Dominguez v. Colfax County et al

Filing 92

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez GRANTING IN PART AND DENYING IN PART 70 MOTION to Amend/Correct . IT IS THEREFORE ORDERED that the Amended Motion for Summary Judgment onClaims Against Individual County D efendants and Memorandum of Law in Support Thereof [Doc. 70 ] is GRANTED IN PART AND DENIED IN PART, as follows: Count IV of Plaintiff's Complaint is dismissed as against Defendants Salazar, Bernal, and Sandoval; Count V of Plaintiff's Complaint remains viable. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ELIJAH DOMINGUEZ,
Plaintiff,
v.

CV 14-875 MV/KRS

COLFAX COUNTY,
RATON POLICE OFFICERS
D. BREITFELDER,
and HOLLAND, and CORRECTIONAL OFFICER
JAMES SALAZAR, LIEUTENTANT ROSE BERNAL,
and ADMINISTRATOR GABRIEL SANDOVAL
Of the VIGIL/MALDONADO
[COLFAX COUNTY] DETENTION CENTER,
Defendants.

MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Amended Motion for Summary
Judgment on Claims Against Individual County Defendants and Memorandum of Law in
Support Thereof [Doc. 70].

The Court, having considered the motion, briefs, and relevant law,

and being otherwise fully informed, finds that the Motion is well-taken in part and not well-taken
in part and will be granted in part and denied in part.
BACKGROUND
“The facts supported by evidence, [viewed] in the light most favorable to [Plaintiff]” as
the party opposing summary judgment, are as follows.1

Cavanaugh v. Woods Cross City, 625

1 In his response in opposition to Defendants’ motion, Plaintiff sets forth certain facts that are

based solely on the affidavits of Stuart Grassian, M.D., and Shannon McReynolds, which
Plaintiff attaches as exhibits to his response. Docs. 74-7, 74-9. As explained below, the Court
determines that the testimony of these experts is not admissible for purposes of the instant
motion. As a result, the Court has not included in its statement of facts any of the facts
1

F.3d 661, 662 (10th Cir. 2010).

At approximately 11:00 a.m. on May 24, 2013, the Friday

leading into Memorial Day Weekend, Raton Police Officers Breitfelder and Holland were
dispatched to the Denny’s restaurant in Raton, New Mexico, in response to complaints that a
man, later identified as Plaintiff Elijah Dominguez, was creating a disturbance inside the
restaurant. Doc. 70-1. Upon arrival, Breitfelder and Holland recognized Plaintiff as the same
person who had been at a nearby McDonald’s earlier that day engaging in similarly disturbing
behavior that resulted in a call to the police to which these same officers had responded.

Id.

The manager at Denny’s reported to the officers that Plaintiff had been soliciting a ride
from the restaurant’s customers, and was “quite disruptive, loudly preaching to customers about
his obscure religious beliefs and positions on gang violence and outreach to a lost world.”

Id.

The manager further reported that Plaintiff “became verbally abusive when he was repeatedly
asked to leave,” and “refused to leave and continued this activity” until the officers arrived.

Id.

As the officers entered the restaurant, they observed several customers leaving, who thanked the
officers “for their quick response.” Id.

Both at Denny’s and at McDonald’s earlier that day,

the officers “were approached by citizens telling [them] that Mr. Dominguez had created a
disturbance that made them uncomfortable, and they were leaving as a result.” Id.
Breitfelder and Holland arrested Plaintiff for disorderly conduct and transported him to
the Colfax County Detention Center (the “Detention Center”). Doc. 70-7. At 11:24 a.m.,
Sergeant James Salazar booked Plaintiff into the Detention Center.

Doc. 70-2, Doc. 70-3.

The Administrator of the Detention Center, Gabriel Sandoval, was also present at the time of
Plaintiff’s booking.

Doc. 70-6 at ¶ 3.

Correctional Officer Sanchez administered to Plaintiff a

Suicide Screening Questionnaire and a Medical Screening Questionnaire. Docs. 70-4, 70-5.

proposed by Plaintiff that are based solely on the affidavits of Dr. Grassian and McReynolds.
2

The Suicide Screening Questionnaire instructed the Questioning Officer to “ask the
detainee” specific questions.
the following questions:
suicide?

Doc. 70-4.

The form indicates that Plaintiff responded “yes” to

“Has anyone in your family, or significant other ever attempted

Do you have a psychiatric history?

Do you have a history of drug or alcohol abuse?

Have you ever made a previous attempt at suicide?
forward to in the future?”

Id.

Do you feel that you have nothing to look

Although the form asks for specific dates for psychiatric history

and history of drug or alcohol abuse, and for the method of previous suicide attempts, no such
information was noted on Plaintiff’s form.

Id.

The form further instructed the Questioning

Officer to complete specific questions. The Questioning Officer responded “yes” to the
following questions:

“Is the detainee showing signs of depression?

talking in a strange manner (cannot focus, hallucinating)?”

Is the detainee acting or

Id.

The Medical Screening Questionnaire similarly asks for the officer to solicit “yes” or
“no” responses from the detainee. Doc. 70-5. The form indicates that Plaintiff responded yes
to having “any current illness or injury,” and that, yes, he had been treated for heart problems,
hypertension, diabetes, mental illness, tuberculosis, hepatitis, and bruises.
form asks for dates of treatment, none are provided on the form.

Id.

Id.

Although the

The form further

includes “Questions for Officers.” Id. As to those questions, the Officer noted “yes” next to
the question, “Is the inmate disoriented?”

Id.

During the booking process, Plaintiff “was hard to keep on track . . . when answering
simple questions.”
disruptive.”

Doc. 70-7 at 1. Also during the booking process, Plaintiff “became

Doc. 70-6 at ¶ 7.

As a result, Sandoval called Tri-County Behavioral Health

Services “for help in calming him down.”

Id. at ¶ 7.

Tri-County Behavioral Health Services,

however, advised that they could not respond to the Detention Center at that time.
3

Id. ¶ 7.

According to evidence submitted by Plaintiff, his brother, Marcel Dominguez (“Marcel”),
saw Plaintiff’s truck abandoned on the road, found a police officer, and asked whether there had
been “any call outs” for Plaintiff.

Doc. 74-10 at ¶¶ 2, 4, 5.

The officer advised that there had

been “an incident at McDonalds involving” Plaintiff, and that Plaintiff had been “taken to the
local jail.” Id. at ¶ 6. Marcel went to the jail and asked to see Plaintiff, but was not permitted
to do so.

Id. at ¶ 8. Marcel “told Jail staff that [Plaintiff] had been diagnosed with something

like Schizophrenia and that he was under the care of [their] mother, and that [Plaintiff] needed
medication and that his need was urgent.”

Id. at ¶¶ 9-10. Marcel “called [his] mother and got

the name of [Plaintiff’s] medication and then [he] told a staff member at the jail the medication
[Plaintiff] needed.”

Id. at ¶ 12. While Defendants’ evidence similarly establishes that, shortly

after Plaintiff was booked into the Detention Center, “a male came into the administrative area
and identified himself as Plaintiff’s brother,” according to Defendants’ evidence, Plaintiff’s
brother “did not provide any information about Plaintiff beyond stating that he thought that
Plaintiff needed to be on medication but he did not identify which medication Plaintiff needed
nor did he provide any medications for Plaintiff at the time of this visit.”

Doc. 70-6 at ¶ 5.

When Salazar took Plaintiff to put on his jail uniform, Plaintiff “began talking vulgar and
asked [Salazar] to hurt him.”

Doc. 70-7 at 1. “Because of his [demeanor] and his answers on

intake (medical and suicidal) forms,” Salazar had Plaintiff “fill out a medical request form to see
a doctor.” Id. Initially, Salazar placed Plaintiff in a “holding tank” with two other inmates.
Id.

Five minutes later, he “had to remove the other two inmates and place them somewhere else

because [Plaintiff] was talking vulgar to them.” Id.
Id.

Plaintiff was then “housed by himself.”

Plaintiff thereafter “removed his jail uniform and was yelling profanities and pouring water

upon himself in the nude.”

Id.

Plaintiff “had his clothing on and off most of the day.” Id.
4

Over the three-day weekend, “Plaintiff was under constant video surveillance and was
physically checked every 30 minutes.”

