regarding the risk of harm. See Prince, 28 F.4th
at 1044. Whether Deputy Dalrymple “kn[ew] of and disregard[ed] an excessive risk
to inmate health or safety,” Sealock, 218 F.3d at 1209 (quoting Farmer, 511 U.S.
at 837), turns on his awareness, at approximately 12:15 a.m., that Mr. Beauford may
not have been breathing, see Mata, 427 F.3d at 752 (whether a prison official knew
of a substantial risk is a question of fact). According to his interview statement,
Deputy Dalrymple was not sure whether Mr. Beauford was breathing at 12:15 a.m.
Notwithstanding this uncertainty, Deputy Dalrymple waited ten minutes, completing
his security check before seeking medical assistance for Mr. Beauford. But according
to his deposition testimony, Deputy Dalrymple thought Mr. Beauford may have been
breathing at 12:15 a.m. but was just nonresponsive. Any doubt about whether
Mr. Beauford was in “obvious” medical distress is resolved by Nurse Workman’s
reaction when she arrived at Mr. Beauford’s cell at around 12:25 a.m.: “She looks in
[to Mr. Beauford’s cell], and automatically . . . muttered, Oh, shit, start CPR
compressions.” Aplt. App. vol. 8 at 2310 (emphasis added).
The standard of review requires us “to view the facts and draw reasonable
inferences ‘in the light most favorable to the party opposing the [summary judgment]
motion.’” Scott, 550 U.S. at 378 (alteration in original) (citation omitted). “In
25
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 26
qualified immunity cases, this usually means adopting . . . the plaintiff’s version of
the facts,” id., unless it is “blatantly contradicted by the record, so that no reasonable
jury could believe it,” id. at 380. When the facts in the summary judgment record,
and all reasonable inferences to be drawn from those facts, are viewed in the Estate’s
favor, a reasonable jury could believe Deputy Dalrymple acted with deliberate
indifference by waiting ten minutes to call for medical help even though he knew Mr.
Beauford might not be breathing.
A delay in medical care “only constitutes an Eighth Amendment violation
where the plaintiff can show the delay resulted in substantial harm.” Oxendine v.
Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (citation omitted). The substantial
harm requirement “may be satisfied by lifelong handicap, permanent loss, or
considerable pain.” Garrett, 254 F.3d at 950. Here, Mr. Beauford died. But our
conclusion that substantial harm can result from a ten-minute delay in securing
medical attention for an inmate who may not be breathing does not depend on the
benefit of hindsight. See Mata, 427 F.3d at 752 (deliberate indifference does not
require a corrections officer to “believ[e] that harm actually would befall an inmate;
it is enough that the official acted or failed to act despite his knowledge of a
substantial risk of serious harm”) (citation and emphasis omitted); see also Gordon
ex rel. Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006) (“Intentional delay in
providing medical treatment shows deliberate disregard if a reasonable person would
know that the inmate requires medical attention or the actions of the officers are so
dangerous that a knowledge of the risk may be presumed.”).
26
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 27
Whether Deputy Dalrymple was aware Mr. Beauford may not have been
breathing at 12:15 a.m. raises a material factual dispute directly relevant to the
qualified immunity analysis that precludes summary judgment. While we take no
position on the merits, this genuine dispute of material fact undermines the district
court’s conclusion that the Estate has not satisfied its burden to show a constitutional
violation at summary judgment. See Olsen, 312 F.3d at 1312 (“When the record
shows an unresolved dispute of historical fact relevant to [the qualified] immunity
analysis, a motion for summary judgment based on qualified immunity should be
properly denied.”) (internal citation omitted)).
Accordingly, on de novo review, we conclude the Estate has satisfied its
burden on the first prong of qualified immunity, and the district court erred in
concluding otherwise.
ii. Clearly Established Law
We now turn to the second prong of the qualified immunity analysis. “‘[T]he
salient question . . . is whether the state of the law’ at the time of an incident
provided ‘fair warning’ to the defendants ‘that their alleged [conduct] was
unconstitutional.’” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (alterations in original)
(quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). “[F]or the law to be clearly
established, there must be a Supreme Court or Tenth Circuit decision on point, or the
clearly established weight of authority from other courts must have found the law to
be as the plaintiff maintains.” Halley v. Huckaby, 902 F.3d 1136, 1149 (10th Cir.
