Boyett v. County of Washington , 282 F. App'x 667 ( 2008 )


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  •                                                                 FILED
    United States Court of Appeals
    Tenth Circuit
    June 19, 2008
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    SANDRA BOYETT, individually and
    as personal representative for the
    Estate of RAYMOND BOYETT;
    JESSICA (BOYETT) PETERSON; and
    BRANDY (BOYETT) SORENSON,
    Plaintiffs-Appellants,               No. 06-4315
    v.                                         (D. of Utah)
    COUNTY OF WASHINGTON, a                  (D.C. No. 2:04-CV-1173-PGC)
    political subdivision of the State of
    Utah; WASHINGTON COUNTY
    PURGATORY CORRECTIONAL
    FACILITY, a political subdivision of
    the State of Utah; WASHINGTON
    COUNTY SHERIFF, a political
    subdivision of the State of Utah; KIRK
    SMITH, Sheriff of Washington
    County, individually and officially;
    ROB TERSIGNI, Chief Deputy Sheriff
    of Washington County, individually
    and officially; FRED KEIL,
    Correctional Officer, individually and
    officially; RAY KOUNALIS,
    Correctional Officer, individually and
    officially; GENE REDFORD,
    Correctional Officer, individually and
    and officially; JAMES HANSON,
    Nurse, individually and officially;
    DESTINY HUMMER, Nurse,
    individually and officially; DARRYL
    McCOY, Nurse, individually and
    officially; RANDY McKINNON,
    Nurse, individually and officially;
    DAVE PATT, Nurse, individually and
    officially; SABRINA STEEL, Nurse,
    individually and officially; JON
    WORLTON, Clinical Social Worker,
    Nurse, individually and officially,
    Defendants-Appellees.
    ORDER AND JUDGMENT *
    Before HENRY, Chief Judge, EBEL, and TYMKOVICH, Circuit Judges.
    Raymond Boyett died in Washington County, Utah’s Purgatory
    Correctional Facility a week after being arrested for failing to appear in court for
    traffic offenses. Before his death, Boyett suffered from—and was treated for—a
    variety of physical and mental ailments including alcoholism, liver disease,
    anxiety, and depression. The instant appeal stems from a lawsuit filed by
    Boyett’s surviving family members under 
    42 U.S.C. § 1983
     alleging prison
    officials caused or contributed to Boyett’s death by (1) failing to timely treat
    injuries, (2) withholding medications and forcibly injecting antipsychotic drugs,
    and (3) allowing him to be assaulted by unknown guards or medical personnel.
    *
    This order and judgment is not binding precedent except under the
    doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
    Cir. R. 32.1.
    -2-
    The district court granted summary judgment to all individual Defendants
    on the basis of qualified immunity. The court also granted summary judgment to
    Defendant Washington County on the claim of municipal liability. We agree with
    the district court’s decisions, concluding the Boyett family has failed to
    demonstrate a genuine issue of material fact about whether Defendants were
    deliberately indifferent to Boyett’s serious medical needs, inflicted excessive
    force, or otherwise violated his federal rights. We also affirm the district court’s
    decision to decline supplemental jurisdiction over the Boyett family’s state law
    claims.
    Exercising jurisdiction under 
    28 U.S.C. § 1291
    , we therefore affirm.
    I. Background
    A. Factual Background
    Boyett died in his cell at the Purgatory Correctional Facility around 5:10
    a.m. on September 6, 2003. He had been detained in the facility since August 27.
    While there, Boyett, age 54, was treated by nurses, a social worker, and a
    physician’s assistant for various physical and mental ailments. After Boyett’s
    death, Dr. Leis, the Utah state medical examiner, performed an autopsy. Dr. Leis
    concluded the cause of death was occlusive coronary artery disease, with cirrhosis
    serving as a contributing factor.
    Boyett’s incarceration at the Purgatory Correctional Facility on August 27
    was his second in the span of a week. On August 20, he had been booked into the
    -3-
    facility for a DUI. Prior to booking, a doctor at the Dixie Regional Medical
    Center (DRMC) examined Boyett and concluded he was healthy enough for jail.
    The doctor listed alcohol intoxication and recent hernia surgery under
    “Diagnosis,” and recommended Boyett continue his regular dose of the
    prescription drug Methadone. After spending one day in jail, Boyett was
    released.
    On August 27, Boyett returned to the correctional facility after being
    picked up on an arrest warrant. Boyett’s medical history chart at the facility
    contained the information supplied by the doctor at the DRMC pertaining to the
    recent surgery and the Methadone. The chart also indicated Boyett suffered from
    dental problems, tendon problems, liver disease, hepatitis C, anxiety, and
    depression. Boyett had also previously broken his neck and continued to live
    with broken vertebrae. On August 27, Boyett was taking the prescription drugs
    Celexa, Xanax, and Methadone.
    On August 31, four days into his detention, Boyett’s health began to
    deteriorate. Boyett told Correctional Officer Pitcher he was internally bleeding
    and going comatose. Pitcher alerted Nurse McKinnon who, along with fellow
    nurse Hanson, examined Boyett. They determined he was not internally bleeding
    or lapsing into a coma.
    The next day, Physician’s Assistant Steele further examined Boyett and
    took a verbal medical history from him to update the facility’s files. Steele and
    -4-
    Boyett discussed his recent hernia surgery, his five fractured neck vertebrae, and
    his alcohol withdrawal and Methadone treatment. After conducting a physical
    exam of Boyett, Steele concluded his hernia repair had healed. Steele prescribed
    500 mg of Naprosyn and 25 mg of Elavil for Boyett’s neck and back pain, as well
    as 0.1 mg of Clonidine to replace his prescription Methadone since Methadone
    was not allowed in Utah jails.
    A day later, on September 2, Boyett again asked to see medical personnel.
    Boyett told Nurse Hummer he was going to die because of his liver disease.
    Hummer noted that Boyett had recently seen a doctor and was taking prescribed
    medications; there was nothing further she thought she could do.