Doc. 70-6 at ¶ 10. Three “Resident Welfare/Safety

Logs” were created, recording jail staff’s observations of Plaintiff every 30 minutes. Doc. 70-8.
The Log includes the following observations of Plaintiff made over the course of his four-day
detention: “standing up walking around (nude)”; “walking around nude;” “walking around
nude”; “walking around nude”; “walking around nude”; “sitting singing”; “pacing talking to the
door”; “pacing talking to self”; “pacing back and forth, cursing”; “talk to himself”; “talk to
himself”; “talking to himself – naked;” “walking back and forth naked”; “naked lying down”;
“throwing cup at door”; “undressing, naked”; “yelling naked”; “undressing again”; “up walking
around naked”; “naked talking to self”; “nude standing”; “walking around nude”; “sitting down
talking to self”; “awake nude”; “awake nude, standing”; “awake standing walking around
incoherent”; “sitting down taking pants off”; “lying down nude”; “up nude yelling incoherent”;
“yelling – sitting in the nude”; “walking around in the nude”; “sitting down – nekkid [sic] –
movement”; “laying down – nekkid [sic] – movement”; “walking around nude”; “walking
around nude”; “standing/dancing”; “walking around nude”; “looking out window – nude”;
“yelling at door nude”; “awake nude folding blanket”; “walking around screaming – delirious –
no clothes”; “laying down yelling with no clothes”; “standing up yelling with no clothes”;
“walking around yelling with no clothes”; “sitting down with no clothes”; “standing/throwing
cup against wall and banging on door”; “standing up yelling”; “lying down fondling himself”;
“howling”; “kneeling folding shirt nude”; “standing against wall nude”; “walking around nud
[sic] talking to wall”; “laying down nude”; “dancing nude/walking around”; “walking around
nued [sic]; “walking around yelling”; “laying down nude”; “laying down nude”; “laying down
nude”; “standing by door nude”; “nude walking around”; “incoherent”; “undressed, up eating”;
5

“awake nude”; “laying down talking to self”; “walking around with no clothing on (naked)”;
“sitting there in the nude”; “nude standing up;” “walking around/taking clothing off (nude”)”;
walking around (naked)”; “walking around (nude)”; “walking around (nude)”; “walking around
(nude)”; “walking around nude talking to himself”.

Id.

The first Log, which is three pages long, begins at 1:34 p.m. on Friday May 24, 2013, and
ends at 1:00 a.m. on Sunday May 26, 2013.

The bottom of the last page of the first Log

indicates that it was received and signed by Sandoval; the date on which it was received is not
legible.

The Administrator comments state: “Mr. Dominguez needs mental health evaluation

so he has been separated from the population so he does not get hurt. Making racial slurs and
telling staff he wants to kill them.”

Id.

The second Log, which is three pages long, begins at

1:30 a.m. on Sunday May 26, 2013 and ends at 12:27 p.m. on Monday, May 27, 2013.

The

bottom of the second page of the second Log indicates that it was received and signed by
Sandoval on May 27, 2013.
disrespectful to staff.
Id.

The Administrator Comments state:

“Mr. Dominguez still being

Tried contacting Judge so he could let Mr. Dominguez out but no reply.”

The third Log, which is two pages long, begins at 12:04 p.m. on Monday May 27, 2013 and

ends at 15:30 p.m. on Tuesday May 28, 2013.

The second page of the third Log indicates that it

was received and signed by Sandoval on May 28, 2013.

The Administrator Comments state:

“Mr. Dominguez needs mental evaluation. Hope to see the Judge today.” Id.
The Detention Center is too small to employ a staff doctor or operate an onsite medical
clinic.

Id. at ¶ 6.

When a detainee has a medical emergency, Detention Center staff send the

detainee, by ambulance, to the Miners’ Colfax Medical Center (“Medical Center”).

Id. The

Medical Center Emergency Department was the only facility “to which Plaintiff could be sent
over the long weekend.”

Id. at ¶ 8.

Sandoval “did not deem Plaintiff’s condition to be a
6

medical emergency because he was not hurting himself and was placed in a private cell so that
he would not be at risk of being harmed by any of the other detainees.”

Id. at ¶ 9.

The Colfax County Magistrate Court was closed over Memorial Day weekend.

Doc.

70-6 at ¶ 8. On Tuesday May 28, 2013, Sandoval called Magistrate Judge Walton and
requested that Plaintiff be brought before him as soon as possible. Id. at ¶ 11.
then called to arrange for “video court” for Plaintiff.
took Plaintiff into the video courtroom.

Doc. 70-7 at 1.

Judge Walton

Salazar and Sanchez

Id. After the hearing, Judge Walton ordered Salazar

to have Plaintiff transported to the Medical Center for a medical evaluation. Id. Sanchez
transported Plaintiff to the Medical Center at 4:30 p.m.

Id.

At the Medical Center, Plaintiff was treated by attending physician Richard M.
Amesquito, DO.

Doc. 70-10 at 1. The Medical Center report indicates that the “chief

complaint” for Plaintiff’s visit was “psychosis as reported by his jailers.” Id.

The report

further indicates that Plaintiff, while in custody at the county jail, had “been in a private secluded
room because he [had] been acting psychotic, crazy, boisterous, agitated and some anxiety when
in the company of other prisoners.” Id.

Plaintiff was “a poor historian” and would not give

the Medical Center “any useful information” regarding his medical history, but Plaintiff’s mother
reported to the Medical Center that he suffered from psychosis.

Id.

The report describes

Plaintiff as “agitated, anxious, non-cooperative,” talking “in circles,” “very loud and boisterous,”
and “verbally abusive to staff and accompanying police officers.”
documents the “emergency room course” as follows:

Id. at 2.

The report

“While in the ER patient required

Geodon 20 mg IM x2 [an antipsychotic drug] which finally made him sedate and easier to handle
and not a threat to himself or others.”
Plaintiff with psychosis and mania.

Id.
Id.

The report indicates that Dr. Amesquita assessed
The report further indicates that the “plan” was to
7

admit Plaintiff to the ICU; “[c]onsult with mental health first thing in the morning”; and “[f]ind
placement for [Plaintiff] for proper psychological evaluation and treatment.”

Id.

The report

notes that medical staff “consulted with the judge in [Plaintiff’s] case,” who found the plan to be
acceptable. Finally, the report notes that Plaintiff was “admitted to the hospital in stable
condition.” Id.
The following day, on Wednesday, May 29, 2013, a Release Order and Bond was signed,
releasing Plaintiff from custody on an unsecured appearance bond of $500.
Order includes the following language:
evaluation and meds.

Doc. 70-11.

The

“Please release this defendant so that he can get mental

We will send summons at later date.”

Id.

As a result of the foregoing facts, Plaintiff commenced an action in the Eighth Judicial
District Court, Colfax County, in the State of New Mexico against Colfax County, Breitfelder,
Holland, Salazar, Sandoval, and Rose Bernal, Lieutenant of the Detention Center. Doc. 1-2.
Collectively, the Defendants removed the action to this Court on September 26, 2014.

Doc. 1.

In his Complaint to Recover Damages for Deprivation of Civil Rights and Violation of the
Americans with Disabilities Act (“ADA”), Plaintiff, inter alia, alleges that the “County
Defendants” violated his rights under Title II of the Americans with Disabilities Act (Count IV),
and that Salazar, Sandoval and Bernal (hereinafter referred to as “Defendants”) violated his due
process rights under the Fourteenth Amendment by failing to provide medical care (Count V).
Defendants filed the instant motion for summary judgment, seeking dismissal of Counts
IV and V as against them.

Specifically, Defendants argue that Plaintiff is not permitted to bring

an ADA claim against them in their individual capacity, and that they are entitled to qualified
immunity on Plaintiff’s due process claim.

Plaintiff consents to dismissal of Count IV as to

Defendants, but argues that they are not entitled to qualified immunity on his due process claim.
8

LEGAL STANDARD
Summary judgment is appropriate if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

The movant has the initial burden of establishing that there is an absence of evidence

to support the non-movant’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

If the

movant meets this burden, the non-movant must come forward with specific facts, supported by
admissible evidence, that demonstrate the existence of a genuine dispute. Comm. for First
Amendment v. Campbell, 962 F.2d 1517, 1526 n. 11 (10th Cir. 1992).

The court “construe[s]

the factual record and the reasonable inferences therefrom in the light most favorable to the
nonmoving party.” Mata v. Saiz, 427 F.3d 745, 749 (10th Cir. 2005).
In the instant case, Defendants move for summary judgment on the basis of qualified
immunity.

Qualified immunity protects government officials performing discretionary

functions “when their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Brown v. Montoya, 662 F.3d 1152,
1164 (10th Cir. 2011). In keeping with the purposes of qualified immunity, “special rules apply
when an official raises a defense of qualified immunity on summary judgment.”
of Elwood, Kan., 997 F.2d 774, 779 (10th Cir. 1993).