2018) (citation omitted). Clearly established law should not be defined “at a high
27
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 28
level of generality,” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting Ashcroft v.
al-Kidd, 563 U.S. 731, 742 (2011)), and should be “particularized to the facts of the
case,” White v. Pauly, 137 S. Ct. 548, 552 (2017) (internal quotation marks omitted).
“It is not enough that a rule be suggested by then existing precedent; the ‘rule’s
contours must be so well defined it is clear to a reasonable [official] that his conduct
was unlawful in the situation he confronted.’” City of Tahlequah v. Bond, 142 S. Ct.
9, 11 (2021) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)).
“[T]here is little doubt that deliberate indifference to an inmate’s serious
medical need is a clearly established constitutional right.” Mata, 427 F.3d at 749; see,
e.g., Sealock, 218 F.3d at 1210-11 (concluding shift commander’s inaction
constituted deliberate indifference where inmate stated he might be having a heart
attack and displayed symptoms consistent with a heart attack). But more specifically,
“failing to provide . . . life-saving measures to an inmate in obvious need can provide
the basis for liability under § 1983 for deliberate indifference.” Sandoval v. Cnty. of
San Diego, 985 F.3d 657, 678-79 (9th Cir. 2021) (citation omitted) (alteration in
original). This includes delay—even brief delay—in summoning medical assistance,
resulting in either unnecessary pain or a worsening of the prisoner’s condition. Mata,
427 F.3d at 755; see also Bozeman v. Orum, 422 F.3d 1265, 1273 (11th Cir. 2005)
(“A delay in care for known unconsciousness brought on by asphyxiation is
especially time-sensitive and must ordinarily be measured not in hours, but in a few
minutes.”), abrogated on other grounds by Kingsley v. Hendrickson, 576 U.S. 389(2015); McRaven, 577 F.3d at 983 (seven-minute delay); Estate of Bradich v. City of
28
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 29
Chicago, 413 F.3d 688, 691-92 (7th Cir. 2005) (holding a ten-minute delay in
summoning assistance for inmate who had hanged himself could support finding of
deliberate indifference); Tlamka v. Serrell, 244 F.3d 628, 633-34 (8th Cir. 2001)
(holding a ten-minute delay in providing CPR or any other form of assistance to
unconscious inmate could support finding of deliberate indifference).
The district court concluded the Estate failed to identify “a relevant case
putting Deputy Dalrymple on notice that he needed to immediately call for help after
seeing Mr. Beauford on the floor of his cell, which, as explained, was a common
occurrence.” Aplt. App. vol. 12 at 3307 (district court’s emphasis). But, as we
explained, the district court’s framing was factually incomplete and thus misdirected
the clearly-established-law inquiry. The relevant case here is not one that would have
required Deputy Dalrymple to summon assistance immediately because Mr. Beauford
was lying on the floor of his cell. Rather, the question is whether Deputy Dalrymple
should have been on notice that the Constitution does not permit a ten-minute delay
in seeking medical help for an inmate who he knows may not be breathing.
Here, the contours of the right are clearly established such that any reasonable
officer in the situation Deputy Dalrymple confronted at 12:15 a.m. would know that
delay could violate the Constitution. See Estate of Booker v. Gomez, 745 F.3d 405,
434 (10th Cir. 2014) (denying qualified immunity where officers delayed seeking
medical care for three minutes after their use of force left inmate “limp and
unconscious”); Estate of Owensby v. Cincinnati, 414 F.3d 596, 603 (6th Cir. 2005)
(holding that arresting officers’ six-minute delay in seeking medical care for arrestee
29
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 30
who died of asphyxiation could evince deliberate indifference); McRaven, 577 F.3d
at 983 (denying qualified immunity where officer “made no attempt to resuscitate”
the prisoner “for seven minutes before paramedics arrive[d]”); Bozeman, 422 F.3d
at 1273 (“We also conclude that the Officers, who knew [the prisoner] was
unconscious and not breathing and who then failed for fourteen minutes to check
[his] condition, call for medical assistance, administer CPR or do anything else to
help, disregarded the risk facing [him] in a way that exceeded gross negligence.”);
Tlamka, 244 F.3d at 633 (“Based on the obvious and serious nature of [the inmate’s]
condition, the corrections officers’ alleged failure to even approach [the inmate]
during the maximum 10-minute period would rise to a showing of deliberate
indifference.”).