    On September 3, Boyett complained to Purgatory staff about his liver,
    hepatitis, insomnia, and general health. Officer Jessop and his supervisor
    concluded that because no nurses were then on duty, they could only make a log
    entry of the incident. Later that same day, Boyett injured himself in a fall down a
    flight of stairs. Officer Keil was first on the scene and did not notice any
    bleeding or other obvious injuries. Nurse McCoy also responded and treated
    Boyett for a small cut on his arm. Boyett was transferred to a medical
    observation cell, where he could receive more attention from the nursing staff.
    McCoy stated Boyett fell as a result of becoming dizzy. This could have resulted
    from Boyett taking more than his prescribed dose of Clonidine. Medical logs
    show that at 11:58 p.m., Boyett told officers he had fallen for a second time. But
    -5-
    when Nurse Hanson responded, he determined Boyett had not fallen; Boyett
    simply wanted someone to check on him.
    The next day, Boyett submitted an inmate request form seeking a liver
    transplant from his mother. 1 Boyett was also observed banging his head against
    the door of his cell during the swing shift (3:00 p.m. – 11:00 p.m.). Because of
    these disturbing actions, Nurse Hanson injected Boyett with 100 mg of Thorazine,
    an antipsychotic. Hanson determined Boyett was a danger to himself and would
    be calmed by the injection.
    On September 5, Officer Redford checked on Boyett in his medical
    observation cell. Redford determined Boyett’s mental condition was deteriorating
    and notified the facility’s licensed clinical social worker, Jon Worlton. Worlton
    reviewed Boyett’s medical history, interviewed Boyett, and spoke with Boyett’s
    wife on the telephone. Worlton determined Boyett was psychotic and should be
    given additional injections of Thorazine. A few hours later, when Officer
    Kounalis noticed a bloody spot on the back of Boyett’s head, he and Officer
    Redford took Boyett to the infirmary for medical treatment.
    Nurse Hanson determined Boyett’s head laceration was not serious and
    washed the wound with clean water. After consultation with Worlton, Hanson
    also injected Boyett with a second 100 mg of Thorazine to prevent Boyett from
    1
    Boyett’s inmate request form stated, “I need a request to have my
    mother’s liver transplanted into me and then bury my mother here in LaVerkin,
    UT.” R., Vol. 5 at 1549.
    -6-
    harming himself. At 7:45 p.m., Nurse Hummer injected Boyett with a third dose
    of Thorazine. Staffers then transported Boyett to a suicide watch cell in the
    booking area of the facility, leaving only a suicide gown and a mattress in the
    cell.
    Early the next morning, at approximately 5:10 a.m., Officer Vernon noticed
    Boyett lying on the floor and not moving. The officer opened the cell and found
    Boyett was dead.
    Dr. Leis, Utah’s Deputy Chief Medical Examiner, conducted an autopsy on
    Boyett’s body 24 hours later. Boyett’s left anterior descending coronary artery
    was 90% occluded. Dr. Leis concluded the cause of death was occlusive coronary
    artery disease, with cirrhosis contributing significantly to death. The autopsy
    report also found Boyett’s drug and medication levels were within normal limits.
    Also shortly after Boyett’s death, Washington County Sheriff Kirk Smith
    began an investigation into the circumstances surrounding the death. FBI agents
    provided additional assistance. It is not clear from the record, however, what
    additional information—if any—the investigation revealed.
    B. Procedural History
    The Boyett family brought several causes of action against Washington
    County and county employees who came into contact with Boyett during his
    incarceration. Plaintiffs sought damages for federal civil rights violations and
    state law torts Defendants allegedly committed before and after Boyett’s death.
    -7-
    The principal claims were that jail officials failed to provide adequate medical
    care, used excessive force, and operated under defective supervisory policies.
    In this appeal, the Boyett family challenges: (1) the district court’s grant of
    summary judgment to individual Defendants on the basis of qualified immunity;
    (2) the district court’s grant of summary judgment on municipal liability; and (3)
    the district court’s dismissal of the state law claims.
    II. Qualified Immunity
    A. Standard of Review
    The district court granted qualified immunity to Defendants on the Boyett
    family’s claims of deliberate indifference to medical needs, excessive force, and
    supervisory liability. We review the grant of qualified immunity de novo. See,
    e.g., Serna v. Colo. Dep’t of Corrs., 
    455 F.3d 1146
    , 1150 (10th Cir. 2006).
    Officials granted qualified immunity have immunity from suit and from the
    concomitant burdens of litigation. See Saucier v. Katz, 
    533 U.S. 194
    , 200–01
    (2001). To overcome a grant of qualified immunity, plaintiffs must satisfy a
    heavy two-part burden by showing: (1) “the defendant’s actions violated a
    constitutional or statutory right” and (2) “the right was clearly established at the
    time of the defendant’s unlawful conduct.” Serna, 
    455 F.3d at 1150
     (quoting
    Medina v. Cram, 
    252 F.3d 1124
    , 1128 (10th Cir. 2001)). Plaintiffs must “go
    beyond the pleadings and designate specific facts so as to make a showing
    -8-
    sufficient to establish the existence of an element essential to [their] case.”
    Sealock v. Colorado, 
    218 F.3d 1205
    , 1209 (10th Cir. 2000).
    The threshold inquiry in every qualified immunity case is: “Taken in the
    light most favorable to the party asserting the injury, do the facts alleged show
    the officer[s’] conduct violated a constitutional right?” Saucier, 533 U.S. at 201;
    see also Williams v. Berney, 
    519 F.3d 1216
    , 1220 (10th Cir. 2008) (“Only if the
    plaintiff can show a constitutional violation do the courts ask whether the
    constitutional right was clearly established.” (quotation omitted)). If no
    constitutional right has been violated, our inquiry necessarily ends.