Hinton v. City

Specifically, “qualified immunity

requires a two-step sequence.” Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir. 2012) (citation
omitted). “When a defendant asserts qualified immunity at summary judgment, the burden
shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the
constitutional right was clearly established.”

Id. (citation omitted).

“If the plaintiff fails to

satisfy either part of the two-part inquiry, the court must grant the defendant qualified
immunity.” Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001).
9

The court has “the

freedom to decide ‘which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.’” Lundstrom v.
Romero, 616 F.3d 1108, 1118 (10th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223
(2009)).
“A constitutional right is clearly established when, at the time of the alleged violation, the
contours of the right were sufficiently clear that a reasonable official would understand that his
actions violate that right.” Lundstrom, 616 F.3d at 1118-19 (citation omitted).

“This inquiry

must be undertaken in light of the specific context of the case, not as a broad general
proposition.” Fisher v. City of Las Cruces, 584 F.3d 888, 900 (10th Cir. 2009) (citation
omitted). Accordingly, a “plaintiff must do more than identify in the abstract a clearly
established right and allege that the defendant has violated it.”

Lundstrom, 616 F.3d at 1119.

Specifically, a “plaintiff must show legal authority making it apparent that in light of pre-existing
law a reasonable official would have known that the conduct in question violated the
constitutional right at issue.” Id.
This does not mean that the plaintiff must “present a case with an identical factual
situation.” Id.

To the contrary, the Supreme Court has made clear that “officials can still be

on notice that their conduct violates established law even in novel factual circumstances.”
Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[A] general constitutional rule already identified in
the decisional law may apply with obvious clarity to the specific conduct in question, even
though the very action in question has not previously been held unlawful”); see also Casey v.
City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007) (“The Hope decision shifted the
qualified immunity analysis from a scavenger hunt for prior cases with precisely the same facts
toward the more relevant inquiry of whether the law put officials on fair notice that the described
10

conduct was unconstitutional.”).

The “salient question” thus is whether the state of the law at

the time of the alleged misconduct gave the defendant “fair warning” that her alleged misconduct
was unconstitutional. Hope, 536 U.S. at 741.

In order to answer this question, the court looks

to “Supreme Court or Tenth Circuit precedent on point or clearly established weight of authority
from other courts finding the law to be as the plaintiff maintains.” Lundstrom, 616 F.3d at
1119.
DISCUSSION
I.

Plaintiff’s ADA Claim
In Count IV of the Complaint, Plaintiff alleges violations of Title II of the ADA “against

County Defendants.” Doc. 1-2 ¶¶ 50-61.

Defendants argue that Plaintiff’s ADA claim should

be dismissed as against them because Title II does not permit plaintiffs to sue state officials in
their individual capacity.

Doc. 70 at 5.

In his response, Plaintiff clarifies that he is pursuing

an ADA claim “solely against the County,” and consents to the dismissal of his ADA claim as
against Defendants.

Doc. 74 at 11. Accordingly, based on the agreement of the parties, the

Court will dismiss Count IV of the Complaint as against Defendants.
II.

Plaintiff’s Due Process Claim
In Count V of the Complaint, Plaintiff alleges that Defendants violated his clearly

established due process right as a detainee to receive medical care by failing to provide him with
the medical care that they knew or should have known that he required. Doc. 1-2 at ¶¶ 62-69.
Defendants argue that qualified immunity shields them from liability on Plaintiff’s due process
claim based on inadequate medical attention because (1) the undisputed material facts
demonstrate that they did not violate Plaintiff’s constitutional rights, and (2) assuming arguendo
that they did violate Plaintiff’s constitutional rights, the law was not clearly established at the
11

time of the violation of those rights. According to Defendants, because Plaintiff thus cannot
meet either prong of the qualified immunity test, they are entitled to summary judgment on his
due process claim.
A.

Violation of Plaintiff’s Constitutional Right to Receive Medical Care

Under the first prong of the qualified immunity analysis, the Court must determine
whether, viewing the evidence in the light most favorable to Plaintiff, the facts show that
Defendants denied or delayed Plaintiff access to medical care in violation of his Fourteenth
Amendment rights. See Mata, 427 F.3d at 749-50.

“Under the Fourteenth Amendment’s Due

Process Clause, pretrial detainees are entitled to the same degree of protection against denial of
medical care as that afforded to convicted inmates under the Eighth Amendment.”

Barrie v.

Grand County, Utah, 119 F.3d 862, 868 (10th Cir. 1997); see also Blackmon v. Sutton, 734 F.3d
1237, 1244 (10th Cir. 2013) (“[D]etention officials surely owe pretrial detainees . . . at least the
same standard of care prison officials owe convicted inmates.”).

Accordingly, Plaintiff’s due

process claim must be assessed under the “deliberate indifference” standard developed in the
Eighth Amendment context. Blackmon, 734 F.3d at 1244; Olsen v. Layton Hills Mall, 312 F.3d
1304, 1315 (10th Cir. 2002) (“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”).
Specifically, in Estelle v. Gamble, the Supreme Court held that “[a] prison official’s
deliberate indifference to an inmate’s serious medical needs is a violation of the Eighth
Amendment’s prohibition against cruel and unusual punishment.” Mata, 427 F.3d at 751
(citing Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“[D]eliberate indifference to serious medical
needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the
12

Eighth Amendment.”)). Such deliberate indifference may be “manifested by prison doctors in
their response to the prisoner’s needs or by prison guards in intentionally denying or delaying
access to medical care or intentionally interfering with the treatment once prescribed.” Estelle,
429 U.S. at 104-05.

Of particular relevance here, “the deliberate disregard of a patient’s

psychological needs can violate a detainee’s constitutional rights no less than the deliberate
disregard of his physical needs.”

Blackmon, 734 F.3d at 1245; see also Riddle v. Mondragon,

83 F.3d 1197, 1202 (10th Cir. 1996) (holding that constitutional duty to provide necessary
medical care to inmates includes psychological or psychiatric care); Bee v. Greaves, 744 F.2d
1387, 1395 (10th Cir. 1984) (holding that constitutional duty to treat medical needs of pretrial
detainees “includes mental as well as physical disorders”).
Under the Estelle deliberate indifference standard, the test for constitutional liability of
prison officials “involves both an objective and a subjective component.”

Mata, 427 F.3d at

751 (quoting Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)). First, Plaintiff must
show “objective evidence that the deprivation at issue was in fact ‘sufficiently serious.’” Id.
“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, 218 F.3d at 1209 (citation omitted).

If a

plaintiff’s claim is based on a delay in medical care, the plaintiff also must show that “the delay
resulted in substantial harm.” Mata, 427 F.3d at 751 (citation omitted). “The substantial harm
requirement may be satisfied by lifelong handicap, permanent loss, or considerable pain.” Id.
(citation omitted).
In Mata, the Tenth Circuit clarified that, in determining whether the plaintiff has suffered
substantial harm as a result of a delay in medical care, there are two distinct types of “substantial
13

harm” that the Court may consider. 427 F.3d at 753.

First, the Court may consider “some

intermediate harm,” such as the plaintiff’s experience of prolonged or severe pain or suffering
during the period when medical attention was withheld or delayed. Id.; see also Kikumura v.
Osagie, 461 F.3d 1269, 1292 (10th Cir.2006) (“The ‘substantial harm’ can . . . be an intermediate
injury, such as the pain experienced while waiting for treatment and analgesics.”), overruled on
other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), as explained in Robbins v.
Oklahoma, 519 F.3d 1242, 1246–47 (10th Cir. 2008); Beers v. Ballard, 248 F. Appx. 988, 991
(10th Cir. 2007) (“Mr. Barnes may have suffered from greater or more prolonged pain, a
cognizable substantial harm,” as a result of “the delay in attending to Mr. Barnes after his
collapse.”) (citing Sealock, 218 F.3d at 1210 n. 5 (“[T]here is factual evidence from which a jury
could conclude that the delay occasioned by . . . inaction unnecessarily prolonged appellant’s
pain and suffering.”); Oxendine v. Kaplan, 241 F.3d 1272, 1278 (10th Cir. 2001) (“[T]he delay . .
. caused substantial harm due to the fact that . . . Oxendine experienced considerable pain.”)).
Second, the Court may consider “the last untoward event to befall” the plaintiff, such as the
subsequent or long-term deleterious effect on the plaintiff’s health caused by the prison’s
dilatory response to his medical needs. Mata, 427 F.3d at 753; see also Kikumura, 461 F.3d at
1292 (The “‘substantial harm’ can be the ultimate physical injury caused by the prisoner’s
illness, so long as the prisoner can show that the more timely receipt of medical treatment would
have minimized or prevented the harm.”); Beers, 248 F. App’x at 991 (“[T]he time-frame for
administering life-saving treatment could have passed during the period of delay; if such
treatment had a realistic chance of success, the prison’s dilatory response could be said to have
proximately caused his death.”) (citing Lewis v. Wallenstein, 769 F.2d 1173, 1183 (7th Cir.
1985) (“[C]ausal connection existed between” doctor’s 15 minute delay in attending to inmate
14

and inmate’s death from cardiac arrest.)).