For these reasons, we also conclude the Estate has satisfied its burden on the
second prong of the qualified immunity test—to show Deputy Dalrymple violated a
clearly established constitutional right.
iii. Summary Judgment Ruling
Because Deputy Dalrymple asserted a qualified immunity defense at summary
judgment, the burden shifted to the Estate to demonstrate on the facts alleged that
(1) Deputy Dalrymple acted with deliberate indifference to Mr. Beauford’s serious
medical needs in violation of the Fourteenth Amendment, and (2) that the right was
clearly established at the time of the alleged misconduct. See Riggins, 572 F.3d
at 1107. As we have explained, the Estate has carried its burden to meet this two-part
test. See Gutteridge, 878 F.3d at 1238. Even when qualified immunity is at issue, the
30
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 31
defendant still must show that no material facts remain in dispute that would defeat
the qualified immunity defense. Whether Deputy Dalrymple was aware that Mr.
Beauford was not breathing is a material fact in genuine dispute. We cannot imagine
a more material fact in the context of the Estate’s deliberate indifference claim than
whether Deputy Dalrymple knew of the risk that Mr. Beauford was not breathing.
The district court failed to account for this dispute, which a reasonable jury could
resolve in favor of the Estate. Under these circumstances, we must reverse the district
court’s grant of summary judgment to Deputy Dalrymple.
2. The district court did not err by granting summary judgment to the
Individual Medical Defendants.
a. The Estate’s Claims Against Dr. Holmes and Mr. LeFebre
We turn now to the Estate’s contentions of error surrounding the district
court’s grant of summary judgment in favor of the medical staff at MCDF,15
beginning with Dr. Holmes and Mr. LeFebre—the two defendants who oversaw the
care Mr. Beauford received during his detention. The district court ruled the evidence
15
The Estate has taken a kitchen-sink approach to its appellate contentions
concerning the grant of summary judgment to the medical staff at MCDF. For
example, the Estate maintains the nurse defendants practiced beyond the scope of
their abilities and failed to provide appropriate care for Mr. Beauford’s seizures or
change his course of treatment. These arguments are presented in a conclusory
manner without factual and legal development, so we decline to address them. See
Stuart v. Erickson Living Mgmt., 822 F. App’x 682, 684 (10th Cir. 2020) (“We ‘will
not consider such issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation.’”) (quoting United States v. Wooten,
377 F.3d 1134, 1145 (10th Cir. 2004)); United States v. Davis, 622 F. App’x 758,
759 (10th Cir. 2015) (“[I]t is not this court’s duty, after all, to make arguments for a
litigant that he has not made for himself.”).
31
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 32
was insufficient to establish Dr. Holmes or Mr. LeFebre acted with deliberate
indifference to Mr. Beauford’s serious medical needs. The Estate challenges this
ruling on appeal, contending Dr. Holmes and Mr. LeFebre were deliberately
indifferent by depriving Mr. Beauford of access to his VNS bracelet and failing to
forcibly medicate him, transfer him to another facility, and ensure he received
appropriate psychiatric care. Viewing the facts in the light most favorable to the
Estate, we discern no error in the district court’s ruling.
“[A]bsent an extraordinary degree of neglect,” the subjective component of the
deliberate-indifference test is not satisfied “where a doctor merely exercises his
considered medical judgment.” Self, 439 F.3d at 1232. “So long as a medical
professional provides a level of care consistent with the symptoms presented by the
inmate, absent evidence of actual knowledge or recklessness, the requisite state of
mind cannot be met.” Id. at 1233.
Applying de novo review, we disagree with the Estate that Dr. Holmes and
Mr. LeFebre acted with deliberate indifference.16 Rather, the evidence supports the
conclusion they exercised medical judgment. For example, the Estate insists
16
We take no position on whether any of the Individual Medical Defendants
were medically negligent in providing (or failing to provide) care to Mr. Beauford.
See, e.g., Estelle, 429 U.S. at 105-06 (The “inadvertent failure to provide adequate
medical care” or “a complaint that a physician has been negligent in diagnosing or
treating a medical condition does not state a valid claim of medical mistreatment
under the Eighth Amendment.”); Self, 439 F.3d at 1233 (“[N]egligent failure to
provide adequate medical care, even one constituting medical malpractice, does not
give rise to a constitutional violation.”) (quoting Perkins v. Kan. Dep’t of Corr., 165
F.3d 803, 811 (10th Cir. 1999)).