    B. Deliberate Indifference to Serious Medical Needs
    1. Legal Framework
    The Eighth Amendment provides prisoners the right to be free from cruel
    and unusual punishments. This right is violated if prison officials show
    “deliberate indifference to an inmate’s serious medical needs.” Mata v. Saiz, 
    427 F.3d 745
    , 751 (10th Cir. 2005). A prison official does not violate this standard,
    however, “unless 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.” Self v. Crum, 
    439 F.3d 1227
    , 1231 (10th Cir. 2006) (quoting
    Farmer v. Brennan, 
    511 U.S. 825
    , 837 (1994)). Thus, to make out a
    constitutional deprivation under the deliberate indifference standard, plaintiffs
    -9-
    must prove two elements: (1) objectively, the inmate’s medical needs were
    “sufficiently serious,” and (2) subjectively, the prison official acted with a
    “sufficiently culpable state of mind.” 
    Id.
     at 1230–31; see also Mata, 
    427 F.3d at 751
    .
    A medical need is sufficiently serious if it “has been diagnosed by a
    physician as mandating treatment or . . . is so obvious that even a lay person
    would easily recognize the necessity for a doctor’s attention.” Sealock, 
    218 F.3d at 1209
     (quoting Hunt v. Uphoff, 
    199 F.3d 1220
    , 1224 (10th Cir. 1999)). A prison
    official has a sufficiently culpable state of mind if the official “knows of and
    disregards an excessive risk to inmate health or safety.” Farmer, 
    511 U.S. at 837
    ;
    see also Estelle v. Gamble, 
    429 U.S. 97
    , 106 (1976) (concluding “a complaint that
    a physician has been negligent in diagnosing or treating a medical condition” does
    not show deliberate indifference).
    In cases involving allegations of missed diagnoses or delayed treatment,
    plaintiffs may establish liability by showing:
    (1) a medical professional recognizes an inability to treat the patient
    due to the seriousness of the condition and his corresponding lack of
    expertise but nevertheless declines or unnecessarily delays referral, e.g.,
    a family doctor knows that the patient needs delicate hand surgery
    requiring a specialist but instead of issuing the referral performs the
    operation himself; (2) a medical professional fails to treat a medical
    condition so obvious that even a layman would recognize the condition,
    e.g., a gangrenous hand or a serious laceration; [or] (3) a medical
    professional completely denies care although presented with
    recognizable symptoms which potentially create a medical emergency,
    e.g., a patient complains of chest pains and the prison official, knowing
    -10-
    that medical protocol requires referral or minimal diagnostic testing to
    confirm the symptoms, sends the inmate back to his cell.
    Self, 
    439 F.3d at 1232
     (citations omitted).
    With these principles in mind, we turn to Plaintiffs’ allegations of
    deliberate indifference.
    2. Application
    Plaintiffs claim the officer and nurse Defendants were deliberately
    indifferent to Boyett’s serious medical needs during his time in the Purgatory
    facility. They point to a plethora of acts and omissions by Defendants: (a) failure
    to supply a qualified medical provider; (b) failure to provide the medicine and
    care prescribed by Boyett’s treating physicians prior to incarceration; (c) failure
    to respond to symptoms and complaints regarding internal bleeding; (d) failure to
    respond to falls and seizures on September 3; (e) failure to treat Boyett’s head
    laceration; (f) improper injection of antipsychotic medication; and (g) failure to
    prevent Boyett’s death. 2
    2
    Plaintiffs’ brief is far from a model of clarity; nevertheless, we have
    attempted to discern the main arguments. We believe any additional
    claims—such as Defendants’ failing to follow medical conditions imposed upon
    the jailing of Boyett, failing to provide adequate and proper medication, and
    failing to examine Boyett’s medical records (Aplt. Br. 28)—are encompassed
    within the seven broad claims we have laid out above.
    -11-
    We address the claims in order.
    a. Failure to supply a qualified medical provider
    Plaintiffs have not shown how any individual officer or nurse failed to
    supply a qualified medical provider to Boyett. As a preliminary matter, there is
    no per se requirement that a jail provide its inmates around-the-clock access to a
    medical doctor. While jailers are ultimately responsible for their inmates’
    medical needs, Farmer v. Brennan, 
    511 U.S. at
    833–34, they can provide that care
    in a variety of ways, including access to trained personnel such as guards in the
    first instance, nurses, and physicians’ assistants. The Eighth Amendment requires
    nothing more as a general matter. See, e.g., Hoptowit v. Ray, 
    682 F.2d 1237
    ,
    1253 (9th Cir. 1982) (en banc) (reversing lower court’s order that a penitentiary
    must hire two medical doctors to meet minimum standards of prison medical care
    under the Eighth Amendment); McCord v. Maggio, 
    910 F.2d 1248
    , 1250 (5th Cir.
    1990) (noting state prison officials retain “wide discretion in the operation of
    prison facilities”). While access to a medical doctor may be necessary in certain
    situations, e.g., Sealock, 
    218 F.3d at
    1210–11, no constitutional violation occurs
    unless medical care is intentionally or recklessly denied. E.g., Estelle, 
    429 U.S. at
    104–05 (discussing prison guards “intentionally denying or delaying access to
    medical care or intentionally interfering with the treatment once prescribed”).
    Here, Washington County supplied qualified nurses, a licensed clinical
    social worker, and a licensed physician’s assistant to provide immediate medical
    -12-
    care to inmates. All of these individuals acted in accordance with the dictates of
    the Eighth Amendment by promptly and diligently assessing Boyett’s medical
    condition and taking reasonable steps in light of their evaluations. The record is
    replete with examples of correctional officers notifying the nursing staff about
    Boyett’s medical needs in a timely manner. Those nurses promptly responded to
    the calls and treated Boyett in a professional way. Physician’s Assistant Steele
    and Licensed Clinical Social Worker Worlton also supplied timely medical care to
    Boyett. In fact, over a six-day period (August 31 to September 5), Boyett was
    examined by at least six different staffers with medical training on no less than
    eight separate occasions. These officials conducted examinations, treated
    wounds, and administered medications based on their diagnoses.