Regardless of which type of harm the detainee seeks

to establish, “the focus of the objective prong should be solely on whether the harm is
sufficiently serious.” Id.
For example, in Sealock, the plaintiff presented to prison staff with severe chest pain and
ultimately suffered a heart attack. The court first considered a possible claim that the heart
attack itself was a sufficiently serious harm to establish the objective component of the deliberate
indifference test, but rejected the claim because the plaintiff did not present specific medical
evidence of a subsequent harm, namely, “damage to his heart resulting from the delay.”
F.3d at 1210.

218

Nonetheless, the court found that the plaintiff had shown that his need was

sufficiently serious to require prompt medical attention, based alone on the interim harm,
namely, the symptoms that he presented to the prison staff:
Appellant presented evidence that he suffered from severe chest pain which he
reasonabl[y] believed was caused by a heart attack. The pain and suffering
imposed by Barrett’s failure to get him treatment lasted several hours. The
Eighth Amendment forbids unnecessary and wanton infliction of pain.
Certainly, not every twinge of pain suffered as a result of delay in medical care is
actionable. The evidence in this case, however, sufficiently establishes the
objective element of the deliberate indifference test.
Id. (citations omitted).
In Mata, the plaintiff similarly presented to prison staff with severe chest pain and
ultimately suffered a heart attack. The court determined that “both Ms. Mata’s severe chest
pain and her heart attack each [were] sufficiently serious to satisfy the objective prong.”
F.3d at 753.

427

Specifically, the court found that the plaintiff’s evidence “that she did in fact

suffer severe pain for several days” went “way beyond a twinge” and thus was alone sufficient to
establish the objective element of the deliberate indifference test. Id. at 755.

Further, the

court found that evidence that the plaintiff suffered a heart attack was also independently
15

sufficient to establish the objective element of the deliberate indifference test. Id.

Thus, the

court concluded that the plaintiff had “exceeded the minimum evidentiary requirement . . . by
presenting specific evidence that she suffered both unnecessary pain and a worsening in her
condition – in the form of permanent and irreversible heart damage.” Id.
Once a plaintiff has met the objective prong of the deliberate indifference test by
demonstrating that his or her “medical need was objectively sufficiently serious and that
defendants’ delay in meeting that need caused [him] or her substantial harm,” the plaintiff next
must meet the subjective prong of the deliberate indifference test. Id. at 752.

A detainee “may

satisfy the subjective component by showing that defendants’ delay in providing medical
treatment caused either unnecessary pain or a worsening of her condition.” Id. at 756.

“Even

a brief delay may be unconstitutional.” Id.
“The subjective prong of the deliberate indifference test requires the plaintiff to present
evidence of the prison official’s culpable state of mind.”

Id. at 751.

Specifically, the

subjective component is met if the prison official “knows of and disregards an excessive risk to
inmate health or safety; the official must be both 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 v. Brennan, 511 U.S. 825, 837 (1994). The deliberate indifference standard applies
“not only to medical professionals who fail to treat, but also prison officials who assume ‘gate
keeping’ authority over prisoner access to medical professionals.” Blackmon, 734 F.3d at 1245.
Accordingly, “one way a prisoner may satisfy the subjective component of the deliberate
indifference test is to show that a ‘gate keeping’ prison official den[ied] or delay[ed] him access
to medical care in conscious disregard of a substantial risk of serious harm.” Id. (citation
omitted).
16

Notably, “[d]eliberate indifference does not require a finding of express intent to harm.”
Mitchell v. Maynard, 80 F.3d 1433, 1442 (10th Cir. 1996). Accordingly, a detainee “need not
show that a prison official acted or failed to act believing 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.”

Farmer, 511 U.S. at 842.

In other words, “[t]o show the requisite

deliberate indifference,” a plaintiff “must establish that defendant(s) knew he faced a substantial
risk of harm and disregarded that risk, by failing to take reasonable measures to abate it.”
Kikumura, 461 F.3d at 1293 (quoting Farmer, 511 U.S. at 847).
“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.” Farmer, 511 U.S. at 842.

“It remains open to the

officials to prove that they were unaware even of an obvious risk to inmate health or safety.” Id.
at 844.

Similarly, even “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.” Id.
Objective Component
In order to meet the objective prong of the deliberate indifference test, Plaintiff must
demonstrate both that his medical need was objectively sufficiently serious and that Defendants’
delay in meeting that need caused him substantial harm. Mata, 427 F.3d at 752. Defendants’
own evidence establishes both the sufficiently serious nature of Plaintiff’s medical need and the
fact that Plaintiff experienced substantial harm as a result of Defendants’ delay in meeting that
need.

Accordingly, Plaintiff has met his evidentiary burden as to the objective prong.
17

Plaintiff’s Medical Need Was Sufficiently Serious
The undisputed evidence establishes not only that Plaintiff’s medical need was
“diagnosed by a physician as mandating treatment,” but also that it was “so obvious that even a
lay person would easily recognize the necessity for a doctor’s attention,” and thus that it was
“sufficiently serious.” Sealock, 218 F.3d at 1209.

Specifically, once Plaintiff was transported

to the Medical Center, Dr. Amesquito assessed Plaintiff with psychosis and mania, and treated
him on an emergent basis for those conditions with an injection of an antipsychotic drug.

Doc.

70-10 at 2. Dr. Amesquita then admitted Plaintiff to the hospital for a mental health consult and
placement for a psychological evaluation and further treatment.

Id.

This evidence alone is

sufficient to establish that Plaintiff’s medical need was objectively sufficiently serious. See
Gray v. Geo Group, No. 17-6135, 2018 WL 1181098, at *4 (10th Cir. Mar. 6, 2018) (holding
that plaintiff’s allegation that he was diagnosed and treated for bipolar, depressive, and psychotic
disorders was sufficient to establish the objective component of his deliberate indifference claim
regarding his mental health needs); Olsen, 312 F.3d at 1316 (reversing grant of summary
judgment on detainee’s due process claim because a jury could find that detainee’s OCD, with
which he had been diagnosed and for which he had been treated, was sufficiently serious to meet
objective prong of deliberate indifference test); Haden v. Green, No. 10-cv-515, 2011 WL
7563786 (D. Colo. June 13, 2011) (holding that plaintiff demonstrated a serious medical need
where he alleged that he was diagnosed with bipolar disorder, general anxiety disorder, and
obsessive compulsive disorder) (citing Petersmarck v. Parks, No. 09-327, 2009 WL 3713650
(S.D. Ill. Nov. 4, 2009) (finding plaintiff stated claim for deliberate indifference where plaintiff
alleged he was diagnosed as bipolar with manic depression); Miller v. McDaniel, 2007 WL
396996 at *6 (D. Nev. Feb. 1, 2007) (holding that bipolar disorder is a serious medical need);
18

Means v. Huibregtse, 2003 WL 23109378, at *1 (W.D. Wis. Jan. 6, 2003) (holding that
allegations of anxiety and bipolar disorder were sufficient to suggest plaintiff had serious
medical needs)).
Moreover, Plaintiff’s need for mental health treatment was clearly manifested by his
symptoms, which continued virtually without interruption from the moment that he arrived at the
Detention Center until he was transported to the Medical Center four days later.

During

administration of the initial screening questionnaires and the booking process, Plaintiff showed
“signs of depression”, was “acting in a strange manner ([could not] focus, [was] hallucinating),”
was “disoriented,” was “hard to keep on track . . . when answering simple questions,” and was so
“disruptive” that Sandoval found it necessary to call Tri-County Behavioral Health Services “for
help in calming him down.”

Docs. 70-4 to 70-7. Indeed, Plaintiff’s need for medical attention

was so clear from his “demeanor” that Salazar had Plaintiff “fill out a medical request to see a
doctor.” Doc. 70-7.
Once he was placed in a cell, Plaintiff continued to display clear signs of mental distress,
“remov[ing] his jail uniform[,] yelling profanities and pouring water upon himself in the nude.”
Doc. 70-7.

During the four days that he spent in the cell, Plaintiff repeatedly undressed, and

was observed to be without any clothing no less than 55 times.

Id.

Until he was removed

from his cell, Plaintiff was consistently observed talking to himself, talking to the door, pacing,
talking or yelling incoherently, dancing, screaming, exhibiting signs of delirium, throwing
things, banging on the door, and howling.