32
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 33
Dr. Holmes and Mr. LeFebre should have pursued a forcible medication order
because Mr. Beauford only took his anti-seizure medication half the time. But as the
district court properly found, the evidence shows Mr. Beauford “had responded for
the most part to less-intrusive methods of encouragement.” Aplt. App. vol. 12
at 3314. But see Estate of Wright v. Lake City, No. 2:13-CV-333 JVB, 2017 WL
3896270, at *5 (N.D. Ind. Sept. 6, 2017) (concluding doctors should have considered
“more aggressive measures” where inmate was “repeatedly refus[ing] medication and
treatment against his own interest,” but “the medical staff did little more than chart [the
inmate’s] downward spiral”). And despite his refusals, Mr. Beauford continued to
receive medical care.
Likewise, as Defendant CHC correctly observes on appeal, Dr. Holmes and
Mr. LeFebre considered—but ultimately decided against—transferring Mr. Beauford
to another facility or referring him to a psychiatrist. Both defendants explained that
inmates were considered for transfers or referrals when they exhibited certain
behaviors that posed a risk to themselves or others. But in their view, Mr. Beauford
never exhibited such behaviors. Aplt. App. vol. 6 at 1614, 1737. Given this
explanation, a reasonable jury could not infer conscious disregard for Mr. Beauford’s
serious medical needs. Self, 439 F.3d at 1232-34.
And regarding access to the VNS bracelet, our de novo review of the record
confirms the district court’s conclusion: Mr. LeFebre was the only medical defendant
who definitively knew Mr. Beauford had a VNS bracelet when he came to the jail.
And it is undisputed he believed Mr. Beauford was allowed to have access to the
33
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 34
bracelet but chose not to wear it. Aplt. App. vol. 6 at 1736. The Estate has shown no
evidence to suggest Dr. Holmes was also aware the bracelet existed, let alone that he
or Mr. LeFebre took particular steps to deprive Mr. Beauford of it.
Although the Estate disagrees with Dr. Holmes and Mr. LeFebre, a “mere
difference of opinion over matters of expert medical judgment or a course of medical
treatment fails to rise to the level of a constitutional violation.” Strain v. Regalado,
977 F.3d 984, 996 (10th Cir. 2020) (quoting Johnson v. Leonard, 929 F.3d 569, 576
(8th Cir. 2019)). Nor will we “freely substitute [our] judgment” for that of
Dr. Holmes or Mr. LeFebre or “otherwise second-guess [their] course of treatment
with the benefit of hindsight.” Id. (alteration in original) (quoting Redmond v.
Crowther, 882 F.3d 927, 938 (10th Cir. 2018)).
The Estate makes two other appellate arguments, singling out Dr. Holmes and
Mr. LeFebre for particular decisions they made (or failed to make) about
Mr. Beauford’s care. Neither is availing.
Regarding Dr. Holmes, the Estate contends he was deliberately indifferent by
failing to draw and test Mr. Beauford’s blood to monitor for therapeutic levels of
anti-seizure medication in his bloodstream. There is no dispute Mr. Beauford’s blood
was never drawn—that clearly violates CHC policy. But a policy violation, without
more, is not a constitutional violation. See Mata, 427 F.3d at 760. And the Estate has
identified no evidence suggesting Dr. Holmes disregarded Mr. Beauford’s serious
medical needs by failing to conduct these blood tests. This absence of evidence
undermines an essential component of the Estate’s deliberate indifference claim:
34
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 35
Dr. Holmes’s subjective intent. Given these evidentiary shortcomings, and because
the decision to conduct specific testing generally falls within the bounds of medical
judgment, see Self, 439 F.3d at 1232, we discern no error in the grant of summary
judgment to Dr. Holmes.
Finally, the Estate asserts Mr. LeFebre violated Mr. Beauford’s constitutional
rights by housing him in “solitary confinement.”17 Aplt. Opening Br. at 65-66. The
district court rejected this argument, concluding there was insufficient evidence
Mr. Beauford was housed in a single cell “out of indifference to the effects on him,
rather than because [MCDF] believed the benefits outweighed the costs.” Aplt. App.
vol. 12 at 3325. We agree with the district court.
On appeal, the Estate advances conclusory assertions but points to no evidence
from which a jury could reasonably infer Mr. LeFebre knew that a single-cell
housing placement presented a substantial risk to Mr. Beauford’s health and safety.18
For instance, Mr. LeFebre explained MCDF considered Mr. Beauford “a vulnerable
17
To the extent the Estate asks us to hold that placing inmates with
Mr. Beauford’s health conditions in solitary confinement or single cells is per se
deliberate indifference, we decline to do so in this case. But see Crane v. Utah Dep’t
of Corr., 15 F.4th 1296, 1306 (10th Cir. 2021) (discussing district court cases from
before 2014 holding “that isolating mentally ill inmates in conditions that seriously
and predictably exacerbate their mental illness is cruel and unusual when the official
has subjective knowledge of both the mental illness and the impact of isolation”).