    In short, Plaintiffs have not demonstrated the existence of a genuine issue
    of material fact pointing to deliberate indifference by any Defendant in failing to
    provide a qualified medical provider to Boyett.
    b. Failure to provide the medicine and care prescribed by Boyett’s treating
    physicians prior to incarceration
    Plaintiffs contend the decision by Washington County officials to take
    away Boyett’s prescription Methadone when he entered the facility violated his
    rights. 3 Boyett’s doctor had prescribed the Methadone to treat his alcohol
    3
    Boyett was also taking Celexa and Xanax before he entered the
    Washington County facility. Plaintiffs have failed to show whether these were
    prescribed by Boyett’s doctor and, if so, whether they were taken away by
    (continued...)
    -13-
    withdrawal symptoms, but because Methadone is a narcotic, he was not allowed
    to keep it in the jail. To replace the Methadone, Physician’s Assistant Steele
    prescribed 0.1 mg of Clonidine to be taken twice daily. Steele’s prescription of
    substitute medication for Boyett does not demonstrate deliberate indifference.
    See Callahan v. Poppell, 
    471 F.3d 1155
    , 1160 (10th Cir. 2006) (“[A] prison
    doctor remains free to exercise his or her independent professional judgment and
    an inmate is not entitled to any particular course of treatment.” (quoting Dulany v.
    Carnahan, 
    132 F.3d 1234
    , 1240 (8th Cir. 1997))); Perkins v. Kansas Dep’t of
    Corrs., 
    165 F.3d 803
    , 811 (10th Cir. 1999) (“[A] prisoner who merely disagrees
    with a diagnosis or a prescribed course of treatment does not state a constitutional
    violation.”).
    Plaintiffs also complain officials inadequately treated Boyett’s hernia
    repair. On August 20, Boyett’s outside doctor told Washington County officials
    Boyett had undergone surgery to repair a hernia about one month before entering
    the facility. Boyett also informed officers and nurses of this fact. When
    Physician’s Assistant Steele conducted a physical examination of Boyett on
    September 1, she determined he was healed. Even if we assume the diagnosis was
    both negligent and harmful, Steele’s conduct would not rise to the level of a
    constitutional violation because there is no evidence she acted with the requisite
    3
    (...continued)
    Washington County officials. Plaintiffs have therefore waived review of any
    claim with regard to these drugs.
    -14-
    culpable state of mind. See Farmer, 
    511 U.S. at 835
     (“[D]eliberate indifference
    describes a state of mind more blameworthy than negligence.”). Plaintiffs have
    failed to put forth evidence Steele knew of “a substantial risk of serious harm,”
    and “consciously disregard[ed]” it. Self, 
    439 F.3d at 1231
    .
    c. Failure to respond to symptoms and complaints regarding internal
    bleeding
    On August 31, at 12:49 p.m., Boyett told Officer Pitcher he thought he was
    bleeding internally. Pitcher alerted Nurse McKinnon, but neither McKinnon nor
    any other nurse responded. Three hours later, Boyett told Officer Ence he
    thought he was hemorrhaging. Soon thereafter, Nurses McKinnon and Hanson
    responded and Boyett told them he was going comatose and had spit-up blood.
    After conducting a thorough examination of Boyett, McKinnon and Hanson
    concluded Boyett was not lapsing into a coma or suffering from internal bleeding.
    The nurses instructed Boyett to drink six to eight glasses of water per day.
    Although the three-hour delay in responding to Boyett’s claims of internal
    bleeding is troubling, it does not constitute deliberate indifference to a serious
    medical need because the delay caused Boyett no harm. “[D]elay in medical care
    can only constitute an Eighth Amendment violation if there has been deliberate
    indifference which results in substantial harm.” Olson v. Stotts, 
    9 F.3d 1475
    ,
    1477 (10th Cir. 1993) (quotation omitted); see also Mata, 
    427 F.3d at 753
     (noting
    prisoner’s injury must be “sufficiently serious” to constitute deliberate
    -15-
    indifference). Boyett was not experiencing internal bleeding or any other medical
    problem at that time. The autopsy performed after Boyett’s death showed no
    evidence of internal bleeding or related ailments arising from this incident.
    d. Failure to respond to falls and seizures on September 3
    In treating Boyett after his fall on September 3, Washington County
    officials did not violate Boyett’s constitutional rights. Nurse McCoy evaluated
    Boyett soon after the fall and did not discover any serious injuries. Officer Keil,
    who was also on the scene, did not notice any bleeding or other injuries. Because
    officials thought the fall was due to a seizure or other medical condition, they
    transferred Boyett to a medical observation cell for continued monitoring. After
    Boyett was moved to the observation cell, nurses determined no additional
    treatment was necessary.
    The Purgatory staffers’ considered medical judgments did not violate
    Boyett’s constitutional rights. No Eighth Amendment violation can arise from a
    situation where “a doctor merely exercises his considered medical judgment” and
    “resolves the question whether additional diagnostic techniques or forms of
    treatment” are required. Self, 
    439 F.3d at 1232
    ; see also Estelle v. Gamble, 
    429 U.S. 97
    , 107 (1976) (“A medical decision not to order an X-ray, or like measures,
    does not represent cruel and unusual punishment. At most it is medical
    malpractice and as such the proper forum is the state court.”). None of the
    officials involved in the decisions to move Boyett to a special cell and refrain
    -16-
    from pursuing additional treatment evidenced deliberate indifference to his
    medical needs. Indeed, the decision to move Boyett to a medical observation cell
    evidenced concern for—not deliberate indifference to—Boyett’s health and well-
    being.
    e. Failure to treat Boyett’s head laceration
    Officers Kounalis and Redford observed Boyett’s head laceration the
    evening of September 5. The laceration likely stemmed from Boyett banging his
    head against the door of his cell during the prior day’s swing shift (3:00 p.m. –
    11:00 p.m.). Nurse Hanson treated Boyett’s laceration by washing it with clean
    water, and determining sutures were not needed. Social worker Worlton also
    evaluated Boyett at that time, and determined Boyett appeared psychotic and
    should be given antipsychotic medication.