Id. Indeed, Plaintiff’s need for medical attention

remained so clear from the symptoms he displayed while in his cell that Sandoval drew the
conclusion that Plaintiff needed “a mental health evaluation.”

Doc. 70-6.

This evidence

provides a second, independent basis to establish that Plaintiff’s medical need was objectively
19

sufficiently serious.

See Lopez-Aguirre v. Board of Cty. Comm’rs of Shawnee Cty., Kansas,

No. 12-2752, 2013 WL 1668239, at *4 (D. Kan. Apr. 17, 2013) (holding that allegations
established that plaintiff’s need was sufficiently serious where plaintiff alleged, inter alia, that he
arrived with a mental illness, and that his behavior while in detention was erratic, including an
inability to comply with instructions, smearing and sliding in feces and urine in his cell,
expressing a desire to hurt himself, an unkempt appearance, shifts in outward emotional
expressions, throwing water, hyperactivity, and an acutely psychotic appearance).
Plaintiff Suffered Substantial Harm
The undisputed evidence also establishes that Plaintiff suffered a substantial
“intermediate harm” as a result of Defendants’ refusal to provide him access to medical care.
See Mata, 427 F.3d at 753. Specifically, Plaintiff’s mental distress continued from the time that
he arrived at the Detention Center on Friday morning until he was given the injection of an
antipsychotic drug at the Medical Center the following Tuesday afternoon, “which finally made
him sedate and easier to handle and not a threat to himself or others.”

Doc. 70-10. Although

Defendants continuously observed the symptoms of Plaintiff’s psychosis and mania during his
four-day detention, they did nothing to alleviate those symptoms.

This evidence, namely, that

Plaintiff’s symptoms of severe mental disturbance continued unabated while in detention but
were quickly ameliorated when he was seen by a doctor and administered the necessary
medicine, demonstrates that the delay occasioned by Defendants’ inaction unnecessarily
prolonged Plaintiff’s experience of psychosis and mania.

Such prolonged suffering surely is as

serious as the prolonged suffering occasioned by a delay in administering “treatment and
analgesics” for physical pain, which the Tenth Circuit has repeatedly found sufficient to establish
substantial harm for purposes of the objective prong of the deliberate indifference test. See
20

Mata, 427 F.3d at 753; Kikumura, 461 F.3d at 1292; Beers, 248 F. App’x at 991; Oxendine, 241
F.3d at 1272.

Indeed, Plaintiff’s mental disturbance and attendant suffering “imposed by

[Defendants’] failure to get him treatment,” lasted several days, rather than the several hours
found sufficient in Sealock.

218 F.3d at 1210. As the court noted in Sealock, “the Eighth

Amendment forbids unnecessary and wanton infliction of pain.” Id.

And while “not every

twinge of pain suffered as a result of delay in medical care is actionable,” just as in Sealock, the
evidence in this case “sufficiently establishes the objective element of the deliberate indifference
test.”

Id.
Defendants’ arguments do not change this analysis.

First, Defendants appear to argue

that the evidence establishes no more than the severity of Plaintiff’s underlying medical
condition, and that such evidence is insufficient to establish that Plaintiff had an objectively
serious medical need. Doc. 70 at 12; Doc. 80 at 9.

In support of this proposition, Defendants

cite to a Second Circuit case, Smith v. Carpenter, in which the plaintiff appealed the denial of a
motion for new trial after a jury verdict in favor of the defendant prison officials. 316 F.3d 178,
185 (2nd Cir. 2003).

The court stated that “[w]hen the basis for a prisoner’s Eighth

Amendment claim is a temporary delay or interruption in the provision of otherwise adequate
medical treatment, it is appropriate to focus on the challenged delay or interruption in treatment
rather than on the prisoner’s underlying medical condition alone in analyzing whether the alleged
deprivation is, in objective terms, sufficiently serious, to support an Eighth Amendment claim.”
Id. at 185 (emphasis in original; citations omitted).

By contrast, the court stated, where “the

prisoner alleges that prison officials have failed to provide general treatment for his medical
condition,” “[t]here is no need to distinguish between a prisoner’s underlying serious medical
condition and the circumstances of his serious medical need.” Id.
21

Indeed, the court noted that

it has used the terms “serious medical condition” and “serious medical need” “interchangeably in
analyzing denial of medical claims under the Eighth Amendment.” Id. at 185 n. 9.
In the instant case, Plaintiff does not base his claim on a “temporary delay or interruption
in the provision of otherwise adequate medical treatment,” but rather alleges that Defendants
“failed to provide general treatment for his medical condition.” Id. at 185.

Accordingly,

Smith provides no support for Defendants’ suggestion that this Court should distinguish between
Plaintiff’s underlying serious medical condition and the circumstances of his serious medical
need, which, as Smith makes clear, are interchangeable for purposes of the instant analysis.
Further, the Smith court specifically noted that nothing in its decision was meant to suggest that
the plaintiff’s “claim would not have survived a motion to dismiss or motion for summary
judgment.”

Id. at 188 n. 14.

Accordingly, Smith provides no guidance for this Court in

determining whether Plaintiff his met his burden of demonstrating that his medical need was
objectively sufficiently serious for purposes of defeating Defendants’ motion for summary
judgment.
Second, Defendants argue that they were never “presented with symptoms with which
they knew potentially created a medical emergency for Plaintiff.”

Doc. 80 at 10. Defendants’

own evidence belies this contention. As detailed above, Plaintiff manifested symptoms of
mental disturbance from the very moment he arrived at the Detention Center – symptoms that
were personally observed and recorded by Defendants themselves, and indeed recognized by
Defendants as necessitating a request to see a doctor and a mental evaluation.

Also as detailed

above, Plaintiff’s symptoms – continuously observed by Defendants – continued unabated until
he was transported to the Medical Center four days later.

This case thus is distinguishable from

Amick v. Ohio Dep’t of Rehab. & Corr., cited by Defendants in support of their position, in
22

which the court found that the plaintiff’s allegations “reveal[ed] no hint of increasing
symptomatology or behavioral problems during most of the five months [the inmate] was
incarcerated in state prison facilities.”

521 F. App’x 354, 358 (6th Cir. 2013).

The court

found the plaintiffs’ deliberate indifference claim “facially deficient for its failure to satisfy the
objective component requirement” because “according to plaintiffs’ own allegations, Amick
would appear to have made an acceptable and unremarkable adjustment to prison life without
medications for almost five months,” and it was not until “the final days of his life that
symptoms became manifest.”

Id. Here, in stark contrast, Plaintiff’s symptoms were manifest

throughout the duration of his detention, and at no time did he make “an acceptable and
unremarkable adjustment” without access to medical care.

Accordingly, nothing in Amick

suggests that Plaintiff’s medical need was not objectively sufficiently serious.
Importantly, Defendants ignore the undisputed fact that Plaintiff was assessed with
psychosis and mania, was treated on an emergent basis for those conditions with an injection of
an antipsychotic drug, and was admitted to the hospital for a mental health consult and placement
for a psychological evaluation and further treatment.

Regardless of whether Plaintiff’s medical

need was so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention, the evidence that Plaintiff’s medical need was diagnosed by a physician as mandating
treatment is alone sufficient to establish that Plaintiff’s medical need was objectively sufficiently
serious.

Sealock, 218 F.3d at 1209.

Finally, Defendants argue that because there is no admissible evidence that “any alleged
untimely response to Plaintiff’s mental health conditions had any causal effect,” or that “the
outcome would have differed, i.e. that Plaintiff would have been less manic, less psychotic, or
less anxious, with a quicker response,” Plaintiff has failed to meet his burden of demonstrating
23

that he suffered substantial harm as a result of Defendants’ delay in meeting his need for medical
attention. Doc. 70 at 12; Doc. 80 at 9, 17.

In other words, Defendants contend that Plaintiff

has failed to establish that any subsequent or long-term deleterious effect on Plaintiff’s mental
health was actually caused by Defendants’ dilatory response to his medical needs.

This

contention reflects a fundamental misunderstanding of the controlling standard for determining
whether Plaintiff suffered “substantial harm.”

Defendants repeatedly cite to Mata for the

proposition that “the substantial harm requirement may be satisfied by lifelong handicap,
permanent loss, or considerable pain.” 427 F.3d at 751.