18
Citing its experts, the Estate maintains that, as a general matter, housing an
individual with medical and mental health conditions in solitary confinement is
inappropriate. Aplt. Opening Br. at 17 (citing Aplt. App. vol. 7 at 1921-22, 1958).
A reasonable jury could not infer from such generalized assertions that Mr. LeFebre
acted with deliberate indifference in this case.
35
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 36
inmate that would be taken advantage of by other inmates.” Aplt. App. vol. 6 at 1712.
Placing Mr. Beauford in a single cell separated him from other inmates and ensured
he was “housed in a safe environment.” Id.Our de novo review confirms Mr. LeFebre’s decision about Mr. Beauford’s
housing placement was an exercise of professional medical judgment and thus does
not satisfy the subjective component of the deliberate indifference test. See Self, 439
F.3d at 1232.
Accordingly, we affirm the grant of summary judgment to Dr. Holmes and
Mr. LeFebre.
b. The Estate’s Claims Against the Nurses
The Estate also challenges the district court’s ruling that defendant Nurses
Workman, Havens, Keenan, and Schans were not deliberately indifferent to
Mr. Beauford’s serious medical needs. According to the Estate, the evidence shows
the nurses—together—evinced deliberate indifference to Mr. Beauford’s serious
medical needs when they (1) failed to elevate concerns about Mr. Beauford’s seizures
and medication refusals to Dr. Holmes, (2) practiced beyond the scope of their
abilities, (3) failed to monitor Mr. Beauford’s medications through blood draws,
(4) deprived Mr. Beauford of his VNS bracelet, and (5) failed to intervene to prevent
Mr. Beauford from refusing his medications.
We reject this challenge. It is the Estate’s burden under § 1983 to establish
what each defendant actually did and how that act (or omission) violated
Mr. Beauford’s constitutional rights. See Pahls v. Thomas, 718 F.3d 1210, 1225-26
36
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 37
(10th Cir. 2013). As the nurses correctly argue, the Estate fails at a fundamental level
to explain who is alleged to have done what; instead, the Estate simply groups the
nurses together without, as required, “identify[ing] specific actions taken by
particular defendants.” Id. at 1226 (citation omitted).
For example, the Estate contends the nurses generally knew Mr. Beauford “had
an implanted VNS device with a bracelet that was required for its activation” but they
deprived him of access to it. Aplt. Opening Br at 54. For support, the Estate cites
deposition testimony from Nurses Schans and Keenan. But that testimony reflects
only these two defendants knew Mr. Beauford had an implanted VNS device, not a
bracelet to activate it. And it says nothing about what Nurses Workman and Havens
knew nor does it suggest either nurse actually deprived Mr. Beauford of his bracelet.
The Estate also asserts the nurses “knew about [Mr.] Beauford’s medication refusals”
but “did nothing more than continu[e] to ineffectually offer [Mr.] Beauford his
medications.” Aplt. Opening Br. at 57-58. This contention is general and vague, and
it fails to account for the varying levels of involvement each nurse had in Mr.
Beauford’s care. We discern no error in the district court’s grant of summary
judgment to the nurses.
The Estate also challenges the district court’s ruling regarding the subjective
prong as it applies to Nurse Workman’s conduct on the night Mr. Beauford died in
custody. The Estate contends Nurse Workman acted with deliberate indifference by
repeatedly failing to provide or to refer Mr. Beauford for adequate medical care—
emergency or otherwise. The Estate highlights three occasions on the evening of Mr.
37
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 38
Beauford’s death when Nurse Workman allegedly should have, but failed, to do
more: (1) after Mr. Beauford suffered a five-minute seizure at 8:40 p.m.; (2) when
Deputy Dalrymple observed Mr. Beauford shaking in his cell around 9:00 p.m. and
Nurse Workman opined he would be fine without checking on him; and (3) at 12:25
a.m. when she waited for another deputy to respond before entering Mr. Beauford’s
cell to discover he was dead.
Viewing the record in the light most favorable to the Estate, we agree Nurse
Workman should have notified Dr. Holmes about Mr. Beauford’s seizure at 8:40 p.m.