    Although the Plaintiffs now complain Boyett should have been treated by a
    doctor or given sutures for his head injury, these post-hoc opinions do not prove
    Hanson and Worlton violated the Constitution. Because the injury was not so
    serious that “even a lay person would easily recognize the necessity for a doctor’s
    attention,” Sealock, 
    218 F.3d at 1209
    , Hanson and Worlton were not reckless in
    their treatment. Hanson made an on-the-spot determination that the laceration did
    not require sutures. “[T]he subjective component [of deliberate indifference] is
    not satisfied, absent an extraordinary degree of neglect, where a [prison] doctor
    merely exercises his considered medical judgment.” Self, 
    439 F.3d at 1232
    .
    -17-
    f. Improper injection of antipsychotic medication
    The prison’s use of the antipsychotic drug Thorazine did not violate
    Boyett’s constitutional rights. Washington County officials injected Boyett with
    this antipsychotic on three occasions. Nurse Hanson administered the first 100
    mg injection on September 4, after Hanson concluded Boyett appeared dangerous.
    Hanson administered a second 100 mg dose on September 5 after he and Worlton
    jointly determined Boyett appeared psychotic and was a danger to himself and
    others. Nurse Hummer gave Boyett a third 100 mg injection of Thorazine a few
    hours later on the evening of September 5.
    Each of the three Thorazine injections were made pursuant to a doctor’s
    standing order. While the standing order is not part of the record, Nurse Hummer
    testified as to the policy’s contours. According to Hummer, Purgatory medical
    staff had a standing order to inject an inmate with Thorazine when the following
    three conditions were met: (1) the inmate was dangerous or threatening; (2)
    injecting Thorazine was the best alternative available; and (3) an individualized
    assessment of the inmate’s medical history weighed in favor of Thorazine
    treatment. R., Vol. 2 at 524. The Thorazine policy exists primarily to prevent
    inmates from harming themselves. The policy provides Washington County
    officials the ability to quickly respond to a dangerous situation, and is
    administered under the supervision of medical personnel and only given to inmates
    showing signs of serious mental disturbance.
    -18-
    That the policy allows Thorazine to be administered without inmate consent
    does not by itself present a constitutional problem. First of all, the record does not
    suggest that Boyett objected to the drug treatment or that it was administered
    against his will. Moreover, as the Supreme Court has held, “given the
    requirements of the prison environment, the Due Process Clause permits the State
    to treat a prison inmate who has a serious mental illness with antipsychotic drugs
    against his will, if the inmate is dangerous to himself or others and the treatment is
    in the inmate’s medical interest.” Washington v. Harper, 
    494 U.S. 210
    , 227
    (1990). This makes good sense, for where an inmate is a danger to himself or
    others, an involuntary medication policy may be considerably more humane than a
    policy disallowing the practice altogether. 4 Prison officials have a duty to care for
    their inmate population, and using antipsychotic medications is an appropriate
    medical response in certain situations. Cf. Hogan v. Carter, 
    85 F.3d 1113
    , 1118
    (4th Cir. 1996) (concluding medical personnel, “acting in accordance with sound
    medical judgment and with the prisoner’s best interests in mind,” may order an
    emergency injection of Thorazine); Harper, 
    494 U.S. at 231
     (“Though it cannot be
    4
    We note that if prison officials had not given Boyett the Thorazine
    injections after witnessing his self-destructive behavior, Plaintiffs may have
    alleged Defendants were deliberately indifferent in failing to protect Boyett from
    himself. See Hogan v. Carter, 
    85 F.3d 1113
    , 1118 (4th Cir. 1996) (concluding if
    prison doctor “had not ordered the single dose of Thorazine” to mentally
    deteriorating prisoner “it is not unlikely that [doctor] would now be facing a
    lawsuit by [prisoner] claiming that he was deliberately indifferent to his serious
    medical needs”).
    -19-
    doubted that the decision to medicate has societal and legal implications, the
    Constitution does not prohibit the State from permitting medical personnel to make
    the decision under fair procedural mechanisms.”). The jail’s Thorazine policy
    alone does not demonstrate deliberate indifference.
    Although Plaintiffs argue a medical doctor should have made the Thorazine
    decision, they have not shown how this is constitutionally compelled. As we have
    noted, a prison need not have physicians on site around-the-clock. See Hoptowit,
    
    682 F.2d at 1253
    ; Perkins, 
    165 F.3d at 811
    . It is enough that a prison make
    medical personnel, including doctors, available to help with ongoing medical
    needs, or meet emergencies. In light of this reality, Washington County’s policy
    provides for prompt action by on-site medical staff, including nurses, licensed
    clinical social workers, and physicians’ assistants. Other medical personnel,
    including doctors, are available as necessary. See R., Vol. 5 at 1481 (Physician’s
    Assistant Steele testifying her supervising doctor “was available by phone twenty-
    four hours a day if I had a question”).
    Nor do we see a constitutional violation based on the manner in which the
    Thorazine was administered. Boyett’s three Thorazine injections were given in
    accordance with the standing order, which required (1) a determination of
    dangerousness, (2) Thorazine being the best course of action, and (3) an
    individualized assessment of the inmate. There is no dispute Nurse Hanson
    administered the first injection after determining Boyett posed a danger to himself.
    -20-
    It also appears Hanson determined Thorazine was the best method of treatment and
    an individualized assessment of Boyett’s medical history weighed in favor of
    Thorazine treatment. Although strapping Boyett down to a bed or engaging in
    some other treatment may also have been helpful, there is no indication Thorazine
    was not the best treatment option. 5
    The second and third injections also complied with the policy. The second
    Thorazine injection was given by Nurse Hanson on September 5. This injection
    came after consultation with Licensed Clinical Social Worker Worlton. Worlton
    had spoken with Boyett’s wife regarding Boyett’s medical history and consulted
    Boyett’s medical charts before determining Thorazine was the best course of
    treatment. Nurse Hummer gave Boyett a third shot of Thorazine later that night.
    Plaintiffs point to no record evidence sufficient to carry their burden of showing
    Nurse Hummer ran afoul of the standing order.