Defendants, however, fail to

acknowledge that Mata and the other Tenth Circuit cases discussed above further hold that, in
determining whether a plaintiff has suffered substantial harm as a result of a delay in medical
care, the Court may consider “some intermediate harm” to the plaintiff, so long as that “harm is
sufficiently serious.” Id. at 753. Nowhere do Defendants address, much less refute, that under
this controlling precedent, Plaintiff’s prolonged experience of psychosis and mania, which
undoubtedly was caused by Defendants’ inaction, was an intermediate harm sufficiently serious
to satisfy the substantial harm requirement. Defendants do not – and indeed cannot – deny that
their delay in providing Plaintiff access to medical care prolonged his mental disturbance and
attendant suffering for four days; this prolonged mental disturbance and suffering is sufficiently
serious to satisfy the substantial harm requirement.
The Court notes that, in reaching this conclusion, it did not consider the affidavit of Dr.
Grassian. As Defendants contend, Plaintiff has failed to establish that the testimony of these
experts is sufficiently reliable.

Doc. 80 at 3-6. In his affidavit, Dr. Grassian notes that he has

“special expertise regarding the psychiatric effects of solitary confinement” and “extensive
experience in evaluating the psychiatric effects of solitary confinement.”
24

Doc. 74-7 at ¶¶ 1-2.

He also notes that he has served as an expert witness “regarding the psychiatric impact of
segregated confinement.”

Id. at ¶ 2.

Although his affidavit notes that his Curriculum Vitae is

attached thereto, no such attachment was provided to the Court. Id. at ¶ 2. Based on his
“specialized knowledge,” Dr. Grassian opines, inter alia, that Plaintiff “suffered substantial harm
as a result of [Defendants’] failure to provide prompt psychiatric care.” Id. at ¶ 5.
Although “[a]n expert’s testimony can rely solely on experience,” when that is the case,
“the witness must explain how that experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and how that experience is reliably applied to the
facts.” United States v. Nacchio, 555 F.3d 1234, 1258 (10th Cir. 2009) (citation omitted).
Here, Plaintiffs did not offer any of this additional information. Id.

Plaintiffs simply “relied

on [Dr. Grassian’s] qualifications to tip the balance in favor of admissibility of his expert
testimony.”

Id.

In doing so, Plaintiff “ignore[d] the precept that when assessing expert

testimony, “the question before the trial court [i]s specific, not general.” Id.

Although Dr.

Grassian “generally has been permitted to testify in the past, and a district court might well
respect his credentials, the court ha[s] an obligation to assess the methodology that [Dr.
Grassian] employed in the case at hand.” Id. Accordingly, it was Plaintiff’s burden to
“demonstrate[] the admissibility of [Dr. Grassian’s] testimony in this particular case.” Id.
Plaintiff utterly failed to meet this burden and, as a result, Dr. Grassian’s opinion is inadmissible
for purposes of the instant motion.
As discussed above, however, even without Dr. Grassian’s opinion, the admissible
evidence in this case establishes that Plaintiff suffered a substantial “intermediate harm” as a
result of Defendants’ delay in providing him access to medical care.

Because the evidence thus

demonstrates both that Plaintiff’s medical need was objectively sufficiently serious and that
25

Defendants’ delay in meeting that need caused him substantial harm, “there are genuine factual
issues precluding summary judgment against [Plaintiff] on the objective component of the
Estelle test.” Mata, 427 F.3d at 755.
Subjective Component
In order to meet the subjective component of the deliberate indifference test, Plaintiff
“must establish that Defendants knew he faced a substantial risk of harm and disregarded that
risk, ‘by failing to take reasonable measures to abate it.’” Kikumura, 461 F.3d at 1293 (quoting
Farmer, 511 U.S. at 847).

Because Defendants are not medical professionals but instead jail

officials who assumed “gate keeping” authority over Plaintiff’s access to medical professionals,
Plaintiff’s specific burden is to demonstrate that Defendants “denied or delayed him access to
medical care in conscious disregard of a substantial risk of serious harm.” Blackmon, 734 F.3d at
1245.

Defendants’ own evidence establishes that Defendants were aware of Plaintiff’s

unrelenting psychotic condition, yet failed to take the reasonable measure of providing Plaintiff
access to medical treatment, by transporting him by ambulance to the Medical Center or
otherwise, in order to abate that condition.
Specifically, the symptoms of Plaintiff’s psychotic condition not only were obvious, but
also were observed, recorded and identified by Defendants. Plaintiff’s symptoms, and the
record of those symptoms, continued virtually without interruption from the moment that he
arrived at the Detention Center until he was transported to the Medical Center four days later.
During administration of the initial screening questionnaires and the booking process, Plaintiff
showed “signs of depression”, was “acting in a strange manner ([could not] focus, [was]
hallucinating),” was “disoriented,” was “hard to keep on track . . . when answering simple
questions,” and was so “disruptive” that Sandoval found it necessary to call Tri-County
26

Behavioral Health Services “for help in calming him down.”

Docs. 70-4 to 70-7. Upon

learning that Tri-County Behavioral Health Services could not provide any assistance,
Defendants did not seek any alternative means of securing mental health services for Plaintiff.
Nonetheless, Plaintiff’s need for medical attention was so clear from his “demeanor” that Salazar
had Plaintiff “fill out a medical request to see a doctor.”

Doc. 70-7.2

Further, from the initial screening questionnaires, Defendants learned that Plaintiff had a
psychiatric history, had previously attempted suicide, felt that he had nothing to look forward to
in the future, was suffering from a current illness or injury, and had been treated for mental
illness.

Docs. 70-4, 70-5.

Similarly, shortly after Plaintiff was booked into the Detention

Center, Defendants were put on notice by Plaintiff’s brother, Marcel, that Plaintiff needed to be
on medication for his mental health condition. Docs. 70-6, 74-10.3

After receiving this

information regarding Plaintiff’s physical and mental health history and current need for
medication, and observing Plaintiff’s symptoms during the booking process, Defendants decided
to “house” Plaintiff by himself, keep him “under constant video surveillance,” and “physically
check[]” him “every 30 minutes.” Docs. 70-7; 70-6.
Once he was placed in a cell, Defendants observed that Plaintiff continued to display
clear signs of mental distress, “remov[ing] his jail uniform[,] yelling profanities and pouring

2 There is no evidence that Plaintiff’s request to see a doctor was granted.

Further, it is unclear
how such a request could be granted, when the Detention Center is too small to employ a staff
doctor or operate an onsite medical clinic. Doc. 70-6 at ¶ 6.
3 According to Plaintiff’s evidence, Plaintiff’s brother, Marcel, advised jail staff that Plaintiff

had been diagnosed with “something like Schizophrenia,” was under their mother’s care, and
urgently needed medication, the name of which he relayed to jail staff. Doc. 74-10. Although
Defendants’ evidence provides a different version of events regarding Marcel’s visit to the
Detention Center, Defendants’ evidence similarly demonstrates that, shortly after Plaintiff was
booked into the Detention Center, Marcel arrived at the Detention Center and stated that
“Plaintiff needed to be on medication.” Doc. 70-6.
27

water upon himself in the nude.” Doc. 70-7.

During the four days that he spent in the cell,

Plaintiff repeatedly undressed, and was observed to be without any clothing no less than 55
times.

Id.

Until he was removed from his cell, Defendants consistently observed Plaintiff

talking to himself, talking to the door, pacing, talking or yelling incoherently, dancing,
screaming, exhibiting signs of delirium, throwing things, banging on the door, and howling.

Id.

Based on the observations of Plaintiff’s symptoms recorded in the first of the three
Resident Safety/Welfare Logs, which ends at 1:00 a.m. on Sunday May 26, 2013, Sandoval
himself drew the conclusion that Plaintiff needed “a mental health evaluation.”

Doc. 70-6.

That conclusion remained unchanged over the course of the next two and one-half days, during
which no such evaluation was sought, as Sandoval continued to draw the conclusion that, based
on Plaintiff’s continuing symptoms, Plaintiff should be “let out” because he needed a “mental
evaluation.”

Id.

Indeed, based on Plaintiff’s appearance in “video court,” the judge ordered that Plaintiff
be transported immediately to the Medical Center for just such an evaluation.

Doc. 70-7 at 1.

Upon transporting Plaintiff to the Medical Center, Plaintiff’s “jailers” reported to the Medical
Center that the “chief complaint” for Plaintiff’s visit was psychosis.

Doc. 70-10.

The

transporting officials further reported that, while in custody at the Detention Center, Plaintiff had
“been in a private secluded room because he [had] been acting psychotic, crazy, boisterous,
agitated and some anxiety when in the company of other prisoners.” Id.
Viewed together and “in the light most favorable” to Plaintiff, this evidence is more than
sufficient to draw the inference that Defendants “subjectively knew of the substantial risk of
harm” posed by Plaintiff’s untreated psychosis. Blackmon, 734 F.3d at 1245.