An internal report documenting the incident states, “If [a] patient with a known
seizure disorder has a seizure and it resolves without consequence call the provider”
with a checkmark next to that statement, suggesting it was done. Aplt. App. vol. 7
at 1889. Yet the evidence is clear that Nurse Workman never notified Dr. Holmes.
Rather, as we described, Nurse Workman and Deputy Perkinson entered
Mr. Beauford’s cell and cared for him until his seizure ended. Nurse Workman “made
sure he was safe [and] breathing. When the seizure stopped, [she] made sure he
wasn’t injured.” Id. at 1831. She asked Mr. Beauford if he needed anything and tried
to take his vitals, but he refused. She returned with Deputy Perkinson to check on
Mr. Beauford thirty minutes later, but he “still refused to let [her] check his vital
signs.” Aplt. App. vol. 6 at 1548; vol. 8 at 2284. She noted no “injuries” or
“distress,” and believed “officers will notify medical if they note any problems.”
Aplt. App. vol. 6 at 1548.
38
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 39
Although medical judgment and misdiagnosis can cross the line into a denial
of care amounting to deliberate indifference, we conclude, under the circumstances
here, that Nurse Workman’s treatment of Mr. Beauford did not go so far. Cf. Mata,
427 F.3d at 758 (holding where medical provider had knowledge inmate was
suffering chest pain, it would be more than malpractice or negligence not to call an
ambulance). Here, the Estate fails to show how Nurse Workman disregarded
Mr. Beauford’s wellbeing, where the record shows she was with him during his
seizure, remained with him immediately afterward, and returned thirty minutes later
to check on him. And according to her observations of Mr. Beauford’s condition, she
believed his seizure had resolved and he was no longer in medical distress. See Self,
439 F.3d at 1233 (“[O]ur subjective inquiry is limited to consideration of the doctor’s
knowledge at the time [they] prescribed treatment for the symptoms presented, not to
the ultimate treatment necessary.”).
Yet the Estate insists “there is ample evidence from which a jury could
conclude that promptly calling paramedics was the only medically acceptable option
for [Nurse] Workman, yet she consciously chose not to” do so. Aplt. Opening Br.
at 48-49 (internal quotation marks omitted). We are not persuaded. A conclusory
assertion that ample evidence exists does not make it so. The Estate offers no record
citations to support its argument nor have we discerned that any such evidence exists
in our independent review. At most, the Estate’s argument reflects a difference of
opinion over whether Mr. Beauford should have been sent to a hospital—a scenario
that cannot support deliberate indifference. See Petties v. Carter, 836 F.3d 722, 729
39
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 40
(7th Cir. 2016) (“[E]vidence that some medical professionals would have chosen a
different course of treatment is insufficient to make out a constitutional claim.”).
The Estate’s other two arguments concerning Nurse Workman also fail. First,
the evidence shows Nurse Workman checked on Mr. Beauford after Deputy
Dalrymple reported seeing him shaking in his cell. Given Nurse Workman’s more
recent visit to Mr. Beauford’s cell, we conclude she was not deliberately indifferent
when opining his condition was “fine.” Aplt. App. vol. 8 at 2282. The Estate next
contends that “[r]ather than responding emergently, [Nurse] Workman waited for
another deputy to arrive before going into [Mr. Beauford’s] cell” at 12:25 a.m. Aplt.
Opening Br. at 48. But a written summary of the video surveillance footage states
otherwise: “At 0028 hrs. on 041614 Deputy Dalrymple and Nurse Workman return to
[Mr. Beauford’s cell] and enter the cell, Deputy Dalrymple stays in the cell as Nurse
Workman leaves for about a minute, then Nurse Workman returns carrying an item
and many other deputies arrive to the scene at about 0030 hrs. on 041614.” Aplt.
App. vol. 8 at 2283. The Estate’s arguments are contradicted by the record.
We affirm the grant of summary judgment for the defendant nurses.
D. The Estate’s Municipal Liability Claim under § 1983
A municipality cannot be liable under Monell v. Department of Social Services
of New York, 436 U.S. 658, 691 (1978), “solely because it employs a tortfeasor—or,
in other words, a municipality cannot be held liable under a respondeat superior
theory.” Rather, to be held liable the municipality itself must have generated the
“moving force” behind the alleged constitutional violation, either through official
40
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 41
policy or widespread and pervasive custom. See City of Canton v. Harris, 489 U.S.