    Again, nothing in the record suggests that Boyett objected to any of the
    injections. Thorazine is used in institutional settings and accepted by mentally
    5
    See Steven K. Erickson, The Myth of Mental Disorder: Transsubstantive
    Behavior and Taxometric Psychiatry, 
    41 Akron L. Rev. 67
    , 101–02 (2008)
    (describing “[t]he introduction of Thorazine” as “monumental to psychiatry”
    because “it brought hope to the severely mentally ill in a manner that was
    manifestly obvious”); Thomas G. Gutheil, M.D. and Paul S. Appelbaum, M.D.,
    “Mind Control,” “Synthetic Sanity,” “Artificial Competence,” and Genuine
    Confusion: Legally Relevant Effects of Antipsychotic Medication, 
    12 Hofstra L. Rev. 77
    , 93–97 (Fall 1983) (noting cases in which a defendant was given
    Thorazine to regain cognitive functionality, sanity, and/or competency to stand
    trial).
    -21-
    unstable individuals in precisely Boyett’s circumstances. In fact, Plaintiffs
    concede that, at least for the third treatment, “Boyett was not offensive or
    combative, and in fact, he complied with the order of the jailers to sit still and
    allow himself to be injected.” Aplt. Br. 22–23.
    In sum, Plaintiffs have not shown how Washington County’s antipsychotic
    injections policy or the injections in this case evidenced deliberate indifference to
    Boyett’s medical needs. Plaintiffs have pointed to nothing in the record
    suggesting Boyett objected to the medication or that the nurses unreasonably
    believed that Thorazine was an inappropriate means of addressing Boyett’s
    indications of mental illness.
    g. Failure to prevent Boyett’s death
    Finally, Plaintiffs contend prison officials deliberately failed to prevent
    Boyett’s death. Purgatory officials found Boyett dead in his cell on the morning
    of September 6. We have outlined above the steps taken by prison officials to
    address Boyett’s medical ailments and complaints during the preceding week. On
    this record, it is obvious jail officials responded reasonably to Boyett’s medical
    condition prior to his death, and therefore did not violate Boyett’s constitutional
    rights. “[P]rison officials who act reasonably cannot be found liable under the
    Cruel and Unusual Punishments Clause.” Farmer, 
    511 U.S. at
    844–45.
    Dr. Leis, the medical examiner, concluded Boyett died of occlusive coronary
    artery disease. There is no reason to believe any prison official should have been
    -22-
    aware of this medical risk. Boyett had not documented the disease on his medical
    history paperwork, nor had he shown any symptoms of the disease before he died.
    Even if Boyett’s other medical conditions somehow contributed to his death,
    Plaintiffs point to no evidence in the record that prison officials: (1) recklessly
    misdiagnosed or ignored medical problems; (2) delayed providing medical
    treatment; or (3) denied altogether access to medical personnel or medication. See
    Self, 
    439 F.3d at 1232
    ; Mata, 
    427 F.3d at 753
    . While Plaintiffs ask us to surmise
    Boyett was not treated after a cell room assault perpetuated by either prison
    officials or other inmates, there is no evidence of an assault or that prison officials
    were aware of these injuries and failed to treat them.
    *    *     *
    In sum, Plaintiffs have failed to point to material disputed facts sufficient to
    reverse the district court’s grant of summary judgment in favor of Defendants.
    Plaintiffs have not shown prison officials were deliberately indifferent to Boyett’s
    serious medical needs.
    C. Excessive Force
    1. Legal Framework
    A claim arises under § 1983 if prison officials use force more excessive than
    necessary to preserve safety and discipline in the prison facility. The core inquiry
    for an excessive force claim is “whether force was applied in a good-faith effort to
    maintain or restore discipline, or maliciously and sadistically to cause harm.”
    -23-
    Hudson v. McMillian, 
    503 U.S. 1
    , 7 (1992); see also Hovater v. Robinson, 
    1 F.3d 1063
    , 1068 (10th Cir. 1993) (“[A]n inmate has a constitutional right to be secure
    in her bodily integrity and free from attack by prison guards.”).
    An excessive force claim has two prongs: “(1) an objective prong that asks
    if the alleged wrongdoing was objectively harmful enough to establish a
    constitutional violation, and (2) a subjective prong under which the plaintiff must
    show that the officials acted with a sufficiently culpable state of mind.” Smith v.
    Cochran, 
    339 F.3d 1205
    , 1212 (10th Cir. 2003). To defeat summary judgment,
    plaintiffs must support their claim with more than conjecture and speculation.
    E.g., Self, 
    439 F.3d at 1236
    . “Unsubstantiated allegations carry no probative
    weight” in summary judgment proceedings. Phillips v. Calhoun, 
    956 F.2d 949
    ,
    951 n.3 (10th Cir. 1992); see also Bones v. Honeywell Int’l, Inc., 
    366 F.3d 869
    ,
    875 (10th Cir. 2004) (“To defeat a motion for summary judgment, evidence,
    including testimony, must be based on more than mere speculation, conjecture, or
    surmise.”).
    2. Application
    Plaintiffs contend prison officials assaulted Boyett while he was in jail.
    They point to the testimony of three expert witnesses: Drs. Lara, Lovell, and
    Graham to support their theory. The district court excluded evidence from those
    experts based on concerns about their reliability under Rule 702 of the Federal
    Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 
    509 U.S. 579
    -24-
    (1993). After excluding the expert evidence, the district court concluded Plaintiffs
    failed to establish an affirmative link between the prison guards and Boyett’s
    injuries.
    Plaintiffs’ theory is that Boyett’s rib, rectum, and head injuries were not
    self-inflicted. They posit Officer Kounalis and perhaps another officer assaulted
    Boyett sometime between 5:00 p.m. on September 5 and his death the next
    morning. No direct evidence supports this theory; it rest entirely on (1) an expert
    report theorizing the injuries could not be self-inflicted, and (2) circumstantial
    inferences one of the prison guards must have been alone with Boyett and beat him
    while no one else was looking. We agree with the district court the record does
    not support Plaintiffs’ theory.