Defendants

were on notice that Plaintiff had a psychiatric history, had previously attempted suicide, was
28

suffering from a current illness or injury, and had been treated for mental illness.
were also on notice that Plaintiff needed medication.

Defendants

Further, based on their observations of his

obvious symptoms, Defendants not only recognized that Plaintiff needed to see a doctor and
have a mental evaluation, but also actually identified Plaintiff’s condition as “psychosis.”

As

the four-day log of Plaintiff’s unrelenting symptoms reflects, Defendants “had a front row seat”
to Plaintiff’s prolonged psychotic episode. Spencer, 2017 WL 6016309, at *10 (citations
omitted). Defendants had a procedure in place for handling detainee medical emergencies,
namely, sending detainees by ambulance to the Medical Center, and knew that they could send
Plaintiff to that facility over the Memorial Day weekend.

Nonetheless, Defendants

undisputedly denied Plaintiff access to medical care for four days.

From this evidence, “[a]

reasonable jury could find that [Defendants] possessed a culpable state of mind primarily
because the “facts from which the inference could be drawn that a substantial risk of serious
harm exists were remarkably obvious and [Defendants] had . . . a front row seat to observe
them.” Spencer, 2017 WL 6016309, at *10 (citations omitted); see also Lopez, 2013 WL
1668239 at *5 (observations by defendants of plaintiff while in detention, combined with request
by arresting officer for mental evaluation, provided sufficient facts from which knowledge of
specific risk of harm could reasonably and plausibly be inferred). Accordingly, Plaintiff has
raised an issue of material fact precluding summary judgment against Plaintiff on the subjective
component of the deliberate indifference test. Mata, 427 F.3d at 758.
None of Defendants’ arguments suggests a contrary conclusion.

First, Defendants

contend that because they are not “mental health professionals,” the clearly established law
protecting a detainee from deliberate indifference based on the denial of medical care does not
apply to them.

Doc. 80 at 12-13. This argument was soundly rejected by the Tenth Circuit in
29

Blackmon, where the court stated that “[b]y 1997 [the Tenth Circuit] had clearly held that the
Eighth Amendment is offended not only by medical professionals who fail to treat, but also by
prison officials who assume ‘gate keeping’ authority over prisoner access to medical
professionals.”

734 F.3d at 1245. Defendants do not deny that they “were at least the mental

health ‘gate keepers’” at the Detention Center, that they observed Plaintiff’s symptoms of
psychosis, and that the only steps that they took, namely, segregating Plaintiff and observing him
in his cell while his psychotic symptoms continued unabated, failed to help improve his mental
state.

Id. The facts demonstrate as well that Defendants “delayed or denied him access to

mental health care by qualified professionals.” Id.

Accordingly, Plaintiff “has produced

enough facts that, if credited, could suggest a violation of clearly established law.” Id. at 1246.
Next, Defendants argue that “it remains undisputed that [Defendants] did not actually
draw the inference that a substantial risk of serious harm existed to Plaintiff.”

Doc. 80 at 14.

In support of this argument, Defendants note two facts, namely, that “while detained at the
Detention Center, Plaintiff did not suffer any physical harm,” and that Defendants “did not have
access to Plaintiff’s medical records such that they would know what Plaintiff’s specific
psychiatric diagnoses were, if any, and what medication would be required to treat his
psychiatric condition.” Id.

Neither of these facts proves that Defendants did not actually draw

the inference that Plaintiff’s psychosis, left medically unattended, posed a substantial risk of
serious harm.

First, identifying the harm as physical harm misunderstands the relevant inquiry.

As discussed above in the context of the objective component of the deliberate indifference test,
Plaintiff suffered a substantial intermediate harm in the form of prolonged suffering in a
psychotic state.

Accordingly, the issue presented here, in the context of the subjective

component of the deliberate indifference test, is whether Defendants drew the inference from
30

Plaintiff’s obvious symptoms that there was a substantial risk that Plaintiff’s psychotic state and
attendant suffering would be prolonged if left medically unattended. See Mata, 427 F.3d at 756
(holding that a detainee may satisfy the subjective component by showing that defendants’
failure to provide medical treatment caused unnecessary pain).

For the reasons discussed

above, viewing the record in the light most favorable to Plaintiff, “one could draw that inference
here.”

Blackmon, 734 F.3d at 1245.
Further, even if physical harm were at issue, the fact that Plaintiff did not ultimately

suffer any “incident or injury” is irrelevant, as the test for deliberate indifference “does not
require actual harm to be suffered.” Blackmore v. Kalamazoo Cty., 390 F.3d 890, 899 (6th Cir.
2004) (“A determination that Blackmore’s appendix ruptured is not a prerequisite for his Eighth
Amendment right to avoid the pain from the officers’ deliberate indifference to his obvious need
for medical care.”).

The pertinent inquiry is whether Defendants consciously disregarded a

substantial risk of serious harm, not whether the potential harm to which Plaintiff was exposed
actually came to pass. Mata, 427 F.3d at 756 (“Events occurring subsequent to Ms. Weldon’s
complete denial of medical care to Ms. Mata have no bearing on whether Ms. Weldon was
deliberately indifferent at the time she refused to treat Ms. Mata.”) (emphasis in original).

“[I]t

makes no sense to say that [Plaintiff] would have had a valid claim against [Defendants] if [he
had injured himself], but [he] does not because [he] was fortunate enough [not to have injured
himself despite the fact that Defendants] refused to provide [him] any medical attention.”

Id.

Similarly, in the face of the “remarkably obvious” facts presented to Defendants, it is of
no moment that Defendants did not have access to Plaintiff’s medical records. Farmer, 511
U.S. at 842.

Defendants did not need to be aware of Plaintiff’s actual diagnosis or the specific

name of his medications to be able to infer from Plaintiff’s symptoms, in conjunction with
31

Plaintiff’s brother’s statement that Plaintiff needed medication and Plaintiff’s own report of his
psychiatric history and treatment for mental illness, that Plaintiff needed medical attention.

In

other words, the issue is not whether Defendants knew of Plaintiff’s diagnosis and medication,
but rather whether they were deliberately indifferent to Plaintiff’s obvious need for medical
attention. Again, viewing the record in the light most favorable to Plaintiff, “one could draw
that inference here.”

Blackmon, 734 F.3d at 1245.

Admittedly, “[i]t remains open to officials to “prove that they were unaware of even an
obvious risk to inmate health and safety,” and “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 842.
Defendants, however, have not come forward with any evidence demonstrating that they were
unware, despite Plaintiff’s obvious symptoms, of the substantial risk that Plaintiff would remain
in his psychotic state unless he were afforded access to medical care.

Nor have Defendants

established that they “responded reasonably” to the risk of harm to Plaintiff.

Defendants appear

to argue that it was reasonable for them to segregate Plaintiff “from the general population,
checking on him every half-hour,” rather than sending Plaintiff by ambulance to the Medical
Center, because Plaintiff was not hurting himself and was not at risk of harm by other detainees.
Doc. 70 at 11.

“The fact that [Defendants] may have taken some action, however, does not

mean that they satisfied all of [Plaintiff’s] serious medical needs as a matter of law.” Lopez,
2013 WL 1668239 at *4.

The risk at issue here was not that Plaintiff would physically hurt

himself or be hurt by others, but rather that his psychotic state would needlessly be prolonged
without medical attention.

Defendants’ response to Plaintiff’s obvious symptoms – choosing to

leave him in isolation in his cell for four days instead of sending him by ambulance to the
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Medical Center – was simply not reasonable, and thus does not spare Defendants from liability.
Nor does the Tenth Circuit’s decision in Sealock alter this conclusion.

In Sealock, the

plaintiff, who had suffered a heart attack, brought an Eighth Amendment claim against a nurse, a
physician’s assistant, and a shift commander.

After finding that the plaintiff had met the

objective component of the deliberate indifference test, the court considered whether the plaintiff
also met the subjective component as to each defendant.

The nurse saw the plaintiff at the

infirmary at 6:00 a.m. and, in response to his statements that he had chest pain and could not
breathe, told the plaintiff that he had the flu and that there was nothing she could do for him until
the physician’s assistant arrived at 8:00 a.m. The court held that the nurse was entitled to
summary judgment, explaining:

“At worst, she misdiagnosed appellant and failed to pass on

information to P.A. Havens about appellant’s chest pain.”

218 F.3d at 1211.

In contrast, as to

the shift commander, the court found that the facts demonstrated “for summary judgment
purposes that Barrett knew of and disregarded the excessive risk to appellant’s heath that could
result from the delay.” Id. at 1210. Specifically, the court noted that there was “evidence that
Barrett was informed that appellant might be having a heart attack, and that he was present when
appellant displayed symptoms consistent with a heart attack. Barrett allegedly refused to drive
appellant to the hospital, and told appellant not to die on his shift.”