378, 388-89 (1989).
At its core, the Estate’s Monell claim against Mesa County and the Entity
Medical Defendants is the alleged customs and practices at MCDF of providing an
unconstitutional level of care to detainees. The district court granted summary
judgment to the entity defendants because none of their agents committed an
underlying constitutional violation.
Because we reverse the district court’s ruling as to Deputy Dalrymple, we
must reverse and remand the grant of summary judgment on the Estate’s Monell
claim to allow the district court an opportunity to assess whether there is a viable
claim for municipal liability against Mesa County. See Lowe v. Fairland, 143 F.3d
1378, 1381 (10th Cir. 1998).
As for CHC, we agree with the district court that summary judgment was
proper. This Court has extended Monell liability to private entities.19 See Dubbs v.
Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003). Because none of the
Individual Medical Defendants committed a constitutional violation, the Entity
19
The Estate asks us to revisit Dubbs because federal district courts in this
circuit and elsewhere have called into question Monell’s application to private
entities sued under § 1983. We decline the invitation in this case. See Strain, 977
F.3d at 993 (explaining that generally one panel may not overrule the decision of a
prior panel absent en banc consideration or an intervening Supreme Court decision).
41
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 42
Medical Defendants cannot be liable under Monell.20 See Graves v. Thomas, 450 F.3d
1215, 1218 (10th Cir. 2006). The Estate’s argument to the contrary is unavailing.
E. Remaining Contentions
1. The Estate’s ADA Claim
The district court granted summary judgment to Mesa County on the Estate’s
ADA claims. We reject the Estate’s challenge to that ruling.
Title II of the ADA provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. “This provision extends to
discrimination against inmates detained in a county jail.” Robertson v. Las Animas
Cnty. Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007).
20
On appeal, the Estate contends the district court’s holding regarding Monell
liability “was incorrect and in direct contravention of . . . well-established
precedent.” Aplt. Opening Br. at 68. The Estate maintains that, even absent a
constitutional violation by an individual employee, the district court should still have
considered whether CHC was liable under Garcia and its progeny. See Garcia v. Salt
Lake Cnty., 768 F.2d 303, 310 (10th Cir. 1985) (“Although the acts or omissions of
no one employee may violate an individual’s constitutional rights, the combined acts
or omissions of several employees acting under a governmental policy or custom may
violate an individual’s constitutional rights.”); see also Crowson v. Washington
Cnty., 983 F.3d 1166, 1191 (10th Cir. 2020) (“[T]he municipality may not escape
liability by acting through twenty hands rather than two.”). But the Estate did not
present this theory of liability to the district court. See Richison v. Ernest Grp., Inc.,
634 F.3d 1123, 1131 (10th Cir. 2011) (applying waiver where legal arguments were
raised for the first time on appeal and plaintiff further failed to argue for plain-error
review). And regardless, the Estate’s custom-or-practice claims fail on the merits
because it does not point to any evidence from which a jury could reasonably infer
CHC acted with deliberate indifference by enacting the alleged customs or policies.
See Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998).
42
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 43
To state a claim under Title II, the Estate must show: (1) Mr. Beauford is a
“qualified individual with a disability”; (2) he was “excluded from participation in or
denied the benefits of [MCDF’s] services, programs, or activities”; and (3) “such
exclusion, denial of benefits, or discrimination was by reason of his disability.” Id.In granting summary judgment to Mesa County on the Estate’s ADA claim, the
district court found the Estate “produced no evidence of any specific service
[Mr. Beauford] wanted access to and was denied” and, consequently, the Estate was
“ask[ing] the court to assume that [Mr. Beauford] was necessarily denied access to
the Detention Facility’s services or programs because he was segregated” in single
cell housing in Cedar Pod. Aplt. App. vol. 12 at 3327-28. The district court
characterized the Estate’s arguments as “conclusory and insufficient” and rejected
them. Id. at 3327. We do the same.
On appeal, the Estate merely reprises the arguments it made in the district
court, without persuasively explaining why the district court erred. The gist of the
Estate’s argument is Mr. Beauford’s mere placement in administrative segregation
was a de facto denial of access to all MCDF’s programs, services, and benefits
available to detainees not in administrative segregation. But to show a violation
under Title II, the Estate must identify evidence in the record of a specific service,
program, or activity requested by, but denied to, Mr. Beauford. See Hockaday v.