    One of the proffered medical experts, Dr. Lara, stated Boyett died as a result
    of: (1) trauma received prior to his death; (2) oversedation from major
    tranquilizers of a patient with compromised liver functions; and (3) denial of basic
    emergency care. Dr. Lara posited Boyett was suffering from liver failure,
    traumatic injuries (i.e., chest trauma, rectal tear, and internal bleeding), and
    probable overwhelming sepsis. Dr. Lara also stated videos taken of Boyett before
    his death showed he was able to lift his arms and move about in a manner that
    would have been impossible had Boyett been suffering from the injuries
    discovered at his death.
    -25-
    Another medical expert, Dr. Lovell, opined Boyett’s injuries were more
    likely caused by the guards than by Boyett himself. Dr. Lovell’s expert report
    stated, “The severe wound on posterior scalp is in such a position that it was more
    likely than not caused by an external blow rather than a fall.” R., Vol. 11 at 3390.
    Dr. Lovell also stated the linear tear in Boyett’s anus “was undoubtedly
    penetration with a blunt foreign body.” 
    Id.
     Nevertheless, Dr. Lovell ultimately
    agreed with the medical examiner that Boyett died of “cardiac arrest.” Id. at 3391.
    A former state medical examiner, Dr. Graham, performed an autopsy on
    Boyett’s body more than one month after Dr. Leis’s official autopsy had been
    completed. Dr. Graham’s autopsy report contained an “anatomical summary”
    listing the most important findings of the autopsy. Those findings were: (1)
    multiple cutaneous contusions and abrasions, including forehead, left hand, right
    foreleg, right and left foot; (2) multiple rib fractures (L 8, 9, 10, 11), lacerations
    (parietal pleura), and intercostal hematomas; (3) laceration (anus); (4) multiple
    scalp contusions; (5) coronary artery atherosclerosis-stenosis; (6) cirrhosis of the
    liver; (7) pulmonary emphysema; and (8) hematoma (omentum). R., Vol. 11 at
    2766. According to Plaintiffs, the conclusion that Washington County officials
    inflicted serious and deadly injury upon Boyett flows inescapably from the
    medical observations of these three experts. We disagree.
    Even if all three of these experts’ testimony and reports were admitted into
    evidence, there would be no genuine issue of material fact regarding Defendants’
    -26-
    use of excessive force. None of these experts supplies evidence tending to show
    either the mechanism or perpetrator of Boyett’s injuries. Plaintiffs have failed in
    their burden of showing an affirmative link between the injuries complained of and
    the conduct of the Defendants. See Serna, 
    455 F.3d at
    1152–53 (requiring plaintiff
    to show an “affirmative link” between the defendant’s actions and a constitutional
    violation); Ledbetter v. City of Topeka, 
    318 F.3d 1183
    , 1187 (10th Cir. 2003)
    (same).
    Plaintiffs attempt to overcome their lack of evidence by presenting a theory
    analogous to the common law notion of res ipsa loquitur. “A res ipsa loquitur
    case is ordinarily merely one kind of case of circumstantial evidence, in which the
    jury may reasonably infer both negligence and causation from the mere occurrence
    of the event and the defendant’s relation to it.” Restatement (Second) of Torts
    § 328D, cmt. b (1965). The problem with reliance on this theory is that it can, at
    most, help Plaintiffs show negligence. Plaintiffs have the burden of proving more
    than negligence, however; Plaintiffs must prove force was applied to Boyett’s
    body “maliciously and sadistically to cause harm.” Hudson, 
    503 U.S. at 7
    . A
    finding of negligent medical care provides no help in that regard.
    Evaluating all three of these experts’ testimony, along with the rest of the
    evidence in the record, we conclude the expert testimony and circumstantial
    evidence fail to raise a material question of fact as to whether Officer Kounalis or
    another officer assaulted Boyett. The reports focus on the extent and severity of
    -27-
    the injuries, while almost entirely omitting their causes (other than to suggest they
    were not self-inflicted). While the injuries are undoubtedly troubling, and their
    origins a mystery, the experts provide no evidence on the crucial question of
    whether one of the Defendants committed them. 6 In fact, Plaintiffs point to no
    evidence in the record tending to show that either Kounalis or another officer was
    alone with Boyett at a time they could have committed the injuries.
    In contradistinction to Plaintiffs’ unsupported theory, the record evidence
    suggests Boyett was never physically abused. The evidence shows: (1) Officer
    Kounalis discovered Boyett’s head injury at 5:00 p.m. on September 5; (2)
    Officers Kounalis and Redford transported Boyett to the infirmary for treatment;
    (3) Boyett did not complain of rib or rectum injuries to anyone at that time; (4)
    Boyett was on powerful pain medication (500 mg of Naprosyn) for other ailments;
    (5) Boyett was given a Thorazine injection and placed in a suicide watch cell at
    7:45 p.m.; (6) the suicide watch cell, located directly behind the booking station, is
    the most public place in the prison; (7) the suicide watch cell was monitored at all
    times by two officers at the booking station; and (8) Boyett was observed walking
    around his cell and using the toilet several times between midnight and 3:00 a.m. 7
    6
    Evidence in the record suggests Boyett fell down some stairs on
    September 3 and may have injured his ribs and rectum then. The record also
    suggests Boyett’s head wound was caused by Boyett repeatedly beating his head
    against the observation cell’s wall or bars.
    7
    Plaintiffs suggest Defendants conspired to conceal the beating, but this
    (continued...)
    -28-
    The evidence does not show how any Defendant had the time or opportunity to
    inflict severe wounds upon Boyett in the hours immediately preceding his death.
    In sum, the Boyett family has not pointed to sufficient record evidence to
    support their theory Officer Kounalis or another Defendant inflicted fatal injuries
    on Boyett the night of September 5. At the summary judgment stage, Plaintiffs
    must point to facts that show a particular Defendant caused the injuries with a
    culpable state of mind. See, e.g., Bones, 
    366 F.3d at 875
     (“To defeat a motion for
    summary judgment, evidence, including testimony, must be based on more than
    mere speculation, conjecture, or surmise.”). They have failed to do so here.