Id. Similarly, the court

reversed summary judgment in favor of the physician’s assistant, because there was evidence
that he was informed that the plaintiff was suffering from unexplained chest pain, and yet did not
call an ambulance, which, as he himself testified, was the standard procedure when an inmate
had unexplained chest pain. Id. at 1211.
Contrary to Defendant’s contention, the court in Sealock thus did not find that “the
corrections officials, including the nurse, lacked deliberate indifference.” Doc. 80 at 13.
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Rather, the court found that the nurse was the only one who was not deliberately indifferent to
the plaintiff’s serious medical needs.

As to the two defendants who, in the face of symptoms

and notice of a possible heart attack, refused to transport the plaintiff to the hospital or call an
ambulance, and thereby denied or delayed the plaintiff access to medical care, the court found
sufficient evidence from which a jury could find deliberate indifference. Just as in Sealock,
Defendants here, in the face of symptoms and notice of possible psychosis, elected not to call an
ambulance and thereby denied Plaintiff access to medical care.

Accordingly, under Sealock, the

facts here “demonstrate for summary judgment purposes that [Defendants] knew of and
disregarded the excessive risk to [Plaintiff’s mental] health that could result from the delay.”
218 F.3d at 1210.
Defendants’ arguments notwithstanding, the undisputed evidence supports the conclusion
that Defendants were in fact aware that Plaintiff was suffering from a psychotic episode and
required medical attention, yet did not take the reasonable measure of providing him access to
medical attention.

A reasonable jury could find that Defendants’ refusal to perform their

gatekeeping role demonstrated deliberate indifference to Plaintiff’s serious medical needs.
Accordingly, Plaintiff has raised an issue of material fact on the subjective element of the
deliberate indifference test.
B.

Plaintiff’s Constitutional Right Was Clearly Established.

In order to defeat Defendants’ motion for summary judgment, Plaintiff must establish not
only that Defendants violated his constitutional right to medical care, but also that this right was
clearly established at the time of the violation.

Specifically, Plaintiff “must show legal

authority making it apparent that in light of pre-existing law a reasonable official would have
known” that denying a detainee access to medical care, despite notice that the detainee had a
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psychiatric history, had been treated for mental illness and was on medication, and despite
observing the detainee’s obvious symptoms of psychosis, violated Plaintiff’s Fourteenth
Amendment right. Lundstrom, 616 F.3d at 1119.

In determining whether Plaintiff’s right was

clearly established, the “salient question” is whether the state of the law at the time of Plaintiff’s
detention – May 2013 – gave Defendants “fair warning” that their failure to provide Plaintiff
with access to medical care was unconstitutional. Hope, 536 U.S at 741.

In answering this

question, the Court looks in the first instance to “Supreme Court or Tenth Circuit precedent on
point.”

Lundstrom, 616 F.3d at 1119.
A review of the relevant Tenth Circuit case law leaves no question that the constitutional

right asserted here was clearly established by May 2013.

First, in Olsen, the Tenth Circuit held

that “[t]he right to custodial medical care is clearly established.”

312 F.3d at 1315.

Thereafter, in Mata, the Tenth Circuit reiterated that “deliberate indifference to an inmate’s
serious medical need is a clearly established constitutional right.”

427 F. 3d at 749. In

Kikumura, the Tenth Circuit further clarified that the “deliberate indifference” standard for
claims of inadequate medical care under the Eighth Amendment has “been clearly established at
least since Estelle v. Gamble, 429 U.S. 97 at 104, decided in 1976.”

461 F.3d at 1296.

Later,

in Blackmon, the Tenth Circuit explained that the clearly established right to medical care
encompasses psychological needs, holding that “by 1997 it was clearly established law that the
deliberate disregard of a patient’s psychological needs can violate a detainee’s constitutional
rights no less than the deliberate disregard of his physical needs.”
Ramos v. Lamm, 639 F.3d 559, 575 (10th Cir. 1980)).

734 F.3d at 1245 (citing

Similarly, the Blackmon court clarified

that the clearly established right to medical care applies to gatekeeping prison officials in
addition to medical professionals: “By 1997 this court had clearly held that the Eighth
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Amendment is offended not only by medical professionals who fail to treat, but also by prison
officials who assume ‘gate keeping’ authority over prisoner access to medical professionals.”
Id. (citing Ramos, 639 F.3d at 575).
Defendants concede that it is clearly established that “pretrial detainees may not be
treated with deliberate indifference to their serious medical needs.”

Doc. 70 at 14.

Nonetheless, Defendants argue that “[t]he particular contours of the right Plaintiff asserts can be
found nowhere in existing case law.”

Id.

Specifically, Defendants contend that while

“Plaintiff was displaying strange behavior which might require a medical evaluation,” there was
“no indication that Plaintiff was in severe distress, or required emergency medical attention.”
Id.

For this reason, Defendants conclude, this is “the type of ‘hazy border’ that the law of

qualified immunity recognizes as warranting protection for individual officials.”

Id. at 15.

The Court cannot agree either with Defendants’ characterization of the facts or with
Defendants’ interpretation of the relevant legal inquiry.

As discussed above, there was

abundant indication – observed, recorded, and identified by Defendants – that Plaintiff was in
severe distress and required medical attention in order to alleviate that distress.

Further, “the

contours of the right” at issue here have been clearly defined and repeatedly reaffirmed by the
Tenth Circuit.

Defendant has pointed to no authority, and the Court has found none, in which

the Tenth Circuit (or any other circuit) has declined to find an inmate or detainee’s right to
medical care clearly established because the specific factual context in which the right was
asserted was different from the factual context of the cases establishing the right in the first
instance. Nor has the Court found any cases in which the Tenth Circuit had defined a
detainee’s right to access to medical care for serious psychological needs with any more
specificity than it did in the language quoted above.
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Indeed, the Tenth Circuit has counseled

against the very sort of “scavenger hunt for prior cases with precisely the same facts” upon
which Defendants appear to insist. Casey, 509 F.3d at 1284.

There is simply no support for

Defendants’ argument that the contours of the right asserted here are too hazy to meet the clearly
established prong of the qualified immunity test.
To be sure, the Tenth Circuit has cautioned that the inquiry as to whether a right is clearly
established may not be undertaken “as a broad general proposition,” and accordingly, that the
plaintiff is charged with doing more than identifying “in the abstract a clearly established right
and alleg[ing] that the defendant has violated it.”

Lundstrom, 616 F.3d at 1119. Plaintiff,

however, has met his burden of identifying a sufficiently specific right, namely, the right to be
afforded access to medical attention for serious psychological needs, and has set forth sufficient
facts to support the conclusion that Defendants, as the mental health gatekeepers at the Detention
Center, violated this specific right. The “general constitutional rule” identified in the Supreme
Court and Tenth Circuit law discussed above thus “appl[ies] with obvious clarity to the specific
conduct in question” here. Hope, 536 U.S. at 741.

In other words, Defendants’ failure to take

the reasonable measure of providing Plaintiff access to medical care, in conscious disregard of
the substantial risk presented by his obvious symptoms of psychosis, falls squarely within the
clearly established law.
CONCLUSION
With regard to his ADA claim, set forth in Count IV of the Complaint, Plaintiff consents
to dismissal of this claim as to Defendants. Accordingly, Defendants’ motion for summary
judgment is granted as to Count IV.
With regard to his due process claim, set forth in Count V of the Complaint, Plaintiff has
shown both that Defendants violated a constitutional right and that the right was clearly
37

established. Because Plaintiff thus has satisfied both parts of the qualified immunity inquiry,
Defendants are not entitled to summary judgment against Plaintiff on his due process claim.
Accordingly, Defendants’ motion for summary judgment is denied as to Count V.
IT IS THEREFORE ORDERED that the Amended Motion for Summary Judgment on
Claims Against Individual County Defendants and Memorandum of Law in Support Thereof
[Doc. 70] is GRANTED IN PART AND DENIED IN PART, as follows: Count IV of
Plaintiff’s Complaint is dismissed as against Defendants Salazar, Bernal, and Sandoval; Count V
of Plaintiff’s Complaint remains viable.

DATED this 30th day of July, 2018.

MARTHA VÁZQUEZ
United States District Judge

Attorneys for Plaintiff
Randy S. Bartell
Alexia Constantaras
Montgomery & Andrews, P.A.

Attorneys for Defendants
Joseph P. Kennedy
Theresa V. Hacsi
Kennedy Kennedy & Ives, LLC

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