Colo. Dep’t of Corr., 766 F. App’x 572, 575 (10th Cir. 2005). The Estate has not
43
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 44
made this showing or explained why it is relieved of the burden imposed on it by
applicable law to do so.21
Thus, the district court did not err in granting summary judgment to the
County on the Estate’s ADA claims.
2. Mesa County’s Personal Jurisdiction Arguments
The Mesa County Defendants raised a lack of personal jurisdiction defense in
district court. The district court did not address the merits of this argument, however,
concluding any challenge to personal jurisdiction was moot because all claims
against the County had been dismissed on summary judgment.
On appeal, the County again advances the lack of personal jurisdiction
defense. The district court never obtained jurisdiction over Mesa County or the Mesa
County Sheriff, the argument proceeds, because the Estate “failed to properly sue the
board of county commissioners of Mesa County and sued the wrong sheriff.” Cnty.
Answer Br. at 38.22 Because we reverse in part the grant of summary judgment to the
Mesa County Defendants, the personal jurisdiction question is no longer moot, as the
21
In light of this conclusion, we need not reach the Estate’s remaining
contention that any such exclusion, denial of benefits, or discrimination was by
reason of Mr. Beauford’s disability.
22
To the extent the County’s arguments regarding Sheriff Lewis involve
insufficient service of process rather than personal jurisdiction, they fail for similar
reasons. Service, like personal jurisdiction, is a waivable defense if not timely
asserted. See Fed. R. Civ. P. 12(h)(1).
44
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 45
district court assumed.23 We now consider the Mesa County Defendants’ lack of
personal jurisdiction defense and reject it.
“Until the court has established personal jurisdiction [over a party], any
assertion of judicial power over the party violates due process.” Ins. Corp. of Ireland
v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706 (1982). However, unlike
subject-matter jurisdiction, the defenses of lack of personal jurisdiction and service
are waived if not timely asserted. See Fed. R. Civ. P. 12(h)(1); Fed. Deposit Ins.
Corp. v. Oaklawn Apartments, 959 F.2d 170, 174-75 (10th Cir. 1992). It is well
settled that “jurisdiction over a party may be conferred upon a court . . . by voluntary
appearance of a party.” Williams v. Life Sav. & Loan, 802 F.2d 1200, 1202 (10th Cir.
1986) (per curiam); see also Hunger U.S. Special Hydraulics Cylinders Corp. v.
Hardie-Tynes Mfg. Co., No. 99-4042, 2000 WL 147392, at *3 (10th Cir. Feb. 4,
2000) (“After its lengthy participation in this litigation, efforts to seek affirmative
relief, and settlement of claims, [Defendant] may not pull its personal jurisdiction
defense out of the hat like a rabbit.”) (citation omitted)). Federal Rule of Civil
Procedure 12 “not only contemplates the lodging of certain defenses at the earliest
point in a lawsuit, it mandates a waiver of those defenses if not presented at the first
23
In the interest of judicial efficiency, we exercise our discretion to consider
the merits of the personal jurisdiction issue instead of remanding the issue to the
district court. The standard of review for questions of personal jurisdiction is de
novo, see ClearOne Commc’ns, Inc. v. Bowers, 651 F.3d 1200, 1214 (10th Cir.
2011); there are no appellate preservation problems; the parties have had an
opportunity to brief the issue; and the facts are undisputed.
45
Appellate Case: 21-1010 Document: 010110688637 Date Filed: 05/25/2022 Page: 46
available opportunity.” Travelers Cas. & Sur. Co. v. Unistar Fin. Serv. Corp.,
35 F. App’x 787, 787 (10th Cir. 2002).
By the time the County raised personal jurisdiction as a defense, it had been
actively defending against the Estate’s lawsuit for years. Under the circumstances,
we conclude the County and the Mesa County Sheriff waived any personal
jurisdiction or service defenses.24
III. Conclusion
We affirm the grant of summary judgment to Deputy Perkinson and the
Individual and Entity Medical Defendants on the Estate’s § 1983 claims. We also
affirm the grant of summary judgment to Mesa County on the Estate’s ADA claim.
We reverse the district court’s grant of summary judgment to Deputy
Dalrymple and to the Mesa County Defendants on the Estate’s municipal liability
claim. The case is remanded for further proceedings consistent with this opinion.
24
The Mesa County Defendants also argue the Estate’s attempt to substitute
the new Sheriff under Federal Rule of Civil Procedure 25(d) was improper. We need
not decide this issue because the Estate sued the Mesa County Sheriff in his official
capacity.
46