    D. Supervisory Liability
    To hold a supervisor liable under § 1983, a plaintiff must show the
    supervisor’s deliberate, intentional conduct amounted to a violation of plaintiff’s
    constitutional rights. Government officials are not vicariously liable for the
    misconduct of their subordinates. “There is no concept of strict supervisor
    liability under § 1983.” Serna, 
    455 F.3d at 1151
     (quoting Jenkins v. Wood, 
    81 F.3d 988
    , 994 (10th Cir. 1996)). The supervisor must be “personally involved” in
    the constitutional violation. Id.
    7
    (...continued)
    theory of group liability is not supported by the record. Instead, the record shows
    extensive attention to Boyett’s medical needs for the entire period of his
    incarceration. The jail-house documentation that exists shows Boyett was
    monitored throughout the evening of his death, and no one had the opportunity to
    assault him while he was in the prison’s suicide watch cell.
    -29-
    Plaintiffs have failed to present any evidence Sheriff Smith or Chief Nurse
    Patt used excessive force or evidenced deliberate indifference rising to the level
    of a constitutional violation. They have not even attempted to show how these
    county supervisors were personally involved in any constitutional violation.
    Accordingly, we affirm the grant of summary judgment in favor of both
    supervisor Defendants. See, e.g., Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 322
    (1986) (noting summary judgment is appropriate when nonmovant “fails to make
    a showing sufficient to establish the existence of an element essential to that
    party’s case, and on which that party will bear the burden of proof at trial”).
    III. Municipal Liability
    Municipalities are not vicariously liable for the misconduct of their
    employees. Municipal liability may be imposed under § 1983 only if the
    municipality itself is responsible for the constitutional violation. City of Canton
    v. Harris, 
    489 U.S. 378
    , 385 (1989). As relevant here, a municipality may be
    responsible for a constitutional violation when: (1) individuals with final
    decision-making authority for the municipality create an unconstitutional policy
    or practice, or (2) the municipality’s failure to train its employees reflects a
    deliberate indifference to constitutionally protected rights. See 
    id. at 389
    . In
    either case, the municipality must be the “moving force behind the constitutional
    violation.” 
    Id.
     (alterations omitted).
    -30-
    Plaintiffs base their claims of municipal liability on two Washington
    County policies. Neither violates the Constitution.
    The first policy is the county’s supposed policy or practice of refusing to
    treat the wounds and ailments of Purgatory Correctional Facility inmates. There
    is no evidence of this policy or practice. Instead, the county’s policy was to have
    a full-time nursing staff, as well as a part-time physician’s assistant, on site at the
    facility. Other medical personnel, including Steele’s supervising physician, were
    on call. In light of our conclusion that county employees appropriately evaluated
    and treated all of Boyett’s known ailments while he was incarcerated, this policy
    cannot support a claim of municipal liability.
    The second policy is the county’s allegedly unconstitutional decision to
    allow Purgatory officials to inject inmates with Thorazine in unknown amounts
    and frequency and without keeping adequate records. Plaintiffs’ claim fails
    because they have not shown that—if in fact a policy to underreport exists—the
    policy was causally related to Boyett’s injuries. See, e.g., Harris, 
    489 U.S. at 391
    (noting that “for liability to attach . . . the identified deficiency in a city’s training
    program must be closely related to the ultimate injury”).
    Boyett died either of a combination of trauma, broken ribs, and lack of
    medical treatment (Plaintiffs’ theory) or a heart attack (Dr. Leis’s conclusion). In
    neither case was the injection of an antipsychotic medication a cause of his
    injuries or death. Indeed, Dr. Leis’s uncontroverted autopsy report showed no
    -31-
    elevated levels of any medications or other drugs in Boyett’s body, and none of
    Plaintiffs’ expert witnesses opined that Thorazine directly caused Boyett’s death.
    Nor do any of the Plaintiffs’ allegations, even if true, point to a policy of
    deliberate indifference to Boyett’s serious medical needs. Plaintiffs have thus
    failed to meet the threshold standard of culpability and causation required to hold
    the county liable. Carr v. Castle, 
    337 F.3d 1221
    , 1231 (10th Cir. 2003)
    (recognizing plaintiffs seeking to impose municipal liability must prove a
    municipal policy “actually caused” their injuries); Lopez v. LeMaster, 
    172 F.3d 756
    , 760 (10th Cir. 1999) (holding plaintiff “must prove that the [county’s]
    deficiency in training actually caused his jailer to act with deliberate indifference
    to his safety”).
    Plaintiffs’ two claims against Washington County fail for an additional,
    independent reason: the lack of a constitutional violation by any of the county’s
    employees. Without proof of an underlying constitutional violation by a county
    employee, there can be no county liability based on a county policy. See City of
    Los Angeles v. Heller, 
    475 U.S. 796
    , 799 (1986) (per curiam) (“If a person has
    suffered no constitutional injury at the hands of the individual police officer, the
    fact that the departmental regulations might have authorized the use of
    constitutionally excessive force is quite beside the point.”); Estate of Larsen ex
    rel. Sturdivan v. Murr, 
    511 F.3d 1255
    , 1264 (10th Cir. 2008) (“[W]ithout the
    -32-
    predicate constitutional harm inflicted by an officer, no municipal liability
    exists.”).
    IV. State Law Claims
    The district court declined to exercise supplemental jurisdiction over the
    Plaintiffs’ state law claims. By failing to specifically point to any error in the
    district court’s decision, they have waived review of this issue on appeal. See,
    e.g., Hernandez v. Starbuck, 
    69 F.3d 1089
    , 1093 (10th Cir. 1995) (noting
    appellant has the burden of drawing this court’s attention to error below and court
    will not manufacture a party’s arguments on appeal).
    V. Conclusion
    For the reasons set forth above, we AFFIRM the district court’s decision.
    Entered for the Court,
    Timothy M. Tymkovich
    Circuit Judge
    -33-